BILL ANALYSIS �
AB 1443
Page 1
Date of Hearing: March 25, 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 existing anti-discrimination protections
to interns and other unpaid volunteers in the workplace. 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 these vulnerable
individuals from the same forms of unlawful conduct that
currently protect paid employees 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, covering interns and other
unpaid volunteers would appear to be consistent with the
existing protection afforded non-employee contractors. There is
no known opposition.
SUMMARY : Protects interns and other volunteers from harassment
and discrimination in employment under the Fair Employment and
Housing Act (FEHA). Specifically, this bill covers interns,
externs and other unpaid volunteers 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.
EXISTING LAW prohibits discrimination and harassment by
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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
likely than men (77% versus 23%) to be engaged in unpaid
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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
protections for unpaid interns. (Wang v. Phoenix Satellite
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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).)
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
a contract," such as independent contractors. (Government Code
section 12940(j)(1).) Similar policy arguments can be made to
extending protections against harassment and discrimination 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
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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 forms of discrimination, and to
avoid uncertainty and disputes about classification based on
whether an employer or other covered entity uses the term
"intern," the author proposes the following prudent amendment
based on the existing definition of "employee" under FEHA
regulations. These amendments would replace those currently
proposed in the bill.
Government Code 12926: As used in this part in connection with
unlawful practices, unless a different meaning clearly appears
from the context:
(a) "Affirmative relief" or "prospective relief" includes the
authority to order reinstatement of an employee, awards of
backpay, reimbursement of out-of-pocket expenses, hiring,
transfers, reassignments, grants of tenure, promotions, cease
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and desist orders, posting of notices, training of personnel,
testing, expunging of records, reporting of records, and any
other similar relief that is intended to correct unlawful
practices under this part.
(b) "Age" refers to the chronological age of any individual who
has reached his or her 40th birthday.
(c) "Employee" includes any person under the direction and
control of the employer under any express or implied oral or
written appointment or agreement, without regard to
remuneration, including apprentices, interns and volunteers.
"Employee" does not include any individual employed by his or
her parents, spouse, or child, or any individual employed under
a special license in a nonprofit sheltered workshop or
rehabilitation facility.
(d) "Employer" includes any person regularly employing five or
more persons employees , or any person acting as an agent of an
employer, directly or indirectly, the state or any political or
civil subdivision of the state, and cities, except as follows:
"Employer" does not include a religious association or
corporation not organized for private profit.
In addition, the author wishes to add the following co-authors:
Assembly Members: Hern�ndez (Principal Co-author), Weber,
Yamada; and Sens. Block and Leno
REGISTERED SUPPORT / OPPOSITION :
Support
Equal Rights Advocates (sponsor)
California Communities United Institute
California Employment Lawyers Association (CELA)
California Women's Law Center
Legal Aid Society -- Employment Law Center
Monarch Services
National Women's Political Caucus of Silicon Valley
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