Unpaid Interns not Protected by Sexual Harassment Laws

Monday, August 12, 2013

Every year more than a million college graduates try to start their careers by taking internships, which pay little or nothing, but are supposed to be educational. Some of them get a harsh lesson in the realities of the American workplace when they find out they are completely unprotected by federal anti-discrimination laws, including those against sexual harassment. New local laws in Oregon and Washington, DC, are intended to fill the gap and prevent cases like those of Bridget O’Connor.


In 1994, Bridget O’Connor began an internship at Rockland Psychiatric Center, where one of the doctors, James Davis, openly started calling her “Miss Sexual Harassment,” suggested that she participate in an orgy, and asked her to remove her clothing before meeting with him. Although other women in the office made similar allegations, when O’Connor filed a lawsuit, the trial court dismissed her sexual harassment claims because she was an unpaid intern, and the federal appeals court in New York affirmed the decision.


Sidestepping the potentially complex factual issue of whether O’Connor’s work was more like that of an employee or an independent contractor, the three-judge panel of the Second Circuit Court of Appeals opted to simplify the case by focusing on “the common feature shared by both the employee and the independent contractor … that they are ‘hired part[ies],’ and thus, a prerequisite to considering whether an individual is one or the other under common-law agency principles is that the individual have been hired in the first instance.”


By reducing the case to whether or not O’Connor had been “hired,” the Court also reduced the entire employment relationship to a question of money: “Where no financial benefit is obtained by the purported employee from the employer, no ‘plausible’ employment relationship of any sort can be said to exist.” The Court did not explain why the promised educational benefits of the internship were not sufficient to serve as O’Connor’s remuneration.


The U.S. Equal Employment Opportunity Commission, which enforces civil rights laws like the Civil Rights Act, follows the same line, holding that these laws 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 wrote to ProPublica.


That civil rights coverage depends on money should perhaps not be surprising. In today’s America, having rights depends on having money. The Supreme Court says money is speech, as a criminal defendant your rights are only as good as the lawyer you can afford to defend them, and unpaid interns are without legal protection from discrimination, including sexual harassment.

-Matt Bewig


To Learn More:

How Unpaid Interns Aren’t Protected Against Sexual Harassment (by Blair Hickman and Christie Thompson, ProPublica)

O’Connor v. Davis (Second Circuit Court of Appeals)


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