WHEN ARE NONPROFIT VOLUNTEERS PROTECTED BY ANTI-DISCRIMINATION LAW IN MASSACHUSETTS AND DC?
Calling someone a volunteer does not eliminate discrimination risk. If the role comes with real benefits, serves as a path to paid work, or looks too much like a staff position, your nonprofit may be dealing with more than a volunteer relationship, whether you intended that or not.
“Volunteer” is not a liability shield. For nonprofits, the real question is whether the relationship is truly gratuitous or whether it functions enough like employment to trigger anti-discrimination protections.
THE FEDERAL RULE: LOOK AT THE SUBSTANCE, NOT THE LABEL
Federal anti-discrimination statutes generally protect employees, not true unpaid volunteers. But that line is not always clear. Courts look at whether the volunteer receives significant remuneration (i.e., pay) or other meaningful benefits that make the role functionally similar to employment.
That is why the cases split. In Pietrasv. Fire Commissioners of Farmingville, a volunteer firefighter was treated as an employee because the role came with pension, insurance, disability, and medical benefits. In Juino v. Livingston Parish Fire District, small per-call payments, training, and a uniform were not enough. And in Marie v. American Red Cross, the court found no employment relationship where the volunteer arrangement did not fairly approximate paid work.
Another risk point is the volunteer-to-staff pipeline. In Rafi v. Thompson, a DC federal court allowed a claim to proceed where a volunteer role allegedly offered a meaningful path to paid work and valuable professional credentials. If a nonprofit uses volunteer service as a proving ground for hiring, it should not assume the relationship stays outside employment law.
MASSACHUSETTS: NO CLEAN VOLUNTEER CARVEOUT
Massachusetts chapter 151B does not expressly exclude volunteers. That does not mean every volunteer is covered. But it does mean nonprofits should be cautious about assuming state law clearly leaves volunteers out.
The Salvation Army MCAD decision shows why. There, a complainant moved from volunteer service into a paid on-call role. The case illustrates two practical points: once someone moves into paid status, anti-discrimination protections can attach quickly, and the organization’s earlier treatment of that person as a volunteer may still matter as evidence.
Massachusetts nonprofits should also be careful when volunteers perform staff-like work under close supervision. Those facts create risk across multiple legal frameworks, including discrimination and misclassification.
DC: BROAD PROTECTIONS, BUT AN UNSETTLED VOLUNTEER QUESTION
The DC Human Rights Act is one of the broadest anti-discrimination statutes in the country. It expressly covers unpaid interns and independent contractors. It does not clearly say the same thing about unpaid volunteers.
That gap creates uncertainty, not safety. In Jolevare v. Alpha Kappa Alpha Sorority, the court rejected DCHRA employment claims because there was no employer-employee relationship between the sorority and its members. But nonprofits should not overread that case. It suggests some volunteer relationships may fall outside the DCHRA’s employment provisions, but it does not eliminate risk, especially where the relationship looks more like work than membership or service.
WHERE NONPROFITS GET INTO TROUBLE
The biggest risk points are usually practical, not theoretical—
stipends, insurance, or other benefits that make the role look less gratuitous;
using volunteer roles as a regular path to staff hiring;
people serving in both volunteer and paid roles for the same organization; and
tight control over schedules, duties, and performance in a way that mirrors employment.
Nonprofits also often misunderstand volunteer immunity statutes. Those laws may protect individual volunteers from some civil claims, but they generally do not shield the organization itself from discrimination liability.
A NOTE ON RELIGIOUS NONPROFITS
Religious nonprofits may have additional defenses, including Title VII’s religious-organization exemption and the ministerial exception. Those protections can be powerful, but they are not blanket immunity. The key question is function. A role tied to worship, faith formation, or ministry may be protected; a purely administrative role often will not be.
WHAT TO DO NOW
Even where the law is unsettled, nonprofits should treat volunteers as part of their compliance universe. Anti-discrimination and anti-harassment policies should cover volunteers. Complaint channels should be available to them. Volunteer recruitment and supervision should be reviewed with the same discipline the organization applies to hiring and managing staff.
The short version: the word “volunteer” does not decide the issue. The structure of the relationship does.
This article is for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. For advice specific to your organization's situation, contact Commonlight Legal LLP.
Alex Booker is the Managing Partner of Commonlight Legal LLP, a boutique law firm serving nonprofits in Massachusetts, DC, New York, and Connecticut. He advises executive directors and boards on employment law, governance, and general nonprofit counsel.
Before founding Commonlight, Alex adjudicated federal employment cases at the U.S. Merit Systems Protection Board, where he researched and advised on novel issues in federal personnel law, and he litigated whistleblower, wage and hour, and civil rights cases on behalf of employees at a DC employment firm. He is admitted to practice in Massachusetts and Washington, DC.