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Not Illegal in D.C. to Sexually Harass Interns:

I just saw a squib for Evans v. Washington Center for Internships and Academic Seminars, 2008 WL 4937007 (D.D.C. Nov. 19), holding that:

Plaintiff's sexual harassment claims fail because she was not an "employee" within the meaning of the [D.C. Human Rights Act]. The DCHRA defines an employee as "any individual employed by or seeking employment from an employer." The statute defines an employer as "any person who, for compensation, employs an individual...." Plaintiff did not satisfy this definition, as she was not working for compensation, nor was she seeking a paid job. Moreover, while this issue has never been decided under the DCHRA, it has consistently been held under Title VII that an unpaid intern is not an employee.

Well, OK, the plaintiff was an intern at a chiropractor's office, but naturally that wasn't the first sort of employer that came to mind when I read the summary .... And, just to be extra precise, this case also reflects that it is not a violation of the federal Title VII to sexually harass interns in D.C. or elsewhere.

Related Posts (on one page):

  1. Pro-plaintiff textualism?
  2. Not Illegal in D.C. to Sexually Harass Interns:
Cornellian (mail):
So presumably it is also legal to advertise accordingly: "Looking for super-hot intern, Heidi Klum look-alike preferred."
12.8.2008 12:51pm
Charlie (Colorado) (mail):
Even if you're *not* the President?
12.8.2008 1:02pm
VincentPaul (mail):
So does this mean it's not illegal for the intern or her significant other to rough up the perp?
12.8.2008 1:08pm
nvs (mail):
Personally, I think it's a good thing that judicial interns have absolutely no recourse against their usually abrasive opposite-sex law clerks except to quit and forever be excommunicated from the legal profession.
12.8.2008 1:09pm
2L:
Are interns earning credits for school considered compensated under this interpretation?
12.8.2008 1:21pm
Bored Lawyer:
What this case illustrates is that there is no law per se against sexual harrasment. What the law forbids is employment discrimination on the basis of, among other things, gender. And discrimination includes the "terms and conditions of employment" -- and being subject to harrasment on the job is considered a condition of employment.

Thus in this case if there is no employment, there is no actionable claim.

Another result is that the harrasment has to be discriminatory. Defendants occassionally (albeit usually not succesfully) claim that they are not liable because they do not discriminate. IOW, "yes, I am a loud mouthed jerk who treats everyone like C--P, but I do so to men and women alike, so I am not liable." Once had a client who argued that -- he lost badly.
12.8.2008 1:33pm
M O'Brien (mail):
Couldn't an intern charge an employer with plain old assault or something like that? Wouldn't that be both easier to prove, and more suitable, because it would get the jerk jail time and a record?
12.8.2008 2:26pm
Anderson (mail):
Not Illegal in D.C. to Sexually Harass Interns

Well, yeah.

Otherwise the entire purpose of interns would be defeated, right?
12.8.2008 2:27pm
Josiah (mail):
Why don't unpaid interns have minimum wage claims? They are doing the work of an employee for free. I am aware that there are a lot of unpaid interns, but, as far as I've been able to tell, they rarely, if ever, pursue FLSA claims because they see a positive reference as more advantageous than minimum wage. But here, the plaintiff would seem to have given up hope for a positive reference by her lawsuit. So I don't see why she isn't pursuing an FLSA claim.
12.8.2008 2:40pm
Thales (mail) (www):
"Why don't unpaid interns have minimum wage claims? They are doing the work of an employee for free. I am aware that there are a lot of unpaid interns, but, as far as I've been able to tell, they rarely, if ever, pursue FLSA claims because they see a positive reference as more advantageous than minimum wage. But here, the plaintiff would seem to have given up hope for a positive reference by her lawsuit. So I don't see why she isn't pursuing an FLSA claim."

Because they are volunteers, not employees. It's a different story if one is paid a wage, but the wage is less than that mandated by FLSA.
12.8.2008 3:24pm
Michael Masinter (mail):
On the off chance that the employer who came to mind was Bill Clinton, was there any evidence that as President he sexually harassed an intern? Didn't the evidence establish that his relationship with an intern was both consensual and welcomed by the intern, and therefore that it was not sexual harassment? He might have sexually harassed other women as governor, or even other women who were not interns when he served as President, but I don't recall any claim that he sexually harassed an intern.
12.8.2008 3:30pm
Matt E:
Surprising at first but it makes sense that you have to be an *employee* to have an employment discrimination case. Unpaid interns, customers, etc fall outside the statute. If there was anything physical or otherwise egregious you could bring a regular tort claim. If that wasn't the case then your primary recovery would be back pay and front pay anyway, and I'm not sure how that would help someone who was working for free.
12.8.2008 4:08pm
Josiah (mail):
Thales -

What's your authority for saying that volunteers who are completely unpaid are not subject to minimum wage? I read Tony &Susan Alamo Foundation, 471 U.S. 290 (1985), as holding that employers cannot avoid minimum wage by characterizing as "unpaid interns" individuals who are actually treated as employees.

Also, I don't think that the concept of a volunteer at a for-profit enterprise (I am assuming that at least one of the defendants is a for-profit enterprise) is consistent with the FLSA.

I'm not trying to shout you down here-I'm genuinely interested in resolving the question of whether the plaintiff in this case has a FLSA claim. It seems to me that there are a large number of FLSA violations going on under the guise of "internships." I've been wondering for quite some time if that's the case.
12.8.2008 4:10pm
ForWhatItsWorth:
Dang, I'll bet there are some congressmen who wished they knew this before today...... :)
12.8.2008 4:22pm
Sasha Volokh (mail) (www):
M O'Brien: There was also a battery claim bundled up in the lawsuit, which was analyzed separate from the sexual harassment claim. I believe the battery claim was allowed to go forward.
12.8.2008 4:27pm
Fidelity (mail) (www):
Wait a second, are you telling us there's places you can't sexually harass interns?

I thought that's why people hired them! Why else would you want an inexperienced twenty year old running around the office?
12.8.2008 4:51pm
A Conservative Teacher (mail) (www):
If I read this correctly, interns don't get all the rights that an employee gets, and so it is possible to sexually harass them? Why does paying someone mean that you can't sexually harass them- is the act of giving someone money imply that you can't comment on their butt? Weird case. Good thing we have judges and politicians working on this sort of thing.
12.8.2008 4:58pm
ShelbyC:
An intern doesn't have to choose between enduring your comments/advances and giving up her livelyhood. Not that that makes it OK, just a different situation. More like ordinary jerkish behavior than tortious conduct.
12.8.2008 5:27pm
theobromophile (www):
No wonder why the DC politicians and think tanks never pay their interns....
12.8.2008 5:30pm
David Schwartz (mail):
A lawsuit against AOL demanding minimum wages for their "volunteer" community leaders has been going on for ages. They allege that they were treated like employees, required to keep specific hours, and so on. This is the only link I have handy.
12.8.2008 6:41pm
neurodoc:
This was a young lady understudying a chiropracter? Should she have been completely surprised by an attempt to manipulate her, for "educational" purposes of course, and might there not have been an assumption of risk argument?
12.8.2008 11:15pm

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