Is “Employee” Written in the Cards?

By Alyssa Levy

A federal jury will decide whether a tarot card reader who performed at the Colorado Renaissance Festival for thirty years is a Title VII employee for purposes of her retaliation claim. Plaintiff claims that she was not invited back for the 2016 season in retaliation for her complaint of sexual harassment.

Plaintiff’s lease agreement with the Colorado Renaissance Festival, through which she leased a space for her palm and tarot carding reading booth, contained a provision titled “Independent Contractor Status,” where she acknowledged she was not an employee of the Festival. The Colorado District Court, however, looked at the actions of her engagement with the Festival and found that her employee status is a question for a jury. In deciding to deny the Festival’s summary judgment motion, the court first looked at whether  the Festival was an employer and then whether the Plaintiff was considered an employee, both under Title VII.

Festival as an employer: Title VII defines “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” Although the Colorado Renaissance Festival alone may not have the requisite fifteen employees, it is an integrated enterprise with the Pittsburgh Renaissance Festival, and the two combine to likely meet the requirement of a Title VII employer. The court noted the two festivals shared a payroll software license, website and ticket design, employment applications, vehicles, and employees, from which a jury could find the companies to be an integrated enterprise.

Plaintiff as an employee: To determine an individual’s status as a Title VII employee, the court used the Tenth Circuit’s “hybrid test,” to determine whether Plaintiff was truly an independent contractor, with the main focus on “the employer’s right to control the ‘means and manner’ of the worker’s performance.” The court first found it undisputed that the festival did not pay Plaintiff any direct compensation (no salary or hourly wage), and so, the court looked to the “threshold-remuneration test” for other direct or indirect benefits Plaintiff received from the Festival. The court found that the Festival was the ultimate source of her income because the Festival controlled Plaintiff’s access to customers who paid a fee for her services at the booth, which was evidence of direct or indirect benefits received by a Title VII employee.

The positive outcome of the threshold-remuneration test was in addition to the employment relationship a reasonable jury could conclude existed based on the level of control the Festival exercised over Plaintiff’s work. The Rules of Plaintiff’s lease agreement governed the specific hours to staff her booth; fines for closing without permission during inclement weather; her manner of speech, decorum, hairstyle, covering of tattoos, and performance; goods or services sold; equipment she could use; pre-approval for booth changes; discipline for violating festival Rules; advertising of her booth; and other terms.  

The court’s analysis found enough evidence to survive summary judgement for the retaliation claim, but it is still up to a jury to determine whether the tarot reader will be dubbed an employee.  Businesses that dictate the terms of a contractor’s independent work need to beware of being found to be an employer.  This applies even when the contractor has to fit the theme of the workplace—here a renaissance village.

St. Michael v. Rocky Mt. Festivals, Inc., Civil Action No. 1:16-cv-02969-SKC, 2019 U.S. Dist. LEXIS 114040 (D. Colo. July 10, 2019).