BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 1443 (Skinner)
As Amended May 1, 2014
Hearing Date: June 10, 2014
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Harassment: Unpaid Interns
DESCRIPTION
This bill would expand discrimination and harassment protections
under the Fair Employment and Housing Act to include an unpaid
internship or any other program that provides unpaid experience
for a person in the workplace or industry.
BACKGROUND
Various statutes, such as the Fair Employment and Housing Act
(FEHA) and the Unruh Civil Rights Act, prohibit discrimination
in employment, housing, public accommodation, and services
provided by business establishments on the basis of specified
personal characteristics such as sex, race, color, national
origin, religion, and disability. Over time, these statutes
have been amended to include other characteristics such as
medical conditions, marital status, and sexual orientation.
Also over time, other statutes were amended to reflect the
state's public policy against discrimination in all forms.
Existing federal law also provides anti-discrimination
protections for employees under Title VII of the 1964 Civil
Rights Act. However, neither federal nor state law provides
discrimination or harassment protections for individuals who
work for an employer but are not paid for their work. This
bill, sponsored by Equal Rights Advocates, would extend FEHA's
employment discrimination and harassment protections to include
individuals working as unpaid interns or volunteer workers.
(more)
AB 1443 (Skinner)
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CHANGES TO EXISTING LAW
Existing federal law , Title VII of the Civil Rights Act,
prohibits discrimination and harassment of employees. (42
U.S.C. Sec. 2000e et seq.)
Existing law , the Fair Employment and Housing Act (FEHA),
prohibits, as a matter of public policy, discrimination and
harassment in employment 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. (Gov. Code
Sec. 12940 et seq.) Those protections cover employment
applicants, employment training applicants, employees, and
apprentices.
Existing law prohibits, unless based upon a bona fide
occupational qualification, or, except where based upon
applicable security regulations, as specified, an employer 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. (Gov. Code
Sec. 12940(l).)
This bill would expand discrimination protections for
apprentices in termination or other terms or treatment of that
apprentice in an apprenticeship training program.
This bill would extend the above protections to cover a person
in an unpaid internship, or any other program to provide unpaid
experience for that person in the workplace or industry.
This bill would prohibit harassment by an employer of an unpaid
intern or volunteer.
This bill would extend religious belief discrimination
protection and accommodation requirements to an individual in an
apprenticeship training program, an unpaid internship, and any
other program to provide unpaid experience for a person in the
workplace or industry.
AB 1443 (Skinner)
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COMMENT
1. Stated need for the bill
The author writes:
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 and independent contractors from
sexual harassment and discrimination in the workplace, 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.
AB 1443 would apply employment anti-discrimination protections
to unpaid interns and other volunteers in the workplace.
2. Providing FEHA protection for unpaid interns and volunteer
workers
FEHA makes it unlawful for an employer, a labor organization, or
employment agency to discriminate against or harass, among other
individuals, employment applicants and apprentices. (Gov. Code
Sec. 12940(c), (j).) FEHA also prohibits discrimination of an
employment applicant or employee because of a conflict between
the person's religious belief or observance and any employment
requirement. (Gov. Code Sec. 12940(l).) This bill would extend
those discrimination and harassment protections to unpaid
interns and volunteer employees.
Neither federal nor state law provides discrimination or
harassment protection for individuals working for an employer
without pay. In O'Connor v. Davis (2d Circ. 1997) 126 F.3d 112,
116, the United States Court of Appeals for the Second Circuit
held that an unpaid intern could not sue for sexual harassment
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under Title VII because she did not meet the definition of
employee, which, in part, requires remuneration in exchange for
work. In California, the Court of Appeal, Second Appellate
District, Division Three, recently held that a volunteer worker
does not qualify for FEHA discrimination protection because FEHA
only "confers employee status on those individuals who have been
appointed, who are hired under express or implied contract, or
who serve as apprentices." (Estrada v. City of Los Angeles
(2013) 218 Cal.App.4th 143, 149, citing Mendoza v. Town of Ross
(2005) 128 Cal.App.4th 625, 632.)
According to the author, this bill is necessary because
"[u]npaid work is an increasingly common phenomenon among both
young people seeking to enter the workforce and others compelled
to change fields because of changing economic conditions,
technology, and job markets. Failing to protect vulnerable
individuals from otherwise prohibited discrimination is not only
inconsistent and unfair, but also undermines existing law by
communicating to employees that such conduct is appropriate or
tolerable in the workplace. Moreover, extending the specified
protections to unpaid interns and volunteers is consistent with
state law's existing protection of non-employee contractors."
Further, Equal Rights Advocates, sponsor, notes that,
"[a]ccording 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 [percent] versus 23 [percent]) to be engaged in
unpaid internships. Women are also more likely to be victims of
sexual harassment. . . . Many interns work alongside and
undertake the same duties as their employed counterparts. . . .
Moreover, several professional graduate programs require or at
least typically include some kind of internship placement before
completion, including social work, law, education, and nursing."
The American Civil Liberties Union, in support, notes that this
bill is "consistent with the extension afforded to non-employee
contractors in AB 1670 [(Kuehl, Ch. 591, Stats. 1999)] . . . .
California recognized as much as 15 years ago that FEHA should
not be limited simply by virtue of the nature of the employment
relationship. With the increase of employers offering
internships after the recession, AB 1443 is a timely piece of
legislation that will help uphold civil rights protections in
the workplace regardless of who is being paid for their work,
and who is not." This bill, consistent with the Legislature's
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intent of providing discrimination and harassment protection in
various forms of employment, would extend existing FEHA
protections for unpaid interns and volunteer workers by
specifically adding those individuals to FEHA. This bill would
also extend the existing religious belief accommodation
requirements to unpaid interns and volunteer workers and would
expand discrimination protections for apprentices in termination
or other terms or treatment in an apprenticeship training
program.
3. Author's amendments
In order to clarify an employer's ability to choose volunteers
who are appropriate for the mission of their organizations, the
author offers the following amendments to be taken in Committee:
Author's amendments :
1. On page 4, in line 14, strike and replace "any other"
with "another limited duration"
2. On page 4, in line 15, after "unpaid" insert "work"
3. On page 4, in line 15, strike "in the workplace or
industry"
Support : American Association of University Women - California;
American Civil Liberties Union of California; California
Communities United Institute; California Employment Lawyers
Association; California School Employees Association, AFL-CIO;
California State Student Association; California Women's Law
Center; Legal Aid Society - Employment Law Center; Monarch
Services - Servicios Monarca; National Association of Social
Workers - California Chapter; National Women's Political Caucus
of Silicon Valley; Pianko Law Group; Veterans Caucus of the
California Democratic Party; Worksafe; 65 individuals
Opposition : None Known
HISTORY
Source : Equal Rights Advocates
Related Pending Legislation : None Known
Prior Legislation : AB 1670 (Kuehl, Ch. 591, Stats. 1999) See
Comment 2.
AB 1443 (Skinner)
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Prior Vote :
Assembly Floor (Ayes 71, Noes 0)
Assembly Committee on Judiciary (Ayes 10, Noes 0)
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