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Sexual Harassment of Interns is Allowed

A case in which the law doesn’t protect the vulnerable

Posted by Jared Jacobson on November 5th, 2013

Sexual Harassment, a form of gender discrimination, is prohibited in the employment context under federal and various state laws e.g., Title VII of the Civil Rights Act, New York State Human Rights Law and the Pennsylvania Human Relations Act. There are also laws generally prohibiting harassment of individuals in the non-employment context, however, that is a different topic.

Recently, there have been several judicial challenges addressing rights of interns in the workplace. Very often they do not receive compensation or benefits in the traditional sense that a full-time or even part-time employee would receive.

Interns Don’t Need to be Paid

A recent challenge affected an interns’ right to receive minimum wage and overtime for time spent on work matters. Traditionally, if there is a bona fide internship program in place, which meets certain criteria, an intern is not required to be paid and an employer may fall into a safe harbor.

Interns Not Protected

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A new legal challenge raises the question as to whether interns are protected from sexual harassment. The common sense answer would be of course they are protected. However, Manhattan Federal Court Judge Kevin Castel determined that unpaid interns have no standing to assert their right to be protected from sexual harassment in the workplace because they are not employees, and therefore are not protected by the employment laws addressing sexual harassment. Obviously, this is contradictory to the wage/hour claim recently brought on behalf of interns, in that the decision is based on their status as an employee, or lack thereof, in both cases.

In the NY case that brought this to light, a 26-year-old intern’s boss allegedly grabbed her butt and tried to kiss her while she was an unpaid intern in 2010. Simply put, Judge Castel stated, “Protection of employees does not extend to unpaid interns,” as the New York City Human Rights Law does not afford the same protections to interns as it does employees.

Protecting the Vulnerable

If we look at the purpose behind civil rights employment statutes, federal or state, their purpose is to protect the most vulnerable of our society, often children or young adults. This decision runs clearly contrary to that purpose. There are plans for the New York City Council to address this decision with legislation.

Jared Jacoboson
Jared Jacoboson

Attorney and founder of The Law Firm of Jacobson & Rooks, LLC

Jared Jacobson is one of the founding members of The Law Firm of Jacobson & Rooks, LLC. Jared Jacobson represents individual employees and executives as well as counsels employers in conducting workplace investigations to mitigate risks of employment and whistleblower litigation. Jared regularly performs human resource audits to ensure compliance with state (PA, NJ and NY) and federal discrimination, misclassification and wage and hour laws, as well as the risks associated with whistleblowers. Jared helps his clients understand the importance of investing in pre-emptive annual policy audits and work-place training as well as performing a proper investigation when a complaint is filed or threatened which can be invaluable when compared with the alternative.

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