Labor & Employment Law

Executive secretary not covered under Title VII by virture of the personal staff exemption

Executive secretary not covered under Title VII by virture of the personal staff exemption

A little known provision of Title VII is the personal staff exemption for certain employees who work for senior level government officials. The Fifth Circuit in Saddler v. Quitman County School Dist., ___F.3d___(5th Cir. May 16, 2008), Download 0760656.0.wpd[1].pdf recently discussed this exemption.

The court held that an Executive Secretary to a School Superintendent was considered "personal staff" and therefore, she could not bring a sexual harassment case under Title VII against the school district. The court described this exemption as follows:

Thus, Title VII excludes from its coverage the ?personal staff? of elected public office holders. The parties do not contest here, nor did they below, that QCSD is a political subdivision of Mississippi; that Towner, as Superintendent, was an elected official; or that Saddler was not subject to the civil service laws of Mississippi. We take these facts as true. Saddler argues instead that there are material issues of fact as to whether she was Towner?s ?personal staff.?

Title VII does not define ?personal staff.? We have identified a nonexhaustive list of factors to determine whether a plaintiff qualifies as ?personal staff?:

(1) whether the elected official has plenary powers of appointment and removal, (2) whether the person in the position at issue is personally accountable to only that elected official, (3) whether the person in the position at issue represents the elected official in the eyes of the public, (4) whether the elected official exercises a considerable amount of control over the position, (5) the level of the position within the organization?s chain of command, and (6) the actual intimacy of the working relationship between the elected official and the person filling the position.

We have cautioned that ?consideration of these factors must be tempered by the legislative history of this provision which indicates that the exception is to be narrowly construed.? And, as this is a fact-intensive inquiry, it ?does not lend itself well to disposition by summary judgment,? though this is not a categorical prohibition.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on June 11, 2008 (boomark / email).