Volunteers usually are not protected "employees." However, an individual
may be considered an employee of a particular entity if, as a result of
volunteer service, s/he receives benefits such as a pension, group life
insurance, workers' compensation, and access to professional certification,
even if the benefits are provided by a third party. (73) The benefits constitute
"significant remuneration" rather than merely the "inconsequential incidents
of an otherwise gratuitous relationship." (74)
Example - CP was terminated
from her position as a probationary volunteer firefighter after she failed
an agility test. She alleges that the test has a disparate impact on women.
Respondent claims that CP was not an employee, and, therefore, not protected
by Title VII. State X provides volunteer firefighters up to $400/month in
state retirement benefits (after five years of service); death and survivors
benefits; group life insurance; disability and rehabilitation benefits;
health care benefits; and tuition reimbursement for courses in emergency
medical and fire service techniques. These benefits are "significant remuneration"
sufficient to create an employment relationship between CP and Respondent.
A volunteer may also be covered by the EEO statutes if the volunteer work
is required for regular employment or regularly leads to regular employment
with the same entity. In such situations, discrimination by the respondent
operates to deny the charging party an employment opportunity. (75)
Example - CP is a volunteer
counselor with the Respondent, a public interest organization, and alleges
that she was subjected to sexual harassment by her supervisor and coworkers.
Respondent maintains that CP is not its employee, and, therefore, not covered
by Title VII. While volunteer service is not a prerequisite to employment,
former volunteers are given preferential treatment when competing for vacancies
against applicants who have not volunteered with Respondent. Most of Respondent
s regular, paid counselors initially performed volunteer work for Respondent.
In this case, volunteer service regularly leads to employment with Respondent.
Therefore, CP is protected by the EEO statutes.
References:
73. E.g., Pietras v. Board of Fire Comm'rs
, 180 F.3d 468, 473 (2d Cir. 1999). Benefits may be provided by a third
party, such as a state agency, as long as they are provided as a consequence
of the volunteer service.
74. Haavistola v. Community Fire Co. of
Rising Sun, Inc., 6 F.3d 211, 222 (4th Cir. 1993).
75. See Charlton v. Paramus Bd. of Educ.
, 25 F.3d 194, 198 n.4 (3d Cir.) (Title VII reaches discrimination by any
covered employer that has "the ability to directly affect a plaintiff's
employment opportunities"), cert. denied, 513 U.S. 1022 (1994).
