NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8201A REVISED MEMO 04/23/2014
SPONSOR: O'Donnell (MS) TITLE OF BILL: An act to amend the executive law, in relation to
providing certain civil rights protections for interns
PURPOSE OR GENERAL IDEA OF BILL:
This bill would provide unpaid interns the same civil rights protections
as paid interns.
SUMMARY OF SPECIFIC PROVISIONS:
Section one of the bill adds a new section 296-c to the Executive Law,
entitled "Unlawful discriminatory practices relating to interns." The
new section defines intern and then establishes anti-discrimination
protections for interns. Based on a list of enumerated protected class-
es, employers may not discriminate against interns or prospective
interns with respect to: hiring, discharge, or terms or conditions of
employment; acting on applications for internships; advertising, appli-
cation forms or application inquiries; retaliation for opposing prohib-
ited practices; and forced pregnancy leave. The new section also prohib-
its sexual harassment of interns by employers, codifying both the quid
pro quo and hostile environment tests for sexual harassment. Section 2
amends Executive Law section 292(4) to include the provisions of new
section 296-c in the definition of "unlawful discriminatory practice."
Section 3 is the effective date.
The amendments in the A-print are made to better conform the bill,
modeled on Oregon's interns protections, to New York law and also to
strengthen protections for interns. The following specific changes have
been made. The definition of employer in new Executive Law 296-c(1)(b)
has been deleted, as there is already a definition of employer in Execu-
tive Law section 292. The word religion has been deleted throughout, as
that word is not used in the list of protected classes in Executive Law
sections 296 and 296-a; in those sections, religion is subsumed under
the word creed. The word religion is used in Executive Law section
296-b, but it is in a shortened list of protected classes that does not
include the word creed. The word "individual" throughout has been
replaced by the word "intern." The phrase "in writing" has been deleted
from new section 296-c(1)(b), in the definition of intern, to protect
interns who have an oral, rather than written, agreement that they will
not be paid. Similarly the phrase "given in an educational environment"
has been deleted from what is now new section 296-c(1)(c)(1) to ensure
that all interns are protected, including those not part of a formal
academic program. The language previously contained in what had been new
section 296-c(1)(a)(3)(E) in the original print has been deleted as it
described a factual circumstance that was not intended to preclude the
existence of an internship within the scope of the new section, but that
does not necessarily exist in all internships, and therefore it should
not have been listed as one of the required elements in the definition
of intern. Also, Executive Law 292(4) has been amended to include the
provisions of new section 296-c in the definition of "unlawful discrimi-
natory practice."
JUSTIFICATION:
Case law in this state has long held that unpaid volunteers are not
protected by Executive Law section 296.
SWEENEY V. BOARD OF EDUCATION
OF ROCKY POINT UFSD, 491 NYS2d 455 (2d Dept. 1985)(mutually beneficial
economic substance, i.e., compensation, is touchstone of employer-em-
ployee relationship). The Second Circuit applied that case law in
dismissing the claims of a female college student who was required to
perform field work as one of the requirements of her major. Her college
arranged for her to be placed in an unpaid internship at Rockland
Psychiatric Center. While she was working there, one of the doctors
allegedly began to refer to her as Miss Sexual Harassment, told her she
should participate in an orgy, and suggested that she remove her cloth-
ing before meeting with him. Her federal Title VII claim was dismissed
because she was an unpaid intern, and therefore, the court held, not an
employee protected by Title VII.
O'CONNOR V. DAVIS, 126 F.3d 112 (2d
Cir. 1997). More recently, an unpaid intern, Lihuan Wang, had alleged
that her boss at Phoenix Television's New York bureau had groped her and
tried to kiss her. Citing
O'CONNOR V. DAVISOFF, THE U.S. DISTRICT COURT
____
FOR THE SOUTHERN DISTRICT OF NEW YORK DISMISSED THAT CLAIM, DECIDING
THAT ONLY PAID WORKERS ARE COVERED BY THE NEW YORK STATE AND CITY HUMAN
RIGHTS LAWS.
WANG V. PHOENIX SATELLITE TELEVISION, 120 Fair Empl.
Prac. Cas (BNA) 1618 (SDNY 2013). This bill is intended to override that
case law with respect to unpaid interns who fall within the scope of the
new Executive Law section 296-c that the bill would add to the Human
Rights Law.
Both Washington, D.C. and Oregon have expanded their discrimination and
harassment protections to interns. This bill mirrors the Oregon model,
with the changes noted above that have been made in the A-print, to
provide unpaid interns the same important and necessary protections
against discrimination as paid employees. While it made sense 30 years
ago for courts to use a dictionary definition of employer to conclude
that unpaid volunteers (or interns) were not covered by the NYS Human
Rights Law, in today's economy the failure to protect interns - whether
paid or unpaid - against sexual harassment and other forms of discrimi-
nation no longer makes sense, is bad social policy, and is inconsistent
with the overarching purpose of the Human Rights Law to "assure that
every individual within this state is afforded an equal opportunity to
enjoy a full and productive life ... (and) ... to eliminate and prevent
discrimination..." Executive Law section 290. Young people seeking
employment in an economy that still has not recovered from the worst
recession since the Great Depression are under extreme pressure to build
up resumes and work references. Increasingly, they turn to unpaid
internships to do so. Interns, to an even greater extent than employees,
are easy victims of sexual harassment as the relationship between
employer and intern is the classic example of the power imbalance that
is at the heart of sexual harassment. It is time for the State of New
York to extend protection against sexual harassment and other forms of
discrimination to these vulnerable young people.
PRIOR LEGISLATIVE HISTORY:
New bill.
FISCAL IMPLICATIONS:
None to the state.
EFFECTIVE DATE:
Immediately.
STATE OF NEW YORK
________________________________________________________________________
8201--A
2013-2014 Regular Sessions
IN ASSEMBLY
October 24, 2013
___________
Introduced by M. of A. O'DONNELL, SEPULVEDA, ENGLEBRIGHT, BENEDETTO,
JAFFEE, MOSLEY, SKOUFIS, KEARNS, DUPREY, MONTESANO, GRAF, RAIA --
Multi-Sponsored by -- M. of A. ABBATE, BARCLAY, GLICK, McDONOUGH, RA,
SWEENEY, WEISENBERG -- read once and referred to the Committee on
Governmental Operations -- recommitted to the Committee on Govern-
mental Operations in accordance with Assembly Rule 3, sec. 2 --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the executive law, in relation to providing certain
civil rights protections for interns
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The executive law is amended by adding a new section 296-c
2 to read as follows:
3 § 296-c. Unlawful discriminatory practices relating to interns. 1. As
4 used in this section, "Intern" means a person who performs work for an
5 employer for the purpose of training under the following circumstances:
6 a. the employer is not committed to hire the person performing the
7 work at the conclusion of the training period;
8 b. the employer and the person performing the work agree that the
9 person performing the work is not entitled to wages for the work
10 performed; and
11 c. the work performed:
12 (1) provides or supplements training that may enhance the employabili-
13 ty of the intern;
14 (2) provides experience for the benefit of the person performing the
15 work;
16 (3) does not displace regular employees; and
17 (4) is performed under the close supervision of existing staff.
18 2. It shall be an unlawful discriminatory practice for an employer to:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11709-05-4
A. 8201--A 2
1 a. refuse to hire or employ or to bar or to discharge from internship
2 an intern or to discriminate against such intern in terms, conditions or
3 privileges of employment as an intern because of the intern's age, race,
4 creed, color, national origin, sexual orientation, military status, sex,
5 disability, predisposing genetic characteristics, marital status, or
6 domestic violence victim status;
7 b. discriminate against an intern in receiving, classifying, disposing
8 or otherwise acting upon applications for internships because of the
9 intern's age, race, creed, color, national origin, sexual orientation,
10 military status, sex, disability, predisposing genetic characteristics,
11 marital status, or domestic violence victim status;
12 c. print or circulate or cause to be printed or circulated any state-
13 ment, advertisement or publication, or to use any form of application
14 for employment as an intern or to make any inquiry in connection with
15 prospective employment, which expresses directly or indirectly, any
16 limitation, specification or discrimination as to age, race, creed,
17 color, national origin, sexual orientation, military status, sex, disa-
18 bility, predisposing genetic characteristics, marital status or domestic
19 violence victim status, or any intent to make any such limitation, spec-
20 ification or discrimination, unless based upon a bona fide occupational
21 qualification; provided, however, that neither this paragraph nor any
22 provision of this chapter or other law shall be construed to prohibit
23 the department of civil service or the department of personnel of any
24 city containing more than one county from requesting information from
25 applicants for civil service internships or examinations concerning any
26 of the aforementioned characteristics, other than sexual orientation,
27 for the purpose of conducting studies to identify and resolve possible
28 problems in recruitment and testing of members of minority groups to
29 insure the fairest possible and equal opportunities for employment in
30 the civil service for all persons, regardless of age, race, creed,
31 color, national origin, sexual orientation, military status, sex, disa-
32 bility, predisposing genetic characteristics, marital status or domestic
33 violence victim status;
34 d. to discharge, expel or otherwise discriminate against any person
35 because he or she has opposed any practices forbidden under this article
36 or because he or she has filed a complaint, testified or assisted in any
37 proceeding under this article; or
38 e. to compel an intern who is pregnant to take a leave of absence,
39 unless the intern is prevented by such pregnancy from performing the
40 activities involved in the job or occupation in a reasonable manner.
41 3. It shall be an unlawful discriminatory practice for an employer to:
42 a. engage in unwelcome sexual advances, requests for sexual favors, or
43 other verbal or physical conduct of a sexual nature to an intern when:
44 (1) submission to such conduct is made either explicitly or implicitly
45 a term or condition of the intern's employment;
46 (2) submission to or rejection of such conduct by the intern is used
47 as the basis for employment decisions affecting such intern; or
48 (3) such conduct has the purpose or effect of unreasonably interfering
49 with the intern's work performance by creating an intimidating, hostile,
50 or offensive working environment; or
51 b. subject an intern to unwelcome harassment based on age, sex, race,
52 creed, color, sexual orientation, military status, disability, predis-
53 posing genetic characteristics, marital status, domestic violence victim
54 status, or national origin, where such harassment has the purpose or
55 effect of unreasonably interfering with the intern's work performance by
56 creating an intimidating, hostile, or offensive working environment.
A. 8201--A 3
1 4. Nothing in this section shall affect any restrictions upon the
2 activities of persons licensed by the state liquor authority with
3 respect to persons under twenty-one years of age.
4 5. Nothing in this section shall create an employment relationship
5 between an employer and an intern for the purposes of articles six,
6 seven, eighteen or nineteen of the labor law.
7 § 2. Subdivision 4 of section 292 of the executive law, as amended by
8 chapter 173 of the laws of 1974, is amended to read as follows:
9 4. The term "unlawful discriminatory practice" includes only those
10 practices specified in sections two hundred ninety-six [and], two
11 hundred ninety-six-a and two hundred ninety-six-c of this article.
12 § 3. This act shall take effect immediately.
