Sexual Harassment: It's Only Illegal If I Pay You for It

Can I sexually harass an intern, so long as she's a volunteer and doesn't get paid for her work? Yes, says a New York federal court.

Ms. Lihuan Wang worked as an unpaid intern for Phoenix Satellite Television US in 2009. She sued the company, claiming that its D.C. bureau chief sexually harassed her.

According to Ms. Wang, the bureau chief invited her to his hotel room, claiming that they would talk about hiring her permanently. Ms. Wang claimed that, once she entered his room, the bureau chief threw his arms around her, tried to kiss her, and "squeezed her buttocks with his left hand." Ms. Wang said she refused him, and left the room. According to Ms. Wang, the bureau chief then expressed no further interest in hiring her.

The New York federal judge threw Ms. Wang's case out just last week. The judge stated that, because Ms. Wang wasn't paid for her work, she wasn't protected under New York's anti-sexual harassment laws.

It seems bizarre that unpaid interns, who are usually young and looking for any opportunity available, are not protected from sexual harassment, but this judge ruled that's the case under New York law. He's not the only judge to rule that way. Federal judges across the country have held that unpaid interns have no protection under Title VII, the federal version of the civil rights statutes.

Title VII protects "employees" from discrimination and harassment. It defines an employee as an "individual employed by an employer." No, I'm not kidding. Yet somehow, federal courts have decided that that meaningless definition doesn't include people who work without pay.

Even California has held that public workers who are appointed without pay are not entitled to protection under the Fair Employment & Housing Act, California's version of the civil rights statutes. See Estrada v. City of Los Angeles, 218 Cal.App.4th 143 (2013). Although some California cases have indicated that this would apply to private employers as well as public ones, that matter hasn't actually been decided in California yet.

So what does this mean? Are companies really free to sexually harass their volunteers?

Incredible as it seems, there may certainly be an argument that this is the case. Of course, many times, companies break the law when they use volunteers. California requires people to be paid for their work in most instances. It seems absurd -- and I doubt a court would find -- that a company that was illegally failing to pay its workers and illegally classifying them as volunteers could escape the laws against sexual harassment.

There are also other remedies. I hope that Ms. Wang's attorney also sued for battery, which is an unwanted touching. It doesn't come with as many remedies as the civil rights laws, but it's better than nothing.

If you believe that you have been sexually harassed at work, make sure to contact an employment attorney quickly. There are short time periods that you have to follow, and failing to act within those time periods could cause you to lose your rights forever.