High/Middle School Basketball Referee Was Not a Title VII “Employee”; Gender Discrimination and Retaliation Claims Dismissed

A recent decision, Girard v. International Association of Approved Basketball Officials, Inc., 2021 WL 222116 (2d Cir. Jan. 22, 2021) (Summary Order), illustrates the principle that Title VII of the Civil Rights of 1964 (the primary federal anti-discrimination law) protects only “employees.”

Girard, a female middle and high school basketball referee, sued defendants under Title VII, alleging discrimination on the basis of gender and retaliation for complaining of the alleged discrimination.

Plaintiff alleges, in sum, that she was assigned to “low level” games because of her gender and, after filing a grievance, defendants “reduced the number of games Girard was assigned to and continue to assign her to sub-varsity games in retaliation for her complaints about gender discrimination.”

This case does not turn on whether plaintiff presented sufficient evidence of unlawful discrimination or retaliation, but rather on her status as an “employee” entitled to the protection of the law.

Here is the “black letter law” regarding this issue:

Title VII makes it unlawful for “employer[s]” to engage in discriminatory “employment practices.” 42 U.S.C. § 2000e-2. To state a claim under Title VII, a plaintiff must therefore allege “the existence of an employer-employee relationship.” Gulino v. N.Y. State Educ. Dep’t, 460 F.3d 361, 370 (2d Cir. 2006). In Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989), the Supreme Court identified thirteen non-exhaustive factors that courts may (but are not required to) consider in determining whether an employer-employee relationship exists:

[1] the hiring party’s right to control the manner and means by which the product is accomplished…. [;] [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party’s discretion over when and how long to work; [8] the method of payment; [9] the hired party’s role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; and [13] the tax treatment of the hired party. …

[A] prerequisite to considering whether an individual is [an employee] under common-law agency principles is that the individual have been hired in the first instance.” O’Connor v. Davis, 126 F.3d 112, 115 (2d Cir. 1997) (emphasis added). “In determining whether a person has been ‘hired,’ we look primarily to ‘whether [a plaintiff] has received direct or indirect remuneration from the alleged employer.

Applying the law, initially, the court concluded that since plaintiff alleged that the schools, and not defendants, pay for her refereeing, and did not allege that the defendants provided her with any other kind of remuneration, defendants were not plaintiff’s “employers” as a matter of law.

Next, the court considered, and rejected, plaintiff’s assertion that defendants were liable as “employment agencies” under Title VII.

Title VII defines an “employment agency” to mean “any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer.” 42 U.S.C. § 2000e(c).

Plaintiff alleged, specifically, that the requisite employer-employee relationship is between her and the schools for which she referees, and defendants facilitate that employment relationship. Under this theory, noted the court, plaintiff was required to plausibly plead an employer-employee relationship with the schools for defendants to have acted as employment agencies.

While plaintiff met the “remuneration” standard with respect to the schools – since she alleged that the schools et al paid her on a per-game – her claim failed because she failed the common-law agency test that must be applied in determining whether an employment relationship exists.

Applying the Reid factors, the court held:

Girard has not plausibly alleged that she was an employee of the schools in her capacity as a referee. She does not allege that the schools exercised meaningful control over how games are officiated. She also fails to allege the duration of the relationship between a referee and a school. While the complaint alleges that Girard refereed a total of 37 games in the 2008–2009 season, the complaint does not indicate whether she did so for the same or different schools or whether she refereed for the same school on more than one occasion or whether she had a relationship with any school that would suggest an employer-employee relationship. And Girard does not allege she received any employment benefits from the schools other than pay for games she officiated. As the district court observed, these facts do not distinguish Girard’s relationship with the schools from that of an independent contractor where the schools otherwise lack the right or ability to control how the services are performed.

The court concluded that “[b]ecause Girard has failed to allege that she was employed by the schools, she has also not alleged that defendants are liable as ’employment agencies’ under Title VII.”

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