A price on volunteerism: the public has a higher duty to accommodate volunteers.

• Author: Attard, Lauren

[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.

This Comment first examines the issues presented in Bauer and the court's rationale for finding that volunteers are not protected under Title III. Part II explores the requirements and differences between Title I and Title III and provides some history of the definitions of "volunteer" and "employee." Part III presents a public duty thesis arguing that the responsibility of providing accommodations should not belong solely to employers in the context of employees, or public accommodations in the context of patrons, but to all factions of society. This Comment concludes with an exploration in Part IV of the public duty thesis and how such a thesis may work under our current system.

1. BACKGROUND AND EXPLANATION OF BAUER

   There are a myriad of degrees and types of diseases characterized as muscular dystrophy. (16) Whereas some children with muscular dystrophy have severe physical and medical disabilities, some children and adults with muscular dystrophy exhibit very mild physical effects. (17) Camp Chihowa is an MDA camp for children and young adults with all degrees and types of muscular dystrophy. (18) Nevertheless, the camp's management told two former volunteers who have muscular dystrophy, Gina Bauer and Suzanne Stolz, that they could no longer provide their services at the camp. (19) The management decided to enforce its policy that volunteers meet physical requirements "necessary to fulfill the primary purpose of the camp and to ensure its safe operation." (20) The policy, which requires that all volunteers are "of sufficient size and strength to assist with the needs of campers" and are able to "lift and care for campers," has been in effect since at least 1993. (21)

   Both Ms. Bauer and Ms. Stolz, who cannot "lift and care for a camper" because of the effects of muscular dystrophy, were volunteer counselors at Camp Chihowa for five years between 1995 and 2000. (22) Each volunteer devoted a substantial amount of time to the camp, both administratively and as a traditional counselor. Both Ms. Bauer and Ms. Stolz were volunteer co-directors of the camp's newspaper and yearbook in 2002. (23) Moreover, Ms. Bauer not only assisted a new camp director in major organization and planning of the camp in 2001, but in the previous year she served as a personal attendant to a camper. (24) The job of a personal attendant is very time intensive. Typically, the camp assigns one volunteer counselor to each camper as her personal attendant to accompany the child at all times. (25) Other volunteer counselors, in addition to performing their duties, fill in when the personal attendants are not available. (26) As the district court explained, in addition to performing as attendants, these volunteers generally "form a strong bond with children at the camp...." (27)

   Meanwhile, in 2003, the MDA added a question to the volunteer application asking whether the applicant can lift and care for a camper. That same year the camp director informed Ms. Bauer that she could no longer volunteer because she did not meet these requirements. (28)

   The district court opinion hints that the plaintiffs' disabilities were not the only factor that motivated the director's decision to deny them the chance to volunteer. (29) Specifically, the opinion explains that although the MDA typically aims for Camp Chihowa to have fifty volunteers to care for its forty campers, the camp had seventy volunteers in 2002. (30) A camp director objected to the camp's large number of volunteers and was upset that volunteers did not have duties to occupy all of their time at the camp. (31) In particular, the director was disappointed that Ms. Stolz and Ms. Bauer's positions as newspaper and yearbook editors only required them to work about two hours a day, providing enough free time to partake in such activities as swimming in the pool, which required the assistance of other volunteers. (32) The director was upset that the volunteers were enjoying the same benefits as campers, and even taking resources away from campers. (33)

   The plaintiffs filed suit against the MDA, alleging that the MDA's conduct violated both the Kansas Act Against Discrimination (34) and Title III of the ADA, (35) which governs places of public accommodation. (36) The district court rejected the plaintiffs' contention that Title III governed their claims. (37) The court instead relied on a Senate Report which explained, "Title III is not intended to govern any terms or conditions of employment by providers of public accommodations or potential places of employment; employment practices are governed by [T]itle I of this legislation." (38)

   The district court remained unconvinced by the Third Circuit's reasoning in Menkowitz v. Pottstown Memorial Medical Center, which allowed an independent contractor to assert a claim under Title III and not Title I, because he was not an employee. (39) The defendant in Menkowitz argued that use of the term "individuals" in a place of public accommodation referred to in Title III (40) only protects the "clients and customers" of a place of public accommodation and not, as the plaintiff argued, independent contractors. (41) The United States Court of Appeals for the Third Circuit looked to legislative history, congressional intent, and case law before commencing its analysis of the statute. (42) The court acknowledged that the terms "individuals" and "place of public accommodation" could be broadly construed, (43) but found the defendant's argument that "individuals" only includes "clients and customers" too narrow. (44) "Clients and customers" is a term used in only a small subsection of Title III. (45) In fact, that particular subparagraph in Title III states that the definition of "individuals" as "clients and customers" is only "[f]or purposes of clauses (i) through (iii) of this subparagraph...." (46) In other words, the drafters declined to extend this definition to the whole of Title III.

   The Menkowitz court also noted that the plaintiff would have no recourse under the ADA if he was not covered by...