Employee Classification and Religious Discrimination in Massage Therapy

Introduction: Two Key Legal Issues

This case presents two distinct but related legal issues. The first is whether the massage therapist should be classified as an employee or an independent contractor. The second is whether Dream Massage has violated employment discrimination laws by prohibiting the worker from wearing her hijab. The resolution of the first issue is a prerequisite for the second, since most employment discrimination protections apply only to employees rather than independent contractors.

Dream Massage has hired the massage therapist as an independent contractor; however, the company "exercises complete control over how she does her work," including the provision of clients, the materials needed to perform the work, and complete control over the massage therapist's schedule.

Employee vs. Independent Contractor Classification

The IRS defines an independent contractor as follows: "an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done" (IRS, 2017). The level of control that Dream Massage exercises over the massage therapist is not consistent with this legal definition. Both the behavioral and financial aspects of the common law definition point to the person being an employee. It is therefore likely that the massage therapist will be considered an employee for taxation purposes.

It is worth noting that a company exerting some control will not automatically convert a worker from independent contractor to employee (Wood, 2011). However, this case involves Dream Massage exercising full control over the worker, and under those circumstances the worker would be classified as an employee.

The second issue is whether Dream Massage has violated any employment discrimination laws. Normally, these laws apply only to employees and not to independent contractors — but since the massage therapist qualifies as an employee, discrimination laws apply (Wood, 2011).

Religious Discrimination and Title VII

The discrimination concern arises from the company's order that the worker may not wear her hijab, on the grounds that it violates the company's dress policy. Title VII of the Civil Rights Act of 1964 forms the basis of employment discrimination law. Before examining the Title VII issues relating to hijabs, however, an assumption must be made: that Dream Massage either operates in multiple states or employs more than 15 people. If neither condition is met, Title VII would not cover the company, and discrimination protections would fall to state or local laws — a question the case does not address. For purposes of this analysis, it is assumed that Dream Massage is covered under Title VII.

Under Title VII, a business is required to provide "reasonable accommodation" for religious dress and appearance, as long as doing so does not cause the business undue hardship. The company's general dress policy does not constitute undue hardship, so the request that the worker not wear her hijab appears to violate Title VII (Bahler, 2016). The hijab is also not a garment that would create any practical obstacle to performing the duties of a massage therapist, so there is no basis for claiming undue hardship with respect to the safe performance of work duties.

This issue is, however, more complicated than it appears on the surface. Cases have arisen in which women have been told not to wear a hijab at work (Aslam, 2011). In such situations, the individual worker has limited practical recourse unless the case is taken up by an organization with the resources to mount a legal challenge against the employer.

The text of Title VII states that it is unlawful to discriminate in terms of "terms, conditions, or privileges" of employment. Because a dress code constitutes a term and condition of employment, it is unlawful for the company to prohibit her from wearing a hijab.

Conclusion

In general, companies should not have rigid dress codes but should rather encourage professional attire, and they definitely should not attempt to govern religious garb unless there are legitimate employee safety issues at play. This seems like a situation where Dream Massage was ignorant of the law; however, its simultaneous attempt to classify the employee as an independent contractor suggests the company may not be ignorant of the law at all, but rather trying to circumvent it. That would constitute unethical behavior according to any reasonable standard used to evaluate the company's actions.