As we reported last October, a federal court in New York found that an unpaid intern could not bring a hostile work environment sexual harassment claim pursuant to the New York City Human Rights Law (“NYCHRL”). (Wang v. Phoenix Satellite Television US, Inc., Case No. 1:13-cv-00218-PKC (S.D.N.Y. 2013). On March 26, however, the New York City Council unanimously voted to overturn that decision and amend the NYCHRL to extend the law’s prohibition on employment discrimination and workplace harassment based on factors including gender, race, age, sexual orientation, disability, marital status and military status, to interns, regardless of whether they are paid or unpaid.
In the Wang case, a 22-year-old Master’s degree student alleged that during a month-long unpaid internship with the defendant, a Hong Kong-based media company, she was subjected to unwanted sexual advances by the head of the defendant’s Washington, D.C. bureau. In response to the defendant’s motion to dismiss the complaint, U.S. District Judge P. Kevin Castel found that because the plaintiff was not paid, she was not an “employee,” as that term was defined under the NYCHRL; therefore, she could not bring a sexual harassment claim under the law.
Reaction to Judge Castel’s decision was widespread, immediate, and negative. Councilman James Vacca proposed a bill extending the NYCHRL’s protections to interns, who are defined in the bill as follows:
“an individual who performs work for an employer on a temporary basis whose work: (a) provides training or supplements training given in an educational environment such that the employability of the individual performing the work may be enhanced; (b) provides experience for the benefit of the individual performing the work; and (c) is performed under the close supervision of existing staff. The term shall include such individuals without regard to whether the employer pays them a salary or wage.”
Commenting on the bill, Vacca stated, “We were concerned the judges would throw [workplace harassment] cases out . . . There was no administrative remedy in New York City, so if you were an unpaid intern you had no standing before any New York City agency to file an administrative claim.”
It is expected that Mayor Bill de Blasio will sign the bill into law, joining Oregon and Washington, D.C. as jurisdictions protecting unpaid interns under their anti-discrimination laws. It is quite possible that given the exposure that the Wang case received, lawmakers in other jurisdictions may follow New York City in passing similar pro-intern legislation (federal civil rights law currently does not cover unpaid interns). Expansion of civil rights law to cover interns mirrors efforts at the federal level to limit the exemption of interns from the minimum wage and overtime compensation requirements of the Fair Labor Standards Act.
In light of these developments, companies who utilize interns need to review what exactly those interns do and how management views them. Specifically, companies should reinforce with their supervisors the need to assure that interns in the workplace are as free from harassment as regular employees.