Unpaid interns — in legislatures or other workplaces — aren’t considered to be employees and therefore aren’t protected against workplace sexual harassment under the federal Civil Rights Act

Jen Fifield, Stateline.org

WASHINGTON — Near the end of the Colorado legislative session last year, one of Democratic state Rep. Dafna Michaelson Jenet’s interns revealed something she had been holding inside for months: A male lawmaker had been harassing her.

According to the then-18-year-old intern, who did not want to be named out of fear it would harm her job prospects, the male lawmaker’s unwanted comments and glances bothered her so much she stopped going to the Capitol. The experience led her to turn down another position in the Statehouse, and to drop her political science major.

The #MeToo movement has revealed a long-standing culture of harassment in state legislatures. Since October, about two dozen male state lawmakers have resigned, said they will resign, or been forced from their leadership roles after being accused of harassment or assault.

As legislative leaders grapple with how to create a safer environment for everyone, legislative interns remain among the most vulnerable and the least protected under workplace harassment laws.

In most states, unpaid interns — in legislatures or other workplaces — aren’t considered to be employees and therefore aren’t protected against workplace sexual harassment under the federal Civil Rights Act.

Some legislatures have sexual harassment policies that allow nonemployees to file claims to the legislature of sexual harassment against legislative staff and lawmakers, according to a Stateline review of policies from nearly all states. But only a handful of states specifically mention interns, and even when they do, that doesn’t necessarily give them legal standing for filing a civil lawsuit.

“The legislative policy could be used to discipline a legislator maybe, but probably doesn’t do anything for the victim,” said Minna Kotkin, director of the Employment Law Clinic at Brooklyn Law School.

In an effort to protect interns in all workplaces, at least seven states enacted laws between 2013 and 2015 that made all unpaid interns “employees” under the law.

This earlier movement began after a New York City judge in 2013 threw out a case in which an unpaid TV intern said a supervisor had assaulted her. The judge said because the intern wasn’t an employee, she wasn’t covered under the state’s civil rights protections.

State lawmakers at the time said the case revealed a loophole in the law concerning protections for unpaid interns. But the movement to pass this type of legislation has died down in the past couple of years, leaving unpaid interns in most states unable to collect legal damages for workplace harassment.

The lack of protections for young, unpaid female interns worries some advocates for women in politics, such as Erin Hottenstein, founder of Colorado 50-50, a group that tries to get women elected in Colorado. Women are more likely than men to take unpaid internships, according to a recent study by Intern Bridge, a national consulting group, and women also are more likely to be victims of harassment.

These women may be less likely to stay in politics if they experience harassment, Hottenstein said. And while most male lawmakers are well-behaved, she said, the culture needs to change.

“I find it very disconcerting to be encouraging women to run for office knowing that they are going to go into a cesspool where they may not be safe,” she said.

While there has been pushback about using unpaid interns, the practice is still common in governments and legislatures.

Whether interns qualify as employees, and therefore have legal protection against workplace harassment, depends on many factors. An intern is more likely to be considered an employee if she is guaranteed pay during the internship, or a job after her internship is over, or performs work normally done by an employee, according to guidance from the U.S. Department of Labor.

An intern who receives academic credit in exchange for her work is less likely to be classified as an employee with the normal workplace protections.

In Kansas, for example, college students who participate in a legislative internship program run through the University of Kansas receive academic credit as well as a $600 stipend for their twice-weekly work in the Capitol.

No interns have come forward with complaints of harassment in 30 years, according to Burdett Loomis, political science professor and internship coordinator at the university. Tom Day, director of legislative administrative services in Kansas, said the same.

Recent news reports, though, revealed that interns there have faced pervasive harassment in the Capitol. And Loomis said he would be naive to think that interns haven’t been harassed. “It’s a pretty sexist place, and it has been historically and it still is now.”

Loomis said he has always talked to his students about harassment, but this year he is trying to be more vigilant.

“I think I’ll check back with my students in the first week in March,” he said. “I’ll say, ‘Without naming names, tell me how you sense this is all going. If you have specific issues, come and see me.’”

He said his program has high enrollment this year, despite allegations in statehouses, because students see the value in the program.

“They are doing real work,” Loomis said. “They are tallying surveys for legislatures. They are researching policy.”

Across the state line in Missouri, the Legislature made changes to try to prevent harassment two years ago. But Democratic state Rep. Courtney Allen Curtis is not happy with the progress. There have been six harassment complaints since then, he said.

In December, he proposed suspending the Legislature’s internship program, which he thought might “reset the culture.”

Interns’ yearning for status, he said, along with the power dynamics in the Legislature, creates an environment ripe for exploitation. While halting the program would decrease opportunities for aspiring politicos in the state, Curtis said it would be better than the alternative.

“If we could prevent other future leaders from being harassed In most states, unpaid interns — in legislatures or other workplaces — aren’t considered to be employees and therefore aren’t protected against workplace sexual harassment under the federal Civil Rights Act.In most states, unpaid interns — in legislatures or other workplaces — aren’t considered to be employees and therefore aren’t protected against workplace sexual harassment under the federal Civil Rights Act.I felt it was our duty to do that,” he said.

Some states, such as New York and Washington, limit interactions between state lawmakers and interns, according to a recent review of legislative intern policies by the National Conference of State Legislatures. New York’s policy does not allow “fraternization.”

Other legislatures are reviewing their internship or page programs in response to ongoing allegations. In Rhode Island, the Senate chief legal counsel is conducting an immediate review of the page program after Republican state Sen. Nicholas Kettle was charged Monday with extorting sex from a teenage legislative page in 2011, according to the Providence Journal.

In Colorado, Robert Duffy, a political science professor at Colorado State University and the college’s legislative internship coordinator, said his students are shuttled to and from the state Capitol, which helps to keep them from attending after-hours events. He also is present in the Capitol when the students are there, which he said may make it less likely that lawmakers will misbehave.

But several lawmakers have been accused of harassment there in recent months. A letter addressed to the legislative council’s executive committee and signed by more than 40 interns and aides said that “aides and interns are often subject to abuses of power, sexual harassment being one.”

The aides and interns requested more security in the Capitol, especially around the offices of the accused lawmakers, and the installation of panic buttons in the Capitol and other legislative buildings.

“Please understand: we cannot work from home, we cannot avoid sitting in on a member’s committee or walking past a member’s office on our floor if that is what we have been asked to do,” they wrote.

Interns there were required to attend an anti-harassment training for the first time this year. The Legislature also hired a human resources director, hoping that a nonpolitical appointee would help women feel more comfortable and prevent retaliation.

Duffy said that while he has always talked to his interns about what appropriate behavior should look like, he has expanded on that discussion this year.

“I’ve told them we have a zero tolerance policy,” he said. “So if there is something going on with one of your colleagues or something that makes you uncomfortable, then bring it to me and we will take care of it.”