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The federal appeals court based in Denver has reinstated a Pueblo man's discrimination lawsuit and ordered a further review of his employment status, reversing a lower court's determination that he was not an employee in a federally-funded jobs program.

William Clinton Hill was a participant in the Senior Community Service Employment Program, which is a paid job training program for low-income people 55 and older who are seeking employment. With funding from the U.S. Department of Labor, SER Jobs for Progress National is an administrator of the training program with cooperation from local nonprofit agencies.

Hill, who is Black, alleged that SER kept hidden from him an administrative assistant job opening with Habitat for Humanity, for which Hill was qualified. Instead, it sent a "lesser qualified non-African American candidate" for the position. Hill submitted a statement claiming discrimination to the Equal Employment Opportunity Commission after which SER allegedly penalized Hill, placed him on unpaid leave and forced him to seek another job.

His federal lawsuit alleged employment discrimination, but in February of this year a federal judge sided with SER, finding the organization had explicitly declared its job training participants were not employees of SER or the local nonprofit agencies.

"SER’s SCSEP participants are notified of such in the Participant Handbook and the many forms that the participants sign at their enrollment into the program and during their periodic re-certifications to remain in the program," wrote U.S. Magistrate Judge Kathleen M. Tafoya. "Plaintiff signed a Participation Orientation form acknowledging his receipt of the SER SCSEP Handbook statement."

Hill turned to the U.S. Court of Appeals for the 10th Circuit, where a three-judge panel found a murkier picture of Hill's relationship to SER.

In favor of SER's interpretation that Hill was not an employee, the 10th Circuit noted a 1993 report to the U.S. Senate Committee on Appropriations declaring that participants like Hill "are enrollees in a work and training experience program. They are not employees of the Department of Labor or State or national sponsors administering the SCSEP."

But on the other hand, Hill submitted his W-2 tax forms for 2017 and 2018 in which SER was listed as the employer and him as the employee. The 1993 committee report that categorically ruled out participants as employees also ran contrary to legislation and federal regulations, which acknowledged job training participants were not federal workers but left open the possibility for them to be employees of organizations like SER or local nonprofits.

It was therefore unclear, the 10th Circuit panel decided, whether SER was an employer under Title VII of the Civil Rights Act, which generally means a hiring organization that controls the means and the manner of work.

"SER’s position regarding the status of its SCSEP participants, including Hill, may well prove to be correct," wrote Senior Judge Mary Beck Briscoe in the Sept. 21 decision. "But based on the record before us, we are unable to conclude that SER is entitled to summary judgment on the question of whether it was an 'employer' and Hill was an 'employee'."

The 10th Circuit returned the case to the lower court for further review.

SER pointed to other courts around the country that have determined job training participants are not employees of organizations like SER that administer the federal program. A 2019 decision out of Washington found that a woman participating through the AARP Foundation "is not working for the benefit of AARP — AARP is working for the benefit of Plaintiff." In 2006, a federal judge in Illinois also concluded a man terminated from his placement at the YMCA was not an employee.

In fiscal year 2019, the government supported 41,000 positions in the Senior Community Service Employment Program at a cost of $400 million. SER has received funding since 2003 and serves approximately 3,000 participants in 225 counties.

The case is Hill v. SER Jobs for Progress National, Inc.

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