Blurred Lines: Whether an Unpaid Intern Should Fall Under Title VII’s “Employee” Definition

Blurred Lines: Whether an Unpaid Intern Should Fall Under Title VII’s “Employee” Definition

By: Lacy Triplett

Internships provide valuable experience for students and recent graduates, and they are pretty much required in order to obtain a job in most fields. However, interns are not afforded the same civil rights protections that paid employees receive.[1] Although there are some regulations regarding interns in employment law, they are not strictly enforced, and most interns do not voice concerns about the violations because the intent of an internship is to obtain future employment.[2] While compensation for internships would be ideal, the main purpose of interning is to gain valuable workplace experience that cannot be taught in educational or vocational programs. The lines are blurred when unpaid interns have their rights violated and want to bring legal action but are statutorily barred because they are not legally considered employees. Therefore, their claims of harassment and discrimination under Title VII of the Civil Rights Act of 1964 (Title VII)[3] fall by the wayside because interns realize they will not prevail and their employers will not be punished. Title VII’s definition of an “employee” states that “the term ‘employee’ means an individual employed by an employer….”[4] While that definition seems rather open-ended, federal courts have regularly held that compensation is the threshold for concluding employment status.[5] Thus, unpaid interns are left in a vulnerable position without recourse for discrimination or harassment, which would be protected by Title VII if they were paid employees.[6]

There has been a recent resurgence in the debate as to whether an unpaid intern should be considered a Title VII employee due in large part to a recent case out of New York. In that case, an unpaid intern with a Chinese media outlet filed a lawsuit alleging sexual harassment against her supervisor, which created a hostile work environment.[7] Lihuan Wang interned for Phoenix Satellite Television while completing a Master’s degree in journalism from Syracuse University.[8] Wang performed duties typical of a news intern; she alleged that in order to get hired for a permanent position with the company post-graduation, she had to get the approval of her supervisor, Zhengzhu Liu.[9] The issues alleged in Wang’s suit began when Liu traveled from his office in the Washington D.C. bureau to the New York bureau where Wang was interning.[10] After having lunch with Liu and the other employees at the New York bureau, Liu asked Wang to stay behind so they could discuss her job performance and job possibilities.[11] After that discussion, Liu suggested that they go to his hotel so he could put his belongings in his room, and while on the way Liu began making crude and unconformable sexual remarks toward Wang.[12] At the hotel, “Liu asked Ms. Wang to name her most beautiful feature and told her that [her] eyes [were] so beautiful,” and then suggested they go to his room.[13] Once inside his hotel room, he “took off his shirt jacket and undid his tie;” then, Liu “suddenly exclaimed, ‘Why are you so beautiful?’ and threw his arms around [Wang].”[14] He then held Wang “tightly for roughly five seconds and tried to kiss [Wang] by force, but [Wang] turned her face away so [Liu’s] mouth landed on her cheek and neck.”[15] Wang also asserted that Liu “squeezed [her] buttocks with his left hand.”[16]  Wang stated that she only agreed to go to his room because he was her supervisor and she felt obligated, and she left the hotel room after asking Liu to stop.[17]  Wang asserted that after the incident at the hotel, Liu’s interest in permanently hiring her diminished.[18] Wang further asserted that when she contacted him after the completion of the internship, Liu invited her to Atlantic City, New Jersey for a weekend “to discuss her job opportunities.”[19]  Wang declined Liu’s invitation fearing that he would make sexual advances towards her again.[20]

Judge Castel held that Wang was unable to proceed on her claim because the protections afforded to employees under Title VII and the New York City Human Rights Law [21] (NYCHRL) do not extend to unpaid interns.[22] Specifically the Court stated that compensation is a threshold issue when determining whether an employment relationship is present under Title VII and the NYCHRL.[23]  “The plain terms of § 8-107(1)(a)[24] make clear that the provision’s coverage only extends to employees, for an ‘employer’ logically cannot discriminate against a person ‘in the conditions or privileges of employment’ if no employment relationship exists.”[25] Because Wang was an unpaid intern and received no remuneration, she was unable to prevail on her hostile work environment claim under the NYCHRL.  The fact that she did not receive payment for her work at Phoenix barred her sexual harassment claim under both Title VII and the state law provisions of the NYCHRL.[26]

Wang is not the first case to hold that unpaid interns are not protected from discrimination and harassment claims under Title VII,[27] and the debate surrounding the issue does not seem to be dying down any time soon. However, just like with any story, there are two sides to this debate. One legal commentator says that the decision in Wang is not a controversial one, and it is akin to the traditional interpretation of federal, state, and local discrimination laws, which do not afford protection to unpaid interns.[28] He suggested that employers prevent claims such as the ones alleged by Wang by auditing internships to make sure they comply with the Department of Labor’s guidelines, instituting paid internships, and educating employers on anti-discrimination policies.[29]

There has been some progress made in terms of protecting unpaid interns from harassment and discrimination at the hands of their employers. In Oregon, the legislature passed a bill that provides some of the existing employment discrimination protections to interns who are working for educational purposes.[30] If it is signed into law, it will protect unpaid interns against discrimination based on race, color, religion, sex, sexual orientation, national origin, marital status, disability, and uniformed service, as well as other things.[31] The reasoning behind the Oregon bill was to serve as a “preservation of the public peace, health and safety.”[32] Oregon is not alone in this movement. New York State Senator Liz Krueger plans to introduce legislation that will “close the loophole which basically allows unpaid interns to be sexually harassed because they aren’t being paid.”[33] She stated that her bill will “define internships, explicitly ban workplace sexual harassment of interns, and apply general workplace civil rights protections to interns.”[34]

Given the prevalence and near necessity of completing an internship, it will be interesting to see how the Oregon and New York legislatures address these bills. Issues still remain on the federal level and for interns who are not working in the two states will proposed laws to remedy the situation. What will become of Title VII and unpaid interns? Will compensation remain the determinative factor in establishing an employment relationship? Will any putative measures arise to prevent employers from continuing to discriminate and harass interns? If the Oregon legislature and Senator Krueger get their way, it seems that unpaid interns will be slowly clearing up the blurred lines of the intern and employee relationship allowing interns, like Wang, to address claims against their employers.


[1] See Kathryn Anne Edwards and Alexander Hertel-Fernandez, Not-So-Equal Protection –Reforming the Regulation of Student Internships, Economic Policy Institute (Apr. 9, 2010), http://www.epi.org/publication/pm160/.

[2] See id.

[3]  42 U.S.C.A. §§ 2000e-2000e-17 (West, Westlaw through Sept. 18, 2013).

[4] 42 U.S.C.A. § 2000e(f).

[5] Edwards and Hertel-Fernandez, supra note 1.

[6] See id.

[7] Wang v. Phoenix Satellite Television US, Inc., No. 13 Civ. 218(PKC), 2013 WL 5502803, at *1 (S.D.N.Y. Oct.3, 2013).

[8] Id.

[9] Id. at *1-2.

[10] Id. at *2.

[11] Id.

[12] Wang v. Phoenix Satellite Television US, Inc., No. 13 Civ. 218(PKC), 2013 WL 5502803, at *1, *2 (S.D.N.Y. Oct. 3, 2013).

[13] Id. (internal quotation marks omitted)

[14] Id.

[15] Id.

[16]Id.

[17] Id.

[18] Wang v. Phoenix Satellite Television US, Inc., No. 13 Civ. 218(PKC), 2013 WL 5502803, at *1, *2 (S.D.N.Y. Oct. 3, 2013).

[19] Id. at *3.

[20] Id.

[21] 8 N.Y.C. Admin. Code §§ 8-101-8-703 (last updated June 1, 2013), available at home.nyc.gov/html/cchr/downloads/pdf/human-rights/nyc-human-rights-law.pdf.

[22] Wang, 2013 WL 5502803, at *9.

[23] Id. at *5.

[24]  Section 8-107(1)(a) of the NYCHRL states, “For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.”

[25] Wang, 2013 WL 5502803, at *4.

[26] David Yamada, Unpaid Intern Cannot Bring Sexual Harassment Claim Under NYC Human Rights Law, Judge Rules, Today’s Workplace (Oct. 7, 2013), http://www.todaysworkplace.org/2013/10/07/unpaid-intern-cannot-bring-sexual-harassment-claim-under-nyc-human-rights-law-judge-rules/.

[27] Many cases have decided this issue but for a look at how a few courts have decided the matter see O’Connor v. Davis, 126 F.3d 112, 119 (2d Cir. 1997); Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211, 221 (4th Cir. 1993); Neff v. Civil Air Patrol, 916 F. Supp. 710, 715 (D. Ohio 1996); Doe v. Lee No. 11C6102, 2013 WL 1883288, at *1, *4 (N.D. Ill., May 6, 2013).

[28] Michael S. Arnold, New York Federal District Court Declines to Extend Protections Against Discrimination Under the New York City Human Rights Law to Unpaid Interns; But Should the Analysis End There?, JDSupra Law News, (Oct. 10, 2013), http://www.jdsupra.com/legalnews/new-york-federal-district-court-declines-13521/

[29] Id.

[30] Pamela Wolf, Oregon Bill Protecting Unpaid Interns from Employment Discrimination May Be the Handwriting on the Wall, Employment Law Daily, http://www.employmentlawdaily.com/index.php/news/oregon-bill-protecting-unpaid-interns-from-employment-discrimination-may-be-the-handwriting-on-the-wall/ (last visited Oct. 18, 2013).

[31] Id.

[32] Id. (internal quotation marks omitted).

[33] Jen Chung, State Senator Krueger: Unpaid Interns Should Be Protected from Sexual Harassment, gothamist, (Oct. 16, 2013), gothamist.com/2013/10/16/state_senator_liz_krueger_unpaid_in.php

[34] Id.

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