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If You Are an Unpaid Intern, Can an Employer Discriminate Against You?


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 hiring her.

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.

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