U.S. Sixth Circuit - The FindLaw 6th Circuit Court of Appeals Opinion Summaries Blog

Red Cross Volunteer Nuns Aren't 'Employees' Under Title VII: 6th Cir.

Title VII of the Civil Rights Act of 1964 prohibits, among other things, employment discrimination based on religion. That's great, but what about volunteers? Sister Michael Marie and Sister Mary Cabrini, two Catholic nuns, were Red Cross volunteers in Chillicothe, Ohio.

They were never employees, but they believe the positive reviews they received over the years should have entitled them to "promotions" that would have altered their roles and responsibilities. They never received those promotions -- because, they alleged, the Executive Director of the local chapter of the Red Cross was biased against them because they were "traditional" Catholics.

Not Employees

The nuns moved to a different local Red Cross, which was nevertheless still under the purview of the Executive Director who ostensibly didn't like them. Though the sisters applied for volunteer positions there, they were told "[i]t is apparent that you are dissatisfied with the operation of our office. I feel it is in the best interest of the County Emergency Management Agency to terminate your volunteer status with our office."

Yipes!

The sisters lost in federal district court after the court determined they weren't "employees" of the Red Cross or the Ross County Emergency Management Agency, and thus Title VII didn't apply to them. The Sixth Circuit affirmed.

The Darden Common Law Agency Test

The 13-factor common law agency test as set forth in Nationwide Mut. Ins. Co. v. Darden is considered the definitive test for whether a person is an employee. Though other circuits consider remuneration a threshold requirement for invoking Darden when the putative employee is a volunteer, the Sixth Circuit differs in that it considers remuneration just one of the 13 factors, with no greater weight than any other.

The sisters, of course, urged the Sixth Circuit to weigh remuneration less than the other factors. The court declined, but did explain that the importance accorded to each Darden factor depends on the context; in this case, the Sixth Circuit considered the "financial factors" important to determining whether they were employees for Title VII purposes.

This analysis was fatal: The sisters received no compensation for their work or incidental benefits like health insurance. Nor was there a "clear path to employment from volunteer to paid position" such that they believed they would be employed in the future.

And so on. Tax forms? Nope. Workers compensation? Uh-uh. As to the other factors, they didn't work on a schedule determined by the Red Cross, which also didn't control the manner in which they worked. Going through the Darden factors, it's clear that they weren't employees.

Nor did the nuns qualify for religious retaliation under 42 USC Section 1983 when it came to the Ross County position. This was due mostly to the sisters' inability to establish a causal relationship between their religious expression and their being asked to stop volunteering.

Title VII protections for volunteers? Not in the Sixth Circuit. At least, not in this case.

Related Resources: