It's No Longer Legal to Sexually Harass Unpaid Interns in New York City

By Katy Waldman, Slate Magazine

20 April 14

ast year, when an unpaid intern in New York sued a Chinese news company, Phoenix Satellite Television, because, she said, a supervisor had groped and assaulted her, a federal judge dismissed her case. As someone who didn’t receive traditional wages for her work, she did not count as an employee and could not seek respite from discrimination or harassment under workplace protection laws. The same thing happened in 1997, when an intern at a psychiatric hospital claimed that she was urged to join an orgy and to strip naked before meeting with a doctor. The courts threw out her sexual harassment claim because she lacked “significant remuneration” for her awful job.

The 2013 ruling sent shock waves through the media—“It’s insane,” said Craig Gurian of the Anti-Discrimination Center, and others correctly called the loophole “sleazy” and “horrifying”—and pricked the New York City Council into action.

So on Tuesday, the New York Times reports, New York City Mayor Bill de Blasio signed a law broadening the language of the city’s existing human rights legislation to include unpaid workers, giving them the right to sue their employers. The measure says that, at least where harassment and discrimination are concerned, whether or not you receive wages has no bearing on whether you are “employed.” The bill, introduced by Manhattan borough president Gale A. Brewer, has analogues in Oregon and Washington, D.C., and a baby sister working its way through committee in California. By rescuing unpaid interns from legal limbo, will measures like these start moving the needle on internships in general?

There seems to be a sea change happening in how unsalaried labor fits into the American workplace. The New York Times disclosed last month that it would pay academic interns minimum wage. (In December, Slate announced that it had started paying interns.) New York University has tightened its guidelines for employers who wish to hire student interns, and the Ivy League colleges have stopped granting academic credits to unpaid interns altogether. “For most corporations, we’re heading in the direction of internships being paid positions eventually,” career coach Allison Cheston told Bloomberg Businessweek.

A lot of these developments seem to have been at least somewhat motivated by a recent legal victory for two interns who sued Fox Searchlight Pictures in June. The plaintiffs—coffee-fetching, phone-manning grunts on the set of Black Swan—argued that they should have received salaries for their tasks, and Federal District Court Judge William Pauley III agreed. In his decision, he dismissed the “primary benefit test” (“Who gets more out of this arrangement, the company or the intern?”) as a yardstick for assessing if internship programs pass muster. Instead, he wrote, employers who wish to offer wageless positions should stick to the six guidelines outlined back in the 1938 Fair Labor Standards Act, which—for good reason!—are all but impossible for a modern workplace to satisfy. (Read them here.)

In the long run, buffering unpaid interns against discrimination and harassment might be counterproductive, in that it makes an unfair system more palatable. If you want to treat interns well, pay them, and then they’d be covered by existing laws. But, in the short term, while interns continue to work for free, it’s good that New York City is at least not compounding the unfairness by allowing them to get harassed on the job.