BILL ANALYSIS Ó
AB 1443
Page 1
Date of Hearing: April 22, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1443 (Skinner) - As Introduced: January 6, 2014
As Proposed to be Amended
SUBJECT : DISCRIMINATION AND Harassment: UNPAID interns AND
VOLUNTEERS
KEY ISSUE : SHOULD EXISTING PROHIBITIONS AGAINST HARASSMENT AND
UNLAWFUL DISCRIMINATION APPLY TO UNPAID INTERNS AND OTHER
SIMILAR VOLUNTEERS?
SYNOPSIS
This bill would apply employment anti-discrimination protections
to interns and other unpaid volunteers in the workplace, as
specified. The author and supporters note that unpaid work is
an increasingly common phenomenon among both young people
seeking to enter the workforce and others compelled to change
fields as the result of economic conditions. Failing to protect
vulnerable individuals from otherwise prohibited discrimination
is not only inconsistent and unfair, supporters argue, it
undermines existing law by communicating to employees that such
conduct is appropriate or tolerable in the workplace. Moreover,
extending the specified protections to interns and other unpaid
volunteers would appear to be consistent with the existing
coverage of non-employee contractors. There is no known
opposition.
SUMMARY : Protects interns and others from harassment and
discrimination in employment under the Fair Employment and
Housing Act (FEHA). Specifically, this bill covers unpaid
interns and other similar arrangements under existing
protections against discrimination and harassment in such
practices as recruitment, selection, training and retention by
employers and other covered entities on the basis of race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity,
gender expression, age, sexual orientation, or military and
veteran status.
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EXISTING LAW prohibits discrimination and harassment by
employers, labor unions and employment agencies in employment
practices such as recruitment, selection, training and retention
of employees and independent contractors on the basis of race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity,
gender expression, age, sexual orientation, or military and
veteran status of the person discriminated against. (Government
Code section 12940 et seq.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : The author explains the purpose of the bill as
follows:
Neither federal nor state law explicitly protects unpaid
interns from sexual harassment or discrimination. In
December, a federal district court in New York ruled that
Title VII of the 1964 Civil Rights Act - which protects
employees from workplace discrimination, including sexual
harassment - does not apply to unpaid interns because an
unpaid intern is not an "employee." The New York case
involved a Syracuse University student who claimed she was
sexually harassed, kissed and groped by a supervisor at her
media company internship and, after she rebuffed her
supervisor's sexual advances, was also the victim of
retaliation.
Likewise, the California Fair Employment and Housing Act
(FEHA) protects employees from sexual harassment, but does
not specifically include unpaid interns in its provisions.
Furthermore, a recent state court decision held that FEHA
does not apply to "volunteers" in the workplace. My new
legislation will change that. My legislation would
explicitly ban workplace sexual harassment of unpaid
interns and volunteers.
The recession has forced young people to rely on these
unpaid positions to build resumes and contacts in an
incredibly competitive job market. According to a 2008
survey by the National Association of Colleges and
Employers, 50 percent of graduating students held
internships, up from the 17 percent shown in a 1992 study
by Northwestern University. Women are significantly more
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likely than men (77% versus 23%) to be engaged in unpaid
internships. Women are also more likely to be victims of
sexual harassment. A 2011 ABC News/Washington Post poll
found that 1 in 4 women experienced workplace sexual
harassment. A person should not give up basic civil rights
and workplace protections just because he or she is willing
to forgo pay in order to gain work experience. Employers
owe a safe, harassment-free, and fair workplace to all
employees, including unpaid interns.
Supporters argue that many interns work alongside and undertake
the same duties as their paid counterparts. They are subjected
to similar treatment from supervisors and exposed to the same
workplace environment as those employed by the companies and
organizations for which they intern. Moreover, several
professional graduate programs require or typically include some
type of internship placement before completion, including social
work, law, education and nursing.
This Bill Is Prompted By Concern About Contrary Interpretations
of Similar Laws In Other Jurisdictions. The FEHA does not
currently define the term "employee," and no court has
reportedly determined whether the FEHA applies to interns.
However, some courts have ruled that other types of volunteers
are not protected because they are not "employees" under the
common law definition of that term. Similarly, Title VII of the
Civil Rights Act of 1964, the federal equivalent of the FEHA
outlawing employment discrimination based on race, color,
religion, sex or national origin has been interpreted likewise.
For example, one of the major federal cases addressing this
issue is O'Connor v. Davis, 126 F.3d 112 (2d Cir. 1997). Among
the allegations made by a student intern in that case were that
a supervising physician nicknamed her "Miss Sexual Harassment,"
made comments about the intern's private sexual conduct, made
sexually suggestive comments, and asked the intern to remove her
clothing in preparation for a meeting. However, the court
dismissed the intern's claim for sexual harassment under Title
VII because it held that, as an unpaid intern, she was not an
"employee" for purposes of the federal harassment law because
she had not been "hired."
Another recent high-profile case in New York garnered
significant media attention and has renewed concerns about legal
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protections for unpaid interns. (Wang v. Phoenix Satellite
Television US, Inc., Case No. 1:13-cv-00218-PKC (S.D.N.Y.
2013).) In that case, an unpaid intern at a media company filed
suit under the New York State Human Rights Law and the New York
City Human Rights Law, alleging that she was subjected to a
hostile work environment, quid pro quo sexual harassment, and
retaliation during the course of her internship. However, the
court dismissed that part of the case, stating that it was
"axiomatic" under both federal and state law that compensation
is a threshold issue in determining the existence of an
employment relationship. Since the plaintiff was an unpaid
intern, and not an employee, the court held that she had no
claim under the applicable state and local law.
Claims filed by interns and volunteers under other federal laws
have generally faced similar obstacles. (See, e.g., Shoenbaum
v. The Orange County Center for Performing Arts, 677 F.Supp.
1036 (C.D. Cal. 1987)(claim arising under the Age Discrimination
in Employment Act); Blankenship v. City of Portsmith, 327
F.Supp. 2d 496 (E.D. Va. 2005)(claim arising under the Age
Discrimination in Employment Act); Tawes v. Frankford Volunteer
Fire Co., 2005 U.S. Dist. LEXIS 786 (D. Del. 2005)(claim arising
under the Americans with Disabilities Act).) A similar holding
was reached in Estrada v. City of Los Angeles, 218 Cal. App. 4th
143 (2013), a case involving a claim for disability
discrimination under FEHA by a reserve officer for the Los
Angeles Police Department. The court held that Estrada was an
uncompensated volunteer rather than an employee, despite the
fact that such officers were deemed by the City to be employees
for the purpose of workers' compensation coverage. By contrast,
some courts have extended the protections of certain employment
laws to volunteers where the volunteers receive more extensive
benefits. (See, e.g., Haavistola v. Cmty. Fire Co., 6 F.3d 211
(4th Cir. 1994).) Without taking a position on whether these
cases reflect the Legislature's intention with respect to the
definition of "employee," this bill would revise and extend the
existing FEHA non-discrimination, harassment and reasonable
accommodation obligations to interns and those in similar
arrangements, regardless of whether the person is referred to as
an "intern." Other volunteers would likewise be included within
the prohibitions against harassment.
Other Non-employees Are Covered By Existing Law. The FEHA
already extends protections against harassment to one category
of non-employees - i.e., persons "providing services pursuant to
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a contract," such as independent contractors. (Government Code
section 12940(j)(1).) Similar policy arguments can be made to
extending FEHA protections to non-employee interns and other
volunteers, as proposed by this bill. While persons under
contract are typically paid, the FEHA does not limit its current
protection of persons under contract to those who are paid.
Indeed, there would appear to be nothing inherent in the
principle of non-discrimination to justify prohibiting offensive
conduct only when the victim earns monetary compensation or
benefits.
Protecting Non-Employees May Help to Better Protect Employees.
Just as there appears to be no policy rationale for conditioning
equal treatment in the workplace on the payment of compensation,
it may also be true that protecting non-employees best upholds
the value of equal opportunity for paid employees. This may be
readily illustrated in the context of sex harassment. If a
workplace is rife with sexual harassment of interns and other
volunteers, the message and impact on paid employees may be no
less hostile and damaging than it is when the subjects of the
harassment are employees. Thus, protecting non-employees may
better support and vindicate the goals of dignity and equal
opportunity reflected in the existing policy against harassment
and discrimination.
Recent Oregon Legislation. At least one other state has enacted
a rule like the one proposed by this bill. Supporters state
that Oregon Governor John Kitzhaber recently signed into law a
bill extending employment discrimination protection to interns.
Among other things, the new law grants unpaid interns legal
recourse under Oregon's employment discrimination laws for
workplace violations including sexual harassment, unlawful
discrimination, and retaliation for whistleblowing. Supporters
state that the District of Columbia also protects unpaid interns
from discrimination and harassment.
Author's Clarifying Amendments. In order to better capture the
intent of the measure to protect interns and other volunteers
from both harassment and other specified forms of
discrimination, the author proposes the following amendments:
(c) For any person to discriminate against any person in the
selection , or termination, training, or other terms or treatment
of that person in any apprenticeship training program, or any
other training program leading to employment including an or
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any unpaid internship or other program to provide unpaid
experience for the participant in the workplace or industry ,
because of the race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical
condition, genetic information, marital status, sex, gender,
gender identity, gender expression, age, sexual orientation, or
military and veteran status of the person discriminated against.
(j) (1) For an employer, labor organization, employment agency,
apprenticeship training program or any training program leading
to employment, or any other person, because of race, religious
creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, genetic information,
marital status, sex, gender, gender identity, gender expression,
age, sexual orientation, or military and veteran status, to
harass an employee, an applicant, an unpaid intern or volunteer
, or a person providing services pursuant to a contract.
Harassment of an employee, an applicant, an unpaid intern or
volunteer , or a person providing services pursuant to a contract
by an employee, other than an agent or supervisor, shall be
unlawful if the entity, or its agents or supervisors, knows or
should have known of this conduct and fails to take immediate
and appropriate corrective action. An employer may also be
responsible for the acts of nonemployees, with respect to sexual
harassment of employees, applicants, unpaid interns or
volunteers , or persons providing services pursuant to a contract
in the workplace, where the employer, or its agents or
supervisors, knows or should have known of the conduct and fails
to take immediate and appropriate corrective action. In
reviewing cases involving the acts of nonemployees, the extent
of the employer's control and any other legal responsibility
that the employer may have with respect to the conduct of those
nonemployees shall be considered. An entity shall take all
reasonable steps to prevent harassment from occurring. Loss of
tangible job benefits shall not be necessary in order to
establish harassment
(l) (1) For an employer or other entity covered by this part to
refuse to hire or employ a person or to refuse to select a
person for a training program leading to employment or to bar or
to discharge a person from employment or from a training program
leading to employment, or to discriminate against a person in
compensation or in terms, conditions, or privileges of
employment because of a conflict between the person's religious
belief or observance and any employment requirement, unless the
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employer or other entity covered by this part demonstrates that
it has explored any available reasonable alternative means of
accommodating the religious belief or observance, including the
possibilities of excusing the person from those duties that
conflict with his or her religious belief or observance or
permitting those duties to be performed at another time or by
another person, but is unable to reasonably accommodate the
religious belief or observance without undue hardship, as
defined in subdivision (u) of Section 12926, on the conduct of
the business of the employer or other entity covered by this
part. Religious belief or observance, as used in this section,
includes, but is not limited to, observance of a Sabbath or
other religious holy day or days, reasonable time necessary for
travel prior and subsequent to a religious observance, and
religious dress practice and religious grooming practice as
described in subdivision (q) of Section 12926. This subdivision
also applies to apprenticeship training programs and other
arrangements that are subject to subdivision (c).
In addition, the author wishes to add the following co-authors:
Assembly Members: Hernández (Principal Co-author), Weber,
Yamada; and Sens. Block and Leno
REGISTERED SUPPORT / OPPOSITION :
Support
Equal Rights Advocates (sponsor)
ACLU of California
California Communities United Institute
California Employment Lawyers Association
California School Employees Association
California Women's Law Center
Legal Aid Society -- Employment Law Center
Monarch Services
National Association of Social Workers - CA chapter
National Women's Political Caucus of Silicon Valley
Pianko Law Group
Veterans Caucus of the California Democratic Party
Worksafe
Opposition
None on file
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Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334