The employment-discrimination laws have been expanding since their creation. And, most of the time, that’s a good thing. But there are times when I wonder, “Have we gone too far?” There was the bullying craze a few years ago, when there was a push to make bullying in the workplace unlawful. Although no decent employer (or human being) thinks that bullying is an endorsable attribute, I am of the opinion that it cannot be regulated via statute.
And there are the recent cases that have found that individuals who are in the country unlawfully have standing to sue under the wage-payment laws. I fall on the side of the employees on this one, in case you are wondering.
I defended a harassment case once that was brought by the former employee and her company, which had done business with the employer and which she claimed was subject to retaliation in violation of Title VII. I tried to explain to my opponent that Title VII—an employment law—applies only to employees. And, although the statute defines employees very, very broadly, I felt pretty confident that entities cannot be “employed” in this sense of the word. Thankfully, my prediction proved true in that case and the court dismissed the claims brought on behalf of the company.
But it seems not to be an entirely settled question. A New York judge ruled last week that an unpaid intern was not an “employee” for the purposes of that State’s anti-discrimination law and, therefore, could not bring a claim of sexual harassment. According to USA Today, Oregon is the only state in the country to extend sexual-harassment protection to unpaid interns.
Here’s my entirely unsolicited and subjective opinion on the question. It seems to me that there are likely other remedies available to an intern who truly has been harassed. And not just legal remedies, but the remedy that involves you heading for the door and finding somewhere else to give your valuable time to without compensation.
Is it a shame? Yes, most definitely. Is it a disgrace to the perpetrator and the employer who continues to employ him? Absolutely. But, the lucky break about being an intern is that the point of the experience is to learn, not to support yourself or your family. And it seems like there are plenty of lessons to be learned in this scenario. But that does not necessarily mean that there is a lawsuit to be had, either—at least not under the employment-discrimination statutes.
Read more Labor and Employment Law insights from Margaret (Molly) DiBianca in the Delaware Employment Law Blog.
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