Unpaid intern cannot bring sexual harassment claim under NYC human rights law, judge rules

A New York federal district court has ruled that a former unpaid intern for Phoenix Satellite Television US, Inc., cannot bring a sexual harassment claim under the New York City Human Rights Law, because the lack of compensation renders her unable to meet the requirement of employee status under the statute.

Judge P. Kevin Castel issued the ruling in Lihuan Wang v. Phoenix Satellite Television US, Inc., on Thursday. The alleged harassment included ongoing social and sexual overtures and physical touching by a bureau chief who supervised the plaintiff’s work.

As reported by Jay-Anne B. Casuga for the BNA’s Daily Labor Report (subscription required):

A female former unpaid broadcasting intern cannot bring a sexual harassment claim under the New York City Human Rights Law because she is not an “employee” within the meaning of the law, a federal judge in New York held Oct. 3, addressing an issue of first impression . . . .

. . . Relying on federal and New York case law, the district court said unpaid interns do not qualify as employees under Title VII of the 1964 Civil Rights Act or the New York State Human Rights Law because of the “absence of remuneration,” which is an “essential condition to the existence of an employer-employee relationship.”

O’Connor v. Davis (1997)

The district court cited favorably to the leading decision on the legal question of whether unpaid interns have standing to sue under employment discrimination laws, O’Connor v. Davis, a 1997 Second Circuit Court of Appeals decision involving a student social work intern who alleged that she was sexually harassed by a staff psychiatrist in the course of an internship with the Rockland Psychiatric Center in New York.

The plaintiff filed suit, claiming, in part, that she was subjected to sexual harassment in violation of Title VII of the federal Civil Rights Act. The Second Circuit Court of Appeals held that O’Connor was not an “employee” within the statutory meaning of Title VII, reasoning that compensation “is an essential condition to the existence of an employer-employee relationship.” The absence of any kind of salary, wages, health insurance, vacation and sick pay, or any promise of such direct or indirect remuneration from Rockland was fatal to O’Connor’s claim of employee status, and consequently, to the Title VII count of her complaint.

EEOC’s position, too

The holding of O’Connor v. Davis apparently represents the current position of the Equal Employment Opportunity Commission, the federal agency charged with interpreting and enforcing America’s employment discrimination laws. Blair Hickman and Christie Thompson reported on this question for ProPublica:

Federal policies echo court rulings. The laws enforced by the U.S. Equal Employment Opportunity Commission, including the Civil Rights Act, don’t cover interns unless they receive “significant remuneration,” according to commission spokesperson Joseph Olivares.

“At least with respect to the federal law that we enforce, an unpaid intern would not be legally protected by our laws prohibiting sexual harassment,” Olivares said in an email to ProPublica.

It’s unclear how many interns are sexually harassed at work. The commission doesn’t keep those statistics, according to Olivares.


October 7 additional comments: Because I wanted to post news of this case promptly, I didn’t spend a lot of time parsing out the legal and policy implications. But I’d like to add a few words now.

The court’s holding in this case raises the related issue of whether or not unpaid internships violate federal and state minimum wage laws, a topic that I’ve addressed frequently on this blog, such as this report on the June 2013 Glatt v. Fox Searchlight Pictures decision in which a federal district court held that unpaid interns were entitled to back pay. In instances where an unpaid intern should’ve been paid under the law, the employer benefits two-fold by claiming the lack of pay renders an intern unable to bring a discrimination or sexual harassment claim, no matter how bad the underlying alleged behavior. By not paying an intern in violation of the law, the employer also may escape liability for discrimination or sexual harassment. How’s that for a bad result?!

I soon will be posting a draft of a new law review article that discusses the many recent legal, policy, and advocacy developments concerning the internship economy. It will serve as an update and sequel to my 2002 article, “The Employment Law Rights of Student Interns” (Connecticut Law Review), that discusses the above-mentioned O’Connor v. Davis decision in some detail.

For reasons I explain in my forthcoming article, I believe that the question of covering interns under employment discrimination laws should be dealt with separately from the issues of compensation under minimum wage laws.


October 14, 2013 update: Please go here for a short description and free download link to a draft of my new article, “The Legal and Social Movement Against Unpaid Internships” (forthcoming, Northeastern University Law Journal).

Female-to-female workplace bullying: Homespun theory on an imperfect storm

[Editor’s Note: This is a complete reprint of an article from April 20, 2011, along with comments left by readers. I had to remove the original page because of a technical glitch, but because this post continues to be popular on this blog, I wanted to ensure that it remained available to future readers.]

Among the many aspects of workplace bullying worthy of examination, female-to-female aggression seems to push the hardest buttons when raised in everyday discussions, in person or online.

Some of the angriest and most anguished comments come from female targets. Newspaper articles and blog posts (such as here) about female-to-female bullying prove quite popular among readers and trigger impassioned exchanges.

I often have wondered, what is it about female-to-female bullying that arouses such deep feelings? Why have so many women told me that they will “never again work for another woman”? Thanks in part to a research study presented at the annual conference of the Society for Industrial and Organizational Psychology (SIOP) last week, I now have a homespun theory for why this is so.

I apologize for this long post, but the topic is complex and multifaceted, and I won’t even pretend that this is the last word on it.

“She Gossips, He Shouts”

In their study titled above, Lauren Zurbrügg (Texas A&M U.), Kathi Miner-Rubino (Texas A&M U.), and Anthony Paquin (Western Kentucky U.) examined “gender differences in perceptions of workplace incivility,” based on a nationwide sample of working adults. Here are two of their most interesting findings:

  • Men and women may, at least in the aggregate, “utilize[] different types of behaviors when they behave uncivilly.” Men are more likely to engage in direct behaviors, such raising their voices, swearing, and overt harassment. Women are more likely to engage in indirect behaviors, especially “backstabbing.”
  • Women are more likely than men to perceive certain behaviors as uncivil.

In addition, their summary of representative statements from respondents characterizing identical uncivil behaviors by men and women suggests that female perpetrators are judged more harshly than their male counterparts.

There’s agreement

A 2009 piece in the Toronto-based Globe and Mail on female bullies at work (link here) quotes other knowledgeable individuals offering similar conclusions:

But female bullies can be subtle and craftier than their male counterparts, says Marilyn Noble, who researches workplace bullying at the University of New Brunswick.

“Women tend to use relational aggression. It’s verbal, psychological, emotional bullying. People don’t recognize it – it’s covert, it’s harder to pin down and to prove,” she says.

There’s also a lot of reputation smearing, and female bullies often manipulate others into joining them, says Diane Rodgers, co-ordinator for the Bully Within, a B.C. group of professionals who have organized to fight workplace bullying.

An imperfect storm

So why does female-to-female bullying get such attention? And why does this aggressor-target combination appear to exact such a high price from those on the receiving end? Here is how I connect the dots, based on the observations above and my own surmise:


First, if women tend to bully more indirectly, they will be regarded more negatively. In our culture, we regard covert and indirect attacks as more devious than overt and direct attacks. In some ways, they are more frightening to us.

Think in military terms: “Sneak attacks” are always considered more treacherous and “cowardly,” sometimes associated with “unmanliness.” Direct attacks are considered more “honorable,” even when less effective.

Thus, when women bully in ways consistent with statistical indications, their actions will be judged more harshly than those who bully directly.


Second, if women perceive incivility more readily than do men, then they are more likely to recognize and struggle with indirect or covert behaviors that some men may never even notice. It means that women will suffer more due to bullying behaviors.

Double standard

Third, generally speaking, women are judged more harshly than men in the workplace. A male manager may be regarded as “tough,” while a female manager may be called a “b—h” for acting in the same manner.


Fourth, it’s quite possible that, especially in professional workplaces, female subordinates enter an organization half-expecting female supervisors to be more supportive and mentoring, rather than hostile and undermining. When they experience incivility at the hands of these individuals, their sense of betrayal is more palpable.


Finally, if female bullies are more adept at enlisting others to join in on the mistreatment, this may give rise to more mobbing-type behaviors.

Adding it up

These factors coalesce into an imperfect storm, whereby women who have been treated poorly or even abusively at work by other women are more likely to perceive the behaviors in very negative and hurtful ways. It may help to explain, for example, why female-dominated professions such as nursing have cultures of incivility — “nurses eat their young” is a well-known quip — grounded in characterizations of “catty” aggression.

This also means that women have to be more self-aware of their behaviors than do men, on average. It is unfair that women who mistreat others may be judged more severely than men who act in the same way, but that is an enduring reality.


An important reminder

Folks, notwithstanding the above, let’s keep in mind that prevalence studies indicate that men are more likely to bully others at work. For example, the 2010 national public opinion survey by the Workplace Bullying Institute in partnership with Zogby International pollsters (link here) indicated that some 62 percent of aggressors at work were male.  So…behavior by males counts for a considerable majority of bullying situations.


I’m devoting several posts this week to responses and ideas sparked by papers presented at a panel on April 15 as part of SIOP’s annual conference in Chicago. The panel, which centered on research approaches to understanding incivility, was organized by doctoral student Benjamin Walsh and Professor Vicki Magley of the University of Connecticut’s industrial/organizational psychology program.

I was privileged to serve as the discussant on the panel, offering comments on each of the papers. It is exciting to see graduate students and professors examining these aspects of work and workplaces via their research studies and dissertations.


Hat tip to eBossWatch for the Globe and Mail article.



    1. Mary says:

      April 20, 2011 at 2:12 am

      I’ve had two male bosses and both of them were good at their jobs and mentoring and respectful to their people.  I’ve had a total of 4 female bosses and only 1 of them didn’t bully me and/or others or protect significant bullies in the workplace.

      My experience has never been that of yelling and overtly abusive behavior.  It has been subtle undermining of my self-esteem.  It was not possible for them to touch my performance record — but there was a lot of behind the back tearing down — and perhaps even lying.  It was never done so that I could deal with it directly.  And, no doubt, was happening long before I figured it out.

      Every single one of these people has continued to outwardly succeed in their jobs to include drawing very high pay for being the reason that companies have lost excellent employees.

      I knew one bully (my co-worker) who was the reason that TWO of our managers left the company.  And — they were good, knowledgeable managers.

      What IS that??  I will never get it.

      (I have worked my whole career, 30 years, in Human Resources).


    1. Rebecca Hernandez says:

      April 20, 2011 at 9:47 am
      This article is so true.  In my case after 25 years with the department and excellent evaluations, they promoted a female in which I had trained.  Yet, we were co-workers and never established a friendship.  When I went through four depositions prior to my trial, the Attorney General kept questioning me about being jealous about not being promoted.  I had to keep repeating that I did not want to promote and did not take the promotional exam.  After I filed an EEOC complaint against her, management back dated a request for an investigation by Internal Affairs and told EEOC that I only filed because I was under investigation.  In her request for investigation, she accused me of theft, having affairs, taking kick backs from vendors.  No charges could be founded because they did not happen.  After, the Jury came back with their verdict of guilt against the department and her.  She told the Sacramento Bee that people just need to move on.

        • Deana Pollard Sacks says:

          January 10, 2013 at 2:26 pm

          I just read your story, and I would like to commend you for taking action. It is very difficult to pursue a legal remedy through appropriate channels when defense counsel often resort to “attack the plaintiff” (and lie about her) tactics instead of finding out what really happened. It takes guts to pursue a lawsuit, and the bullying often gets worse as a result. I am glad you won your trial.


            • Kachina says:

              January 11, 2013 at 4:53 pm
              It takes more than guts. It takes financial resources, more personal support than a lot of people have, legal grounds and evidence (and we know that most bullying is mostly legal in most North American jurisdictions). Even when all of those factors are present, there is no guarantee of a “win”…and the appeal process to contend with if successful…no wonder so few cases hit the courts.
    1. David Yamada says:

      April 20, 2011 at 9:47 pm

      Mary and Rebecca, thanks for sharing your own experiences here. This topic is a dicey one — as a man I’ve hesitated to write about it, wondering if somehow I’m crossing into territory best left for women to discuss. But I’ve heard too many stories like yours that affirm what these studies and experts are saying.

      • elayne Alanis says:

        May 3, 2011 at 1:02 pm

        Hi Dr. Yamada,

        This female-female bullying is exactly what is happening and continues to happen to my client…a case you are well aware of as you work with her sister. The extent of their daily mean spirited actions continues to amaze me. All i can liken it to is the harassment leveled at poor Pheobe Prince. Don’t get me wrong…the men there are bad but the women are conniving, scheming, heartless co-workers bent on forcing the target out of the organization. It really is an outrage and no-one will step up and help due to pending litigation. So sad!

        • David Yamada says:

          May 3, 2011 at 1:59 pm

          Elayne, being familiar with your client’s situation, I can only agree wholeheartedly with your points. It’s a horrible situation and I hope she (and they) get the justice each deserves.  David


    1. Mary says:

      April 20, 2011 at 10:27 pm

      Actually, I would just make one other point.  I’m not so convinced that the majority of bullying is perpetrated by men.

      I would be more inclined to think (without scientific analysis, or course) that women bullies are much more prevalent — it’s just that the mode of delivery is more insidious and not really named adequately by all of the victims.

    1. Cecilia Sepp says:

      April 21, 2011 at 6:09 pm

      I find no “a-ha” moments in this posting, or in the research referenced. This behavior in the workplace merely reflects how women are expected to behave in society, and men’s perception of them.

      There is a double standard, and women have not yet found their backbone to stand up as humans rather than “women.”

      As long as women continue to accept this marginalization, abdicate their responsibility, and continue to act like 6th graders at the office, this will continue to happen.

      Why do women act like 6th graders? Because professionally, most women have not matured emotionally. They refuse to understand that acting like a competent professional does not mean you are acting like a man. It means you are acting like a competent professional. Period.

      Women are taught to be submissive, quiet, and “seen but not heard.” You wonder why female bullies resort to subterfuge? It’s because they are taught to act that way.

      Until men and women create a partnership to treat each other as equals with an equal expectation of performance and behavior as grown ups, men will continue to find women’s behavior “fascinating” simply because they don’t act like men.

      I’ve known more “subterfuge bully” men than women in my career, and it comes back to the same issue: emotional immaturity and lack of self-esteem.

      I have managed both men and women. When it came down to promotions or employment terminations, it had nothing to do with if they were acting like a man or acting like a woman. It had everything to do with performance. Everyone was held to the same standard.

    1. anonymous says:

      April 26, 2011 at 2:05 pm

      I agree with and like “I would be more inclined to think (without scientific analysis, or course) that women bullies are much more prevalent — it’s just that the mode of delivery is more insidious and not really named adequately by all of the victims.” noted above. I’ve had several different jobs in my career of 15 years thus far, and in these years, have been bullied by women far more frequently than men.

    1. Kathy says:

      April 29, 2011 at 5:31 pm

      I think it isn’t just a perception thing. Women bullies can hurt you more BECAUSE of the convert nature of their attacks. He screams in your face and everyone around can see that He’s the jerk in the situation. She talks behind your back and turns your co-workers against you – MUCH more damaging in the end.  Of course if she screamed in your face she would be accused of being overly emotional, or of having PMS.

    1.  Lisa says:

      May 2, 2011 at 9:55 am

      @Cecelia: I suspect that one of the problems in getting “women to stand up as humans,” as you put it, is the impact of the double standard itself. Women who work in cultures that have not studiously rooted out the double standard find themselves punished for behaviors that are rewarded when men perform them. Examples: men who negotiate for a raise are assertive, women who do the same are rhymes-with-witches. Men who interrupt at a meeting are brimming with innovation and authority; women are catty and impolite.

      One doesn’t have to get the proverbial smack-down too many times before one learns what path one may tread safely and keep one’s job, even if that path is the one that plays into the worst stereotypes.


 A.    NCM says:
February 23, 2012 at 4:48 pm


I really have a hard time believing that men bully more than women. In all my years working (42), mainly for male bosses, I have NEVER been bullied by a male. I’ve had some that weren’t the greatest managers, but that’s it…  Men it seems, get mad about things, and get to the point. Women on the other hand, totally different story, I’ve had 2 female managers/supervisors and BOTH were bullies to the hilt.  Unfortunately, guys just don’t see it because it’s so nasty and covert. I’ve never been able to figure it out??  I even had one who was training me to be her “backup” and she was still poisoning the well on a daily basis. GO FIGURE?  Made no sense to me..  Plus, what is the worst about female bullying is, they don’t seem to need a GOOD reason to bully, just the fact that you’re a woman seems to bring it out. Both of my bad female managers went OUT of their way to undermine and kill self esteem and I just don’t get it… It’s no understatement to say I WOULD NEVER WORK FOR A WOMAN AGAIN EVER.

A.  Mary says:

February 23, 2012 at 6:00 pm

I’ve come to the conclusion that a couple of things are at play.  I realize I’m generalizing, but:  (1)  Men are task oriented and women are relationship oriented.  Men come to work to actually work.  (2)  Women who rise to the management level are PERHAPS pretty insecure and have to revert to what worked for them in junior high school. So, task orientation takes a backseat to making someone else look bad so that they’ll look better.

Additionally, If this woman happens to be great looking the men who could affect change are reluctant to do so just because they are so visually oriented.

A.annonymous says:

May 8, 2013 at 6:12 pm

My female boss I’ve noticed been bullied and it’s always by women. The most recent was,  my boss was asked to give a resource for a project, we didn’t have a resource available to work on it. my boss spent a good while explaining to 2 people why we didn’t. These two then tried to undermine my boss and go to her boss to persuade him to force my boss to give a resource. They then invited her to a meeting to discuss the project. She was worried that she’d be manipulated and bullied in the meeting and went over to talk to the female manager of the project team before the meeting to discuss again why we had no resource. My boss came back from this chat looking very stressed and worried. She has been bullied in the past to do what others want and she struggles against strong personalities. She then a short while later had to go to the meeting in which they had a continguency plan and a resource wasn’t needed. I think the way the whole thing was a total disregard for my boss her authority and her condition as she is heavily pregnant. If they had got their way, it would have stripped away at my bosses authority and leave her open to further bullying.

Life in an unequal, plutocratic society

We are living in an unequal, plutocratic society, and it is feeding an emotional dimension characterized by a dismissive lack of caring by many of the super rich and an angry, dog-eat-dog worldview for everyone else. So many of the employment policy issues I write about on this blog must be viewed against this broader, ugly canvass.

First, let’s establish the factual baseline: America’s wealth gap has reached extreme proportions. As Connie Stewart reports for the Los Angeles Times:

If you feel you’re falling behind in the income race, it’s not just your imagination. The wealth gap between the top 1% and the bottom 99% in the U.S. is as wide as it’s been in nearly 100 years, a new study finds.

For starters, between 1993 and 2012, the real incomes of the 1% grew 86.1%, while those of the 99% grew 6.6%, according to the study, based on Internal Revenue Service statistics examined by economists at UC Berkeley, the Paris School of Economics and Oxford University.

You can download the full study, led by Emmanuel Saez (UC-Berkeley), here.

Second, let’s define terms. Plutocracy, after all, is not a word used in ordinary conversation. Dictionary.com defines plutocracy in three ways:

  • “the rule or power of wealth or of the wealthy”
  • “a government or state in which the wealthy class rules”
  • “a class or group ruling, or exercising power or influence, by virtue of its wealth”

Sound familiar?

“A petty, narcissistic, pridefully ignorant politics”

Bill Moyers has become one of the most articulate and insightful commentators on the American plutocracy. Earlier this year, he did an excellent video essay on our out-of-control wealth inequality. Go here for a preview:

The unprecedented level of economic inequality in America is undeniable. In an extended essay, Bill shares examples of the striking extremes of wealth and poverty across the country, including a video report on California’s Silicon Valley. There, Facebook, Google, and Apple are minting millionaires, while the area’s homeless — who’ve grown 20 percent in the last two years — are living in tent cities at their virtual doorsteps.

“A petty, narcissistic, pridefully ignorant politics has come to dominate and paralyze our government,” says Bill, “while millions of people keep falling through the gaping hole that has turned us into the United States of Inequality.”

The worldviews of the ultra-wealthy

One of Moyers’s associates, Joshua Holland, reports on recent studies that confirm the attitudes and status of many of the ultra-wealthy. For example:

Two studies released last week confirmed what most of us already knew: the ultra-wealthy tend to be narcissistic and have a greater sense of entitlement than the rest of us, and Congress only pays attention to their interests. Both studies are consistent with earlier research.

We’re seeing the figurative creation of gated communities everywhere in our society. Even if the physical gates are not before us, excessive disparities in wealth and power are constructing barriers that isolate the most fortunate from everyone else, psychologically, politically, and financially.

The “cult of the selfish”

How does an unequal, plutocratic society experience everyday life and community (or lack thereof)? Leo Gerard, president of the United Steelworkers International Union, writes in a piece for In These Times that America is being overcome by “the cult of the selfish”:

A cult of the selfish relentlessly assails the value of American community. And now, the cult’s cruel campaign of civic meanness is achieving tragic victories. Just last week, for example, it succeeded in getting a bill passed in the U.S. House of Representatives that would slash funding for food stamps by $40 billion . . . . Also, it secured passage of a bill in the House that would de-fund the Affordable Care Act, thus denying health care—and in some cases life itself—to millions of uninsured Americans.

Denying food to the hungry, chemo to the cancer-stricken? That is not American. . . .

It is, however, exactly what the cult of the selfish is seeking. It wants an America without community, where everyone is out for himself. Alone. Self-seeking. Self-dealing.

“American Bile”

Public policy professor and former U.S. Secretary of Labor Robert Reich, who has just released a new documentary titled “Inequality For All” (trailer here) observes that he’s never seen the kind of civic hostility that we’re witnessing in this country today:

I’m 67 and have lived through some angry times: Joseph R. McCarthy’s witch hunts of the 1950s, the struggle for civil rights and the Vietnam protests in the 1960s, Watergate and its aftermath in the 1970s. But I don’t recall the degree of generalized bile that seems to have gripped the nation in recent years.

After considering all contributing factors to high anger quotient in today’s America, he concludes that ultimately “we need to look at the economy.”

Put simply, most people are on a downward escalator. Although jobs are slowly returning, pay is not. Most jobs created since the start of the recovery, in 2009, pay less than the jobs that were lost during the Great Recession. This means many people are working harder than ever, but still getting nowhere. They’re increasingly pessimistic about their chances of ever doing better.

As their wages and benefits shrink, though, they see corporate executives and Wall Street bankers doing far better than ever before. And they are keenly aware of bailouts and special subsidies for agribusinesses, pharma, oil and gas, military contractors, finance and every other well-connected industry.

The shutdown: “Workplace Bullying Gone Wild”

Cindy Waitt, director of the Waitt Institute for Violence Prevention and an important supporter of the Workplace Bullying Institute, writes for the Huffington Post that the current government shutdown is the result of classic workplace bullying tactics:

. . . Some of the members of  the 113th Congress are acting probably more irrationally than any we’ve seen in decades. But, from what I see and what I’ve learned over the years, I’d say they aren’t acting just like “nutcases,” they’re acting like what they are…workplace bullies.

. . . We currently face a government shutdown and the tactics being used by the “shutdown” gang are textbook bully tactics.

Community vs. confrontation

It adds up to an ugly, angry, confrontational culture, with the have-nots and the have-less being turned against each other. We can understand these dynamics, take on these huge disparities, and create a kinder, more just world, or we can increasingly be at each other’s throats. We have choices.

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