New Ordinance Closes Loophole Preventing New York City Unpaid Interns from Asserting Rights Against Workplace Harassment

AIG_New_York_building_at_dusk.jpgThe New York City Council unanimously passed a bill in late March 2014 amending the New York City Human Rights Law (NYCHRL) to extend the anti-discrimination provisions of the law to unpaid interns. A 2013 federal court case, in which an unpaid intern filed suit for sexual harassment and hostile work environment, inspired the bill. The court dismissed the intern’s claims because city and state law, it found, do not apply to interns. Wang v. Phoenix Satellite Television US, No. 1:13-cv-00218, mem. order (S.D.N.Y., Oct. 3, 2013).

The plaintiff in Wang was a graduate student in journalism at Syracuse University in December 2009 when she began working as an unpaid intern for the American subsidiary of Phoenix Media Group, a television news company based in Hong Kong. She viewed the internship as a training opportunity, with the possibility of a full-time job after she graduated. She reported to the Washington DC bureau chief, who also oversaw operations in New York.

While the bureau chief was in New York one night in January 2010, she and several employees met him at a restaurant. She alleged in her lawsuit that he asked her to stay after the meal to discuss job prospects, then invited her back to his hotel. He allegedly made sexual comments that made her uncomfortable, but she felt that she could not refuse his invitation to go to his room because he was her boss. Once they were alone, he allegedly threw his arms around her, groped her, and attempted to kiss her. She broke free of him and left the hotel. After that, she claims, he ceased to express any interest in hiring her.

The plaintiff filed suit against Phoenix in federal court, asserting causes of action for sexual harassment, hostile work environment, and retaliation under the NYCHRL and the New York State Human Rights Law (NYSHRL). Phoenix moved to dismiss the suit for failure to state a claim on which the court could grant relief. The court declined to dismiss her retaliation claim, but it dismissed the hostile work environment claim and, by extension, the sexual harassment claim.

The court noted that no other court had ever addressed the question of whether the NYCHRL allows unpaid interns to bring a discrimination claim. See McCormick v. Int’l Ctr. for the Disabled, 2013 NY Slip Op. 31063(U) (Sup. Ct. N.Y. County 2013). It based its decision in part on the language used by the statutes. While both the NYCHRL and the NYSHRL prohibit discrimination against “persons,” they only allow “employees” to bring suit. It inferred that the statutes only protect employees, and held that the plaintiff was not an “employee” because she did not receive compensation. The Second Circuit held that compensation is a necessary part of the definition of employee under both the NYSHRL and Title VII of the Civil Rights Act. O’Connor v. Davis, 1126 F.3d 112 (2nd Cir. 1997). The court extended this definition to the NYCHRL.

The city ordinance, Int. No. 173-A, amends the NYCHRL to include a definition of “intern” as one who provides temporary work for an employer under staff supervision, regardless of salary, in order to gain education, experience, and employability. It adds a provision expressly stating that all of the provisions of the law relating to employees also apply to interns.

If you need to speak to an employment attorney in New Jersey or New York regarding sexual harassment, a hostile work environment, or other employment issues, contact the Resnick Law Group at 973-781-1204 or 646-867-7997.

More Blog Posts:

Lawsuit Claims Employer Fired Plaintiff for Reporting Racial Discrimination, Sexual Harassment Within Company, The New Jersey Employment Law Firm Blog, March 28, 2014
Lawsuit in New Jersey State Court Accuses Police Department of Sexual Harassment, Race Discrimination, and Harassment, The New Jersey Employment Law Firm Blog, March 20, 2014
Third Circuit Court of Appeals Addresses Legal Definition of “Employer” in Sexual Harassment Case, The New Jersey Employment Law Firm Blog, February 21, 2014
Photo credit: By Michael Daddino [CC-BY-2.0], via Wikimedia Commons.

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