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Although the federal laws have been applied to volunteers only in very limited situations, some of the state laws are applied more broadly. In addition, organizations that receive government funding may be specifically prohibited from discrimination involving volunteers by the terms of their grant or contract. The newest federal anti-discrimination law, the Americans with Disabilities Act, receives separate attention below because the courts have not yet ruled on its applicability to volunteers and because its requirements are less well-known.
Federal employment discrimination statutes consistently use the word "employee," but do not specify what characteristics make an individual an employee. Consequently, courts have been forced to make this determination on a case by case basis. The courts have addressed the issue of whether a volunteer is an employee in two contexts.[5] The first has arisen when a volunteer alleges discrimination. The second is when an organization claims that it is not subject to federal employment discrimination laws because it does not employ the minimum number of employees necessary to trigger application of the laws.[6] In this context, the courts have had to decide whether volunteer workers should be counted as employees. In both contexts, federal courts have uniformly concluded that uncompensated volunteers are not "employees" and, therefore, are not entitled to the laws? protections.[7]
In reaching their decisions, the federal courts have found that compensation is an essential element of employee status.[8] Smith v. Berks Community Television[9] illustrates the federal courts? approach in this area. In that case, the court reviewed the distinction between paid and unpaid services and found no protection for volunteers under Title VII. According to the court, "[i]n enacting Title VII, Congress sought to eliminate a pervasive, objectionable history of denying or limiting one?s livelihood simply because of one?s race, color, sex, religion or national origin." The court, therefore, held that employee status requires an economic relationship between the individual and the employer. Because volunteers, being unpaid, are not subject to the economic injuries due to discrimination which the statute was designed to prevent, the court reasoned that volunteers are not denied access to a means of livelihood, and thus are not protected by the statute.
A recent case, Haavistola v. Community Fire Company of Rising Sun,[10] however, holds that the label of "volunteer" will not automatically exempt an individual from being considered as an employee under federal employment laws. Haavistola is important because it is the first appeals court case to address these issues. According to Haavistola, courts must examine whether the benefits a volunteer receives represent "indirect but significant remuneration" rather than merely "inconsequential incidents of an otherwise gratuitous relationship." A volunteer who receives significant remuneration in exchange for services may qualify as an employee.[11]
The issue that Haavistola leaves open is what kind of benefits can be classified as "significant remuneration." The benefits Haavistola received include a state-funded disability pension, survivors? benefits for dependents, scholarships for dependents upon disability or death, bestowal of a state flag to family upon death in the line of duty, benefits under the Federal Public Safety Officers? Benefits Act when on duty, group life insurance, tuition reimbursement for courses in emergency service techniques, tax-exemptions for unreimbursed travel expenses, ability to purchase a special commemorative registration plate for private vehicles without paying extra fees, and access to a method by which she may obtain certification as a paramedic.[12] The court does not, however, indicate how these should be weighed.[13]
Harmony Volunteer Fire Company & Relief Association v. Pennsylvania Human Relations Commission[14] illustrates this "control" analysis. In Harmony, the court held that the Pennsylvania Human Relations Act, which prohibits discrimination against employees, applies to volunteer fire companies which rejected women applicants. In determining whether the fire company was an employer under the Act, the court bypassed a compensation analysis, stating that "[a]lthough the duty to pay a salary is often coincident with the status of employer, it is not an absolute prerequisite."[15] Instead the court ruled that the key to the relationship is the employer?s power to control the details of the employee?s activities. The court concluded that the fire company qualified as an employer because it had tight control over such employment-related matters as hiring, firing, training, and assignments.
Other states have looked to the federal courts for guidance in applying their employment discrimination laws and have found that uncompensated volunteers are not protected under state law. For example, in City of Fort Calhoun v. Collins,[16] the Nebraska Supreme Court held that because the Nebraska Fair Employment Practice Act is patterned after Title VII of the Civil Rights Act of 1964, its interpretation should be similar. The court held that volunteer fire fighters are not employees within the meaning of the Nebraska statute because they receive insufficient compensation.
Title II of the Civil Rights Act of 1964 is the principal federal public accommodations law. The statute ensures that all persons are entitled to "the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . . without discrimination or segregation on the ground of race, color, religion, or national origin."[17]
Volunteers seeking the protection of Title II face two issues. The first is whether the organization the volunteer serves or wishes to serve is a "place of public accommodation" under the statute. The second issue is whether Title II?s protection applies to volunteers offering to provide services to an organization or whether it applies only to individuals who receive goods or services from an organization.
Most volunteer organizations are not "places of public accommodation" and therefore not subject to Title II. The determination of what is or is not a public accommodation is made on a case by case basis. A membership organization or club can be considered to be a public accommodation if it offers advantages and facilities on the basis of a general public invitation to join.[18]
In Welsh v. Boy Scouts of America[19] a federal appeals court addressed the threshold issue of whether a membership organization such as the Boy Scouts of America qualifies as a "place of public accommodation" under Title II. After an extensive analysis of Title II and its legislative history, the court ruled in favor of the Scouts. In reaching its conclusion, the court ruled that in order to qualify as a "place of public accommodation," an establishment must have a substantial connection to a concrete facility or location. According to the court, the Boy Scouts is not a "place of public accommodation" because it lacks a connection to a particular site or facility. The Boy Scouts of America is a membership organization whose benefits flow primarily from the interpersonal associations of its members rather than from a tangible facility.[20]
In addition to establishing a substantial connection to a concrete facility or location, a volunteer bringing suit under Title II also needs to show that providing services to an organization qualifies as the enjoyment of that organization?s "goods, services, facilities, privileges, advantages, or accommodations." The issue of whether Title II?s protection applies to volunteers offering to provide services to an organization has yet to be addressed by a federal court. As discussed below, state courts are divided with regard to state laws similar to Title II.
Other courts have not restricted application of their public accommodation statutes in this manner. These courts have interpreted state statutes as encompassing any organization, whether in a fixed location or not, which offers goods or services to the public.[23] The focus is on the activity of the organization, not on its location. Factors such as selectivity of membership, number of members, and benefits of membership are all important in reaching a determination.
Even if an organization qualifies as a public accommodation under state law, the protection of the public accommodations statutes might not apply to volunteers offering their services to the organization. At least one state court, in Quinnipiac Council, Boy Scouts of America, Inc. v. Commission on Human Rights and Opportunities,[24]has held that its state statute does not apply to the offer of services by a prospective volunteer, as opposed to the request for services from the organization. The court held that the claimant, a woman whose application to be the Scoutmaster of a Boy Scout troop was refused because of her sex, was not protected by the statute.
In reaching its conclusion, the Quinnipiac court reasoned that the Connecticut statute was originally enacted to protect individuals from discriminatory practices that deny access to goods and services. It was not directed at alleged discrimination by an organization that refuses to "avail itself of a claimant?s desire to offer services."[25]
Thus, in most states, anti-discrimination laws do not apply to volunteers of nonprofit organizations that receive no government funding. Nonetheless, good policy reasons counsel against invidious discrimination. Moreover, lawsuits challenging alleged discrimination may still be filed, especially in states where the issue has not been definitively resolved. Such suits may not succeed, but they are likely to be costly. For these reasons many organizations choose to treat volunteers as if they are protected by anti-discrimination laws.
The Act includes both employment and public accommodation sections. Although the employment sections of the ADA are unlikely to apply to volunteers, the public accommodations sections may apply. For detailed information on the ADA we suggest consulting one of the comprehensive guides such as the ADA Compliance Manual or the ADA Handbook, (although neither directly addresses applicability of the ADA to volunteers). The Compliance Manual is published by the U.S. Equal Employment Opportunity Commission (EEOC) and is available at Commission headquarters and field offices and public libraries. A copy can be purchased from the Bureau of National Affairs, 1231 25th Street, N.W., Washington, D.C. 20037, (800) 372-1033 and from Commerce Clearing House, 4025 West Peterson Ave., Chicago, IL 60646, (312) 583-8500. The ADA Handbook is a joint publication of EEOC and the Department of Justice and may be purchased at Government Book Stores or by calling (202) 783-3238. An excellent nongovernmental source for information about meeting the needs of individuals with disabilities is the Job Accommodation Network, 1-800-ADA-WORK.
All public agencies are subject to the ADA, and nonprofits generally must comply with the public accommodations rules regardless of staff size. "Public accommodation" generally means an organization that provides goods and services to the public. The ADA contains a detailed list of the sorts of organizations and activities that are included in the Act?s coverage: schools (from nursery through post-graduate, both public and private), museums, galleries, libraries, senior centers, day care centers, stadiums, auditoriums, convention centers, lecture halls, homeless shelters, food banks, adoption agencies, social service, "places of public gathering," stores, gymnasiums and "places of exercise or recreation."[27]
The ADA defines disability as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment."[28] This definition not only includes persons whose impairment substantially limits major activities, it also includes persons who are regarded by others as having an impairment, whether or not the impairment actually substantially limits major life activities.
Pursuant to Title III of the ADA, individuals with disabilities cannot be denied the opportunity to participate in or benefit from the activities of public accommodations. Furthermore, "the opportunity offered to disabled people must be equal to that offered non-disabled people; and the participation or benefit cannot be offered separately, unless that is the only effective way that a disabled person can participate in the program."[29] For example, public accommodations must insure that people with disabilities are admitted or served and that auxiliary aides and services are provided to enable a person with a disability to participate (as long as such modifications do not pose an undue burden).
Although no case has yet applied the ADA to a volunteer, the rules may apply; especially if the volunteer position clearly benefits the volunteers. Additional information may be obtained from special telephone information lines set up by the agencies that administer the ADA; the U.S. Equal Employment Opportunity Commission, which operates an ADA Helpline (800) 669-EEOC (Voice) or (800) 800-3302 (TDD); and the U.S. Department of Justice, Civil Rights Division, Office on the Americans with Disabilities Act (202) 514-0301 (Voice), or (202) 514-0381 (TDD), (202) 514-6193 (Electronic Bulletin Board).
Aside from the federal Americans with Disabilities Act, many states and localities have their own disability discrimination laws covering public and private facilities and organizations. While the Americans with Disabilities Act is broader and supersedes most local laws, some states have laws which may pose additional requirements. As with the other areas of law discussed in this booklet, it is important to consult state and local law with regard to accommodating persons with disabilities in your program.
Some funding statutes create an additional obligation for grantees regardless of civil rights laws. Thus, with regard to discrimination, federal grantees generally must treat volunteers in the same manner as they would employees. If you are receiving federal funds, you need to check to see whether you are required by the terms of your grant or the statute through which you are funded to comply with anti-discrimination rules and other federal civil rights provisions. Even if you are not receiving federal funds, you may be bound as a subcontractor of an organization that receives federal funds.
If your organization places volunteers with independent organizations for the purpose of performing service, your organization could be liable for the discriminatory acts carried out by the other organization. Take, for example, the cooperative education scenario where colleges and universities place students in businesses for the purpose of obtaining practical education. Schools that receive federal financial assistance are prohibited from discriminatory conduct by Title VI of the Civil Rights Act of 1964[31] which states: "No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Similar language appears in federal statutes barring discrimination based on sex,[32] age,[33] and disability.[34] The Department of Education has interpreted the language of these statutes to prohibit "second hand" discrimination and has promulgated regulations which reflect this interpretation. For example, "A recipient [institution] under any program to which this Part applies may not, directly or through contractual or other arrangements, on grounds of race, color or national origin: . . . . deny an individual an opportunity to participate in the program through the provision of services or otherwise or afford him an opportunity to do so which is different from that afforded others under the program . . ."[35]
Segregation which occurs naturally in a program may not necessarily be prohibited by federal statute. For example, a service-learning program based at a women?s college might have all female volunteers, or an urban service corps might have all minority participants who respond to the program?s solicitations for volunteers. As long as the programs do not prohibit participation or impose other barriers to participation by all who wish to serve, anti-discrimination laws are not violated.
In some very specific circumstances, selection can be based on a factor, such as sex, that would ordinarily be impermissible. A bona fide occupational qualification (BFOQ) for the service can be imposed if truly necessary. For example, female applicants may be rejected from a service program that places volunteer counselors at a boy?s camp where the counselors must sleep in the cabins with the boys.
[Workers? Compensation]