Following New York City Mayor Bill De Blasio’s endorsement of an amendment to the New York City Human Rights Law (“NYCHRL”) extending the statute’s anti-discrimination and harassment protections to interns earlier this year (as reported here), New York Governor Andrew Cuomo recently signed into law similar legislation modifying the New York State Human Rights Law (“NYSHRL”).
Like the NYCHRL amendment, the legislation to amend the NYSHRL was introduced in response to an October 2013 decision out of the U.S. District Court for the Southern District of New York (Wang v. Phoenix Satellite Television US, Inc.) holding that unpaid interns are not protected against discrimination and harassment by the NYCHRL.
More specifically, the NYSHRL defines “intern” as an individual who works for an employer for the purpose of training under the following circumstances: (a) the employer isn’t committed to hiring the individual following the training period; (b) the employer and the individual agree that the individual is not entitled to wages; and (c) the work performed by the individual (1) provides or supplements training that could enhance the individual’s employability, (2) benefits the individual, (3) does not displace a regular employee and (4) is closely supervised by existing staff.
Under the amendment to the NYSHRL, which took effect on July 22nd, employers are prohibited from refusing to hire, discharging, or discriminating against an intern, in the terms and conditions of the internship, on the basis of the individual’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status. The law also prohibits employers from: (a) either sexually harassing an intern or harassing an intern on the basis of the foregoing protected characteristics; (b) retaliating against an intern for opposing discrimination; (c) requiring a pregnant intern to take a leave of absence, unless the intern’s pregnancy prevents her from performing the activities associated with the position in a reasonable manner; and (d) producing any statement, advertisement, publication, or internship application that either directly or indirectly expresses any limitation, specification or discrimination on the basis of a protected characteristic. The NYCHRL provides similar protections from harassment and discrimination to interns.
As students are returning to college this Fall and employers are gearing up to usher in a new wave of interns in the coming semester, New York employers should promptly make any necessary changes to their handbooks or other employment policies to ensure consistency with the amendments to the NYSHRL and NYCHRL. Employers should also take heed of the surge of litigation concerning whether interns are improperly classified and entitled to minimum wage and overtime under applicable state and federal laws.
*Andrew Smith is a law school intern currently attending Brooklyn Law School.