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Volunteers May Sue Nonprofits For Harassment Under Title VII

A federal District Court in Illinois has allowed a female volunteer for two nonprofit emergency ambulance services to sue for sexual harassment and discrimination under the employee protection provisions of Title VII of the Civil Rights Act.

The Court has rejected the defense that compensation is required to bring a worker within the employment discrimination protections of the Act. (Volling v. Antioch Rescue Squad, N.D. IL, No. 11 C 04920, 12/4/12.)

Three women claimed “in disturbing factual detail” that they were subjected to sexual harassment, hostile work environment, sex discrimination and retaliation at the hands of co-workers and supervisors. Because one woman was an employee and the motion was not filed against a second woman, the case proceeded only against one of the volunteers. The two private nonprofit providers moved to dismiss the complaint on the grounds that the volunteers are not employees within the meaning of Title VII and the corresponding state law.

The Court noted that Title VII contains a circular definition for employee and employer, stating that an employee is someone employed by an employer, and does not refer to payment or receipt of remuneration. “Absent statutory guidance, the [U.S.] Supreme Court has instructed courts to use the common law principles of agency in lieu of a substantive definition of ‘employee’,” the Court wrote.

“Relevant factors” 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 regarding 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.

According to the court, “No one of these factors is determinative.”

The defendants insisted that an unpaid volunteer could not be considered an employee. The Court noted that the Seventh Circuit had not ruled on the question, but “has squarely rejected the ‘tyranny of labels’ advocated by the defendants in brandishing the term ‘volunteer’ as a shield to ward off liability under Title VII.” It said the Seventh Circuit had “followed and endorsed” the U.S. Supreme Court’s instruction to consider the myriad common law factors in determining whether individuals were covered as employees under the Act.

The Court distinguished two District Court cases and chided the defendants for not citing two cases from the Second Circuit and the Fourth Circuit, which had required significant compensation to qualify a person as an employee. But it cited another case from the Sixth Circuit treating compensation as only one of many factors bearing on the issue and agreed with the Sixth Circuit’s reasoning.

“In all respects other than the degree of pecuniary compensation, the members of the ambulance squad appear to be subject to the strictures of a typical workplace, and — importantly — to the control exercised by an employer over paid employees,” the Court wrote. It cited allegations that the women were assigned to work specific shifts, controlled by the squads. They performed their work in the station and ambulances operated by the squads. They were required to wear uniforms, received training through their work and had to go through probationary periods. They had supervisory/subordinate relationships with team leaders and were subject to a chain of command under a high degree of control.

It said the Seventh Circuit and U.S. Supreme Court “have identified the question of control to be central to the existence of an employment relationship.” Writing that “district courts are required to construe Title VII broadly to prevent and remediate discrimination in the workplace,” the Court found that the women had alleged sufficient facts to make a plausible claim under Title VII and refused to dismiss the complaint.

The women had also alleged violations of Section 1983, claiming that the squads were acting essentially as governmental agencies under color of law in providing their services. But in a long review of the various means to determine whether the squads were acting under color of law the Court dismissed those claims.

There have not been many cases in which volunteers have received the protections of laws relating to employees, but this case, if more generally followed, could create more opportunities for litigation. Many well-managed organizations that work with volunteers wisely act as if the anti-discrimination rules apply, whether they do or not, but the law could be moving toward the legal requirement.  E

Don Kramer is a Philadelphia, Pa., attorney and editor of Don Kramer’s Nonprofit Issues, a legal e-letter. His website is

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