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SDNY Rules Unpaid Interns Do Not Receive Protection From Sexual Harassment

On October 3, the U.S. District Court for the Southern
District of New York found that because a female intern was not an employee,
she could not bring a claim for harassment under the New York City Human Rights
Law against Phoenix Satellite Television, Inc.
This is nothing new, as unpaid interns are similarly not covered under
Title VII, although state and local laws can provide protections that New York
chose not to.
  The crux of the issue is
that because unpaid interns do not receive benefits, such as health insurance
or pensions, and are obviously without a salary, they do not usually qualify as
employees with commensurate legal protections. More technically, the “absence
of remuneration” prevents unpaid interns from receiving legal protection from
harassment, as payment is “an essential condition to the existence of an
employer-employee relationship.”

In the case, the intern alleged that two weeks after her
internship started, her supervisor tried to kiss her, groped her, and when
asked about job opportunities, invited her to Atlantic City
.  According to her complaint, the supervisor’s
behavior was well known, and interns often were subjected to unwanted sexual
advances. The court found that although the NY City Council has had several
opportunities to amend the law, it consistently chose not to, leaving the court
with little choice in ruling on the matter.
The intern is still suing for the company for discriminatory failure to
hire, but the company denies that she ever applied for a position, that anyone
was ever hired for a position in its New York office, or that it engaged in
discriminatory conduct.

Some jurisdictions have taken action to fix the
problem, with Oregon among states that have passed laws protecting
interns.  But New York (and the District
of Columbia) is not among them.  As the
economy moves toward more flexible forms of employment, and with internships taking
on increasing significance in the job hunt, it will be interesting to see if
more jurisdictions follow Oregon’s lead in protecting unpaid interns.  Given how hard many students work to obtain internships,
lawmakers should take action to make sure that these increasingly formal
positions are given the formal legal protections other workers receive.