Who Counts?: The United States Supreme Court Cites 'Control' as the Key to Distinguishing Employers from Employees Under Federal Employment Antidiscrimination Laws

41 Pages Posted: 20 Oct 2009 Last revised: 1 Dec 2012

See all articles by Stephanie M. Greene

Stephanie M. Greene

Boston College - Carroll School of Management

Christine Neylon O'Brien

Boston College - Carroll School of Management

Date Written: October 19, 2003

Abstract

This article considers who qualifies as a covered employee under Title VII in employment discrimination cases. 'Who counts' is in fact an important threshold issue in litigation, one that caused a split among the circuit courts, and required resolution by the United States Supreme Court in Clackamas Gastr. Assoc. v.Wells. This 'counting' issue is particularly common in professional partnerships and corporations, as well as in workplaces whose employees may work seasonal, part-time or other non-standard terms of employment. This article analyzes the issues posed and the conclusion reached by the Supreme Court in the Clackamas case and the extent to which the Courts decision has resolved several questions regarding employer and employee status. The authors suggest further amendments as a way to remedy the inconsistencies and unfairness in counting cases as a way to further clarify and codify whether a business is subject to Title VII.

Suggested Citation

Greene, Stephanie M. and O'Brien, Christine Neylon, Who Counts?: The United States Supreme Court Cites 'Control' as the Key to Distinguishing Employers from Employees Under Federal Employment Antidiscrimination Laws (October 19, 2003). Columbia Business Law Review, Vol. 2003, No. 3, pp. 761-799, 2003 , Available at SSRN: https://ssrn.com/abstract=1491298

Stephanie M. Greene (Contact Author)

Boston College - Carroll School of Management ( email )

140 Commonwealth Avenue
Chestnut Hill, MA 02467
United States

Christine Neylon O'Brien

Boston College - Carroll School of Management ( email )

140 Commonwealth Avenue
Business Law Department
Chestnut Hill, MA 02467
United States
(617) 552-0413 (Phone)
(617) 552-0414 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
28
Abstract Views
560
PlumX Metrics