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May 16, 2005
Is 15-employee threshold jurisdictional?
Federal circuit courts have long been split on the question of whether Title VII's 15-employee threshold determines federal court subject matter jurisdiction, or is merely a matter going to the merits of a Title VII claim.
The US Supreme Court says it will review the question. Arbaugh v. Y & H Corp (Docket No. 04-944), certiorari granted 05/16/2005, Decision below: Arbaugh v. Y&H Corp (5th Cir 08/02/2004)
Arbaugh sued in federal court under Title VII and state tort law. She worked at the Moonlight Cafe in New Orleans, and claimed that one of the owners of the corporation subjected her to a sexually hostile environment. A jury returned a verdict for Arbaugh.
Now get this. After the jury verdict, the defendants moved to dismiss for lack of subject matter jurisdiction, citing Title VII's definition of an "employer" and pointing out that the defendant corporation did not employ 15 or more employees and thus was not an "employer" under Title VII. The trial court converted the motion to a motion for summary judgment, and granted the motion. So, case dismissed for lack of subject matter jurisdiction.
The 5th Circuit affirmed, holding that Title VII's 15-employee threshold determines federal court subject matter jurisdiction, and is not merely a matter going to the merits of a Title VII claim. The US Supreme Court granted certiorari to review the 5th Circuit decision.
The Courts of Appeals are split on this issue.
Courts holding it is jurisdictional are the 4th, 6th, 9th, 10th, and 11th Circuits. Courts holding it is non-jurisdictional are the 2nd, 7th, and Federal Circuits.
Posted May 16, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
April 21, 2005
Do volunteers get statutory protection?
Lorraine Lowery claimed a co-worker sexually harassed her. Peter Mendoza claimed he was discharged because of his disability. Each was an unpaid volunteer worker. Can they get legal relief?
It depends on what state they live in, and also depends on whether or not the claim is for sexual harassment.
Mendoza's case follows the prevailing viewpoint that a volunteer worker who is not being compensated does not get the benefit of employment discrimination statutes. Mendoza v. Town of Ross (California Ct App 04/19/2005).
Mendoza was volunteer community service officer who worked a regular schedule and took two weeks vacation per year. Please note: he was not paid any money and not covered by any employer insurance plans. He claimed he lost this position because he was disabled, and sued under California's anti-discrimination statute (FEHA).
The California court gave a bunch of reasons for concluding that Mendoza was not an "employee" under the statute. First, the court deferred to the administrative rule which defined an "employee" as an "individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship." Then the court found there was no formal "appointment," no "contract," and no "apprenticeship." It was also significant that unpaid volunteers are specifically excluded from the worker comp statute.
Finally, the practically uniform interpretation of Title VII has been that unpaid volunteer workers are not protected.
Lowery's case is different, and clearly hinges on a specific Massachusetts statute. Lowery v. Klemm (Massachusetts Ct App 04/21/2005).
Lowery worked daily as a volunteer at a "swap shop" operated as part of a municipality's landfill. Please note: she was not paid any money and not covered by any employer insurance plans. She claimed sexual harassment by a co-worker, and sued under (this is important) G. L. c. 214 Section 1C(1).
The Massachusetts court allowed this suit to go forward, concluding that the statute covers a volunteer worker who is sexually harassed. The statutory structure in Massachusetts is important here. There is a general non-discrimination statute that was amended in 1986 to add sexual harassment as a prohibited employment practice. However, that statute will not cover Lowery because the general statute gets interpreted in the traditional way, and excludes Lowery because she is a volunteer.
G. L. c. 214 Section 1C(1) was adopted in 1986, and is entitled "an act directed to prohibiting sexual harassment." It applies to many situations where the general statute does not apply, for example, to cases where an employer has fewer than the six employees needed for coverage. The court gave many reasons for extending coverage to unpaid volunteers, and perhaps the most persuasive was that the specific statute (G. L. c. 214 Section 1C(1)) grants rights to "persons" rather than to "employees."
My view: Both courts are really following the traditional view that anti-discrimination statutes do not protect unpaid volunteers. That may offend some observers, but these statutes were designed to target the employment relationship and that relationship involves an exchange of services for remuneration. Massachusetts, on the other hand, simply has a unique statute targeted at sexual harassment - and that statute extends beyond the traditional notions of employment. Don't expect to see that happen anywhere else.
Posted April 21, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
