Click here for Part II and Part III

What do you do if you encounter discrimination while working as a musician?

The first thing you should ask yourself is, am I performing under an 802 union contract? If you are playing a union job, you may have additional protections. Call the union immediately to assess your rights.

If the job is not covered by a union contract, 802 may still be able to advise you. You may end up proceeding with a private attorney.

If the job is nonunion, there is no law on the books anywhere which requires your employer to treat you well. I remember one particular suit in which I was involved where the employer’s defense was that he hadn’t committed unlawful discrimination because he had treated all of his employees equally poorly regardless of their race, national origin or religion. Believe it or not, this defense actually had some appeal to the trial judge!

Legal protection is specific. Federal law prohibits employment discrimination on the basis of an employee’s age, gender, national origin, religion or disability. Protection is also accorded if an employee is pregnant, or subject to sexual harassment.

Each of the categories listed above, however, is limited in scope by federal law.

For instance, the age discrimination statute does not apply if an employee is under forty years of age. Gender discrimination under federal law does not prohibit discrimination on the basis of sexual preference*. Also, discrimination on the basis of disability does not apply to disabilities that do not affect a major life activity such as walking, eating or seeing.

One of the biggest hurdles for musicians is to demonstrate that they are actually employees – not independent contractors. If you are working a union job, then you’ve probably already passed this hurdle and are considered an employee. But if you are working a nonunion job and cannot prove that you are an employee, you will not be entitled to protection under any anti-discrimination statute.

For instance, in March of this year, the U.S. Court of Appeals for the Eighth Circuit dismissed an orchestra member’s sexual harassment claim because the musician was found to be an independent contractor. Lerohl v. Friends of Minnesota Sinfonia, 322 F. 3d 486 (2003).

In that court decision, the court found that the musician retained ultimate control and discretion over whether or not he was going to accept or decline particular performances. The fact that the musician retained such discretion disqualified him from coverage**.

This holding, however, is not binding on the federal courts within Local 802’s jurisdiction and it is debatable whether its reasoning will be adopted here. Additionally, New York State has some laws on the books – that 802 helped pass – which may help musicians prove they are employees.

Nonetheless, if you are a musician in an orchestra or band and you can choose whether to play a particular concert or not, you could run the risk of being deemed an independent contractor.

Another related question is, how much control do you have over your fellow bandmembers?

For instance, in 1980, the Court of Appeals for the Ninth dismissed a suit in which a musician claimed that his employer – a school district – had discriminated on the basis of his religion. Lutcher v. The Los Angles Unified School District, 633 F. 3d 880 (9th Cir. 1980).

The court decided that the musician was an independent contractor – not an employee – and therefore not covered by anti-discrimination laws. Why? Because the musician retained control over his group’s equipment, transportation and membership – even though the school district had ultimate control over the contents of the musical production. I personally question the validity of this determination, but unfortunately, I’m not the judge.

Based upon this determination, musicians who hire, equip and transport members of their group runs the risk of losing protection from illegal employment discrimination.

As a rule of thumb, then, the greater the degree of control retained by musicians over the means, method and time of their performances, the greater the likelihood they will be deemed to be independent contractors.

So before you take a job, you should realize that if you have a lot of control over the gig, you may be an independent contractor. If so, you will not be covered by anti-discrimination laws.

In my next article I will cover how to assess the merits of a discrimination claim.

Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.

FOOTNOTES

* State or local municipal law, however, may cover sexual preference. It should be noted that the New York City Administrative Code prohibits employment discrimination against employees on the basis of their sexual preference.

** This decision flies in the face of a 2002 National Labor Relations Board (NLRB) determination finding that the Seattle Opera’s auxiliary choristers were actually opera employees. It should be noted that the standard under the National Labor Relations Act, the statute controlling decisions made by the NLRB, is distinct from the standard under the federal civil rights statutes.