“It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you’ll do things differently.” – Warren Buffett

• A 15-year-old girl and her father have brought suit against Appalachian Regional Healthcare (ARH), a Kentucky-based network, on August 19, 2019 for sexual harassment allegedly suffered by the minor.  The girl, who was volunteering at a facility owned by ARH, claims that she, and at least 20 others, were sexually harassed by a physician at the facility.  The minor and her father, who was also a volunteer at the facility, brought their concerns regarding the harassment to management.  They were allegedly told that the report would be kept confidential, but the offending physician confronted the father the next day, claiming that he had friends at ARH who would make sure nothing came of the complaint.  The suit says that after the complaints were made, the hospital took away the volunteer opportunities from both the minor and her father, barring them from participating in the programs.

• The Lexington-based Community Action Council has been faced with a lawsuit in October 2018, regarding alleged sexual harassment committed by its then Executive Director, including unwanted advances and sexual comments.  The lawsuit states that the harassed employee approached the agency’s human resources director with her complaint and with the names of two other employees who had been sexually harassed by the executive director, but she was told that the testimony of those employees would not be sufficient to take action unless they could document the alleged behavior.  The employee alleges that she was then transferred to a different office, given a different job title, and denied a pay raise. The executive director was not terminated at that time.

            Sexual harassment is not limited to the for-profit sector, and the protections of the civil rights statutes can extend even to volunteers who are found to legally be “employees.”  Given the recent examples above, Kentucky employees are experiencing sexual harassment in those settings, and they may have the right to pursue their claims in court when their employers do not take reasonably prompt steps to effectively address past harassment and prevent future harassment.   

Who is an employee under Title VII, the federal civil rights statute?

            An “employee” is defined as “an individual employed by an employer . . . .” 42 U.S.C. § 2000e(f). This definition has been described by the U.S. Supreme Court as “completely circular and [explaining] nothing.”  Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992).  While some courts, such as the 2^nd Circuit, require that a person be paid significant compensation in order to qualify as an employee, the 6^th Circuit, of which Kentucky is a part, has chosen to follow the simple instruction from the U.S. Supreme Court to define the word employee using “the common law of agency.” Ware v. United States, 67 F.3d 574, 576 (6th Cir. 1995).  The common law is a body of unwritten laws based on legal decisions established by the courts over time. The common law of agency influences the decision-making process in commercial and employment cases where the outcome cannot be determined based on existing statutes, such as the “circular” definition of employee above.

What does the common law of agency require in order to find that a volunteer is an employee?

            The following factors will likely be considered by a court under agency law in making a determination of whether a volunteer is an employee:

• The hiring party’s right to control the manner and means by which the product is accomplished;
• The skill required for the job;
• The source of the instrumentalities and tools (such as a computer being provided for your use or tools for a particular job);
• The location of the work;
• The duration of the relationship between the parties;
• Whether the hiring party has the right to assign additional work to the volunteer;
• The extent of the volunteer’s ability to determine when and how long they will work;
• Whether the work is part of the regular business of the employer;
• The provision of employee benefits; and,
• The tax treatment of the hired party.

            If you are working in a nonprofit, either as a paid employee or a volunteer, and you are  experiencing sexual harassment, contact an employment attorney to discuss what’s been happening to you.  We’ve heard it all, we know how this works, and we want to help.