Academic journal article Fordham Urban Law Journal

A Price on Volunteerism: The Public Has a Higher Duty to Accommodate Volunteers

Academic journal article Fordham Urban Law Journal

A Price on Volunteerism: The Public Has a Higher Duty to Accommodate Volunteers

Article excerpt

[N]o matter how big and powerful government gets and the many services it provides, it can never take the place of volunteers.

--Ronald Reagan (1)

A volunteer is a person who can see what others cannot see, who can feel what most do not feel. Often, such gifted persons do not think of themselves as volunteers, but as citizens in the fullest sense, partners in civilization.

--George H. Bush (2)

Volunteers are essential to the proper functioning of America. Non-profit organizations normally do not have enough resources to retain the requisite number and quality of paid staff members. (3) More important than increasing the size of the workforce, however, are the special skills and interests that volunteers often bring to an organization. The personal attachment, perspective, and dedication that these volunteers offer are very distinct from the services of a typical employee. (4) Volunteers often have personal experience in the non-profit organization's cause and are successful in other aspects of their lives. In fact, business executives and celebrities often volunteer many hours in support of their favorite causes. (5)

Instead of paying their volunteers, organizations often compensate volunteers by providing them with benefits. The benefits can range from perks such as access to facilities to the "warm, fuzzy feeling" that comes from spending time working with the beneficiaries of the organization. Both parties normally see the relationship as an equal exchange of services: the volunteers provide their time and energy in exchange for access to the organization's people and facilities.

One such organization that utilizes the services of volunteers is the Muscular Dystrophy Association ("MDA"). The MDA, funded only by private donations, provides research services, various forms of educational outreach, and community services including summer camps for children with muscular dystrophy. (6) Of the two million volunteers that help the MDA annually, the MDA's famous chairman, comedian Jerry Lewis, is its "number-one volunteer." (7)

Despite the vital position many volunteers occupy, the United States Court of Appeals for the Tenth Circuit decided that the Americans with Disabilities Act ("ADA") does not protect these volunteers from discrimination. In Bauer v. Muscular Dystrophy Ass'n, the court ruled that an MDA summer camp is not required to accommodate volunteers with disabilities--even volunteers with muscular dystrophy. (8) According to the court, the MDA's requirement that all volunteers, including administrative volunteers, have the ability to lift and care for a camper is not discriminatory. (9)

People with disabilities have been protected from discrimination since the enactment of the ADA in 1990. (10) The drafters of the ADA intended it to "provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." (11) To achieve this goal, the ADA protects against, among other things, discrimination in places of public accommodation under Title III (12) and discrimination against employees under Title I. (13) Places of public accommodation include private entities such as "a place of recreation," "a place of education," and a "social service center establishment." (14) Title III, for example, would protect a child with disabilities who attends a summer camp. Under Title I, a protected employee is defined as "an individual employed by an employer," and an employer is a "person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks ... and any agent of such person." (15) Title I, therefore, would protect an employee working at a summer camp. The ADA, however, does not clearly address where volunteers fit into this structure, and this omission has led to the failure to accommodate volunteers as exemplified by the Bauer decision. …

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