Title VII of the Civil Rights Act of 1964 (“Title VII”) forbids employers with 15 or more employees to discriminate on the basis of race, color, sex, religion or national origin.

In a case of first impression, the Sixth Circuit recently affirmed that a volunteer may constitute an “employee” under Title VII. Expressly rejecting the Second Circuit’s two-step test, which requires a putative employee to make a threshold showing of remuneration before a court may determine whether an employment relationship exists  under the common-law agency test, the Sixth Circuit distinguished itself from the Second, Fourth and Eighth Circuits by holding that “significant remuneration” is  only one factor that must be weighed along with all aspects of the employment relationship.

This case is significant as it demonstrates the Sixth Circuit’s willingness to throw volunteers into the employee tally, expanding the range of “employers” that may fall under the purview of Title VII.  So will this result in employers treating volunteers more like employees (e.g., conducting performance reviews)?  Only time will tell, but employers are best advised to  look beyond their payroll records and instead examine the degree of control that they are exercising over the individual and the work that is being accomplished.