A new bill introduced in the New York State Senate would extend many of the protections of the New York State Human Rights Law (NYSHRL) to unpaid interns.  Among other things, the bill would make it illegal for employers to “refuse to hire, employ or to discriminate against an intern” based on any of the characteristics protected by the NYSHRL or to “engage in unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature to an intern.”

The bill, sponsored by Senator Liz Krueger, was introduced in response to a recent decision out of the U.S. District Court for the Southern District of New York holding that unpaid interns are not protected against sexual harassment by the New York City Human Rights Law (NYCHRL).  In that case, Wang v. Phoenix Satellite Television U.S. Inc., No. 13 Civ. 218, the plaintiff, a graduate student in journalism, commenced an unpaid internship with the defendant media company in December 2009.  The plaintiff alleged that, during the course of her internship, her supervisor lured her to his hotel room, propositioned her, and kissed and groped her against her will.  After the plaintiff rejected her supervisor’s advances, she fell out of his favor and was denied permanent employment upon graduation.  Thereafter, the plaintiff brought suit for sexual harassment in violation of the NYCHRL and discriminatory failure to hire in violation of the NYSHRL and the NYCHRL.

On October 3, 2013, the court dismissed the plaintiff’s sexual harassment claim, holding that, because the plaintiff was an unpaid intern and, thus, received no compensation, she was not an “employee” within the meaning of the NYCHRL.  Noting that the matter was one of first impression, Judge Kevin P. Castel held that, notwithstanding its broader remedial scope, the NYCHRL was consistent with Title VII and the NYSHRL, which have both been interpreted to exclude unpaid interns from their protection.  The court did, however, allow the plaintiff to proceed with her claim that the defendant unlawfully refused to hire her.

In response to Judge Castel’s decision, on October 15th, Senator Krueger introduced the proposed legislation, asserting that “with the growing prevalence of unpaid internships and the extreme pressure on young people to build up resumes and references in a tough economy, the law needs to change to protect this extremely vulnerable class of workers.”

While no action has been taken on Senator Krueger’s proposed bill, employers should take care to ensure that interns are not subjected to workplace discrimination: as demonstrated in the Wang case, an unpaid intern can still bring suit, just as any other applicant, based on her employer’s discriminatory refusal to hire her.