The Ninth Circuit ruled last week that a doctor was an independent contractor and thus not protected by Title VII of the Civil Rights Act.

David E. Henry, a board-certified general and bariatric surgeon, alleged that Castle Medical Center discriminated against him because of his race and retaliated against him after he complained about the discrimination.

The relationship. Henry specializes in laparoscopic and minimally invasive surgery. He operated a full-time private practice of medicine in his specialty on Oahu, Hawaii, and was on call for the medical center’s emergency department at least five days per month. He was granted clinical privileges at the hospital, where he performed both general and bariatric surgeries. Henry leased space at the hospital’s outpatient clinic for his private medical practice and used operating rooms for his private patients upon request. Henry also had clinical privileges and performed general surgeries at a separate, unrelated hospital.

Henry, who is white, complained to Castle Medical Center of discrimination based on race, after which the medical center initiated peer reviews of several of his surgeries. As a result of this peer review, the medical center suspended Henry’s clinical privileges and terminated their on-call agreement.

Henry sued, alleging discrimination and retaliation. The hospital argued that Henry is not protected under Title VII because he is an independent contractor rather than an employee.

Darden. The court noted that Darden test — the most commonly cited test in contractor classification cases — evaluates “the hiring party’s right to control the manner and means by which the product is accomplished,” and utilizes the following non-exclusive factors: the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

The court noted several circuits courts have found no employment relationship when physicians challenged termination of clinical privileges, and determined all evidence and inferences in the Henry case indicated that the hospital did not have the “right to control the manner and means” of Henry’s practice of medicine, and thus found Henry was an independent contractor for Title VII purposes and not protected under Title VII.

The case is David E. Henry, M.D., v. Adventist Health Castle Medical Center and Alan Cheung, M.D.

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