In Bryson v. Middlefield Volunteer Fire Dep’t, the 6th Circuit held that a “volunteer” can qualify as an employee covered by Title VII under certain limited circumstances. In making that determination, a court must examine not only whether the volunteer is paid, but also the degree of control exercised by the employer over the manner and means by which the work is accomplished.
Last week, in Sister Michael Marie, et al. v. American Red Cross [pdf], the same court applied that test to uphold the dismissal of the Title VII religious discrimination, retaliation, and harassment claims filed by two nuns against the organization for which they had volunteered. In concluding that the two plaintiff-nuns were bona fide volunteers, and not employees, the court heavily relied on the lack of compensation paid by the Red Cross, coupled with its inability to control their performance via termination of employment or threat thereof.
An employer’s ability to terminate a non-compliant employee, which is perhaps an employer’s greatest source of control, is meaningful because the employee stands to lose not only her job, but also the source of income upon which she depends…. Though we make no attempt to resurrect the economic realities test from the grave, its central teaching remains instructive…. The economic reality is that when volunteers work without traditional forms of remuneration like salary and benefits, employers are generally without leverage to control that volunteer’s performance.
While you might think it’s cold to conclude that two nuns could not pursue discrimination claims, this case makes a broader policy statement in favor of nonprofit organizations. The lifeblood of nonprofits is their volunteer base. Without the aid of volunteers, nonprofit organizations, which operate on limited budgets and scant resources, would not survive. If volunteers could easily sue these organizations for discrimination or other employment-related claims, nonprofits would be much more reluctant to use the services of volunteers to staff their needs, thus making it much more difficult for them to carry out their missions and provide their essential services.
By relying heavily on the lack of payment to show lack of control, the 6th Circuit drew a line that will be difficult for most bona fide volunteers to cross to demonstrate employment status. And while no organization should discriminate against anyone providing services to it, this case decides that the public good done by nonprofit organizations outweighs the public policy against employment discrimination.
