Court Says Salesperson Was Employee

U.S. Court of Appeals, Ninth Circuit, 2006: Swift v. Realty Executives Nevada’s Choice

July 1, 2007

A federal appellate court has determined that a real estate brokerage can be liable for the sexual harassment of a salesperson that the brokerage had treated like an independent contractor.

In the case, Doris Swift filed a complaint with the Equal Employment Opportunity Commission, contending she had been sexually harassed at the office by another sales associate. The EEOC denied her claim because she wasn’t an employee, which is necessary to claim sexual harassment under the law. Swift next filed a suit seeking damages from the brokerage for a sexually hostile environment in violation of Title VII. The brokerage filed for a dismissal because Swift was an IC.

The trial court rejected the brokerage’s motion, finding that several factors, such as the brokerage’s requirement that it approve all sales and listing contracts, indicated Swift had an employee-employer relationship with the brokerage.

A federal appellate court also found there was sufficient evidence to support the trial court’s ruling. Note: NAR and the Nevada Association of REALTORS® contributed financially to the brokerage’s defense.

The MLS sued the municipalities, seeking access to the data under Wisconsin’s open records law. This statute requires that public records be available to anyone paying the copying fee. The municipalities argued that they had licensed the data to the vendor, so the vendor had control of it. However, the state court of appeals ruled in favor of the MLS, determining that the municipalities couldn’t contract away their responsibility to provide public access.

The court also upheld the MLS’s request to receive the data in an electronic database format as within its rights under state law, since the municipalities received the data in that form from the vendor.