The Brett Favre sexting scandal raises, among other things, a relatively frequent issue that arises in employment discrimination and harassment cases: May an independent contractor invoke employment antidiscrimination statutes such as Title VII? The short answer is "no" based on the text of the statutes which apply statutory protections only to "employees" and set forth statutory obligations of their "employers". By definition, an independent contractor is not an "employee" but rather an independent entity that performs its duties according to its own methods and means without the control or supervision of the party with whom it contracted.

In the Brett Favre incident, while he was an employee of the New York Jets and arguably under their control and direction, it is now known that Jenn Sterger, the alleged victim of Mr. Favre's sexting-harassment, was not an employee of the Jets. Instead, according to a Jets public statement, Ms. Sterger was an independent contractor retained to perform sideline reporting only on game days. It is therefore likely, if this was a true independent contractor relationship and the Jets did not control the manner and means of Ms. Sterger's duties and reporting, that she will be unable to invoke statutory protections of antidiscrimination laws against the Jets or Mr. Favre.

Some state and local laws, however, do have statutory exceptions expanding employment antidiscrimination protections to independent contractors. For example, the New Jersey Law Against Discrimination expressly prohibits the refusal to contract with, or the non-renewal of, an independent contractor, on the basis of the independent contractor's protected class. N.J.S.A. 10:5-12(l). Indeed, this year a New Jersey appellate court in J.T.'s Tire Serv. Inc. v. United Rentals N.A., Inc., 411 N.J. Super. 236 (App. Div. 2010) held that quid pro quo sexual harassment of an independent contractor that results in the harasser ceasing doing business with the contractor states a viable claim under N.J.S.A. 10:5-12(l). Also, under New York City's Human Rights Law, an independent contractor may fall within the protections of that law if he/she is considered a "natural person" who carries out work "in furtherance of an employer's business enterprise." N.Y.C. Admin. Code §8-102(5).

Under Title VII, however, the law is clear that if Ms. Sterger is an independent contractor she will be unable to state a prima facie cause of action against the Jets or Mr. Favre due simply to the absence of an employment relationship with either of them. Indeed, the Second Circuit could not be more clear on this point, holding: "Once a plaintiff is found to be an independent contractor and not an employee . . . the Title VII claim must fail." Courts have carved out exceptions, however, and will look beyond mere labels in assessing whether a plaintiff is an employee and the defendant an employer, and apply the common law of agency to determine whether an individual is an independent contractor or an employee. Generally, for the purposes of Title VII, courts refer to thirteen factors articulated by the Supreme Court in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751 (1989): These factors are:

[1] the hiring party's right to control the manner and means by which the product is accomplished [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party's discretion over when and how long to work; [8] the method of payment; [9] the hired party's role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; and [13] the tax treatment of the hired party.

In the employment discrimination context, many courts place the greatest emphasis on the first factor — the extent to which the hiring party controls the manner and means by which the worker completes his or her assigned tasks. See e.g. Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 227-28 (2d Cir. 2008) ("What is at issue is not merely the right to dictate the outcome of the work, but the right to control the 'manner and means' by which the hiree accomplishes that outcome.")

Although more information is needed to determine the respective rights and potential exposure of the parties to this scandal, there are important takeaways from this incident for employers. First, how individuals are classified as employees or independent contractors remains an important matter deserving of thorough analysis. It is insufficient to rely on a mere label. Second, employees should be trained that their interactions with non-employee contractors should nevertheless comport with the company's anti-harassment and antidiscrimination policies. Third, to mitigate potential exposure, employers should consider developing channels for even independent contractors to complain about incidents of discrimination and harassment with effective resolution mechanisms in place. And, finally, employers should remind employees that even supposedly off-duty communications on personal wireless devices intended to be "private" can, and often do, serve as the basis for a workplace complaint that may trigger a duty to investigate.