Employment & Labor Insider

How's everybody weathering the shutdown? Kinda quiet right now.

The calm before the default.

But at least the federal courts are still open. Most of you have probably heard by now about the ruling from a federal court in New York in Wang v. Phoenix Satellite Television saying that an unpaid intern can't sue for sexual harassment under the City's Human Rights Law because she's not an "employee." (No remuneration, which is "pay" to you and me.) The plaintiff claimed that her supervisor kissed her and grabbed her behind, and that such was unwelcome and offensive. If this is the first you've heard about it, you can learn more here (CAUTION: vulgar), here (semi-vulgar), and here (clean).

THE QUIZ

1. The judge who made this ruling is

A. An idiot.

B. Properly applying the law.

C. The alleged harasser.

D. Evil Republican spawn of that scoundrel Samuel Alito, who found this summer that an employer wasn't vicariously liable for harassment unless the harasser was a true "supervisor." (This is what they're saying at Above the Law (the "vulgar" link I gave you.)

CORRECT ANSWER: B. The judge properly applied the law. He has been unfairly attacked by many of those who have covered the case. Granted, having no protection under the anti-discrimination laws is a bummer and even a bigger bummer when you're not even drawing a paycheck for your trouble. But the law, as written, protects only "employees." Judges have to follow the law. No, they don't get to make it up as they go along.

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2. This decision means that, as a company, you can exploit unpaid interns with impunity.

A. True.

B. False.

CORRECT ANSWER: False. See next question.

3. Even if she is unpaid and not an "employee," an unpaid intern who is sexually harassed may have

A. A legal claim for intentional infliction of emotional distress.

B. A legal claim under federal anti-discrimination law (Title VII), and if she's in New York City, claims under the New York (state) Human Rights Law, and the New York City Human Rights Law.

C. Legal claims for assault and battery.

D. Legal claims for violation of the Racketeer Influenced and Corrupt Organizations Act and the Sarbanes Oxley Act.

CORRECT ANSWER: A, B and C. B? But didn't you just say . . .? Yes. The court (correctly) dismissed the intern's sexual harassment claim. But she also had a retaliation claim that gets to go forward. She had also alleged that she was not hired for a regular position after she rejected her boss's advances. In the context of a unlawful failure to hire, the law considers her an "employee."

Few covering this court's decision have mentioned that the plaintiff's retaliation claim will proceed. Kudos to the New York Daily News (the "semi-vulgar" link, above) and the St. John's University Labor & Employment Law Forum (squeaky clean) for being exceptions. BloombergBusinessweek (clean link, above) also pointed this out.

A and C are also correct because she can always bring tort claims regardless of her employment status.

An "assault" is generally a threatening gesture. A "battery" is generally an offensive touching. Therefore, when this supervisor (allegedly) came after her with lips pursed and fingers waving, that may have been an "assault." When he kissed her and grabbed her bottom against her will, that was an offensive touching, i.e., a battery.

(A non-employee who is sexually harassed can also sue for intentional infliction of emotional distress, but the legal standard is pretty high -- the plaintiff must show "extreme and outrageous conduct" that is intended to cause and does in fact cause severe emotional distress. The Wang case, as I understand it, was based on a one-time sexual advance, followed by a refusal to hire for a regular position. Most courts would say that this was very bad but not sufficiently "extreme and outrageous" for an intentional infliction claim.)

There are some advantages to bringing state tort claims in a case like this. A plaintiff might be able to recover potentially unlimited punitive damages, which are unavailable or capped under many civil rights laws. She also won't have to fiddle with filing an EEOC or other administrative charge before suing. On the negative side, she wouldn't be able to get the other side to pay her attorneys' fees if she wins.

But, yeah, this unpaid intern is hardly lacking legal remedies.

4. Of course, it's always possible that the guy is innocent anyway.

A. TRUE

B. FALSE

CORRECT ANSWER: True. (But he was reportedly fired after another woman complained about him, for whatever that's worth.)

5. Wow. Guess you should not always believe the legal analysis that you read on the internet.

A. TRUE

B. FALSE

CORRECT ANSWER: True. (Unless it's this blog, of course. And a few others.)

(Hat tip to my son, Ben, who alerted me to this case.)

(GO, TIGERS!!!!! WOO-HOO!!!!)