Independent Contractors, Freelancers and Gig Workers: Discrimination and Harassment Protection in New York

Whether an independent contractor, freelancer or gig worker is protected from discrimination and harassment in New York depends on which layer of law applies. The EEOC states that independent contractors are not covered by the federal laws it enforces.⁠^[1] The New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) each have a provision that reaches people who are not employees.⁠^[2][3]

The provisions quoted in this guide do not use the word "gig". What matters is whether a worker fits the words each statute does use, such as "employee", "non-employee", "freelancer" or "independent contractor". This guide does not cover the separate question of whether a worker labeled a contractor is legally an employee; that is a different body of law with its own tests.

How do the three layers compare?

Layer	What the law says about non-employees	Source
Federal (Title VII and the other laws the EEOC enforces)	The EEOC states that people who are not employed by the employer, such as independent contractors, are not covered.	⁠[1]
Federal (42 U.S.C. § 1981, race)	Protects the right to make and enforce contracts, including their performance and termination; no employee-count threshold.	⁠[5][6]
New York State (NYSHRL, Exec. Law § 296-d)	An employer may not permit unlawful discrimination against non-employees in its workplace, and may be liable to contractors, subcontractors, vendors, consultants and their employees.	⁠[2]
New York City (NYCHRL, Admin. Code § 8-107(23))	The protections relating to employees apply to interns, freelancers and independent contractors.	⁠[3]
New York State (Labor Law § 740, whistleblowing)	"Employee" includes natural persons working as independent contractors in furtherance of the employer's business who are not themselves employers.	⁠[4]

What does federal law cover?

Title VII applies to an "employer" with 15 or more employees, and its prohibitions are framed around employment.⁠^[7][8] The EEOC's statement that independent contractors are not covered is about the laws that agency enforces.⁠^[1]

One federal statute is framed differently. Section 1981 gives all persons the same right "to make and enforce contracts" as is enjoyed by white citizens, and defines that phrase to include the making, performance, modification and termination of contracts and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.⁠^[5] Its text is about race, and it contains no minimum number of employees.⁠^[5][6] A § 1981 claim does not require an EEOC charge first, and filing an EEOC charge does not pause the § 1981 time limit.⁠^[9] A plaintiff under § 1981 has to plead and prove that, but for race, the loss of a legally protected right would not have happened.⁠^[10] The guide to Title VII in New York covers the federal baseline.

What does New York State law provide?

Executive Law § 296-d: non-employees in the workplace

Under the NYSHRL, it is an unlawful discriminatory practice for an employer to permit unlawful discrimination against non-employees in its workplace.⁠^[2] The statute says an employer may be held liable to a non-employee who is "a contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace", or who is an employee of such a person.⁠^[2]

The section sets conditions. Reading its text, a non-employee's claim against the business involves these points:

1. The person was providing services under a contract in the workplace, or was employed by someone who was.⁠^[2]
2. The person was subjected to an unlawful discriminatory practice in the employer's workplace.⁠^[2]
3. The employer, its agents or its supervisors knew or should have known.⁠^[2]
4. The employer failed to take immediate and appropriate corrective action.⁠^[2]

In reviewing these cases, the statute directs that the extent of the employer's control, and any other legal responsibility the employer may have, over the conduct of the person who engaged in the discriminatory practice be considered.⁠^[2]

Section 296-d has changed since it was enacted. When it was added in 2018 it covered only sexual harassment of non-employees.⁠^[11] A 2019 amendment widened it to every unlawful discriminatory practice.⁠^[11] That amendment took effect on the sixtieth day after the act became law, a date the Appellate Division, Second Department, has given as October 11, 2019.⁠^[12] A description of § 296-d as a sexual harassment provision reflects the 2018 version.

Two more points about the section's reach. First, § 296-d protects non-employee workers; by its text it does not itself say that an employer is liable when a customer harasses an employee.⁠^[2] That situation is covered in the guide to harassment by customers, clients and vendors. Second, because the State law covers all employers within the state, § 296-d has no small-business exception written into the definition of "employer".⁠^[13]

What State guidance tells contractors and host businesses

New York State's sexual harassment guidance addresses a worker employed by a contractor and placed at another business's site. It says both the worker's own employer and the business that operates the worksite are required to provide a harassment-free workplace, and that the worker should report the conduct to both.⁠^[14]

The same guidance says employers are not required to provide their sexual harassment prevention policy to independent contractors, vendors or consultants, but that under the NYSHRL the employer is responsible and can be liable for the actions of these workers while in its workplace.⁠^[15] The policy and training guide explains what employers owe their own employees.

Whistleblower protection under Labor Law § 740

New York State's whistleblower law defines "employee" as an individual who performs services for and under the control and direction of an employer for wages or other remuneration, and expressly includes former employees and natural persons employed as independent contractors to carry out work in furtherance of an employer's business enterprise who are not themselves employers.⁠^[4] Former employees and independent contractors were added to that definition by Chapter 522 of the Laws of 2021.⁠^[16] The statute protects disclosing, or threatening to disclose, to a supervisor or public body an employer activity, policy or practice the person reasonably believes violates a law, rule or regulation.⁠^[17] It applies to any employer with one or more employees.⁠^[18] The guide to Labor Law § 740 has the full rules.

What does New York City law provide?

The NYCHRL says in one sentence: "The protections of this chapter relating to employees apply to interns, freelancers and independent contractors."⁠^[3] The words "freelancers and independent contractors" were added by Local Law 172 of 2019, and the NYC Commission on Human Rights gives January 11, 2020, as that local law's effective date.⁠^[3][19]

Several related City rules matter to contractors:

• Counting to four. For most of its employment provisions, the City law does not apply to an employer with fewer than four persons in its employ at all times during a period that starts twelve months before the discriminatory practice began.⁠^[20] Independent contractors working in furtherance of the employer's business are counted as persons in its employ.⁠^[21]
• Gender-based harassment. A claim of gender-based harassment can be brought against any employer in New York City, including one with fewer than four persons in its employ.⁠^[22]
• Retaliation. The City law's retaliation provision protects "any person" who opposed a forbidden practice, filed a complaint or took the other listed steps.⁠^[23]
• When the wrongdoer is a contractor. Under the City law, an employer is liable for an unlawful discriminatory practice committed by a person employed as an independent contractor (other than an agent of the employer) to carry out work in furtherance of its business only where the conduct was committed in the course of that employment and the employer had actual knowledge of it and acquiesced.⁠^[24][25]

The overview of the City Human Rights Law explains who and where the law reaches.

Where and when can a contractor bring a claim?

Claim	Forum	Time limit
NYSHRL (including § 296-d)	State Division of Human Rights	Three years after the alleged practice.⁠[26]
NYSHRL	Court	Three years.⁠[27]
NYCHRL	NYC Commission on Human Rights	One year; three years for a claim of gender-based harassment.⁠[28][29]
NYCHRL	Court	Three years.⁠[30]
Labor Law § 740	Court	Two years after the retaliatory action.⁠[31]
42 U.S.C. § 1981 (claims made possible by the 1991 amendments)	Court	Four years.⁠[32]

Under both the State and the City law, a person has a cause of action in court unless the person has filed a complaint with the State Division of Human Rights or the NYC Commission on Human Rights; each statute then lists its own exceptions.⁠^[33][34] See the guides to choosing among the agencies and court and to claim deadlines.

What is not settled by the statutes' text

Some questions are not answered by the words of these statutes, and this guide does not answer them:

• How § 296-d's phrase "in the workplace" applies to a contractor who works remotely or through an app. The statute speaks of the employer's "workplace" and of services provided "in the workplace".⁠^[2] The guide to remote work and online harassment covers related questions for employees.
• Whether a given worker is correctly classified as a contractor in the first place.
• Payment disputes, such as late or unpaid invoices, which are outside the four subjects of this library.

Practical points for contractors and the businesses that hire them

If you are a contractor, keep your contract, statements of work and invoices together with dated notes of what happened, who was involved and whom you told. If you reported the conduct, note when and to whom, including anyone at the client business. For a fuller explanation of which workers each law reaches, see who is protected: employees, contractors and interns.

If you run a business, treat a complaint from a contractor, vendor or consultant the way you would treat one from an employee: record it, look into it promptly and act on what you find. Under the State law, § 296-d turns on whether the employer took immediate and appropriate corrective action once it knew or should have known.⁠^[2] The guide for managers and small employers collects the duties that apply to every New York employer.