When is a Volunteer an “Employee” for Purposes of Title VII?

By Lacy Baldwin Scott, Esq.
Dworkin, Chambers, Williams, York, Benson, & Evans, P.C.
Denver, Colorado

Volunteering is an important activity for millions of Americans. According to the Corporation for National and Community Service, in 2013, one in four adults (25.4 percent) volunteered through an organization. Generally, volunteers are not protected “employees.” But what happens when an unpaid volunteer claims that he or she has been discriminated against in the course of his or her service? Courts have addressed this issue and provided clarity for volunteers and employers alike.

Darden Factors

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination based on race, color, religion, sex, and national origin.1 However, Title VII’s definition of “employee” (“an individual employed by an employer”) left open the question of who Title VII is designed to protect.2 In the absence of a more precise definition, the United States Supreme Court presumed that Congress intended “conventional master-servant relationship as understood by common-law agency doctrine.”3

The common-law agency doctrine recognizes the following 13 factors4:

  1. Employers’ control of worker
  2. Level of skill required
  3. The source of the tools used
  4. The location of the work
  5. The duration of the relationship between the parties
  6. Whether the employer has the right to assign additional projects
  7. Worker’s discretion over when and how long to work
  8. Payment method
  9. Worker’s ability to hire assistants
  10. Whether the work is part of the regular business of the employer
  11. Whether the employer is in business
  12. Employee benefits; and
  13. Tax treatment

Threshold Remuneration Test

The Darden factors, however, do not neatly apply to a volunteer situation and they do not help courts determine whether or not a volunteer is an employee. As such, nearly every federal circuit court that considered a volunteer’s suit under Title VII applied a modified analysis called the “threshold remuneration” test.

The Second, Fourth, Fifth, Eighth, Tenth, and Eleventh Circuits adopted the threshold remuneration test which requires a volunteer to “first show remuneration as a threshold matter before proceeding to the second step – analyzing the putative employment relationship under the common-law agency test.”5 The threshold remuneration test operates to exclude most traditional volunteers from Title VII protection.

Sixth Circuit

However, the Sixth Circuit (which covers Kentucky, Michigan, Ohio, and Tennessee) expressly rejected the threshold remuneration test. The Sixth Circuit held that the fact that volunteers are unpaid is not determinative, and it is bound to apply all of the Darden factors, with compensation serving as just one of the several factors to take into consideration in the analysis.6

Recently, the Sixth Circuit brought some clarity to the volunteer context in Sister Michael Marie v. American Red Cross.7 In Sister Michael Marie, two Catholic nuns filed a Title VII lawsuit alleging that the Red Cross and the local emergency management agency unlawfully terminated their volunteer status. The nuns alleged religious discrimination, retaliation, and harassment, claiming that the local executive director was spooked by their religious beliefs. The Sixth Circuit applied the Darden factors to find that the nuns were not entitled to Title VII protection because they “had not shown that they received compensation, obtained substantial benefits, completed employment-related tax documentation, were restricted in their schedule or activities, or were generally under the control of either organization through any of the other incidents of an agency relationship.”8

Although the Sixth Circuit applied all of the Darden factors in its analysis in Sister Michael Marie, the Sixth Circuit made it clear that the factors related to remuneration and financial matters are particularly relevant. As a practical result, the manner in which the Sixth Circuit applied the factors and analyzed the claim were really not that different from the “threshold remuneration” test used by the other circuits.

Lessons To Be Learned

Generally, unpaid volunteers are not protected “employees” under Title VII. However, it is important to keep in mind that in certain situations unpaid volunteers can be considered employees. The Darden factors determine when a business exercises sufficient control over an individual to make the individual an employee, regardless if the individual is an unpaid volunteer. As such, as a matter of fairness, all businesses should strive to treat all employees – including unpaid volunteers – in a way that is consistent with federal, state, and local Equal Employment Opportunity laws. However, if an unpaid volunteer files a charge or lawsuit, the degree of control the business exercises over the individual can make a difference regarding legal liability.

Finally, do not forget that this analysis is limited to whether or not federal law prohibits employment discrimination for volunteers. The analysis and outcome may be very different if focused on state law, such as whether or not volunteers may be entitled to workers’ compensation benefits.

1 42 U.S.C. §2000e-2(a)(1)
2 42 U.S.C. § 2000e(f)
3 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992)
4 Id. at 323-24.
5 Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431 (5th Cir. 2013)
6 Bryson v. Middlefield Volunteer Fire Dep’t, Inc., 656 F.3d 348 (6th Cir. 2011).
7 771 F.3d 344 (6th Cir. 2014)
8 Id. at 348.

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