Uberizing Discrimination

42 Pages Posted: 28 Feb 2019 Last revised: 2 Jun 2020

See all articles by Minna J. Kotkin

Minna J. Kotkin

Brooklyn Law School; Brooklyn Law School

Date Written: February 27, 2019

Abstract

What does the growth of on-line gig work mean for the future of employment discrimination law? While customers may not care about the sex and race of their Uber driver, elements of explicit and implicit bias can be expected when it comes to personal, home based services like TaskRabbit or Care.com, or professional business services such as Catalant. In fact, the ubiquity of photographs and other personal data on these apps facilitates discrimination, as some empirical data suggests. Since predictions indicate that gig workers may soon account for 40% of the workforce, the goals of our employment discrimination laws – ensuring equal access and opportunity – may well be thwarted if current doctrine is applied.

The employment discrimination statutes were drafted at a time when the definition of “employee” was not highly contested, and judicial interpretations have excluded independent contractors from their coverage. Whether gig workers are independent contractors under the wage and hour laws has been the subject of significant litigation and scholarly commentary, but no consideration has been given to the question of discrimination in their hiring and firing. This article explores that question. It draws distinctions between discrimination and wage and hour policies; develops several innovative legal theories to protect gig workers under current law; analyzes cases that are just beginning to raise these issues; and finally suggests a normative taxonomy for determining statutory coverage that would replace the outmoded employee/independent contractor dichotomy.

Keywords: employment discrimination, civil rights, technology, implicit bias

Suggested Citation

Kotkin, Minna J. and Kotkin, Minna J., Uberizing Discrimination (February 27, 2019). Tennessee Law Review, Vol 87, p. 73, 2019, Brooklyn Law School, Legal Studies Paper No. 602 (2019), Available at SSRN: https://ssrn.com/abstract=3343799

Minna J. Kotkin (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
718-780-7992 (Phone)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
718-780-7992 (Phone)

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