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November 02, 2011
Sexual Harassment: Does It Matter if Accuser Is a Volunteer?

An Ohio volunteer firefighter alleged that the fire chief sexually harassed her and demanded sexual favors in exchange for pay raises while she was also an administrative assistant to the department. In 2004, she complained to civil rights agencies at the state and federal levels. In courts, however, whether the department qualified as an employer and whether a volunteer is an employee became contentious issues.

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What happened. “Bryant” joined the Middlefield Volunteer Fire Department in 1991 and became a fighter-member—a volunteer position. She complained to the Ohio Civil Rights Commission and to the Equal Employment Opportunity Commission in the spring and summer of 2004, and added to the complaints that she was either fired or constructively discharged, in retaliation, late in July of that year.

When Bryant received a right-to-sue letter in 2005, she went to court, charging a hostile work environment under federal civil rights law; and quid pro quo sexual harassment, retaliation, and wrongful constructive discharge under Ohio law. A judge in federal district court consulted a decision by the 2nd Circuit (CT, NY, VT), finding that it had first decided whether an individual received significant compensation before determining whether he or she could be an employee and invoke federal civil rights law.

Since fire-fighter members received some benefits but were not paid, and the fire department had only four or five paid workers, the judge ruled that Bryant was not an employee and the department was not covered by Title VII. He also declined to consider her state law claims. She appealed to the 6th Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee.

What the court said. Appellate judges rejected both the 2nd Circuit’s approach and the district judge’s ruling. They turned instead to two U.S. Supreme Court cases in which pay was only one factor among many—the amount of control exercised over workers, the skills required of workers, the source of their tools and other resources, the length of the relationship between workers and the organization for which they worked, and several others. Judges also considered that firefighters received workers’ compensation coverage, insurance, gift cards, personal use of the department’s facilities and assets, training, and access to an emergency fund. So judges ruled Bryant was an employee and sent the case back to the district for reconsideration. Bryson v. Middlefield Volunteer Fire Department, U.S. Court of Appeals for the 6th Circuit, No. 10-3055 (9/2/11).

Point to remember: Courts may look beyond compensation in determining whether an employment relationship exists.

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