Volunteerism is a staple of American life. According to the Corporation for National and Community Service, 62.6 million Americans volunteered nearly 7.7 million hours in 2013, adding up to an estimated value of $173 billion. Organizations such as the Salvation Army, the Red Cross, and Habitat for Humanity depend on volunteers to serve the communities in which they live. But even beyond not-for-profit charitable organizations, for-profit businesses routinely open their doors to students and others who are willing to file, prepare mailings, or shred documents in exchange for some experience to put on their resume.

Thus, the odds are that at some point in your life – out of necessity, practicality, or for good will – you will either be a volunteer or take on volunteers in your office. But what happens when a volunteer believes that she has been discriminated against in the course of her service? Are volunteers protected by employment discrimination laws such that the organizations with which they are volunteering may be held liable for workplace discrimination? Recent law suits from volunteers have forced courts around the country – and most recently in the Sixth Circuit – to address these issues and provide clarity for volunteers and employers alike.

Title VII clearly makes it unlawful for employers to discriminate against employees because of that employee’s race, color, religion, sex or national origin. 42 U.S.C. §2000e–2(a)(1). However, the statute’s definition of “employee” (“an individual employed by an employer”) has left open the question of who the law is designed to protect. 42 U.S.C. §2000e(f). In absence of more specific direction from Congress, the United States Supreme Court found “that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.”Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992). The common law agency doctrine recognized the following thirteen factors:

1. Employer’s control of worker;

2. Level of skill required;

3. The source of the tools used;

4. The location of the work;

5. The duration of the relationship between the parties;

6. Whether the employer has the right to assign additional projects;

7. Worker’s discretion over when and how long to work;

8. Payment method;

9. Worker’s ability to hire assistants;

10. Whether the work is part of the regular business of the employer;

11. Whether the employer is in business;

12. Employee benefits; and

13. Tax treatment.

Id. at 323–24 (citing Restatement (Second) of Agency § 220(2) (1958).

The trouble with these so-called Darden factors – aside from the sheer number and subjectivity of the factors – is that they were designed to distinguish between employees and independent contractors.   Restatement (Second) of Agency § 220(2) (1958). As a result, they do not neatly apply to the volunteer context to help courts determine whether or not a volunteer is an employee. For example, employees are distinguished from independent contractors because the former is generally paid a salary while the latter is generally paid a flat fee via invoice.See Janette v. American Fidelity Group Limited, 298 Fed.Appx. 467, 475 (6th Cir. 2008). In contrast, volunteers are generally not paid at all.

Because the Darden factors do not easily fit the volunteer context, nearly every circuit to consider a volunteer’s suit under Title VII has applied a modified analysis called the threshold remuneration test. Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431, 435 (5th Cir. 2013) (noting that the Second, Fourth, Eighth, Tenth, and Eleventh Circuits have adopted the threshold-remuneration test.). Under the threshold remuneration test, courts first make a determination as to whether the volunteer received the equivalent of compensation in exchange for services rendered. See O’Connor v. Davis,126 F.3d 112, 115-16 (2d Cir. 1997) (quoting Graves v. Women’s Professional Rodeo Association, Inc., 907 F.2d 71, 73-74 (8th Cir. 1990)) Only if this independent antecedent requirement is met, do the courts find that the volunteer’s role in the organization fairly approximates the employment relationship such that the Darden factors could be meaningfully applied. Id.

The threshold remuneration test is a sensible modification to the Darden analysis, which significantly simplifies and clarifies the analysis. In practice, the threshold remuneration test operates to exclude most traditional volunteers from Title VII protection.

However, a few years ago, the Sixth Circuit Court of Appeals (which has jurisdiction over Kentucky, Tennessee, Ohio, and Michigan) expressly rejected the threshold remuneration test. In the Bryson v. Middlefield Volunteer Fire Dep’t, Inc., 656 F.3d 348 (6th Cir. 2011), the Sixth Circuit opened the door to Title VII claims in relation to unpaid volunteers. The Court reached this conclusion on the grounds that it was bound by the Supreme Court’s directive to apply to the full common law agency test, with compensation serving as just one of the several factors to take into consideration in the analysis.

The plaintiff in Bryson was a firefighter and administrative assistant, who claimed she was offered increased benefits for sexual favors, worked in a hostile environment and was later discharged from the non-profit fire department for complaining. The Court held that several factors in the common law of agency showed volunteer firefighting as the plaintiff performed the job could be similar enough to employment to fulfill the terms of Title VII. Therefore, without applying the Darden factors, the Court remanded the case to the district court to conduct that full analysis.

This holding appears on its face to stand in stark contrast to the other circuits, and introduced a great deal of uncertainty as to the liability that employers could face from their volunteers in the work place.

However, the Sixth Circuit recently had the opportunity to bring some clarity to the volunteer context in Sister Michael Marie v. American Red Cross, 771 F.3d 344, 366 (6th Cir.2014). In Sister Michael Marie, two Catholic nuns were terminated as emergency relief volunteers from American Red Cross and the local emergency management agency. The nuns claimed that they were terminated because of their religious beliefs. As directed by Bryson, the district court had applied all of the Darden factors and determined that the nuns were not, in fact, employees so as to benefit from the protection of Title VII. The Sixth Circuit agreed, applying the Darden factors to find that the nuns were not entitled to Title VII protection because they “have not shown that they received compensation, obtained substantial benefits, completed employment-related tax documentation, were restricted in their schedule or activities, or were generally under the control of either organization through any of the other incidents of an agency relationship.” Id. at 348.

Though Sister Michael Marie follows the directives of Bryson in applying the all of the Darden factors, the manner in which the factors are applied show that the Sixth Circuit’s analysis is really not that different from the other circuits’ threshold remuneration test after all. A fair reading of the opinion reveals that the fact that the nuns did not get paid for their work significantly militated against Title VII protection. Though “method of payment” is an individual factor, financial considerations influenced several other factors as well.

Nowhere was this made more clear than in the Court’s discussion of the most important factor of the common law agency analysis – control. In addressing this factor, the Court stated that “[t]he economic reality is that when volunteers work without traditional forms of remuneration like salary and benefits, employers are generally without leverage to control that volunteer’s performance. And control is ‘[t]he crux of Darden’s common law agency test.’” Weary, 377 F.3d at 525 (quoting Darden,503 U.S. at 323, 112 S.Ct. 1344).

Thus, as a practical matter, under the Sixth Circuit’s decision in Sister Michael Marie, an unpaid volunteer is unlikely to be able to successfully maintain an claim under Title VII for employment discrimination. However, the case provides specific direction as to when volunteers are entitled to protection and what employers can do to avoid liability to volunteers under Title VII.