In an issue of first impression in this Fifth Circuit, the Court held that a volunteer firefighter making a Title VII claim of sexual harassment is not an “employee” for purposes of the statute and therefore had no legal claim.
The case arose from a suit filed by a former firefighter for the Livingston Parish Fire Department who claimed that she was subjected to sexual harassment during her tenure with the Department. She filed a charge of discrimination and later sued. The Department defended on the grounds that as a volunteer, Juino was not an “employee” for purposes of Title VII and therefore could not bring a claim. Further, the Department argued that it was not an employer for Title VII purposes because while its membership roster had approximately 70 firefighters, only three were paid employees and therefore they lacked the threshold 15 employees for Title VII coverage.
The trial court accepted the Department’s arguments and entered judgment in its favor. On appeal, the Fifth Circuit Court of Appeals was charged with deciding, for the first time in the Circuit, whether (and under what circumstances) volunteers are employees for purposes of Title VII.
The Court analyzed the two different approaches considered by the Circuit Courts that have addressed the issue –the threshold remuneration test and the incidents of employment relationship test. In the threshold remuneration test adopted by most of the Courts addressing the issue, the plaintiff-volunteer must make a threshold showing that she received remuneration or some other significant indirect benefit. The incident of employment test, adopted by two Circuits, treats remuneration as merely one factor in determining the overall employment relationship rather than the dispositive factor. The Fifth Circuit concluded that the threshold remuneration test was the proper test to apply in its jurisdiction.
Having determined that the threshold remuneration test was the appropriate test to apply, the Court analyzed Juino’s engagement with the Department to determine whether she was an employee. Juino received $2 per emergency call; life insurance; uniform and badge; emergency response gear and training. During her engagement, Juino responded to 39 calls for a total monetary remuneration of $78. These benefits, the Court concluded, were merely incidental to her volunteer service for the District and unlike the significant indirect benefits received by volunteer firefighters in other reported cases where the volunteers were determined to be employees (e.g., retirement and pension benefits, life insurance, death benefits, disability insurance, tax exemptions for unreimbursed business expenses, scholarships for dependents, reduced rates on commemorative license plates and limited medical benefits). The Court concluded that Juino’s indirect benefits were too insignificant to pass the threshold remuneration test and she was therefore not an employee for Title VII purposes.
The takeaway from this opinion is not only that volunteers are not covered by the protections of Title VII, but unpaid interns are also likely not covered. Moreover, if volunteers and unpaid interns are not “employees” for Title VII purposes, it follows that their numbers should not be counted in determining “employer” coverage under the statute. Moreover, given that other federal employment statutes use the same definition of "employee", it is likely that volunteers and unpaid interns lack coverage under those statutes as well.
You can read the entire opinion in Juino v. Livingston Parish Fire District No. 5 here.
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