Unpaid Interns Now Protected from Sexual Harassment in NY

New York Governor Cuomo recently signed an amendment to the New York State Human Rights Law, which now protects unpaid interns from harassment and discrimination in the workplace. Business Week and the NY State of Politics blog both reported on this new law, which arose from Bernabei & Wachtel's representation of several employees and an intern at the New York office of Phoenix Satellite TV.

The legislative report explained the need for this amendment:

Section one of the bill adds a new section 296-c to the Executive Law, entitled "Unlawful discriminatory practices relating to interns." The new section defines intern and then establishes anti-discrimination protections for interns. Based on a list of enumerated protected classes, employers may not discriminate against interns or prospective interns with respect to: hiring, discharge, or terms or conditions of employment; acting on applications for internships; advertising, application forms or application inquiries; retaliation for opposing prohibited practices; and forced pregnancy leave. The new section also prohibits sexual harassment of interns by employers, codifying both the quid pro quo and hostile environment tests for sexual harassment.

The amendments . . . are made to better conform the bill, modeled on Oregon's interns protections, to New York law and also to strengthen protections for interns. . . . More recently, an unpaid intern, Lihuan Wang, had alleged that her boss at Phoenix Television's New York bureau had groped her and tried to kiss her. Citing O'Connor v. Davis, the U.S. District Court for the Southern District of New York dismissed that claim, deciding that only paid workers are covered by the New York state and city human rights laws. Wang v. Phoenix Satellite Television, 120 Fair Empl. Prac. Cas. (BNA) 1618 (SDNY 2013). This bill is intended to override that case law with respect to unpaid interns who fall within the scope of the new Executive Law section 296-c that the bill would add to the Human Rights Law.

Young people seeking employment in an economy that still has not recovered from the worst recession since the Great Depression are under extreme pressure to build up resumes and work references. Increasingly, they turn to unpaid internships to do so. Interns, to an even greater extent than employees, are easy victims of sexual harassment as the relationship between employer and intern is the classic example of the power imbalance at the heart of sexual harassment. It is time for the State of New York to extend protection against sexual harassment and other forms of discrimination to these vulnerable young people.