Unpaid Interns Not Protected Against Sexual Harassment in New York

Are employees less worthy of protection from discrimination and harassment if they are working for free? A controversial new ruling in New York says sexual harassment, no matter how egregious, is not illegal if the victim is an unpaid intern.

Federal Judge Rules Against Unpaid Intern in Sexual Harassment Case

Lihuan Wang was an unpaid intern at Phoenix Satellite TV US, which produces Chinese language news programs in the United States. According to the lawsuit she filed, Zhengzhu Liu, one of the company's bureau chiefs, talked her into coming to his hotel room with him after a lunch meeting to drop off some personal belongings. As they were riding to the hotel, Liu began discussing the sexual prowess of a black man dating a female acquaintance of Liu's. In the hotel room, Liu made a complement about the intern's eyes and asked her why she was so beautiful. Then he put his arms around her and tried to kiss her, while squeezing her buttocks.

Wang refused his advances and left the hotel room. After the incident, Liu was no longer interested in hiring her as a paid employee. When Wang asked him about the possibility of a paid position with Phoenix, Liu invited her to accompany him to Atlantic City for the weekend to "discuss" the job opportunity. Wang refused and eventually filed a lawsuit in federal court.

Not only did she claim failure to hire, but she also brought a sexual harassment claim under the New York State Human Rights Law and the New York City Human Rights Law. However, her claims for sexual harassment were dismissed because, the court determined, those laws only apply to "employees," which does not include unpaid interns. The court did not dismiss Wang's failure to hire claim because those claims are, obviously, brought by potential employees rather than hired employees.

A Sign of the Need for Change

This should not be a surprising ruling. For decades, sexual harassment claims by unpaid interns have been thrown out of court because the interns, who are not paid, are not protected as employees under employment laws. New York is not the only state to have such laws. For example, in Kansas the Act Against Discrimination covers all employees, except unpaid interns who do not share the same protections. Unfortunately, unpaid interns remain unprotected and vulnerable to exploitation.

David C. Yamada, a Suffolk University law professor, had this to say about the new intern rights movement: "Until very recently, the legal implications of unpaid internships provided by American employers have been something of a sleeping giant." However, the recent decision in Wang's case may serve as a turning point. According to Yamada, "[t]he decision triggered an abundance of media coverage and gave major public visibility to a burgeoning intern rights movement." Yamada may be right.

A New Bill Has Been Introduced in New York to Address This Gap in Protection

New York State Senator Liz Krueger, one of many Democratic state lawmakers who have proposed legislation that would give unpaid interns the same protections against discrimination in the workplace, agrees that the recent decision in Wang's case demonstrates the obvious need for a new law. The proposed legislation would make it unlawful to discriminate against an unpaid intern on the basis of an intern's "age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status or domestic violence victim status." It also includes whistleblower and sexual harassment protections. Perhaps the intern rights movement is on its way.

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