NYC Unpaid Interns Can't Sue for Sexual Harassment: Judge

By Brett Snider, Esq. on October 10, 2013 | Last updated on March 21, 2019

A federal judge has ruled that unpaid interns in New York City have no right to sue over sexual harassment because they are not employees.

According to the New York Daily News, this recent ruling came as a crushing blow to 26-year-old Lihuan Wang, who alleged that her boss at Phoenix Satellite Television had "grabbed her butt and tried to kiss her" during her 2010 stint as an unpaid intern.

Where do federal and city laws leave unpaid interns like Wang?

NYC Law Only Protects Employees

While there have been great strides made in the field of sexual harassment law under Title VII of the Civil Rights Act of 1964, Wang only made claims under New York state and New York City's human rights laws.

The New York State Human Rights Law (NYSHRL) makes it illegal for employers to discriminate against an individual -- including hiring, firing, or changing conditions of employment -- based on sex. The New York City Human Rights Law (NYCHRL) has a similar prohibition against employers discriminating against a person based on sex.

Sexual harassment is widely acknowledged as a form of discrimination based on sex by state and federal courts. So why didn't Judge P. Kevin Castel accept Wang's case?

The problem, according to the judge: Wang was an unpaid intern during the period in which she was allegedly harassed, and not an employee. Castel ruled that these state and local laws apply only when there is an employment relationship.

Why Aren't Unpaid Interns Employees?

This issue of an unpaid intern suing under the NYSHRL and NYCHRL was a first for the federal courts, and it is an issue that has not been sorted out by the New York state courts either.

The 2nd U.S. Circuit Court of Appeals -- whose jurisdiction includes New York -- has ruled that unpaid interns like Wang are not employees for the purposes of Title VII suits, and Judge Castel took that ruling as analogous to Wang's case.

Under this precedent, those who claim to be employees of an employer must prove:

  1. That they were hired by the respective employer, and
  2. That they received some form of remuneration (i.e., payment) for their work.

The courts have finally cracked down on employers not paying interns when they are essentially acting as employees, but a legitimate unpaid internship lacks an essential criterion for being considered an employee -- payment.

Wang has not given up on her case just yet. According to the Daily News, she plans to re-file her claims in Washington, D.C., where other former Phoenix employees have had more success in suing their employer.

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