Congress Considers Bills That Would Extend Sexual Harassment Protections to Unpaid Interns

Congress speechIn New York City, employees enjoy protection from a wide range of unlawful employment practices, including sexual harassment, under federal, state, and city laws. The City Council recently amended the New York City Human Rights Law (NYCHRL) to include unpaid interns under the law’s definition of a protected “employee.” Unfortunately, other anti-discrimination laws, including Title VII of the Civil Rights Act of 1964 and most state laws, do not apply to unpaid interns. A series of bills currently pending in the U.S. Congress would add unpaid interns to several federal statutes dealing with sexual harassment and sex discrimination. The House of Representatives has passed one of these bills, but the Senate has taken no action. With the legislative session ending in a few months, it is unlikely that these particular bills will pass, but they offer a useful guide for actions the next Congress should take.

Courts have generally held that Title VII does not apply to unpaid interns, meaning that they cannot assert claims for sexual harassment under that statute. See O’Connor v. Davis, 126 F.3d 112 (2d Cir. 1997). This lack of legal protection at the federal level is not limited to issues of discrimination and harassment. The Second Circuit Court of Appeals has also cast doubt on whether unpaid interns are considered employees for the purpose of wage and overtime claims under the Fair Labor Standards Act (FLSA). Glatt v. Fox Searchlight Pictures, Inc., 791 F.3d 376 (2d Cir. 2015).

In 2013, a New York City federal court dismissed a sexual harassment lawsuit brought under the NYCHRL, ruling that this statute also did not apply to unpaid interns. Wang v. Phoenix Satellite Television US, Inc., 976 F.Supp.2d 527 (S.D.N.Y. 2013). In response, the New York City Council amended the law to include unpaid interns. The amended NYCHRL defines an “intern” as someone working for “a fixed period of time” with no subsequent “expectation of employment,” who does not receive wages for their work, who performs the work as part of an educational program or in order to gain experience and training, who “does not displace regular employees,” and who works “under the close supervision of existing staff.” N.Y.C. Admin. Code § 8-102(28).

In July 2015, several members of the U.S. House of Representatives introduced three bills targeting sexual harassment and discrimination against unpaid interns, using a similar definition of “intern” to the NYCHRL. The most ambitious of the bills is H.R. 3232, the Unpaid Intern Protection Act. It extends all Title VII protections to unpaid interns working for covered employers.

The other two bills specifically apply to interns working for the federal government:

H.R. 3231, the Federal Intern Protection Act, amends the statute that applies various anti-discrimination statutes to federal employees, 5 U.S.C. § 2302(b)(1), extending protections against discrimination under Title VII and other statutes to unpaid interns working for federal agencies. The House passed this bill in January 2016, making it the only one of the three to advance out of committee.
H.R. 3233, the Congressional Intern Protection Act, amends the Congressional Accountability Act of 1995 to include Title VII protection for Congressional interns. 2 U.S.C. 1311.

Phillips & Associates’ sexual harassment attorneys represent job applicants, employees, and former employees in New York City, helping them assert claims for unlawful employment practices like sexual harassment. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation with a member of our knowledgeable and experienced team.

More Blog Posts:

Several States Follow New York’s Lead in Extending Sexual Harassment Protections to Unpaid Interns, New York Employment Attorney Blog, November 5, 2014

Former Intern Sues New York City Financial Advisor, Firm for Alleged Sexual Harassment, New York Employment Attorney Blog, October 22, 2014

New York City Amends Human Rights Law to Include Sexual Harassment Protections for Unpaid Interns, New York Employment Attorney Blog, March 26, 2014

Photo credit: White House photo by Susan Sterner (President Delivers “State of the Union”) [Public domain], via Wikimedia Commons.

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