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.