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Proposed New York Law Would Extend State Anti-Discrimination Protections to Unpaid Interns

A new bill introduced in the New York State Senate would extend many of the protections of the New York State Human Rights Law (NYSHRL) to unpaid interns.  Among other things, the bill would make it illegal for employers to “refuse to hire, employ or to discriminate against an intern” based on any of the characteristics protected by the NYSHRL or to “engage in unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature to an intern.”

The bill, sponsored by Senator Liz Krueger, was introduced in response to a recent decision out of the U.S. District Court for the Southern District of New York holding that unpaid interns are not protected against sexual harassment by the New York City Human Rights Law (NYCHRL).  In that case, Wang v. Phoenix Satellite Television U.S. Inc., No. 13 Civ. 218, the plaintiff, a graduate student in journalism, commenced an unpaid internship with the defendant media company in December 2009.  The plaintiff alleged that, during the course of her internship, her supervisor lured her to his hotel room, propositioned her, and kissed and groped her against her will.  After the plaintiff rejected her supervisor’s advances, she fell out of his favor and was denied permanent employment upon graduation.  Thereafter, the plaintiff brought suit for sexual harassment in violation of the NYCHRL and discriminatory failure to hire in violation of the NYSHRL and the NYCHRL.

On October 3, 2013, the court dismissed the plaintiff’s sexual harassment claim, holding that, because the plaintiff was an unpaid intern and, thus, received no compensation, she was not an “employee” within the meaning of the NYCHRL.  Noting that the matter was one of first impression, Judge Kevin P. Castel held that, notwithstanding its broader remedial scope, the NYCHRL was consistent with Title VII and the NYSHRL, which have both been interpreted to exclude unpaid interns from their protection.  The court did, however, allow the plaintiff to proceed with her claim that the defendant unlawfully refused to hire her.

In response to Judge Castel’s decision, on October 15th, Senator Krueger introduced the proposed legislation, asserting that “with the growing prevalence of unpaid internships and the extreme pressure on young people to build up resumes and references in a tough economy, the law needs to change to protect this extremely vulnerable class of workers.”

While no action has been taken on Senator Krueger’s proposed bill, employers should take care to ensure that interns are not subjected to workplace discrimination: as demonstrated in the Wang case, an unpaid intern can still bring suit, just as any other applicant, based on her employer’s discriminatory refusal to hire her.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume III, Number 309

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About this Author

Lisa Lewis, Legal Specialist, Sheppard Mullin,Labor, Employment, special counsel
Associate

Lisa Lewis is a special counsel in the Labor and Employment Practice Group in the firm's New York Office.

Areas of Practice

Ms. Lewis is experienced in representing employers in a variety of employment-based matters in both judicial and arbitral forums, including disputes relating to breach of restrictive covenants and employment agreements, misappropriation of trade secrets, discrimination and harassment allegations, and wrongful termination.  Ms. Lewis also counsels employers on labor and employment issues, including wage and hour matters, personnel...

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Adam Pekor, Labor, Employment, Lawyer, Sheppard Mullin
Attorney

Adam Pekor is an attorney in Labor & Employment Practice Group in the firm's New York office. Mr. Pekor counsels both for-profit and not-for-profit clients on a wide range of labor and employment matters, including employee hiring and disciplinary procedures, disability accommodation issues, restrictive covenants, worker classification issues, leaves of absence, wage and hour compliance, and employee severance and termination procedures.  Mr. Pekor has significant experience drafting all types of employment agreements and policies, including employee handbooks, confidentiality and non-disclosure agreements, severance agreements, sexual harassment policies, and email and internet usage policies.  Mr. Pekor also conducts discrimination and harassment prevention trainings as well as investigations into harassment allegations and other employment matters. 

In addition, Mr. Pekor regularly represents clients in a variety of labor and employment disputes before federal and state courts and administrative agencies, as well as in arbitration proceedings.

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