ProPublica

Journalism in the Public Interest

Cancel

How Unpaid Interns Aren’t Protected Against Sexual Harassment

It’s not just about a paycheck. Federal laws protecting workers against discrimination and sexual harassment often don’t apply to unpaid interns. 

.

D.C. City councilmember Mary Cheh worked to extend protection against sexual harassment to unpaid interns in D.C. (Photo/Flickr user Tommy Wells)

In 1994, Bridget O’Connor began an internship at Rockland Psychiatric Center, where one of the doctors allegedly began to refer to her as Miss Sexual Harassment, told her that she should participate in an orgy, and suggested that she remove her clothing before meeting with him. Other women in the office made similar claims.

Yet when O’Connor filed a lawsuit, her sexual harassment claims were dismissed because she was an unpaid intern. A federal appeals court affirmed the decision to throw out the claim.

Unpaid interns miss out on wages and employment benefits, but they can also find themselves in “legal limbo” when it comes to civil rights, according to law professor and intern labor rights advocate David Yamada. The O’Connor decision (the leading ruling on the matter, according to Yamada) held that because they don’t get a paycheck, unpaid interns are not “employees” under the Civil Rights Act -- and thus, they’re not protected.

Federal policies echo court rulings. The laws enforced by the U.S. Equal Employment Opportunity Commission, including the Civil Rights Act, don’t cover interns unless they receive “significant remuneration,” according to commission spokesperson Joseph Olivares.

“At least with respect to the federal law that we enforce, an unpaid intern would not be legally protected by our laws prohibiting sexual harassment,” Olivares said in an email to ProPublica.

It’s unclear how many interns are sexually harassed at work. The commission doesn’t keep those statistics, according to Olivares. And as the Chicago Tribune detailed in 2011, interns often don’t know where to turn when faced with harassment or can fear retaliation from bosses they look to for future jobs or recommendations.

“You can understand perhaps why there haven’t been more cases,” said Yamada. “If you’re a young student, and have been trying to get a career off the ground, the bind that puts someone in is significant, because there’s retaliation.”

Olivares noted that while federal laws don’t protect unpaid interns, company policies and state or local laws could sometimes broaden workplace protections.

In June, Oregon passed a law expanding discrimination and harassment protections to interns, whether they are paid or not. According to Charlie Burr, spokespersonfor the state’s Bureau of Labor and Industries, Oregon is the first state to pass such protections.

“Those principles of protecting people in the workplace have been in place for a long time, but they’ve never applied to interns,” said Oregon Labor Commissioner Brad Avakian. “It really left them with few options.”

Oregon’s law protects interns from sexual harassment and discrimination based on race, religion, gender, disability, and sexual orientation and covers wrongful termination tied to discrimination — but it doesn’t create an employment relationship or impact wages, an issue the state was careful to avoid, according to Avakian.

The idea for the law came from Carole Delogu, a former unpaid intern in the state’s Bureau of Labor and Industries, after she read an article in the Public Interest Law Journal on the workplace protections not afforded to interns.

“I was in disbelief,” Delogu said, of her reaction to the loophole. “Interns are in a fragile place, they want to get their foot in the door, so they don’t complain.”

So Delogu brought her concerns to the Labor bureau, and helped draft a proposal to close the gap in protections. Under the new law, Delogu hopes “more people will be able to stand up for their rights.”

D.C. has made similar strides to protect interns. Council member Mary Cheh lobbied successfully to extend the D.C. Human Rights Act protections against sexual harassment to interns after hearing the story of one intern’s sexual harassment claims against her employer, a massage and body therapy center in Friendship Heights. The intern’s case was dismissed because she was unpaid.

Yet as Maurice Pianko, attorney and founder of Intern Justice, points out: if for-profit employers paid their interns when they should (and usually they should be paid), protection from discrimination and sexual harassment would automatically apply.

“It’s a surprise to me to see that there are still companies not paying their employees,” Pianko said. “If any general counsel wants to find out the law they can, and honestly I don’t know what they’re thinking.” 

 

So, by statute of federal law, it is completely legal to sexually harass a visitor to a store, random people on the street, your postal workers, students all because you don’t share an employer and “receive remuneration” by a common entity? Surely there are civil or criminal statutes that protect these people as humans and not just as anamorphic entities occupying space as indentured servants sans remuneration.

The lack of protection against sexual harassment of unpaid interns boils down to just one thing: the total lack of morality among most politicians.

christian coopersmith

Aug. 10, 2013, 3:55 p.m.

Pro Publica, once again you are long on good intentions, but short on brains.

The rationale for legal prohibitions against sexual harassment is that a person should not be able to make another person choose between a livelihood and enduring some kind of unpleasant experience. That’s not a very good rationale, but at least there is one.

That rationale is highly attenuated in the case of an intern, who is not being paid. The intern that finds herself in an unpleasant situation should simply quit. She can also tell others about her experience, subject to limits imposed by laws against libel. An employer who wants to attract the best potential interns thus has plenty of incentive to stamp out true sexual harassment.

Going further has a cost. Do gooders never seem to acknowledge the cost of their cries for ever more regulation, ever more legal prohibition. The cost is that the imposition of legal liability for sexual harassment will inevitably be over-broad and will punish employers for acts that were borderline or accusations that are baseless ways of addressing employee gripes.

That will cause employers to avoid the potential problems by not hiring those deemed likely to make these complaints. Seems to me that no population is more vulnerable to this blowback than unpaid interns.

You need to be careful what you wish for. When there are strong self-help remedies available, invoking more severe legal sanctions will usually end up hurting only the population you were trying to help.

At least acknowledge that. In your desire to whip people up into a frenzy, you never do.

Byard Pidgeon

Aug. 10, 2013, 5:58 p.m.

Coppersmith either didn’t read the article well, or knows little about internships, paid or unpaid.
The article clearly states some reasons few interns complain or quit…an internship is one of the best ways to get a foot in the door and often leads to a job at the company or agency, or at least a great recommendation and referrals.
Internships are also not easy to get. Because of the employment advantages, it’s highly competitive, and employers have a lot of potential interns to choose from.
Just because one isn’t being paid at the moment doesn’t make it easy to quit…there are costs to that…and NOBODY should have to quit a job in order to end harassment of any kind.
Coppersmith accuses PP of being “short on brains”, but demonstrates only that he is short on understanding and empathy, but long on ideology.

I’m a little disappointed that no connection was drawn between this issue and this summer’s Supreme Court decision narrowing the definition of sexual harassment to only include cases where firing authority is part of the relationship.

Given that mentality, and since an unpaid intern can’t have his livelihood taken from him by firing him from a job that doesn’t pay, of course they wouldn’t be protected.

What they lack in common sense, they at least make up for in consistency in siding with abusive employers.  Though I have to imagine there’s also some self-interest, here, given that Washington has very few restrictions on intern pay and responsibility.  Protecting volunteers from sexual harassment could easily up-end half of our elected officials…

@John…Interns can be fired; even volunteers can be fired. Being removed from a job isn’t dependent on being paid.
This SCOTUS, as you note, does have a wretched record in terms of worker’s rights, as well as in other areas.
However, I think you got one thing wrong in your concluding sentence…the problems are about elected officials and employers attempting to “up-end” interns and volunteers, not the other way around.

Lenore F. Horton Esq

Aug. 12, 2013, 12:18 p.m.

John,
The Supreme Court decision, Vance v. Ball State University, does not narrow the definition of sexual harassment in the way you describe. It clarified the meaning of supervisor, for purposes of determining vicarious liability. If a co-worker or subordinate harasses you, the employer is liable only if it is negligent in learning of and correcting for the conduct. If a supervisor does so, however, the employer is strictly liable when the harassment relates to tangible employment action. The Supreme Court clarified its definition of supervisor for purposes of vicarious & strict liability. It does not mean that employers are off the hook if a non-supervisor engages in harassment. One connection that can be made is the link between Supreme Court decisions and corrective legislative. We can see that here in this article how states are plugging the gap. Additionally, here is an article describing the two Supreme Court decisions (the other dealing with but-for causation in retaliation claims) and notes at the bottom the connection between Supreme Court decisions & corrective legislation. Hope this helps. - LH

http://www.mondaq.com/unitedstates/x/249488/Discrimination+Disability+Sexual+Harassment/A+Good+Day+For+Employers+Supreme+Court+Issues+Two+Favorable+Decisions

Laws are for little people.  Get with the drill.

Professor Professorson

Aug. 12, 2013, 10:47 p.m.

The court decision cited above is from 1997. Why is it suddenly making headlines again?

People who have no power get abused by people who do.  One purpose of the law is to give power to the powerless in those situations by making it clear that there will be consequences to the abuse.  Anyone who says the law shouldn’t do that is condoning abuse, because it is then inevitable.

Byard, I realize that, but my point was that a country that says that harassment only “really counts” in limited circumstances (and thanks to Lenore for doing the reading for me—I only skimmed the decision when it happened and am most emphatically not a lawyer, so please pardon my informality) would naturally assume that an unpaid internship doesn’t really count as employment, since there’s no economic harm in quitting or being fired for standing up for yourself.

Not immediately, at any rate.

I sure hope my creepy boss doesn’t get wind of this article. We have some pretty hot interns this year. Oh well, the summer is almost over.

This article is part of an ongoing investigation:
Internships

Internships

The number of internships in the United States has ballooned over the past few decades. But oversight and legal protection for unpaid interns hasn't kept up.

The Story So Far

The number of internships in the United States has ballooned over the past few decades. But oversight and legal protection for interns hasn’t kept up. We’re investigating companies that may be violating labor laws by employing unpaid workers, schools’ role in the issue and how it’s affecting American workers.

Get Updates

Stay on top of what we’re working on by subscribing to our email digest.

optional

Our Hottest Stories

  •  
  •  
  •  
  •  
  •  
  •  
  •  
  •  
  •  
  •