Sexual Harassment and Unpaid Interns: What Every Intern Needs to Know

As an unpaid intern, the fact that you’re not being paid could have implications far beyond the current balance in your checking account…including whether you are protected from workplace sexual harassment while at your internship.

What can you do?

1. Know the facts.

2. Know the law.

3. Protect yourself.

1. Sexual Harassment and Interns: The Facts

From David Letterman to JFK to Harvey Weinstein, the story of the powerful boss and the young intern is one we’ve heard time and again.

Unfortunately, it appears that interns are uniquely susceptible to being targeted as sexual prey.  Although much sexual harassment goes unreported, and an inadequate amount of research has been devoted to the topic, at least one study found that as many as 49 percent of interns have experienced sexual harassment at their internship.  This is particularly disconcerting given the recent explosion in internships, and the fact that approximately 77 percent of unpaid internships are filled by women.

The reason for this heightened susceptibility of interns is, I believe, one of power-dynamics. Interns are generally young, at the bottom of the workplace hierarchy, and in a position that is often ambiguously defined at best (interns are expected to do almost anything asked of them, no matter how outrageous seeming). And most importantly, interns feel dependent on their employer for the recommendation and experience they are told they need in order to secure a job.

Employers hold all the cards in an internship situation.  Interns, none.

2. Sexual Harassment and Interns: The Law

What is particularly dangerous about the situation interns find themselves in is that, despite their heightened vulnerability, they are often excluded from the laws that protect most employees from workplace sexual harassment.

Consider the following facts from an actual case:

An unpaid intern’s supervisor “grabbed her breasts and buttocks on numerous occasions, frequently rubbed his groin against her in the darkroom, consistently propositioned her for sex, posted numerous raunchy nude photographs in her work area, and refused to complete her evaluations unless she acquiesced to his sexual advances.”

As the law firm who successfully defended the employer in the above case proudly related, they were able to “[win] a victory in a potentially explosive sexual harassment suit by successfully arguing that a student intern was not an “employee” entitled to the protections afforded by Title VII,”  because the woman, as an intern, was not paid by the company.

This case is not an anomaly, but one of numerous unfortunate cases that highlight the double indignity of unpaid internships, where no pay often equals no protection.

In their critique of the current protections afforded to unpaid interns, Not-So-Equal Protection—Reforming the Regulation of Student Internships, researchers at the Economic Policy Institute (EPI) explain that“[a]lthough the legal definition of who is an “employee” protected by Title VII is not specifically outlined in the original legislation, federal courts have consistently found that the question of whether an individual is compensated for his or her work by an employer is the first test for determining employee status. Accordingly, unpaid interns, or even interns paid by an entity other than an employer, do not receive workplace discrimination protection.”

3. Sexual Harassment and Interns: Protect Yourself

Being aware of these potential traps and pitfalls when it comes to interning is the first step in protecting yourself from becoming a victim.

However, if you do find yourself in a situation where you have been sexually harassed, there might be a backdoor for legal recourse, despite this bleak overall picture of the federal legal landscape.  Ross Eisenbrey, Vice President of the Economic Policy Institute (EPI), suggests a way for sexually harassed unpaid interns to put themselves within the protection of these federal laws.  As Eisenbrey points out, since it is that the fact that an intern is not paid that takes an intern outside the protections of the law, if an intern was illegally unpaid, and should have been paid under federal or state wage laws, a court could find that sexual harassment laws apply.

Given the fact that many unpaid internships fail to meet the federal or state requirements for a legally unpaid internship, this could prove a powerful means for closing this glaring loophole, until Congress broadens workplace protections to include sexually harassed interns.   Until that happens, this is just another on a long list of systemic injustices facing unpaid interns.

Unbelievably Illegal Unpaid Internship Ad

Just when you think people are starting to realize that unpaid internships are not a vehicle for free labor someone decides to post one of the most egregious internships ads I’ve seen. It should be a surprise that it was posted on Thankfully, the owners of the website point out that it is unlawful. [I’ve corrected some of the basic grammatical errors so that it is readable]

Personal assistant to designer

We are looking for a kick ass personal assistant to designer to handle any task that comes. What would you do to get into the most exclusive industry in the world and be around some of the most incredible people you’ve ever meant. This is the dream of a lifetime for you. If you feel you have what it takes to assist a fashion designer that never sleeps and you can handle late hours and running around NYC for the most insane things and being called at the weeee hours in the morning and late at night then this is the internship for you. And trust me this will be the experience of a lifetime from being on the most insane photo shoots with celebrities to having meetings with the top editors in the fashion industry. If you live and breathe fashion and can commit to a UNPAID fulltime position for 3 months then the job is yours but you better be FIERCE ! This position is fulltime 40+ you must be open to weekends . This designer only sleeps 2 hours a day so be prepared!!! Send us a current FULL BODY PHOTO if you along with your cover letter and resume and a brief description on why you want to work for NATASHA MORGAN. If do not send your photo your resume will be DELETED immediately which means you can’t follow simple instructions and we have no time for waste!NYC residents onlyRequirements and responsibilities: -20 and older -FASHIONABLE- edgy,chic,fierce (head to toe) 4-6 inch heels always unless you are a guy -Live and Breathe and DIEEEEE for FASHION -Computer literate ,photoshop,excel,micrsoftword -YOU MUST BE SMART and think on you toes -problem solver at any cost -don’t ask dumb questions -get the job done -real research (that means find it no questions!!!!) -great attitude -social media /all -willing to do anything at anytime to get the task done no questions asked. -running errands personal and business -multitask to get it all done in a timely manner*Again don’t waste our time only the strong need apply

Unpaid internships: A wolf in sheep’s clothing?

What’s wrong with unpaid internships?? In my opinion, nothing is wrong with unpaid internships, per se.

I know it probably approaches blasphemy for me to say that, considering my entire practice revolves around private enforcement of laws relating to the payment of illegally unpaid interns.? But I don’t believe there is anything inherently wrong with unpaid internships, any more than I believe there is something inherently wrong with guns.? Or religion.? All of these things can be perfectly great, and useful, when used by the right people with the right intentions.? But in the wrong hands, when people use and manipulate these things for their own selfish purposes, these tools become agents of harm that hurt people.

An unpaid internship, properly implemented, can be a great learning experience, a real tool for personal and professional growth, and a true opportunity to learn practical skills from a master. But just because it can be, doesn’t mean it always is.

The root of the problems associated with unpaid internships is that most employers today do not look at internships as an altruistic way to “give back” to the next generation, or as a way to train potential future employees, or even as a give-something-get-something agreement.? A huge number of employers today use the promising guise of “unpaid internships” to extract free labor from individuals, the overwhelming number of whom are young, at the start of a new career, or in an otherwise vulnerable position, into a give-everything-get-nothing situation, solely for the employer’s own personal benefit.? They’ve realized that by calling something an “unpaid internship,” they can get all the benefits of a worker without having to give a penny of their money or an hour of their time.? That is wrong.

What is an internship?? There seems to be no clear, consistent answer, and employers have jumped on that ambiguity to package any and everything as an “internship,” including what is clearly nothing more than unpaid work.

Ethical Argument Against Unpaid Internships

There is a relatively unknown Jewish law that reads: One is not permitted to ask the storekeeper the price of an item if he knows he will not purchase it (Bava Mezia 58b). When a person asks the storekeeper the price of an item that he or she has no intention of buying, the person is deceiving the storekeeper, and actually robbing the storekeeper of time. The law allows comparison shopping, however, if you know that you will not buy the item from that particular store you are forbidden to inquire about its price. The obvious reason the Talmud forbade such activity is that it raises the seller’s hopes in vain. But the reason goes deeper than that: Those who violate this law are deliberately misleading people about one of the most important concerns in their life – their income.

In today’s economy, many employers have come to view unpaid internships as a pool of free labor, enabling many businesses to increase profits. It is estimated that in 2010, there were over 500,000 unpaid internships in the U.S., at a savings to businesses of over $2 billion annually.

As individuals who accept unpaid positions universally do so with a desire of securing a future paid position (there or elsewhere), these internships are accordingly described by employers as providing valuable a uniquely valuable experience important in helping to secure a fulfilling and profitable career.

While some of these unpaid internships do prove to be the educational experience and career stepping stone they claim to be, all too many of them are not.

The self-described motivations of employers with unpaid interns are less important than the results of unpaid internship. The reality is that most unpaid internships, which make up nearly half of internships, are failing to deliver on many of the carrots that employers often dangle (implicitly or not) in order to induce interns to agree to work for free.  Recent studies indicate that unpaid internships are surprisingly ineffective, on the whole at advancing one’s career.   Compared to paid interns, these studies indicate that unpaid interns are given more menial tasks and spend more time waiting around for work than paid interns. The National Association of Colleges and Employers (NACE) recent 2011 Student Survey found students with unpaid internships did no better in terms of job offer rates that those who entered the job market without any internship (and even showed a 10% decrease in starting salary rates when comparing for those with unpaid internship experience to those without any internship experience). The NACE survey concluded that unpaid internship offers no advantage to the job-seeking student.

If a company implies that an unpaid intern will gain valuable educational experience but ends up performing hours of menial tasks, such as making coffee, cleaning, filing, etc., they have violated the Storekeeper Rule.

If a company implies that when the unpaid intern gains the additional experience they would consider hiring them, when in fact they do not have the intention of ever hiring them (whether because they cannot afford another employee or because they plan on replacing them with another unpaid intern), they have violated the Storekeeper Rule.

If a company makes clear they have no intention of hiring the unpaid intern, but implies that job opportunities in the industry will likely be available to the unpaid intern upon completion of their internship, when the employer knows that there is an overabundance of people seeking jobs in that particular industry or that a decline in the demand for work in the industry has rendered new employment prospects are bleak, they have violated the Storekeeper Rule.

Unpaid internships are ethical and helpful to the interns when they have an educational focus and are not misleading. However, an unpaid internship that attracts interns based on a promise of valuable experience or enhanced job prospects in order to receive free labor from individuals, very literally, “steals” the interns’ time, a critical time at the very start of their career paths when important career decisions have long-lasting effects.

The Shopkeeper Law keeps all of us honest.

The 1933 New York Minimum Wage Act was Passed to Protect Unpaid Interns

In 1933 the New York Legislature passed the New York Minimum Wage Act.  Below is a section of the original New York Minimum Wage Act. The 1933 New York legislature clearly intended to protect today’s unpaid interns.

“The employment of women and minors in trade and industry in the state at wages unreasonably low and not fairly commensurate with the value of the services rendered is a matter of grave and vital public concern. Many women and minors employed for gain in the state are not as a class upon a level of equality in bargaining with their employers in regard to minimum fair wage standards, and “freedom of contract” as applied to their relations with their employers is illusory. Since a very large percentage of such workers are obliged from their week-to-week wages to support themselves and others who are dependent upon them in whole or in part, they are, by reason of their necessitous circumstances, forced to accept whatever wages are offered them. Judged by any reasonable standard, wages are in many cases fixed by chance and caprice and the wages accepted are often found to bear no relation to the fair value of the service rendered. Women and minors employed for gain are peculiarly subject to the over-reaching of inefficient, harsh or ignorant employers and under unregulated competition where no adequate machinery exists for the effective regulation and maintenance of minimum fair wage standards, the standards such as exist tend to be set by the least conscionable employers. In the absence of any effective minimum fair wage rates for women and minors, the constant lowering of wages by unscrupulous employers constitutes a serious form of unfair competition against other employers, reduces the purchasing power of the workers and threatens the stability of industry. The evils of oppressive, unreasonable and unfair wages as they affect women and minors employed in the state are such as to render imperative the exercise of the police power of the state for the protection of industry and of the women and minors employed therein and of the public interest of the community at large in their health and well-being and in the prevention of the deterioration of the race.” Section 550 (Labor Law).