It is a constant challenge for employers to keep up with the panoply of protections afforded to actual employees by federal, state and local employment discrimination and other laws. Beware — there is a new trend afoot that adds yet another layer of compliance complexity. States are beginning to extend the protection of employment discrimination laws to a distinct category of persons who are not even employees at all — unpaid interns.
Just a few of weeks ago, Illinois amended its employment discrimination prohibitions to extend protection to unpaid interns, confirming what has become a trend. The trail was first blazed by a 2013 Oregon law extending discrimination and workplace harassment protections to interns. New York City and Washington, DC followed suit with similar protections. Then in July 2014 the State of New York amended its employment discrimination law to cover unpaid interns. And now, Illinois accelerates the trend.
What does this mean for employers in Oregon, Washington D.C., New York, and Illinois? They can now be sued by an unpaid intern who claims the company failed to hire him or her, failed to grant him or her a favorable training or work opportunity, terminated the internship, or made any other decision regarding the terms and conditions of the individual’s internship based on the intern’s protected status. In Illinois, for example, a company cannot make any decisions regarding an intern based on that intern’s race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, or unfavorable discharge from military service. Additionally, based on a new Illinois law that requires employers to make reasonable accommodations for pregnant employees, unpaid interns in Illinois will also be entitled to reasonable accommodations for pregnancies as well as for disabilities. And of course, an unpaid intern in any of these jurisdictions could sue for sexual or other harassment in the workplace.
In light of this trend, a few words to the wise: