Rarely do federal court decisions go viral, but this one did.

A federal judge in NYC recently ruled against an upaid female intern who alleged sexually harassment by a company higher-up.  The Court held that because she was not an “employee,” she had no claim for hostile work environment under the New York City Human Rights Law (N.Y. City Admin. Code § 8-101 et seq.) (“NYCHRL”).  The media and pundits on all sides had a feeding frenzy.



Plaintiff was an unpaid intern at the defendant media conglomerate.  After about two weeks, the chief of the company’s New York and Washington bureaus “suggested that he and Ms. Wang go back to his hotel because he needed to drop off his belongings.”  She was uncomfortable but felt she had to go with him.  He began speaking suggestively to her, and at his hotel room he “took off his shirt jacket and undid his tie. … and suddenly exclaimed, ‘Why are you so beautiful?’ and threw his arms around Ms. Wang. … [He] then held Ms. Wang tightly for roughly five seconds and tried to kiss Ms. Wang by force … [and] then squeezed Ms. Wang’s buttocks with his left hand.”   All of this, she claimed, was unwanted and harassing, and created  a hostile work environment.


Plaintiff being an unpaid intern, however, and not an employee, created “an issue of first impression in the Second Circuit and in the New York courts,” stated the federal judge, since nothing in the plain language or legislative history of the city law suggested that it created a cause of action in favor of “non-employees.”  And this was true even under the expansive city law “whose provisions must be broadly construed in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.”

“The plain terms of [the city law] § 8-107(1)(a) make clear that the provision’s coverage only extends to employees, for an ‘employer’ logically cannot discriminate against a person in the “conditions or privileges of employment” if no employment relationship exists.

Plaintiff therefore did not take the position that a non-employee was covered under the law, but contended that the element of compensation is not the only evidence of employment; that “the proper analysis is one that considers the other indicia of an employment relationship under the preexisting test for NYCHRL claims — hire, power of dismissal, and supervision and control of tasks performed and balances those factors along with whether the plaintiff was compensated.”

The Court did not agree with her contention:  “Ms. Wang is unable to cite a single case—and the Court is not aware of any—in which a court has applied this balancing test to the claims of an unpaid intern. This is because this balancing test is used to determine whether a defendant is actually a plaintiff’s “employer” under the state and local civil rights laws, not whether a plaintiff may be considered an employee under those statutes in the first instance. … Application of the four-factor test … is only appropriate once a plaintiff has, in the first instance, demonstrated the existence of the ‘essential condition’ of remuneration.”


Although the news media and pundits pounced, it certainly appears that the case was decided correctly as a legal matter since the city law clearly did not cover unpaid persons, even if, as some said, it should have.  Indiana University Law professor Deborah Widiss said that “It reveals a very important gap [in the harassment laws] that I think needs to be addressed.”

And address it they will, said various NY city and state politicians.  NYC Mayoral front-runner Bill de Blasio said that “No one should ever be denied protection against sexual harassment in the workplace. Period.”

One City council member said she would propose a law filling this gap, and two New York State Assembly members said that they too would propose a new state law to address this issue which the federal court exposed in its decision.