In certain organizations, particularly non-profit organizations, volunteers perform services for the organization. In a recent case in the Northern District of Illinois (Volling v. Antioch Rescue Squad, 1:11-cv-04920 (N.D.Ill. Dec. 4, 2012)), the court was faced with the question of whether members of a volunteer rescue squad could sue the relevant service organizations for sexual harassment, discrimination and retaliation. The two organizations moved to dismiss the complaint contending that the plaintiffs were volunteers and therefore excluded from coverage under Title VII.

The court examined several factors in making its determination including “the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.” Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989). The court determined that “[n]o one of these factors is determinative,” thus rejecting the defendant organizations’ contention that the absence of remuneration should control. The court stated that remuneration is but one factor in the totality of the circumstances. “The question and degree of remuneration are simply factors to be considered, along with many others, in assessing whether a worker is an ‘employee’ for purposes of Title VII.”

After examination, the court found that the workers “appear to be subject to the strictures of a typical workplace and – importantly – to the control exercised by an employer over paid employees.” Thus, the court determined that the workers qualified as employees who could bring suit under Title VII.

Notably, other courts have imposed a “significant remuneration” requirement when seeking to bring suit under Title VII and that an absence of remuneration can be the determinative factor as to whether a volunteer qualifies as an employee under Title VII.

Nevertheless, although this issue is far from settled, employers should be aware that Title VII may extend to cover volunteers in the workforce and provide volunteers the opportunity to bring suit alleging harassment and discrimination.