UNPAID FEMALE VOLUNTEERS DEEMED TO BE “EMPLOYEES”
by Art Gutman Ph.D., Professor, Florida Institute of Technology
The case is Volling v. Antioch Rescue Squad, decided on December 4, 2012 by District Court Judge John J. Tharp, Jr. in the Northern District of Illinois, Eastern Division [2012 U.S. Dist Lexis 171623]. The allegations in this case are that three unpaid volunteers in the Antioch Rescue Squad suffered acts of sexual harassment that were severe enough to warrant criminal charges. The women alleged, in “disturbing detail”, that two of them were groped by a co-worker; that the co-worker made comments comparing the women’s breast sizes; that a supervisor forcibly tried to kiss two of them; that the supervisor pulled down the pants of one of the women in front of her co-workers; that the supervisor waved (for lack of a better term) his penis in front of the women; and that sexually degrading content about one of the women was placed on social media websites. For purposes of summary judgment, these facts must be accepted as true in determining whether to reject the summary judgment motion by the defense. But there is more to this story.
The defendants argued that because they were unpaid volunteers, they did not meet the definition of “employee” under Title VII. Judge Tharp based his ruling on the Supreme Court ruling in Community for Creative Non-Violence v. Reid [490 U.S. 730], opining that:
Relevant factors in assessing whether a complainant is an “employee” of a respondent “employer” include “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 Supreme Court ruled that “No one of these factors is determinative”, and Judge Tharp noted that a similar list of “non-exhaustive factors” is contained in the EEOC Compliance Manual, Section 2-III-A-1. Judge Tharp ultimately denied summary judgment for the defendant, ruling:
It is clear that remuneration is an important factor in defining an employment relationship. But the Supreme Court’s instruction to evaluate the question using the common-law principles of agency, and its inclusion of considerations that do not pertain to remuneration on its non-exhaustive list of relevant factors, confirms that it is not the exclusive consideration. Consistent with that instruction, this Court does not draw any bright line requiring an “employee” to be salaried or that she receive substantial pecuniary remuneration. The question is whether the plaintiffs have alleged facts sufficient to make a plausible claim that they meet the requirements for Title VII protection, and in light of the totality of the plaintiffs’ allegations, the Court concludes that they have. Accordingly, the Court denies the motion to dismiss the Title VII claims.
Judge Tharp relied on the 6th Circuit ruling in Bryson v. Middlefield Volunteer Fire Department [656 F.3d 348], which overturned a district court ruling, which had declared that “remuneration is a necessary antecedent to the inquiry into employment status under Title VII.” Judge Tharp’s circuit (7th Circuit) has yet to address the issue, but the 2nd and 4th circuit have ruled that remuneration is a necessary for defining an “employee.” Perhaps the Supreme Court will decide this issue some day.
For present purposes, the moral is to treat your volunteers with the same respect as you would paid employees and customers, which is something we should do irrespective of legal issues.