Pro-plaintiff textualism?

I'm not an expert on civil rights law or anything, but just looking at the D.C. harassment case that Eugene just linked, it looks like a more literalist reading of the D.C. Code would have been kinder to the plaintiff.

1. Analysis under the D.C. Code

Here's what the district judge says:

Plaintiff's sexual harassment claims fail because she was not an “employee” within the meaning of the DCHRA. The DCHRA defines an employee as “any individual employed by or seeking employment from an employer.” D.C.Code § 2-1401.02(9). The statute defines an employer as “any person who, for compensation, employs an individual....” D.C.Code § 2-1401.02(10) (emphasis added). Plaintiff did not satisfy this definition, as she was not working for compensation, nor was she seeking a paid job.

Now consider the relevant D.C. code provisions:

(9) "Employee" means any individual employed by or seeking employment from an employer.

(10) "Employer" means any person who, for compensation, employs an individual, except for the employer's parent, spouse, children or domestic servants, engaged in work in and about the employer's household; any person acting in the interest of such employer, directly or indirectly; and any professional association.

So say A is an unpaid intern for company B. Consider (10) in isolation: Is B an employer? It seems that it is, because B really does employ other people (aside from A) for compensation. So B qualifies as someone who, for compensation, employs an individual. (If you think this is weird, see the Title VII analysis below, where "employer" is defined objectively, without regard to who might happen to be the claimant.)

Now consider (9). Is A an employee? There's definitely an "employer" in the picture, B; the remaining question is whether A was "employed by or seeking employment from" B.

The verb "employ" doesn't seem to be defined in the Code. So now go back to (10), which talks about someone "who, for compensation, employs." It seems there ought to be a concept of uncompensated employment, or else the qualifier "for compensation" would be superfluous. I would think that the definition of "employ" would be the common meaning, something like telling someone to do something as part of one's business.

So I would think that B is an employer (whether or not he is an employer of A), and A is perhaps a person who is employed by B (though not for compensation). If the court had engaged in this more literal reading, it might not have dismissed the D.C. Code sexual harassment claim. Instead, it apparently reads subsection (10) to include a provision that the employment of the plaintiff itself must be for compensation:

The text of the DCHRA clearly provides that the employment must be “for compensation.” See D.C.Code § 2-1401.02(10) (defining an employer as “any person who, for compensation, employs an individual ... [or] any person acting in the interest of such employer, directly or indirectly”).

2. Analysis under Title VII

The district court also gets support from its position from Title VII, relying on local D.C. precedent saying that Title VII should be considered in interpreting the D.C. Code. And then it cites three Title VII cases:

See, e.g., O'Connor v. Davis, 126 F.3d 112, 115-16 (2d Cir.1997) (college student volunteering as an intern at a hospital as part of her academic studies was not an employee under Title VII); Neff v. Civil Air Patrol, 916 F.Supp. 710, 712 (S.D.Ohio 1996) (“unpaid volunteers are not employees within the protection of Title VII”); Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211, 221(4th Cir.1993) (volunteer firefighter found to be an employee under Title VII because, while she did not receive direct compensation, she received other benefits such as a disability pension, survivor's pension for dependents, and tuition reimbursement).

To get the "employer" and "employee" definitions from Title VII, we look at 42 U.S.C. 2000e:

(b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person . . . .

(f) The term “employee” means an individual employed by an employer . . . .

So here, too, B would be an "employer" under (b) — because "employer" is defined with respect to all employees he has, not with respect to his relationship with any particular claimant. And under (f), we get the same ambiguity, where we don't know what "employed" means. As I said above, I'd think that "employed" would incorporate some usual meaning — except that in the D.C. case, there's a reason for inferring the existence of "unpaid employment," while arguably you may decide otherwise in defining "employ" for Title VII.

What do those Title VII cases say? The first one, O'Connor v. Davis, says (citations omitted):

The definition of the term “employee” provided in Title VII is circular: the Act states only that an “employee” is an “individual employed by an employer.” However, it is well established that when Congress uses the term “employee” without defining it with precision, courts should presume that Congress had in mind “the conventional master-servant relationship as understood by the common-law agency doctrine.” . . .

Where no financial benefit is obtained by the purported employee from the employer, no “plausible” employment relationship of any sort can be said to exist because although “compensation by the putative employer to the putative employee in exchange for his services is not a sufficient condition, ... it is an essential condition to the existence of an employer-employee relationship.”

The next case, Neff v. Civil Air Patrol, says:

In order to determine whether a person is an “employee” and therefore a proper plaintiff under Title VII, the Sixth Circuit considers whether the “economic realities” of a situation make the putative employee “susceptible to the kind of unlawful practices that Title VII was intended to remedy.”

and decides that the economic reality of not getting paid is what makes the difference. In other words, in the absence of statutory guidance, they use purposivist reasoning to conclude that liability for sexually harassing interns wouldn't further the presumed goals of Title VII.

The third case, Haavistola v. Community Fire Co. of Rising Sun, cites prior cases from other circuits, expressly citing the legislative history to the effect that we should rely on dictionary definitions of "employee" and "employer." And Webster's Third (attention Scalia!), says an employee is "one employed by another usu. in a position below the executive level and usu. for wages." From this "usu.", the court extracted a necessary condition!, concluding that in the absence of wages, there's no employee.

Bottom line: Some of these Title VII cases use non-textualist analysis to decide against the unpaid intern claimant. Some do use textualist analysis, but not necessarily good textualist analysis. Under a proper textualist analysis, maybe, for Title VII, one might conclude that explicit compensation is necessary to be "employed."

But there's no reason for the same analysis to apply to the D.C. Code, because the D.C. Code does mention employment for compensation — as I mentioned above, suggesting that compensation isn't necessary for employment to exist.

So this is one of many cases where a textualist analysis could actually be pro-claimant — a result that's usually labeled "liberal" in civil rights cases — contrary to the common perception of textualism as being a conservative methodology.

For more on this, see my recent article, Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else, 83 NYU L. Rev. 769 (2008).

Related Posts (on one page):

  1. Pro-plaintiff textualism?
  2. Not Illegal in D.C. to Sexually Harass Interns: