Boston Sexual Harassment Litigation: Do Unpaid Interns Have a Case?

Our Boston employment attorneys recently wrote about the fact that unpaid interns can present a host of legal challenges to companies that aren’t careful in ensuring that the arrangement is appropriately established.
When it’s done right, the unpaid internship arrangement is supposed to be more beneficial to the intern than the company. The law is pretty firm on the fact that if the company is essentially receiving free labor, the arrangement is not functioning properly.

However, there is one area of employment law in which the rights and protection of the intern is not as clear: sexual harassment.

Investigative journalism non-profit ProPublica recently took on this issue as part of an ongoing series on internships in the U.S.

It would seem common sense that interns are among those who require the most protection. After all, they are new to their chosen field. They are younger and inexperienced. They may not know how to react or where to turn if they do experience sexual harassment. They are heavily reliant on their supervisors and even in some cases their co-workers for positive reviews and recommendations. All of this sets the stage for someone to easily take advantage.

However, sexual harassment law requires that in order to bring action against an individual or company, he or she must be “employed” by that firm. One can establish such a connection for an intern who is paid by the company. However, unpaid interns may face an uphill legal battle in establishing protections.

The legal landscape is slowly changing, so unpaid interns who have suffered sexual harassment should not have to assume they won’t succeed in court. Doing so, however, is going to require a skilled legal team, as case law won’t be on your side.

Take the 1994 decision of O’Connor v. Davis, decided in the U.S. Court of Appeals, Second Circuit. In that case, a female student began an internship at a psychiatric center where she was subsequently subjected to the unwanted sexual advances of one of the lead doctors at the facility. Among his suggestions: That she should participate in an orgy with him and that she remove her clothes before meeting with him. He also attempted to touch her inappropriately. Other women who worked at the site had made similar allegations.

However, her case was ultimately thrown out – a decision later upheld by a federal appellate court – on the basis that she was not technically an employee. Absent a paycheck, she couldn’t claim protection under the federal Civil Rights Act.

The U.S. Equal Employment Opportunity Commission has found one exception would be those unpaid interns who receive “significant renumeration.” That could come in the form of a pension, group life insurance, workers’ compensation or access to some professional certification. Those benefits need not even necessarily come from the employer; they could be from a third party. So for example, if your university provides “significant benefits,” perhaps such as course credit, for your work as an unpaid intern, you might be considered “employed” under the law.

If you have a question about whether you qualify for sexual harassment protection under the law, contact The Brown Law Firm, LLC, with offices in Belmont and Boston. For a free and confidential consultation, call 617-489-0817 or contact us online.

Additional Resources:
How Unpaid Interns Aren’t Protected Against Sexual Harassment, Aug. 9, 2013, By Blair Hickman and Christie Thompson, ProPublica
More Blog Entries:
Employment Lawsuits Could Prompt More Firms to Pay All Interns, July 23, 2013, Boston Employment Lawyer Blog

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