Huang v. Ohio State University, 116 F.4th 541 (6th Cir. 2024), involved a sexual harassment lawsuit. The twist was that the plaintiff, Meng Huang, was a graduate student. So, along with the usual “was the conduct severe and pervasive enough to constitute unlawful harassment” questions relating to the sexual harassment claim (the suit also included a retaliation claim), a key question became whether Huang could even file a claim under Title VII since this federal law only applies to “employees.” It is interesting to think this question of whether a graduate student is an “employee” under Title VII had not been addressed previously, but that was the case — in the 6th Circuit Court of Appeals at least — before the Huang decision.

The Legal Playing Field

By way of providing some context for the 6th Circuit’s rationale below, Title VII defines “employee” as “an individual employed by an employer.”[1] Because this definition “is completely circular and explains nothing,” the 6th Circuit applies the common law meaning of the term and has adopted an agency test to answer the legal question of whether an individual is an “employee” for purposes of Title VII.[2] The crux of this test requires a court to consider the scope of the parties’ relationship  and specifically the hiring entity’s “right to control the manner and means” by which an individual accomplishes the work they perform on behalf of the hiring entity.[3] This is done by examining “all incidents [or dimensions] of the relationship.”[4]

The factors of this agency test the 6th Circuit found most relevant in the Huang decision were how much control Ohio State exercised over Huang’s work as a graduate student, the benefits Ohio State received for her work, and the benefits she received from Ohio State for it.[5]  The court also pointed out that the factor many employees and employers alike still believe is (or should be) the determining one — how the parties themselves label the relationship — actually is completely irrelevant to this agency test “and should be ignored.”[6]

The Court’s Holdings

Huang filed suit in the U.S. District Court for the Southern District of Ohio at Columbus. The district court dismissed all her claims against Ohio State in granting Ohio State’s motion for summary judgment on the ground described above, finding that a graduate student is not an “employee” under Title VII. The 6th Circuit found that the district court had erred in dismissing Huang’s claims against Ohio State and that there were disputed issues of fact which a jury would need to resolve in determining whether Huang was an “employee” under Title VII.

The Court’s Rationale

The district court had reasoned that since Ohio State classified all graduate students as “students,” this classification precluded a finding that a graduate student could be both a “student” and an “employee” simultaneously.[7]  The 6th Court found that because “a student’s academic and employment work can overlap, [being classified as a ‘student’] does not [automatically] remove them from the employment protections of Title VII.”[8] (Emphasis supplied.) In making this determination, the 6th Circuit looked to the decisions of other circuits in what it deemed to be similar contexts in which these other circuits had recognized that this dichotomy could exist, such as medical residents who are attending classes and receiving other types of educational training at a medical school but who also are seeing patients as part of their medical residency programs.[9]

Additionally, Ohio State had weakened its own argument that Huang was not an “employee” by classifying her as one when she was a graduate research assistant but not when she was a graduate fellow.[10]  The court found that there was “little to no difference” in the amount of control Ohio State exercised over its graduate fellows and its graduate research assistants to warrant this distinction as a matter of law.[11]

Finally, the 6th Circuit discussed the 13 factors the U.S. Supreme Court recognized in Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318 (1992), to assess a hiring party’s “right to control the manner and means” by which the work of an individual is performed so as to be deemed an “employee.”[12] These 13 factors are:

1. the hiring party’s right to control the manner and means by which the [work] product is accomplished;
2. the skill required [to perform the work];
3. the source of the instrumentalities and tools [used to perform the work];
4. the location of the work;
5. the duration of the relationship between the parties;
6. whether the hiring party has the right to assign additional projects to the [individual];
7. the extent of the [individual’s] discretion over when and how long to work;
8. the method of payment;
9. the [individual’s] role in hiring and paying assistants;
10. whether the work is part of the regular business of the hiring party;
11. whether the hiring party is in business;
12. the provision of employee benefits [to the individual]; and
13. the tax treatment of the [individual].[13]

Those of us who travel in these waters frequently will recognize these as the 13 factors we are accustomed to using when classifying a worker as either an “employee” or an “independent contractor.” The Huang decision affirms the 6th Circuit’s willingness to apply these factors in other contexts in determining who is an “employee” as a matter of law.

What This Decision Means for Employers

The 6th Circuit did not ultimately determine whether Huang’s position as a graduate student qualified her as an “employee” under Title VII. Rather, this determination was remanded to the district court with the 6th Circuit’s instruction to apply the 13-factor Darden test on its own.[14] Each time the 13-factor Darden test is applied by the 6th Circuit, however, employers gain additional insight into how these factors are likely to be applied in their workplace.

In Huang, the 6th Circuit continued to place an emphasis on “factor [10]” above — whether the work the individual is performing is part of the regular business of the hiring entity.[15]  The court also highlighted the fact that Ohio State received significant economic benefits from Huang’s work, which supported her classification as an “employee,” as did the fact she received more from Ohio State than just “free tuition” as a graduate student.[16] She was paid a stipend, which Ohio State maintained was intended to pay for her living expenses, along with a discretionary bonus “in recognition of her academic and professional background.”[17] She also was “recruited” and selected for a particular division of Ohio State’s PhD program based on her knowledge, skill, and prior experience in her area of study.[18] Her program “supervisor” determined when and where Huang was to meet with him as well as whether these meetings would be virtual or in-person.[19] He also reviewed her work not only for an academic grade but also based on the requirements of the private company with whom Ohio State had contracted.[20]

Anyone who has read the court decisions recognizing college athletes as “employees” of their respective universities will not be surprised by the 6th Circuit’s decision in Huang, as that is the most publicized recent application of these factors, resulting in the NCAA along with individual colleges and universities now needing to negotiate with individual student athletes regarding name, image, and likeness compensation or “NIL deals.”

The Huang decision highlights the fact that merely labeling a worker an “intern,” a “contractor,” a “volunteer,” or even a “student” will not preclude the worker from being deemed by a court as an “employee” from a legal standpoint. This should serve as a reminder to employers that they need to take a closer look at anyone they have performing work for them on a regular basis who is not classified as an “employee” — even if, as was the case for “The” Ohio State University — this has been the case for decades not only for this university but for most others throughout the country. As we learned regarding the “student athlete” decisions, the mere fact that a position is widely classified the same way in the same industry does not mean it is correctly classified.

Stacie Caraway is a member of the Labor and Employment Practice Group at Miller & Martin PLLC in Chattanooga. She is fast approaching 30 years of practice; she started at age 10 (she likes to tell herself!). Caraway also has been singing professionally since age 9 and has performed at two Billy Graham Crusades and for three U.S. presidents.