Let's say that your office has a bunch of unpaid interns scurrying around. Many — perhaps most — offices do these days.
So let's say that you're the boss, and you think one of the interns is hot. Let's imagine you're a powerful man, and the intern is a young woman — though it could be some other combination. You start brushing up against her.
You compliment her on her breasts, ask about her sex life, and finally tell her that if she wants to be considered for a job, she should meet you in a motel room with her clothes off.
Could she sue you — or the firm — for sexual harassment?
Believe it or not, no.
Not in Michigan; not anywhere, except Oregon, Washington, D.C., and, most recently, New York. Legally, you still can act like the biggest Mad Man creep ever anywhere else.
But finally, someone is trying to do something about this. State Rep. David Knezek (D-Dearborn Heights) has introduced legislation to outlaw this outrage, and he has bipartisan support. Yet it is far from certain if the legislature will have either the guts or the political will to touch this.
A closer look at this shortly. But first — how in the world can it be that sexually harassing a vulnerable intern is legal?
Simple: Federal judges have said so.
"Michigan's many unpaid interns are not protected against sexual harassment in the workplace, and this is because the courts have found that since these interns are not paid, they are not technically 'employees,' " says Matt Marks, a senior at Michigan State University's James Madison College.
If you aren't shocked by that, you may be more of a hardened cynic than even I am. Sexual harassment of employees is indeed illegal, as it should be, outlawed nationally years ago by Title VII of the landmark Civil Rights Act of 1964.
You would think the interns, most of whom are mere college students, would deserve even more protection. But nope. Judges have said if they aren't paid, they aren't employees, and have no protection whatsoever.
This is utterly outrageous, especially because more and more students have to do internships, the vast majority of which are unpaid, as part of their college curriculum.
Internships are also the only hope many students and recent graduates have of ever getting a job.
Take the case of Bridget O'Connor, a student and an unpaid intern at Rockland Psychiatric Institute in New York. One of the physicians called her "Ms. Sexual Harassment," suggested she participate in an orgy, and asked her to remove her clothes before meeting with him. Finally, she'd had enough.
She sued in federal court, but because she wasn't a paid employee, she lost. When she appealed, the U.S. Court of Appeals ruled against her again, sniffing haughtily:
"Where no financial benefit is obtained by the purported employee from the employer, no 'plausible' employment relationship of any sort can be said to exist."
Talk about adding insult to injury!
Not only did the courts sanction exploiting her labor, she has essentially no right not to be used as a sex toy. Incredibly, the U.S. Equal Opportunity Employment Commission agrees. Last year, Joseph Olivares, a spokesman for the EEOC, wrote to ProPublica, the independent, nonprofit news website, "with respect to the federal law we enforce, an unpaid intern would not be respected by our laws prohibiting sexual harassment."
Fortunately, this did strike someone as outrageous: State Rep. Knezek, who at 28 is one of the legislature's youngest members. He has had far from a sheltered life: He served and survived two tours of duty as a U.S. Marine sergeant in Iraq.
Last January, after reading about the O'Connor case, he introduced a bill to protect interns from sexual harassment.
"This just wasn't right," he told me last week; he, like me, had found it hard to believe interns were so vulnerable. He told me that when he talked to his colleagues about it, he found broad bipartisan support. He found 20 co-sponsors for his bill, Republicans as well as Democrats. But nothing happened.
Of course, as I have noted before, our lawmakers need most of their energy to fight about who should set wolf-hunting rules. Finally, however, something dawned on Knezek.
His original bill had been presented as an amendment to Michigan's Elliott-Larsen Civil Rights Act, which seemed logical. Except he told me he finally realized that might be why nobody wanted to touch it. Touching Elliott-Larsen in any way might set off the long-awaited battle over whether to extend its protections to gays. Knezek then introduced a new bill.
His HB 5691 would protect interns by amending Michigan's OSHA (Occupational Safety and Health Act) by redefining "employee" to include "an individual who is performing work primarily for educational purposes, such as a student intern, whether or not the individual receives payment or any other form of compensation of benefit for this work."
While so far the "mainstream media" have shown little interest in protecting interns, Knezek's efforts did catch the attention of a very bright senior at James Madison College at Michigan State University.
Matt Marks heard about this while an intern at Kelley Cawthorne, a lobbying firm in Lansing. He instantly saw how important it was, "since the vast majority of unpaid interns are college students, and nearly two-thirds of the graduating class of 2013 held unpaid internships during their four years."
So, he told me, "I created a grassroots advocacy coalition which I named the Michigan Equal Protections for Interns Coalition," or Mi-EPIC. Currently, he and his group are trying to spread awareness on campuses around the state.
That's what led them to reach out to me. New York, perhaps embarrassed by the Bridget O'Connor case, has now finally protected interns from sexual harassment, as have Washington, D.C. and Oregon. But so far, nowhere else.
David Knezek told me last week that he intend to fight this fall to get the legislature to just do the right thing. If that fails, he might try again in the post-election "lame duck" session, at which they'll also try to finally get money for the roads.
And if necessary, he'll start the battle all over in January – this time, from the state Senate. After a single term in the House, Knezek won the primary for a heavily Democratic state Senate seat last month. He is someone to watch.
However, you have to wonder why nobody's attempting to pass a federal law making it illegal to sexually harass unpaid interns. U.S. Sen. Debbie Stabenow has faced belittling and discrimination as a woman at every step of her political career.
She is now a powerful committee chair. You might think she would be an ideal person to get the ball rolling.
Extending Civil Rights
State Sen. Rebekah Warren (D-Ann Arbor) was loudly praised last week when she introduced a bill that would amend Michigan's Elliott-Larsen Civil Rights Act to protect the LGBT community from discrimination in hiring, housing, and service.
However, it has no chance whatsoever of passing. The Republican majority knows their religious right supporters who vote for and fund them would never stand for this.
Warren, of course, knows this perfectly well. She's betting that most of Michigan has become far more willing to treat gays as human beings than the backward bigots in the legislature.
Highlighting that is probably the main point of this bill. — mt