## Facts

- Friends of Minnesota Sinfonia, a nonprofit, governed the Minnesota Sinfonia, which performed free concerts.
- Jay Fishman served as the Sinfonia’s conductor and artistic/executive director; he scheduled concert series, maintained a list of eligible musicians, and invited musicians to particular concerts.
- The Sinfonia used a roster of approximately 25–30 professional musicians who could accept or decline any offered performance and could perform for other organizations.
- Musicians could opt out of a commitment to play if they secured an eligible substitute.
- Musicians were paid a flat, per-concert fee set by the local musicians’ union; the Sinfonia did not withhold income or FICA taxes and did not provide employee benefits.
- Tricia Lerohl and Shelley Hanson performed regularly with the Sinfonia from 1990 to 1999; in 1999 Fishman stopped offering them concert opportunities.
- Lerohl alleged she was terminated in retaliation for complaining of sexual harassment (Title VII). Hanson alleged she was terminated after an injury-related absence (ADA).
- The district court granted summary judgment for defendants in both cases, concluding the plaintiffs were independent contractors and therefore not covered by Title VII or the ADA.

## Issues

1. Whether the plaintiffs were “employees” or independent contractors under the common-law agency test used for Title VII and ADA coverage.
2. Whether summary judgment was proper on the employment-status question.

## Decision

- The Eighth Circuit affirmed summary judgment for Friends of Minnesota Sinfonia and Fishman.
- It held, as a matter of law, that Lerohl and Hanson were independent contractors, not employees, so Title VII and the ADA did not apply.
- Because coverage failed, the court did not reach the merits of the harassment/retaliation and disability-discrimination allegations.

## Legal Principles

- Title VII and ADA “employee” status is determined under the common-law agency framework, focusing on the putative employer’s right to control the manner and means of work while considering all incidents of the relationship.
- Artistic direction inherent in a conductor–musician relationship does not, by itself, establish employee status for highly skilled professionals.
- Factors supporting independent-contractor status include project-by-project engagements, the worker’s ability to accept or decline assignments, freedom to work elsewhere, ability to provide substitutes, per-engagement payment, lack of tax withholding, and absence of employee benefits.
- When material facts about the relationship are not in genuine dispute, worker classification may be resolved as a question of law on summary judgment.

## Conclusion

The court concluded that the Sinfonia’s musicianship arrangement reflected per-concert, discretionary participation by skilled performers without tax withholding or benefits, making the plaintiffs independent contractors and placing their claims outside Title VII and ADA coverage.


Lerohl v. Friends of Minn. Sinfonia, 322 F.3d 486 (8th Cir. 2003)