The opinion of the court was delivered by: HUYETT
Plaintiff has filed this action alleging that defendants Berks Community Television (BCTV) and Kathleen Stutzman have discriminated against him in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Defendants have filed a motion to dismiss on the grounds that BCTV is not an "employer" as that term is defined by the act and that, therefore, this court lacks subject matter jurisdiction. For the reasons which follow, I will grant the motion to dismiss.
The parties agree that this is a matter of first impression. Whether one is an employee for purposes of Title VII jurisdiction is a question of federal law and is to be ascertained through consideration of the statutory language and legislative history of the Act. Armbruster v. Quinn, 711 F.2d 1332, 1339 (6th Cir. 1983).
The definition of "employee" contained in Title VII is of little help. "The term 'employee' means an individual employed by an employer." 42 U.S.C.A. § 2000e(f). The statute does specifically exclude certain workers from the definition of employee. Plaintiff argues that because volunteers are not explicitly excluded from the definition, they are included. However, the statute excludes certain occupations from coverage, not certain types of workers.
This language cannot be construed as intending to make a distinction between e.g., paid employees and volunteers, or employees and independent contractors.
The legislative history indicates the objective of Title VII was the elimination of discrimination in employment. Griggs v. Duke Power Co., 401 U.S. 424, 429-31, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971); Equal Employment Opportunity Commission v. E.I. duPont de Nemours & Co., 445 F. Supp. 223, 232 (D. Del. 1978). Thus, the Act makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment." 42 U.S.C.A. § 2000e-2(a)(1). "In 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." McBroom v. Western Electric Co., Inc., 429 F. Supp. 909, 911 (M.D.N.C. 1977).
Although the primary purpose of Title VII was the elimination of unlawful discrimination in employment, a secondary purpose, reflected in the scope of relief provided by the statute, was to make whole those who have been injured by such discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-21, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975); Adler v. John Carroll University, 549 F. Supp. 652, 655 (N.D. Ohio 1983).
In determining whether an individual is an employee for Title VII purposes, "one must examine the economic realities underlying the relationship between the individual and the so called principal in an effort to determine whether that individual is likely to be susceptible to the discriminatory practices which the act was designed to eliminate." Armbruster, 711 F.2d 1332, 1340.
Unpaid volunteers are not susceptible to the discriminatory practices which the Act was designed to eliminate. Moreover, although injunctive relief would, of course, be available to volunteers, the remedy of back pay would be wholly inappropriate for unpaid workers.
Plaintiff argues that remuneration is not an essential element of the definition of "employee," and that the determinative characteristic is the control of the employee's activities by the employer. However, cases such as Tarboro v. Reading Co., 396 F.2d 941 (3d Cir. 1968), cert. denied, 393 U.S. 1027, 21 L. Ed. 2d 569, 89 S. Ct. 637 (1969) are directed towards the distinction between an employee and an independent contractor, or a "borrowed servant." In such a case, the power to control and supervise the employee is the critical factor. Such a case is not dispositive of the instant issue.
Nor is McClure v. Salvation Army, 460 F.2d 553 (5th Cir.) cert. denied, 409 U.S. 896, 34 L. Ed. 2d 153, 93 S. Ct. 132 (1972), cited by the plaintiff, controlling in the present case. In McClure, the plaintiff had stated in an employment application that she would regard herself as a volunteer. However, the court found that plaintiff was "selected, employed, controlled, trained, and paid by [defendant]. When the existence of such factors is shown, the individual falls within the definition of 'employee.'" 460 F.2d 553, 557 (emphasis added). In the present case, of course, the volunteers were not paid by the defendants or by any other person.
Reading the term "employee" in light of the mischief to be corrected and the end to be attained, NLRB v. Hearst Publications, 322 U.S. 111, 124, 88 L. Ed. 1170, 64 S. Ct. 851 (1944), I conclude that unpaid volunteers are not employees within the meaning of the Act.