Protections for Interns Facing Discrimination

Interns’ Rights under Federal Law
In recent years, there has been an increase in litigation brought by interns against their presumed employers, not only relating to the payment of wages but also, in some instances, claims of discrimination and harassment. As a result, both lawmakers and the media have been paying more attention to the relationship between companies and their unpaid interns.

Bills have been introduced in Congress that would explicitly prohibit employers from discriminating against unpaid interns and give the interns protections under Title VII. Despite the growing concern, it appears unlikely that any such bill will be enacted anytime soon.

Currently, whether unpaid interns and volunteers are provided coverage under Federal law is depends on whether the individual receives significant, non-wage remuneration in some form; such as a pension, group life insurance, worker’s compensation or access to professional certifications. As such, under Federal law paid interns may seek protection.

New York City Offers Unpaid Interns Additional Rights

Luckily, New York City offers protections for unpaid interns. On March 26, 2014, the New York City Council voted unanimously to pass legislation amending the New York City Human Rights Law (the “NYCHRL”) to provide that interns are protected from workplace discrimination and harassment under the NYCHRL. New York City is one of few cities to extend the same workplace protections against discrimination and harassment to interns—both paid and unpaid—as is provided to employees.

The Council passed this NYCHRL amendment in response to a recent 2013 federal lawsuit in which the court dismissed an unpaid intern’s sexual harassment claims because, at the time, sexual harassment laws only applied to “employees,” excluding unpaid interns and volunteers.
In October 2013, Ms. Lihuan Wang sued his employer Phoenix Satellite Television, for sexual harassment while at an off-site event. While Wang had been working as an intern for Phoenix, her supervisor, Mr. Liu, sent out an email to his employees stating that he wanted to treat the team to lunch. After lunch, many of the employees returned to work. However, Liu suggested that Wang go back to his hotel room with him because so he could drop off her stuff. Eager at the opportunity to further her career, acquiesced to her supervisor’s request. During the car ride, Want told Liu that he had known women who dated black men and that most women couldn’t handle black men’s sex drive because black men could have sex multiple times a night. Once the two returned to Mr. Liu’s hotel room, Mr. Liu untied his tie, took off his shirt and forcefully kissed Wang and squeezed her butt. Wang eventually escaped and fled the hotel room.

Despite Wang having clearly suffered from sexual harassment, the Honorable P. Kevin Castel, of the United States District Court for the Southern District of New York, dismissed plaintiff Lihuan Wang’s claims of sexual harassment, finding that the NYCHRL’s protection of employees “[did] not extend to unpaid interns.”

The 2014 NYCHR amendment expands coverage under the law to explicitly apply to interns, including unpaid interns. The amendment defines the term “intern” as the following:

“The term “intern” shall mean an individual who performs work for an employer for the purpose of training if:

(a) the individual works for a fixed period of time at the end of which there is no expectation of employment;

(b) the individual performing the work is not entitled to wages for the work performed; and

(c) the work performed: (i) supplements training given in an educational environment that may enhance the employability of the intern; (ii) provides experience for the benefit of the individual performing the work; (iii) does not displace regular employees; and (iv) is performed under the close supervision of existing staff.”

New York State Offers Unpaid Interns Additional Rights

Following New York City’s lead, New York State created similar protections under New York State Human Rights Law to encompass unpaid interns, in an amendment that went into effect on July 22, 2014. This amendment made it unlawful for employers to discriminate, harass, retaliate, or otherwise engage in unlawful employment practices against unpaid interns and applicants for internships. It also prohibits employers from engaging in any unwelcome “verbal or physical conduct of a sexual nature” directed toward an intern and extends protections to pregnant interns.

At the time of the amendment, New York State was one of four states to create such protections. As time goes on, hopefully, more states will follow New York’s lead. The skilled New York City sexual harassment attorneys at the Derek Smith Law Group, PLLC, are at the forefront of sexual harassment and discrimination law. If you feel you have been sexually harassed at work, even if you are only an intern, please give us a call at (800) 807-2209 for a free consultation.