Title VII prohibits discrimination at the workplace based on race, color, sex, and national origin. But, only “employees” can bring claims under Title VII as the law does not protect independent contractors. The Tenth Circuit (covering Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah) was asked to determine whether a locum tenens physician was an employee of a Kansas hospital. The court determined that he was an independent contractor, and not an employee, and affirmed the dismissal of his Title VII claims.

In Benaissa v. Salina Reg’l Health Ctr., Nos. 20-3236 & 21-3015 (10th Cir. Dec. 2, 2021), the hospital contracted with a third-party vendor to provide locum tenens physicians. The vendor assigned Dr. Benaissa to provide orthopedic surgical services to the hospital. Dr. Benaissa, an Arab Muslim male, performed these services for just under a year (the hospital gave thirty days’ written notice to the vendor that it no longer wanted Dr. Benaissa’s services, consistent with the vendor contract). The doctor sued the hospital, alleging race, religion, and national origin discrimination under Title VII.

Applying a multi-factor “hybrid test” to determine if the doctor was an employee of the hospital, the court noted the doctor “was a highly skilled, experienced, board-certified orthopedic surgeon who was licensed in eleven states.” The most critical fact for the court was that he “agree[d] that he had complete autonomy in determining what work needed to be done for his patients” because this “inform[ed] the hybrid test’s primary concern with the employer’s right to control the means and manner of the worker’s performance.” (Citation omitted). The court rejected the doctor’s argument in support of employee status that the hospital converted his privileges from locum tenens privileges “to permanent status,” concluding that “the circumstances of [t]his case [do not] warrant deviating from the principle that having staff privileges at a hospital is not sufficient to confer employee status on a physician.” Because the doctor was an independent contractor, the court affirmed the summary judgment in favor of the hospital.