by Joseph U. Leonoro
A few weeks ago in this forum, we talked about an
important opinion from the Sixth Circuit Court of Appeals - the Circuit in which
Kentucky and Ohio sit - on associational discrimination. Well, that Court
must be enjoying its time in the spotlight, because it recently issued another
important decision to employers in the region, this time relating to how the
term "employer" is defined under Title VII of the Civil Rights Act of 1964.
In Bryson v. Middlefield Volunteer Fire Department,
656 F.2d 348 (6th Cir. 2011) [an enhanced version of this opinion is available to lexis.com subscribers
/ unenhanced version available from lexisONE Free Case Law] , the plaintiff filed a Title VII claim
against the fire department, alleging that she had been subjected to sexual
harassment and retaliation. The fire department sought dismissal of the
case in District Court on the ground that the department did not have the
minimum number of employees (15) to be covered as an employer under Title VII.
The District Court agreed with the fire department and
dismissed the plaintiff's claim. In reaching this conclusion, the
District Court determined that the benefits provided to the firefighters in the
volunteer fire department was not enough to consider them employees as a
On appeal, the Sixth Circuit recognized that courts have
taken different approaches to defining employees for purposes of Title VII
because the statute itself simply defines an "employee" as "an individual
employed by an employer." Usually, according to the Court, this involves
relying upon the common law of agency to determine whether an employment
relationship exists for purposes of establishing a Title VII claim and focusing
on the following factors:
In Bryson, the Sixth Circuit concluded that the
District Court erred by requiring that the plaintiff first prove that
the firefighters received significant compensation from the department, before
undertaking an analysis of the above factors. Notably, the Sixth Circuit did
not say that the amount of remuneration (including benefits) couldn't be a
factor in the overall analysis; simply that it could not be a sole prerequisite
before examining the other considerations to the test.
The takeaway from this opinion is not so much in the
Court's holding itself, but instead is the ongoing challenge that employers
face in often having to apply different variations of this test. Put
another way, depending on why the inquiry is being made, a person may be
considered an employee for one law but not an employee for another.
The news isn't all bad, though. In most situations,
the question of agency is not unlike the determination that is made in
examining whether a person is an employee or independent contractor.
While it's a fact-specific inquiry and each situation is unique, the most
important factor typically is whether the alleged employer has the right to
control the manner and means of work. Employers who aren't sure whether
their workers are employees are not should use that as a preliminary guidepost,
but always seek out competent legal counsel for further guidance on the issue.
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I like the way you expressed your views on this topic that is important for both employees and employers as well.