Until recently, unpaid interns had little or no recourse if they were victims of workplace discrimination or harassment. Because they did not qualify as employees under most employment laws, they were not protected under the anti-discrimination and anti-harassment laws.

Last week, California and Illinois joined New York, Oregon and the District of Columbia as the most recent jurisdictions to enact laws affording unpaid interns some of the legal protections from discrimination and harassment routinely granted to employees (see CA Assembly Bill No. 1443 and Legal Update, Epstein Becker: Illinois Extends Sexual Harassment Protection to Unpaid Interns). Other jurisdictions have proposed and may enact similar laws in the future.

The trend of providing employee-like protections for unpaid interns has gained momentum since the unexpected result in a 2013 New York federal district court decision (Wang v. Phoenix Satellite Television US, Inc., 976 F. Supp. 2d 527 (S.D.N.Y. 2013)). In Wang, an unpaid college intern filed suit under the New York state and city anti-discrimination laws, claiming she was sexually harassed, groped and kissed by Phoenix Satellite's bureau chief. She also alleged that Phoenix Satellite retaliated against her for having rebuffed the bureau chief's sexual advances and discriminated against her by failing to hire her for a full-time position following her internship.

Despite direct and compelling evidence of physical and verbal harassment, the court found as a matter of first impression that Wang was not an employee of Phoenix Satellite, and therefore dismissed her claims for harassment and retaliation as a matter of law (see Legal Update, Ogletree Deakins: New York City Law Does Not Allow Unpaid Intern Suit for Sexual Harassment). This ruling highlighted an anomalous gap in New York's anti-discrimination statutes that generally left unpaid interns unprotected.

At the time of the Wang decision, only Oregon and the District of Columbia had any laws protecting interns from harassment or discrimination (see Or. Rev. Stat. § 659A.350 and D.C. Code § 2-1402.11). Since then, legislators across the country have started to respond.

In April 2014, New York City enacted an amendment to the New York City Human Rights Law (NYCHRL) protecting unpaid interns from discrimination and harassment to the same extent as employees under the NYCHRL (see Legal Update, New York City Council Unanimously Passes Bill Expanding NYCHRL to Protect Interns From Discrimination). New York State followed soon after, amending the New York State Human Rights Law in July 2014 to similarly protect interns against workplace discrimination and harassment (see Legal Update, Jackson Lewis: New York Enacts Anti-discrimination Law Protecting Interns in the Workplace).

Last week, California amended its Fair Employment and Housing Act (FEHA) by passing a bill (2013 A.B. 1443, Cal. Assemb.) that prohibits discrimination and harassment in the selection, termination, training, or other terms or treatment of unpaid interns, or other participants in limited duration programs designed to provide unpaid work experience.

Illinois also amended its Human Rights Act to protect unpaid interns against sexual harassment (see Legal Update, Epstein Becker: Illinois Extends Sexual Harassment Protection to Unpaid Interns). However, the Illinois amendment only defines unpaid interns as employees for the limited purpose of protecting them from sexual harassment. It does not afford them the protections against discrimination and harassment based on membership in any other protected class.

The Illinois amendment further limits the protections to unpaid interns who meet other qualifications (similar to the federal six-part test to qualify as an unpaid intern under the Fair Labor Standards Act). The NYCHRL amendment imposes similar requirements. For more information on these requirements, see Practice Note, Interns, Trainees and Volunteers and Internship Program Checklist.

Employers in jurisdictions that have enacted legislation protecting unpaid interns from harassment and discrimination should promptly:

All employers should ensure they have sound policies and procedures for reporting and responding to complaints of harassment and discrimination. For sample policies, see Standard Documents, Anti-harassment Policy and Equal Employment Opportunity Policy.