UPDATE: On April 15, 2014, New York City Mayor Bill de Blasio signed this measure into law.

On March 26, 2014, the New York City Council unanimously passed a bill to expand the New York City Human Rights law to prohibit employment discrimination against interns. The legislation will likely be enacted into law, as it was passed unanimously (with one Council member absent) such that the City Council could override any veto by the mayor, should he choose to exercise it. If the bill, as currently drafted, is enacted into law, it will become effective 60 days thereafter – just in time for the summer internship season.

What Are the Protections?

The Council's bill seeks to prohibit employers from discriminating against interns on the basis of actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage or citizenship status, or status as a victim of domestic violence, sex offenses or stalking.

The legislation defines an "intern" as:

an individual who performs work for an employer on a temporary basis whose work:  (a) provides training or supplements training given in an educational environment such that the employability of the individual performing the work may be enhanced; (b) provides experience for the benefit of the individual performing the work; and (c) is performed under the close supervision of existing staff. 

The bill makes clear that interns "shall include individuals without regard to whether the employer pays them a salary or wage."

Impetus for the Legislation

The bill was passed in response to an October 2013 federal court decision, Wang v. Phoenix Satellite Television, in which the court held that the City's anti-discrimination law does not apply to unpaid interns, except when it comes to hiring. The court further explained that federal and state anti-discrimination laws similarly fail to extend to unpaid interns. In the Wang case, a 26-year-old unpaid female intern alleged that her manager requested that she accompany him to his hotel room where he later attempted to kiss her, groped her and made inappropriate sexual comments to her. The court dismissed the intern's sex discrimination and harassment claims under New York City's anti-discrimination law after concluding that the City's law protects only paid employees.

What Actions Should Employers Take?

The anticipated legal protections for unpaid interns in New York City are essentially the same as for regular employees, so this would be an appropriate time for New York City employers to review their discrimination and retaliation policies to ensure that all protected classes are addressed. To guarantee compliance with this anticipated expansion of the City's anti-discrimination law, it would be prudent to modify these policies to expressly include interns within their ambit.  Also, supervisors and other employees who hire or work with interns should receive anti-discrimination and anti-harassment training, particularly because the City's law imposes strict liability on employers for discriminatory acts and harassment by supervisors.

Gregory Reilly is a Shareholder in Littler's New York and Newark, New Jersey offices. If you would like further information, please contact your Littler attorney at 1.888.Littler or info@littler.com, or Mr. Reilly at greilly@littler.com.