EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII:  VACCINATION POLICIES, COVERED ENTITIES, RELIGIOUS ACCOMMODATION

November 2, 2012

[ADDRESS]

Dear ____:

Your letter dated October 5, 2012, addressed to the Chair of the U.S. Equal Employment Opportunity Commission (EEOC), has been directed to me for reply.  Your letter follows up on earlier correspondence about healthcare workers who seek to be excused from mandatory employer influenza vaccination policies as a religious or disability accommodation.  See my March 5, 2012 informal discussion letter (discussing Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (2009), www.eeoc.gov/facts/pandemic_flu.html; Guidelines on Discrimination Because of Religion, 29 C.F.R. Part 1605, www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-2011-title29-vol4-part1605.xml; Compliance Manual, Section 12: Religious Discrimination (2008),

).⁽¹⁾

Your October 5, 2012 letter inquires whether Title VII of the Civil Rights Act of 1964 (Title VII) religious accommodation obligations extend to individuals who do hospital-related work and are subject to mandatory vaccination policies, including:  (1) hospital vendors who handle the marketing and/or management of hospital equipment; (2) hospital contractors; (3) hospital volunteers; and, (4) college students in healthcare curricula who are required to do clinical rotations at hospitals. 

These inquiries raise Title VII jurisdictional questions about whether and how the individuals in these roles may be covered by the statute and, therefore, may seek religious accommodation barring undue hardship from the hospital's vaccination requirements.  Under Title VII, undue hardship has been defined by the courts and the Commission to mean anything more than a de minimis burden on the operation of the employer's business. 

Outside Vendors

Individuals who are employed solely by an outside entity but are subject to hospital policies because they enter the hospital to perform their duties may be protected under Title VII's prohibition on third-party interference.  See EEOC Compliance Manual on Threshold Issues, www.eeoc.gov/policy/docs/threshold.html (Threshold Issues), at section 2-III-B.3.a.  Title VII prohibits a covered third-party employer, which may include a hospital, from discriminatorily interfering with an individual's employment opportunities with another employer. 

One of the contexts in which the EEOC has previously invoked this principle was a case involving an employee of a franchise who sought an exception on religious grounds to a third-party corporation's dress code applicable to all franchises.  See EEOC v. Papin Enterprises, Inc., et al., 2009 WL 961108 (M.D. Fla. April 7, 2009).  Additional discussion of third-party interference under Title VII can be found in the EEOC Enforcement Guidance:  Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, www.eeoc.gov/policy/docs/conting.html.

Contractors

Whether Title VII applies to an individual does not depend on whether he is labeled an "employee" or a "contractor," but rather on whether the nature of the actual relationship between the individual and the entity demonstrates that he is actually its employee. The determination must be based on all of the circumstances in the relationship between the parties. The EEOC's Threshold Issues guidance follows Supreme Court precedent by listing numerous factors that may be relevant to this inquiry.  See N ationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992). However, not all or even a majority of the listed criteria need to be met if the facts clearly demonstrate that there is an employment relationship.

Factors that may weigh in favor of the individual being deemed an "employee" include: (1) the employer's right to control when, where, and how the worker performs the job; (2) the lack of skill required to perform the work; (3) the employer's provision of tools, materials, and equipment;(4) the work being performed on the employer's premises; (5) a continuing relationship between the parties; (6) the employer's right to assign additional projects to the individual; (7) the employer's authority to set the hours of work and duration of the job; (8) payment of the individual by the hour, week, or month, rather than by the job; (9) the individual's failure to hire and pay assistants; (10) the individual's performance of work that is part of the employer's regular business; (11) the employer being in business; (12) the individual's lack of her own distinct occupation or business; (13) the employer's provision of employee benefits such as insurance, leave, or workers' compensation; (14) the employer
treating the individual as an employee for tax purposes (i.e., withholding federal, state, and social security taxes); (15) the employer's authority to fire the worker; and (16) the parties' belief that they created an employer-employee relationship.  Threshold Issues (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992)). "This list is not exhaustive.  Other aspects of the relationship between the parties may affect the determination of whether an employer-employee relationship exists." Id.

Volunteers and Interns

Volunteers usually are not protected "employees" within the meaning of Title VII.   However, volunteers -- including students performing work in fulfillment of an educational requirement -- may qualify as "employees" if the entity for which they work controls their work performance and the individual also receives "significant remuneration" (such as a stipend or tuition reimbursement) for performing the work or the work is unpaid but regularly leads to employment with that entity.

"Significant remuneration" for  volunteer service could  include things such as a pension, group life insurance, workers' compensation, or access to professional certifications, even if the benefits are provided by a third party. See Threshold Issues, at part 2-III.A-1.c (discussing coverage for volunteers) (citing Pietras v. Board of Fire Comm'rs, 180 F.3d 468, 473 (2d Cir. 1999)). For example, if an educational institution provides significant benefits to an unpaid intern for volunteer work with an outside entity, the intern may be an "employee" of that entity under Title VII, provided that the entity also controls the volunteer or intern's work performance.

By contrast, a volunteer or intern who receives only some small benefit that is an "inconsequential incident of an otherwise gratuitous relationship" will not be an "employee" under Title VII. Threshold Issues (quoting Haavistola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d 211, 222 (4th Cir. 1993)). Benefits that courts have not deemed to be "significant remuneration" include academic credit, practical experience, and scholarly research. See Jacob-Mua v. Veneman, 289 F.3d 517, 521 (8th Cir. 2002) (student researcher is not an employee by virtue of obtaining research during her internship that was valuable for her dissertation) (abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (2011) (en banc)). Nonetheless, even where no significant remuneration exists, unpaid volunteers or interns may be considered employees if the volunteer work is required for regular employment, or regularly leads to paid employment with the same employment institution. Threshold Issues (citing Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 198 n.4 (3d Cir.), cert. denied, 513 U.S. 1022 (1994)). For instance, an example in Threshold Issues describes a volunteer counselor with a public interest organization who alleges sexual harassment. The volunteer service is not a prerequisite to employment, but former volunteers are given preferential treatment when competing for vacancies, and most of the regular, paid counselors initially performed volunteer work for the organization.  In this case, volunteer service regularly leads to employment with the
organization, and the volunteer is therefore considered an "employee" for purposes of the EEO statutes.⁽²⁾   

If an EEO claim is asserted by a paid student intern against the school itself as the named employer or joint employer, courts may weigh additional factors.  For example, some courts place weight on whether the primary role of the paid intern is as a student as opposed to as an employee. See, e.g., Cuddeback v. Florida Bd. of Educ., 381 F.3d 1230, 1234-35 (11th Cir. 2004) (paid graduate researcher's main purpose being to satisfy requirements of her graduate program weighed in favor of treating her as a student, but this was outweighed by the university's provision of a stipend, fringe benefits, sick and annual leave, and participation in a collective bargaining agreement that governs the employer/employee relationship); Pollack v. Rice Univ., 1982 WL 296 (S.D. Tex. Mar. 29, 1982) (applicant to graduate program that employs students as instructors is a student, not an employee for Title VII purposes). ⁽³⁾

I hope this information is helpful.  This has been an informal discussion of the issues you raised and does not constitute an official opinion of the Equal Employment Opportunity Commission.  If you have further questions, please contact Senior Attorney Advisor Jeanne Goldberg or Assistant Legal Counsel Carol Miaskoff at 202.663.4640.

Sincerely,

/s/
Peggy R. Mastroianni
Legal Counsel

FOOTNOTES

(1) www.eeoc.gov/eeoc/foia/letters/2012/religious_accommodation.html.

(2)  In addition, an applicant to, or a participant in, a training or apprenticeship program is protected against discrimination with respect to admission to, or participation in, the training or apprenticeship program, regardless of whether the individual is an employee. 42 U.S.C. § 2000e-2(d) (Title VII); 42 U.S.C. § 12112(a) (ADA); 29 C.F.R. § 1625.21 (ADEA).

(3)  As a separate matter, any discrimination by an educational institutional also may be covered under one of the laws enforced by the Department of Education, including Title VI of the Civil Rights Act of 1964 or Title IX of the Education Amendments of 1972.  More information is available at the website of the Department of Education, Office of Civil Rights, http://www2.ed.gov/about/offices/list/ocr/docs/howto.html.

This page was last modified on December 6, 2012.