In a case of first impression, last week the Sixth Circuit addressed the scope of the term “employee,” in the volunteer context under Title VII of the Civil Rights Act of 1964 (“Title VII”). Marcia Bryson v. Middlefield Volunteer Fire Dep't, (6th Cir. 2011). Expressly rejecting the Second Circuit’s two-step test, which requires a putative employee to make a threshold showing of remuneration before analyzing the putative employment relationship under the common-law agency test, the Sixth Circuit distinguished itself from the Second, Fourth and Eighth Circuits by holding that “significant remuneration” is not an independent antecedent; rather, it is only one factor which must be weighed along with all aspects of the employment relationship.
In an opinion written by Circuit Judge Moore, the Court clarified that when the term “employee” is vaguely defined, as it is under the Act (42 U.S.C. § 2000e(f)), a court must apply the common-law agency test, as outlined by the U.S. Supreme Court in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992), and Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). Under both cases, the Supreme Court instructs a court to weigh several factors that have historically been used to distinguish employees from independent contractors. The Sixth Circuit noted that the Supreme Court did not restrict the common law test of agency to individuals who receive significant remuneration; rather, in Darden, the United States Supreme Court required “all of the incidents of the relationship [to] be assessed and weighed with no one factor being decisive.”
This case is significant as it demonstrates the Sixth Circuit’s willingness to add volunteers into the employee tally, expanding the range of “employers” that may fall under the purview of Title VII.