Sixth Circuit Holds Volunteer Firefighters Can Be "Employees" for Title VII Coverage

A published decision from the Sixth Circuit today held that volunteer firefighters may be counted as "employees" for purposes of determining whether the "employer" has enough employees for Title VII coverage.

Title VII only applies to employers of 15 or more employees.  How to count 15 employees is somewhat complex and has required the Supreme Court to set in and resolve the issue on at least one occasion.   The statute requires counting the number of “employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . . .” 42 U.S.C. § 2000e(b).

In this case, the employer only had 4 "employees" and without counting the volunteer firefighters, there would be not be enough employees to permit the employee to sue for sexual harassment under Title VII.

The EEOC position on whether to count volunteers is that "an individual may be considered an employee of a particular entity if . . . [she] receives benefits such as a pension, group life insurance, workers'  compensation, and access to professional certification . . . .”  EEOC Compliance Manual.  The benefits must, the EEOC states, constitute "significant remuneration" rather than merely the "inconsequential incidents of an otherwise gratuitous relationship."

Where the Sixth Circuit parted company with the district court and to some degree the EEOC (which had previously ruled in favor of coverage) was in how to consider the remuneration factor.  The Sixth Circuit concluded the district court, by holding there had to be "significant remuneration" put too much emphasis on the remuneration factor to the exclusion of other considerations.  To the court the question is whether there is "remuneration" not "significant remuneration" and to illustrate the point, noted that the volunteer firefighters:

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 . . . and that, for particular portions of the relevant time period, certain firefighter-members received a one-time, lump-sum retirement payment4 and others received an hourly wage. The district court, however, limited its analysis to remuneration without considering any other aspects of the Department’s relationship with its firefighter-members. Although remuneration is a factor to be considered, it must be weighed with all other incidents of the relationship.