By: Harisa Lagji

An academic or unpaid intern is not protected against sexual assault because an unpaid intern is not considered an employee or a student.[1] For example, an unpaid intern working toward a masters in social work had to intern for 200 hours to finish the requirements existing to obtain her degree.[2] After a doctor and supervisor harassed her, she told a co-worker.[3]  Before she told her co-worker, she agonized over the decision.[4] She worried that if she quit her job she would fall behind on completing the 200 hours required for her degree and therefore not graduate on time.[5] Still, after repeated harassment she finally tried to sue the doctor as both an employer and she also sued the hospital as an educational institution under Title VII.[6] The Court decided that compensation is the essential ingredient to being an employee and listed other factors, but ultimately decided that no protection existed for her since she was not considered an employee as an unpaid intern.[7] Her only choices were to quit or bear the harassment. Luckily for her, the university provided her with a replacement job site and she completed the remaining required hours somewhere else.[8]

Other students do not have such a luxury. With the existing market, especially in places like Washington D.C, students are left choosing between an unsafe office environment or an empty resume. Unpaid internships provide a way for students to gain job experience and at the same time allow employers the option to hire more interns for a time period since the interns are not paid, and therefore do not drain on the company’s bottom line. In the competitive job market existing today, network and experience are essential to getting a job after graduation. With no protections for unpaid interns, interns are forced to pick between two choices: continued harassment at the workplace or making themselves less competitive as potential hires in the future. Some sort of protections are necessary for unpaid interns to prevent a choice that should not be difficult.

Some states have started to create some protections for in-between employees like unpaid interns.[9] Grad students in Columbia University are held to be employees and can unionize.[10] They are able to unionize because the tuition benefits they receive in exchange for work is recognized as compensation and being paid.[11]  In Northwestern, scholar-athletes were recognized as employees.[12] In this case, the determining factor was how controlled and regimented the lives of the athletes were[13]. Student athletes are seen as employees since they spend nearly 80% of their time on their duties as athletes and do not have the same freedom that regular college students have.[14] These protections have not spread to cheerleaders, however, who are still in the murky realm of student interns combined with scholar athletes since their days are not quite regimented enough to be considered employees.[15]

O’Connor v. Davis makes it clear that even externs do not have protections, and that the only protection is to go to the externship coordinator at the universities and inform them of the harassment at the internship site.[16] Still, relying on the possibility of a replacement internship is not enough protection for students who rely on the training of work experience to ensure marketability to obtain a full-time position.

[1] O’Connor v. Davis, 126 F.3d 112, 119 (1997).

[2] Id. at 113.

[3] Id.

[4] Id.

[5] O’Connor, 126 F.3d at 113.

[6] Id.

[7] Id. at 119.

[8] Id. at 114.

[9] See generally Matthew Bultman, Breaking: NLRB Rules Grad Students Are Employees, Can Unionize, Law360 (2016); Noam Scheiber, Grad Students Win Right to Unionize in an Ivy League Case, New York Times (2016).

[10]  Noam Scheiber, supra, note 9.

[11]  See id.

[12] Matthew Bultman, supra, note 9.

[13]  Id.

[14] Id.

[15] Eric Morath, Ex-NFL Cheerleaders Tackle Wages, Wall St. J., Sept 6-7, 2014.

[16] Davis, 126 F.3d at 119.

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