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Physician Deemed Non-Employee Resulting in Dismissal of Discrimination Lawsuit

Title VII of the Civil Rights Act of 1964 (amended by the Civil Rights Act of 1991) prohibits employee discrimination based on race, religion, color, sex, and national origin. One of the critical elements that a plaintiff must establish is whether they are an “employee” under Title VII, as the statute protects only employees. The statute and guidance from the Equal Employment Opportunity Commission (EEOC) define employee as “an individual employed by an employer.” Courts frequently use various tests, such as the Economic Realities test, to determine if a plaintiff is an employee under Title VII.

Such was the case for Dr. Yelena Levitin, a Jewish surgeon of Russian decent that owned her own practice. Dr. Levitin’s discrimination suit stems from the revocation of her surgical privileges by Northwest Community Hospital in Arlington Heights, Illinois, the hospital where she performed most of her surgeries. Dr. Levitin sued, alleging retaliation for having complained of harassment. A federal district court dismissed her claims, and the Seventh Circuit Court of Appeals upheld the lower court’s decisions, finding that Dr. Levitin was not an employee for purposes of Title VII.

The Seventh Circuit utilized the Economic Realities test to assist with determining whether Dr. Levitin was an employee. Under the Economic Realities test, courts consider numerous factors, such as (1) the extent of the employer’s control over the worker, (2) the occupation type and skill required, (3) responsibility of investment in facilities and equipment, (4) the worker’s opportunities for profit and loss, (5) payment form and method, (6) the length of job commitment and/or expectations, and other similar factors. The Court found that the employer’s “right to control is the most important of these factors.”

The Court found numerous facts reflecting the hospital’s lack of control, such as Dr. Levitin owning her own medical practice, billing patients directly, filing taxes as a self-employed physician, the hospital not providing employment benefits, and a work agreement reflecting Dr. Levitin’s independence. Further, Dr. Levitin could set her own hours, subject only to operating-room availability, and could use her own staff. The court considered the requirements the hospital placed on Dr. Levitin, such as on-call demands, peer-review processes, medical-educational standard, and reporting requirements, but found that the hospital did not exercise the control necessary for Dr. Levitin to be an employee. Importantly, the court clarified that the Seventh Circuit has found that “it could be argued that a physician who enjoys hospital staff privileges does, under certain factual situations, share an indirect employer-employee relationship with the hospital sufficient to invoke Title VII protection.” However, the Court held that was not the case here.

While jurisdictions may differ in how they determine whether someone is an “employee” for purposes of Title VII, overall considerations are generally similar. This case highlights the importance of physician agreements, job responsibilities, and proper consideration of employment laws in the healthcare industry.