Walters v. Metropolitan Ed. Enterprises, Inc., 519 U.S. 202, 5 (1997)

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206

WALTERS v. METROPOLITAN ED. ENTERPRISES, INC.

Opinion of the Court

A

The parties agree that, on any particular day, all of the individuals with whom an employer has an employment relationship are "employees" of that employer. See 42 U. S. C. 2000e(f) (defining "employee" to mean "an individual employed by an employer"). Thus, individuals who are not receiving compensation from their employer on the day in question nonetheless qualify as "employees" on that day for purposes of 2000e(b)'s definition of "employer." Respondents contend, however, and the Seventh Circuit held here, that an employer "has" an employee for a particular working day within the meaning of 2000e(b) only when he is actually compensating the individual on that day. This position has also been adopted by the Eighth Circuit. See EEOC v. Garden & Associates, Ltd., 956 F. 2d 842, 843 (1992).

Petitioners contend that the test for when an employer "has" an employee is no different from the test for when an individual is an employee: whether the employer has an employment relationship with the individual on the day in question. This test is generally called the "payroll method," since the employment relationship is most readily demonstrated by the individual's appearance on the employer's payroll. The payroll method was approved in dictum by the Fifth Circuit in Dumas v. Mount Vernon, 612 F. 2d 974, 979, n. 7 (1980), and was adopted by the First Circuit in Thurber v. Jack Reilly's, Inc., 717 F. 2d 633, 634-635 (1983), cert. denied, 466 U. S. 904 (1984); see also Vera-Lozano v. International Broadcasting, 50 F. 3d 67, 69-70 (CA1 1995) (re-credit manager in September 1989. In granting Metropolitan's motion to dismiss, the District Court stated that the relevant years for determining Metropolitan's status as an employer were 1989 and 1990. 864 F. Supp. 71, 72 (ND Ill. 1994). For purposes of Walters' discrimination claim, however, the relevant years were 1988 and 1989. Because Walters did not mention this issue in her petition for certiorari or her brief on the merits, we treat any objection to the District Court's disposition of the matter as waived.

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