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The Sixth Circuit Court of Appeals ruled last week that volunteer firefighters can be categorized as employees in a Title VII sexual harassment claim, and that a district court erred in concluding that "remuneration must be an independent antecedent inquiry" when evaluating whether volunteer firefighters were employees.
Why does it matter whether volunteer firefighters are "employees?"
Because Title VII requires that an employer have 15 employees to be subject to the Civil Rights Act.
The Middlefield Volunteer Fire Department (Department) is a non-profit organization incorporated in Ohio for the purpose of providing fire and emergency services in Middlefield, Ohio. The Department is composed of its "members": firefighters classified in various groups depending on qualifications and current status. Plaintiff Marcia Bryson became a firefighter-member in the Department in 1991, and an administrative assistant for the Department in 1997.
Bryson alleged that Scott Anderson, who was the Fire Chief until 2005, subjected her to unwanted sexual advances, requests for sexual favors, and other verbal and physical contact of a sexual nature, including, for example, that Anderson demanded sexual favors in return for pay raises. Bryson filed charges of discrimination, and eventually retaliation, with the Ohio Civil Rights Commission (OCRC) and the Equal Employment Opportunity Commission (EEOC).
The EEOC concluded that the Department was an employer for purposes of Title VII because its firefighter-members were employees; the EEOC stated that the Department "exercises sufficient control over the actions of the Members" and the members "are compensated for their services," even if they are not on the Department's payroll. The EEOC also determined that the evidence established that Bryson was sexually harassed and subjected to a sexually hostile work environment, but that there was insufficient evidence to support Bryson's allegations of retaliation and constructive discharge.
Bryson filed suit in the district court in 2007 under both Title VII and Ohio state law, claiming hostile-work-environment sexual harassment, quid pro quo sexual harassment, retaliation, and wrongful constructive discharge. In 2009, the district court granted partial summary judgment of the federal Title VII claims, finding that the benefits provided to the firefighter-members "do not constitute significant benefits that would raise a factual issue for the jury."
The Sixth Circuit Court of Appeals reversed, finding that, while not on the payroll, the firefighters-members were employees because they received worker's compensation coverage, insurance coverage, gift cards, personal use of the Department's facilities and assets, training, and access to an emergency fund. Because the volunteers could be included in the employee tally, the Sixth Circuit remanded Bryson's Title VII claims to the district court for consideration.
Attorneys, make sure your non-profit clients are minding their harassment Ps and Qs; even volunteers can tip the "employee" tally into the Title VII claim range.