A woman who provided voice-over services for NFL Films for roughly 13 years can’t pursue claims that she was subjected to a sex-based hostile work environment, a federal judge ruled.
That’s because Nadia Axakowsky worked for the National Football League’s productions arm as an independent contractor, not as an employee, the U.S. District Court for the District of New Jersey said Nov. 14. Federal job rights law doesn’t protect gig workers and other independent contractors from workplace sexual harassment, the court said.
Axakowsky sued NFL Productions LLC, which does business as NFL Films, in June 2017. She alleged that male producers and supervisors regularly subjected her to unwelcome sexual conduct and comments. The harassment included Vice President of Broadcasting Glenn Adamo’s kissing her against her will and forcibly fondling and sexually groping her, she alleged.
Because Axakowsky wasn’t an employee of NFL Films, she can’t hold the company liable under Title VII of the 1964 Civil Rights Act, Judge Marie Renee Bumb said. Analyzing her status under the traditional common-law standard, the judge found several factors pointed toward Axakowsky being an employee, including that NFL Films’ employees could require her to redo the 10-15 “billboards” she recorded for league advertisers. NFL Films also supplied the equipment and facilities Axakowsky used to do her voice-over work, Bumb said.
But the key factor is “control,” especially for TV hosts, musicians, and others who do performance-based work, the court said. Axakowsky was hired for her special “skill” and “talent” and was free to turn down the weekly assignments she was offered by NFL Films. She also was free to do voice-over and acting work for other companies. Apart from a one-year period, she was paid per assignment rather than on a guaranteed basis. And Axakowsky didn’t receive health or other employment benefits from NFL Films, the court said.
The court also granted summary judgment against Axakowsky on her sexual harassment claim under New Jersey’s Law Against Discrimination. She sued under a provision of that law prohibiting discrimination in the creation or termination of a contract.
That part of the NJLAD only prohibits quid pro quo sexual harassment and doesn’t provide a hostile work environment claim, Bumb said. Other federal courts previously reached the same conclusion, the judge said.
Derek Smith Law Group PLLC represents Axakowsky. Proskauer Rose LLP represents NFL Films, Adamo, and another individual defendant.
The case is Axakowsky v. NFL Prods., LLC, 2018 BL 420901, D.N.J., No. 17-4730, 11/14/18.