By now, you’ve probably read about Wang v. Phoenix Satellite Television (S.D.N.Y. 10/3/13) [pdf], the New York federal court case dismissing, under New York City’s employment discrimination law, a sexual harassment claim brought by an unpaid intern. The decision, which held that an unpaid intern cannot bring a harassment claim because she is not an “employee”, has been panned as a crime against workers.
Let me assure you, this decision is 100 percent legally correct. Under Title VII, interns are not employees. Therefore, they have no legal right under the civil rights laws to assert harassment claims.
Critics of this decision argue that it leaves interns unprotected from harassment. Yet, there are three reasons why this decision doesn’t have nearly as big an impact as some would like you to believe.
Unpaid interns are a dying breed. The DOL has made a full-court press against the unpaid intern. Gone are days when a company can take on an unpaid intern as a de facto trainee. Entry-level employees, whether called interns, trainees, or something else, are employees that must be paid. The only interns that remain for a company to use as unpaid labor without risking an FLSA violation are those that are placed with a company for school credit.
Bona fide unpaid interns—those working through an educational institution—are not without redress. They can complain to their sponsoring educational institution, which risks Title IX liability if it ignores the complaint. The school should take the complaint seriously, investigate, go to bat for the intern, or pull the intern out of that placement and find a substitute replacement internship, all without penalty to the student.
Harassed interns also have other remedies against the business—they can sue for intentional infliction of emotional distress, assault, or other common law torts.
Harassment is a serious issue, which all employers should take seriously. The reality, however, is that bona fide interns are not employees. They never have been, and, absent a radical change in the law, they will not be in the future. To call for changes to five decades of law under Title VII for a small subset of individuals who have remedies elsewhere, however, misses the legal and practical realities of this issue.
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Hyman at (216) 736-7226 or firstname.lastname@example.org. You can also follow Hyman on Twitter at @jonhyman.