A New York court has ruled that an unpaid intern, Lihuan Wang, cannot file a sexual harassment suit against the company she was working for because she was not a compensated employee. In other words, because she did not receive benefits such as pensions and health insurance, Wang did not qualify for certain employee protections under the law.
Unpaid Intern Told She Can‘t Sue for Sexual Harassment
Wang, who now resides in Shanghai, filed the lawsuit in January. In early 2010, she was working as a broadcasting intern in the New York City office of Phoenix Satellite Television U.S., a Chinese language media company when:
… her supervisor and bureau chief, Liu Zhengzhu, invited her and several co-workers to lunch. Wang claims Liu asked her to stay after the meal to discuss her work performance and then asked her to accompany him to his hotel so he could drop off a few things. In the hotel room, she alleges, Liu took off his jacket, untied his tie, and threw his arms around her, exclaiming, “Why are you so beautiful?” She claims Liu held her for about five seconds, tried to kiss her, and squeezed her buttocks. According to the complaint, Wang pushed Liu away and left the room, and when she later asked about job opportunities, Liu invited her to Atlantic City.
On Wednesday, U.S. District Court for the Southern District of New York ruled that, because Wang was not an employee but an unpaid intern, the New York City Human Rights Law did not allow her to bring a claim.
The outcome of Wang’s suit points to a loophole that the New York City Council has had, as the court noted, ample opportunities to change. Title VII of the 1964 Civil Rights Act does not cover unpaid interns. There have been other cases of unpaid interns seeking to file sexual harassment suits against their employers, only to have these dismissed for the same reasons that Wang’s was.
Some municipalities have sought to change their laws to protect unpaid interns by extending their own Human Rights Acts. D.C. City Council member Michelle Cheh’s efforts to do so led to the city making such a change in its law in 2009. As of this June, Oregon has passed a law to protect interns from sexual harassment.
In New York, a place where there are numerous internships due to the city’s media, fashion, publishing and numerous other industries, neither state nor city laws provide such protections for unpaid interns.
Wang is still suing Phoenix for failure to hire, on the grounds that she was not hired by the company because she rejected Liu’s sexual advances.
If We Say Students Should Hold Internships, They Must Have Legal Protections
Jones Day attorney M. Carter DeLorme, who is representing Phoenix, said that he was “not at all surprised by Judge [Kevin] Castel’s ruling,” in view of the lack of protections for unpaid interns under New York state and city law — a sad testament to the current lack of protections for young persons trying to start their careers.
But there’s good news. Those who have held unpaid internships in the U.S. and in Europe have been increasingly challenging the notion that “they should work for free in order to gain a foothold in the global job market,” says the New York Times. A 2011 survey conducted by the National Association of Colleges and Employers found a striking difference in employment prospects for students in paid vs. unpaid internships. 61 percent of students who had held a paid internship were offered a job upon graduation compared with only 38 percent of students who had held an unpaid position.
Governments in Europe have been promoting internships as a way to address youth unemployment which is currently at 23.7 percent across the euro zone. As in the U.S., these internships are all too often “unregulated and unpaid, leaving interns vulnerable to exploitation” and not necessarily helping them gain steady unemployment. A report from the European Commission last year noted that ”young people’s skills and qualifications can no longer guarantee their entry into the job market,” so that “regulating and monitoring internships” is crucial to create “equity of access and fair working conditions.”
The E.C.’s pronouncement was, though, undercut by the fact that the European Parliament itself offers a number of unpaid positions. Interns in Brussels gathered in a “sandwich protest” about unfair working conditions in July.
Similar campaigns and a number of lawsuits in the U.S. (including the landmark one against Fox Searchlight Pictures by interns on the set of the movie Black Swan) are starting to make a difference, according to the New York Times. In Europe, France passed the Loi Cherpion last year, under which interns who have worked for more than two months must be paid at least the minimum wage. Austria has been offering employers wage subsidies to retain interns.
In August, Moritz Erhardt, a 21-year-old German intern, died after allegedly working for 72 hours straight at Merrill Lynch’s London office. His case and that of Wang’s makes it quite clear why better regulations and guidelines for internships are needed.
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