Unpaid interns are especially vulnerable to predatory behavior in the workplace because they are young and inexperienced.

However, many courts have ruled that unpaid interns are not protected by state and federal harassment and discrimination laws.

This week the Oregon legislature agreed to extend workplace protections against harassment and discrimination to unpaid interns.  These protections formerly were reserved only for employees.

The Oregon Senate unanimously passed HB 2669, sending it to Gov. John Kitzhaber for signature. The Oregon house unanimously passed the bill last month. Kitzhaber has indicated that he will sign the bill. 

The new law will give unpaid interns legal recourse against employers for workplace violations including sexual harassment; discrimination based on race, color, religion, gender, sexual orientation, national origin, marital status or age; and retaliation for whistleblowing, among other things.

With no protection in state law, you might think that unpaid interns could turn to federal law. You’d be wrong.

The Equal Employment Opportunity Commission has issued  guidelines that provide coverage to volunteers under Title VII of the Civil Rights Act of 1964 “if the volunteer work is required for regular employment or regularly leads to employment with the same entity.”  However, unpaid interns have been unable to bring sexual harassment or civil rights complaints under Title VII  because judges have not found them to be “employees”  to whom protections are explicitly afforded.

According to a  2010 study by the Economic Policy Institute (EPI), 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.

The EPI study reports that the leading precedent for the failure to protect unpaid interns is the case of O’Connor v. Davis,  126 F.3d 112 (2d Cir. 1997).  Bridget O’Connor was required to complete an internship for her college degree and chose to work at a local psychiatric center. There, O’Connor allegedly was subject to repeated sexual harassment by one of her supervisors, Dr. James Davis. The district court summarily dismissed O’Connor’s complaint because the plaintiff, as an unpaid intern, did not receive compensation from the center, and thus did not qualify as an employee protected under Title VII. The decision was upheld on appeal.

Oregon Labor Commissioner Brad Avakian told the Associated Press that interns had contacted his office looking for help in the past and “we had to tell them that the law did not protect them.”

Under the measure, an intern who alleges workplace harassment or discrimination, among other violations, can bring a lawsuit against the employer or file a formal complaint with the Oregon Bureau of Labor and Industries.

Avakian said the idea for the bill came from a legislative intern at the Bureau of Labor and Industries. He said the intern discovered the loophole and brought it to his attention.  In 2011, a similar bill failed to gain traction. This year, however, the bill passed with broad support from civil rights groups and a student advocacy group.

The Oregon law  does not create an employment relationship and does not affect wage or workers’ compensation laws.

 Photo by: John Amis