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

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.