NACE Journal, August 2018

In general, employers are aware that it is unacceptable to harass employees. Unfortunately, however, some have not applied that awareness to their treatment of interns, paid and unpaid. As such, it is imperative that interns are aware of the law and understand what remedies are available should they believe they are being subjected to harassment in the workplace during their internship.

Refresher: What constitutes harassment?

Illegal harassment is not every slight or perceived issue in the workplace. For there to be a cause of action for unlawful harassment, one of two specific types of “harassment” must be present: quid pro quo or a hostile work environment.

Quid pro quo harassment requires a tangible, adverse employment action that results from an individual refusing to submit to a harasser’s demands. For example, quid pro quo harassment could occur if an intern applicant is required to go on a date with the boss in order to obtain the job, or the “guarantee” of a position at the conclusion of the internship. Quid pro quo harassment can also occur if the intern refuses such a proposition and is subject to an adverse employment condition as a result of the refusal (for example, not getting the permanent position due to the refusal to go on a “date”).

“Hostile work environment” harassment is the more common of the two types. An actionable hostile work environment claim consists of unwelcome conduct—which can be anything from “elevator eyes” to unwanted touching—that is based upon an individual’s protected classification; further, the conduct must be subjectively and objectively offensive, and it must be severe or pervasive. An impermissible hostile work environment can be based not only on a person’s gender, but also on their race, religion, national origin, age, disability, genetic information, gender identity, or sexual orientation.

The law and the unpaid intern

While the law, in most jurisdictions, differentiates between “paid and unpaid” interns for purposes of protection, the student should not be guided by such differences.

It is true that federal anti-discrimination laws—and the majority of state laws—provide protections only for “employees.” It is also true that unpaid interns are generally not considered “employees” under the law and are therefore not provided with the protections afforded in the statutes or regulations. (Some states are changing their tune and affording unpaid interns increased protections from harassment, but not all states have followed suit.)

Despite this, the intern should not feel as if he or she can or should be subjected to harassment based upon his or her classification as paid or unpaid. Whether an unpaid intern is provided protections under the law is a legal issue for the employer (or the educational institution, in some instances) in the event a claim is made, not for the intern to determine when deciding if he or she should bring a complaint. The intern should, however, ensure that he or she is aware of the relationship between the educational institution and the employer, the policies of both the employer and the educational institution, and the available complaint mechanisms if there is an issue of harassment in the workplace.

The relationship between school and employer

As an initial matter, it is imperative that the relationship between the educational institution and the employer is defined in terms of the internship. Is the employer merely advertising a position through the school, or is there a more intertwined relationship between the parties? The more interaction and control an educational institution asserts over an internship, the more likely there is to be joint liability between the employer and the educational institution. As a general matter, there should be a written agreement between the educational institution and the employer that defines the roles and the manner in which each is required to handle potential claims, including claims of harassment or discrimination.

What does this mean, however, for the intern? The intern should have an understanding of the relationship between the employer and the educational institution as it has an impact on the manner in which the individual reports issues of harassment and discrimination in the workplace. While an intern is always permitted to report issues of harassment at an internship to the educational institution, the response the individual receives differs based upon the role of the school. The more an educational institution is tied to the internship, the more thorough a response and investigation of a claim should occur.

Steps for the intern to take

Before commencing an internship that is sponsored by an educational institution, or in which the educational institution plays a significant role, the intern should be provided with information regarding the role the educational institution plays and the individual(s) responsible for overseeing intern interactions at the workplace. If the school is playing a significant role in the internship, it should also request a copy of the employer’s policies and procedures which, in turn, should be provided to the student.

The intern should also be made specifically aware of the educational institution’s policies and procedures with regard to issues of harassment for interns. Both the employer’s and the educational institution’s policies should define what constitutes harassment. More importantly, the policies should have a specific complaint mechanism that indicates who an intern is to report complaints of harassment or discrimination to if he or she believes such issues have occurred. The complaint mechanism should provide for multiple individuals to receive complaints. If a complaint mechanism solely provides that reports of discrimination should be brought to a supervisor, for example, it may not provide sufficient protections for the interns.

Interns should carefully read and review the foregoing policies so they are fully aware of what to do if presented with an issue of harassment. Interns should also be made aware that they will not be subject to any form of retaliation for making a “good-faith” complaint of harassment or discrimination in the workplace. “Anti-retaliation” language should be specifically included in the employer’s and educational institution’s policies.

After becoming fully versed in the policies and procedures for handling issues, the intern should ensure that he or she actually makes use of such procedures if he or she is subject to harassment in the workplace. Interns should report such issues immediately to both the employer and the educational institution so they can be remedied in a prompt manner. Neither an employer nor an educational institution can remedy such issues if they are not made aware these issues are occurring in the workplace. More importantly, if the intern fails to complain about harassment or discrimination, it may impact his or her ability to bring a claim at a later date if such issues continue or worsen.

Interns should also be mindful that harassment is not limited to what happens within the four walls of the workplace. Harassment can occur at after-hours work events or on the Internet. If such harassment occurs in these outside-of-work locations, it is as if it had occurred while at work and should be reported and treated in the same manner.

It should be noted that an intern’s response to potential harassment and discrimination is not limited solely to reporting such issues to the employer and the school. If an intern believes that he or she is being subject to harassment or discrimination, a complaint can be made to federal or state agencies required to investigate such allegations. These agencies include, but are not limited to, the Equal Employment Opportunity Commission, which investigates claims of harassment and discrimination in the workplace, and the Department of Justice, which investigates claims of harassment that fall within the purview of Title IX.

Document and act

Educational institutions should also be mindful to document any and all complaints of harassment in an internship, regardless of the amount of interaction the institution has with an employer. If an educational institution is made aware of harassment occurring at an internship, it may be required to take steps to limit the student’s participation at such locations to avoid potential liability in the future.

Regardless of what type of internship an individual has accepted—whether it is in the education field, for an entertainment company, or for a politician—the laws regarding harassment remain the same. Interns should not believe that they are permitted to be subject to improper treatment based upon their status with the company. While it is ultimately up to an employer or the educational institution to remedy such issues, the intern should know what steps to take if faced with such issues in the workplace.