No Good Deed Goes Unpunished: The Lack of Protection for Volunteers Under Federal Anti-Discrimination Statutes

I. INTRODUCTIONOne issue that often arises in cases involving Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA) is whether a particular individual is an "employee."3 There are many reasons why this issue is important. First, only employees can sue under these statutes.4 Second, an entity might not be covered by these statutes if it does not have the statutorily required minimum number of employees.5 Finally, the number of employees determines the damage caps under the 1991 Civil Rights Act.6 As a result, in an effort to minimize liability under these federal statutes (and in an effort to save on labor costs), some entities limit the number of individuals they "employ" and rely on volunteers and/or independent contractors.7This Article will focus on the fact that volunteers cannot sue under federal anti-discrimination statutes and do not count as employees when determining whether an entity has the statutorily required minimum number of employees to be covered under these statutes. Unfortunately for volunteers, the federal anti-discrimination statutes' language and legislative history,8 the Equal Employment Opportunity Commission's (EEOC) interpretation of these statutes,9 and case law10 are fairly clear that volunteers cannot sue the entities to which they devote their time.11 Although some courts have allowed certain "volunteers" to bring discrimination claims, they have not truly conferred the right to sue upon volunteers as a class; rather, these courts decided only that the plaintiffs were not volunteers at all but employees and could therefore pursue their claims.12 Thus, for volunteers to gain the protections of federal antidiscrimination statutes, they must prove that they are actually employees inaccurately labeled as "volunteers."13Interestingly, a split of authority has developed regarding how someone qualifies as an employee. Some courts first analyze the benefits an individual receives and require a showing that those benefits constitute sufficient remuneration.14 If there is sufficient remuneration, courts then use a common-law agency test to evaluate the relationship.15 Other courts do not look at remuneration as a threshold inquiry, but rather consider it as one factor in evaluating the relationship.16 Regardless of which test is used, if the court determines the plaintiff is a volunteer, he will have no remedy under Title VII, the ADA, and the ADEA. Despite the time these individuals devote to various types of entities, and despite the risks some of these individuals take (especially volunteer firemen), courts have routinely rejected their requests for protection from discrimination.17This Article will first address the statutory provisions that have led courts to leave volunteers unprotected.18 Next, the Article will explore the statutes' legislative history and the EEOC's position regarding this issue.19 The Article will then address the circuit split regarding how courts determine employment status.20 Finally, the Article will provide reasons how and why Congress, the courts, and the EEOC should expand protection to volunteers.21 If these statutes' protections are expanded, more people will likely continue to volunteer their time and there will be more pleasant work environments; Congress, the courts, and the EEOC will send a message that no discrimination will be tolerated, regardless of the victim; and victims of discrimination will have a remedy, even if they are not true employees. In order to further these worthy goals, Congress, the courts, and the EEOC should do what they can to ensure that federal anti-discrimination statutes protect volunteers.II. THE RELEVANT STATUTORY PROVISIONSThere are several provisions of Title VII relevant to the issue of who may sue and whom those individuals can sue; these provisions are: (1) the substantive prohibition against discrimination,22 (2) the definition of "employer,"23 and (3) the definition of "employee. …