MEDIA INTERN DROPS CLAIM WHEN TOLD SHE ISN’T AN “EMPLOYEE”
An unpaid intern has been told she cannot bring a sexual harassment claim against her former supervisor, as she is not considered an employee. Although the case happened in the United States, a British lawyer has told Graduate Fog that UK interns could face similar problems as unpaid workers have fewer rights than paid employees under UK employment law.
Former intern Lihuan Wang filed a suit against Phoenix Satellite Television (a Chinese-language media company in New York) in January 2013. She alleged that in early 2010, her supervisor and bureau chief held her for about five seconds, tried to kiss her, and squeezed her buttocks. When she went to the authorities the US District Court for the Southern District of New York told her that because Wang was an unpaid intern – not an employee – she could not bring a claim under the New York City Human Rights Law.
According to the court’s decision, the New York City Council has had several opportunities to amend the law to protect unpaid interns but has declined to do so.
Employment law specialist Simon Cheetham told Graduate Fog that the case highlights the precarious position that many young, unpaid workers are in, around the world. Of UK interns, he said:
“An unpaid intern who does not fall within the statutory definition of an employee (Equality Act 2010 s.83) does not have protection from harassment under the same provisions of the EQA as an [paid] employee or applicant for [paid] employment would have.
“However, all is not lost. EQA s.55 says that an ’employment service-provider’ must not discriminate against or harass a person for whom it is providing that service (among other provisions). An ’employment service-provider’ (s.56) includes providing ‘vocational training’, which is itself defined as including work experience. So in the UK the unpaid intern who is sexually harassed (or suffers harassment on any other prohibited basis — eg sexual orientation, age) does have a potential claim to an employment tribunal. There are some restrictions, but that is the broad principle. As for the US case, I find it surprising that they do not have a similar provision, because of their comprehensive anti-discrimination legislation.”
Although it seems there are ways for unpaid interns to attempt to access justice in sexual harassment cases, Graduate Fog is alarmed to hear that they will find it more difficult than paid employees would. The unhealthy power dynamic between young people and employers already allows bosses to demand that their interns work full-time jobs for no wages. The news that interns do not even have basic rights against abusive behaviour in the workplace is sinister and troubling – and further proof of how vulnerable young people are in today’s tough job market.
*SHOULD UNPAID INTERNS BE PROTECTED AGAINST SEXUAL HARASSMENT?
Is it fair that an unpaid intern will find it more difficult to access justice than a paid employee would? Should the law be changed? Have you ever been the victim of harassment or bullying during an internship? If you sought legal advice, what were you told? Have your say below…
Not sure how sexual harassment claims work in Blighty, but in the absence of family help, pro bono generosity etc, can’t the low-paid – let alone the unpaid – in practice, not make a tribunal claim for anything if they don’t have hundreds of pounds, travel costs and the available time to do so?
Particularly now there are fees into the hundreds (weeks of full-time wages for the 50% the population earning below £20k) for the dwindling number of young workers who can sue for unfair dismissal. You even have to pay more than you would for a small claims court to sue for unpaid wages now apparently.
Of course in reality, although agency workers, people on fixed-term and zero hour contracts etc do theoretically have rights they are in most cases practically unenforceable since these types of employment are usually at-will and can be ended at any time for any reason, whether in law or in practice.
The threat of being thrown into the purgatory of the dole for an indefinte period – possibly several months – is a considerable incentive for many to put up with nearly anything.
Workfare has an even worse potential for sexual exploitation though, since a person without family support faces being sanctioned (possibly for up to 3 years – risking homelessness, starvation – or possibly involuntary prostitution or getting oneself imprisoned to escape the street) if they don’t do anything an employer or private contractor demands.
This does not surprise me at all.This stuff happens in every workplace I have come across. The chick in this article should find another job if she felt sexually harassed. Also, no offence to you women out there but some of you are sometimes asking for it.
For example, I remembered a chick who worked with me and she used to go around the office flirting with all us guys. Then she would complain how guys keep trying to hit on her? I said to her “why do you keep flirting with them?” She said “she didn’t notice she was coming off that way” Lol watever ladies….
Unpaid workers have few rights, especially they lack rights to any grievance procedures,maternity, paternity, holiday pay etc. Not really sure why this particular right should be placed ahead of any of the other rights. Is there a pecking order of employment rights these days?
So let us consider where this article is pointing us.
Assume unpaid workers have a right to sexual harassment claims.
Given the size of the potential payout it’d make more sense for unpaid workers to pursue sexual harassment cases instead of claims for NMW.
Justice in sexual harassment cases? Just imagine if the case was the same but in reverse. Lets pretend that a chick came on to me and wanted to kiss me at work or hit me on my buttocks (So far this has not happen to me, but one day I hope it does lol).
Do you really think the judge is going to take me seriously if I told him I felt sexually harassed by a chick? I mean what would I say to the judge? That this hot young chick over powered me and I could not control myself. There is no justice for men who get sexually harassed lol
@Chris Wells
I’m going to have to give you another warning. You’re entitled to your opinion but I will remove anything from GF that appears to excuse or minimise sexual harassment, which is a serious issue.
@Tanya
I apologise if anybody got offended by my humorous comments 0:-3 I will try my best to write super serious comments on future posts _(._.)_
However, I am only pointing out that justice in sexual harassment is not equal for both genders;regardless, if you are an unpaid intern or employee. I do admit though that unpaid interns, especially, those who are working full-time should be entitled to some human rights.
@Chris Wells, Thanks for the apology. I don’t think anyone was suggesting that sexual harassment isn’t serious when it’s against men. Nor that other forms of workers’ rights aren’t important too. But I think cases like this do serve to highlight how vulnerable unpaid interns are.