Discrimination Cases Update

The U.S. Court of Appeals for the First Circuit ruled that a TV series hostess wasn't an employee but rather an independent contractor unprotected by Title VII of the Civil Rights Act of 1964. Alberty-Velez v. Corporacion De Puerto Rico Para La Difusion Publica, 361 F.3d 1. Plaintiff Victoria Lis Alberty-Velez served as hostess of a TV series that profiled municipalities on WIPR in Puerto Rico. When she filed suit for pregnancy and gender discrimination, the district court granted summary judgment for the TV station.

Affirming in a ruling of first impression, the court of appeal initially decided that whether an individual qualifies as an employee under Title VII should be based on a common law agency test. Under this test, the appeals court then noted: “First, a television actress is a skilled position requiring talent and training not available on-the-job. … Second, Alberty provided the 'tools and instrumentalities' necessary for her to perform. Specifically, she provided, or obtained sponsors to provide, the costumes, jewelry, and other image-related supplies and services necessary for her appearance. … Third, WIPR could not assign Alberty work in addition to filming 'Desde Mi Pueblo.' [The hostess signed a new contract to work on each episode.] … Fourth, the method of payment favors independent contractor status. Alberty received a lump sum fee for each episode. … Fifth, WIPR did not provide Alberty with benefits. She did not receive paid leave, health insurance, life insurance, or retirement benefits from WIPR. … Sixth, Alberty's tax treatment suggests independent contractor status. Both she and WIPR classified her income as deriving from professional services rendered rather than wages earned.”

The Court of Appeal of California, Second Appellate District, Division Seven, ruled that “creative necessity” is not an affirmative defense to a sexual harassment claim, but that it can be considered by a jury along with other factors in determining whether the defendants' conduct created a hostile work environment. Lyle v. Warner Brothers Television Productions, B160528. Plaintiff Amaani Lyle, an African-American woman, was hired to be a writers' assistant on the TV series “Friends.” She was fired 4 months later because the defendants contended she was unable to type fast enough. Lyle filed suit alleging race and gender discrimination, racial and sexual harassment, and retaliation for opposing racial discrimination against African-Americans in the series casting. The trial court granted summary judgment in favor of the defendants. The court of appeal reversed on the harassment claims.