Believe it or not, until recently, it was perfectly legal for an employer
to discriminate against you if you are an unpaid intern. A recent New
York Federal Court decision held that unpaid workers are not employees
for purposes of the anti-discriminiation laws.
LiHuan Wang was a graduate student at Syracuse University in 2009 when
she interned in the New York bureau of Phoenix Satellite Television, the
American subsidiary of Hong Kong-based media conglomerate Phoenix Media Group.
In a lawsuit, she said the station's Washington D.C. bureau chief Zhengzhu
Liu sexually harassed her after luring her to his hotel room on the pretext
that he wanted to talk about her job performance and the possibility of
hiring her full time.
When the two were alone, Wang alleged that Liu threw his arms around the
then 22-year-old intern, tried to kiss her and "squeezed her buttocks
with his left hand." After she refused to let him go any further
and left the hotel, she said Liu no longer expressed interest in permanently
New York Judge Kevin Castel ruled that Wang can't assert these claims,
because as an unpaid intern, she didn't have the status of an employee.
The New York City Council, realizing that this decision left a gigantic
hole in the anti-discrimination laws, voted 50-0 last week to prohibit
employers from discriminating against unpaid interns on the basis of age,
race, creed, color, national origin, sex, disability, marital status,
partnership status, sexual orientation, citizenship status or status as
a victim of domestic violence, sex offenses or stalking. Claimants will
be permitted under the bill to either sue or make a complaint to the Commission
on Human Rights.
An “employee” under the newly passed bill is: “an individual
who performs work for an employer on a temporary basis whose work provides
or supplements training given in an educational environment where the
employability of the individual performing the work may be enhanced, experience
is provided for the benefit of the individual performing the work, and
the work is performed under the close supervision of staff.”
A similar bill was introduced at the state level, but it is currently bottled
up in committee.
The takeaway? Even if you are an unpaid intern, if you feel you have been
subject to unlawful discrimination in the workplace, call Schwartz &
Perry LLP immediately.