Labor & Employment Law Daily Unpaid intern was covered employee under Minnesota Human Rights Act
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Tuesday, August 4, 2020

Unpaid intern was covered employee under Minnesota Human Rights Act

By Brandi O. Brown, J.D.

In describing events reminiscent of the well-known Nasser scandal, the doctoral student’s complaint against a hospital and school depicted a male supervisor who was allowed to touch and simulate sex acts with his interns with impunity.

In an appeal stemming from a complaint in which a female doctoral student in psychology alleged that her male advisor would force unpaid interns he supervised to mimic having sex with him, the Minnesota Supreme Court concluded that the absence of compensation would not bar the claim. It found that the plaintiff had alleged that she had an employment relationship with the hospital where she was completing her practicum, even if she was not paid, and stated a claim for employment discrimination under the Act. The court also resurrected her negligence claims against the defendants. The court of appeals’ decision was reversed in part. Chief Justice Gildea filed a separate dissent in which Justice Anderson joined (Abel v. Abbott Northwestern Hospital, July 29, 2020, McKeig, A.).

Practicum program. In September 2015, the plaintiff, who was a doctoral student in psychology at St. Mary’s University Minnesota, began a practicum at Abbott Northwestern Hospital. The doctoral program had a long-running affiliation with the hospital’s practicum program, including the clinical psychologist who was its director. In fact, he was on the advisory board for the doctoral program at the university. Participants in the program were not paid, although the hospital received payment for the services they provided to clients.

Sexual interactions and touching. Soon after starting the practicum, the plaintiff learned first-hand why multiple past students had complained about the training director, although she did not know about those complaints beforehand. He required the plaintiff, and other students, to participate in extremely sexualized group and individual sessions, including role-play exercises in which he would touch their chests, mimic having sex with him, and remark upon their bodies. He gave shoulder massages to female students, who were called “his girls” in the clinic, and engaged in sexual and flirtatious conduct with them. He referred to the plaintiff, who is of Asian Indian descent, as “the brown one” or “the graduate student of color.” He also fostered a sense of isolation and dependence, telling the students no one else wanted them there and that obeying him was necessary to their continued participation and future employment.

Removed, but harassment continued. By late December, after the plaintiff had complained several times, the training director was removed from his position. He was told not to contact students. Despite the order, he would come around the students and make “threatening eye contact” with them. At one point he stood behind the plaintiff “breathing in a simultaneously sexualized and threatening manner.” His friends in the department harassed and intimidated her after his removal. Her treatment by the university was little better, she alleged, and she was made to feel that completion of her degree was contingent upon her remaining silent. She learned that the university was dependent on the practicum sites under his control for continued accreditation.

Suit dismissed, first appeal unsuccessful. By early May, the plaintiff had decided to end her practicum early, although she completed her required hours. Just under one year later she filed a charge of discrimination with the Minnesota Department of Human Rights and the following year she brought a civil lawsuit asserting claims of discrimination in employment, education, and public accommodations, as well as common-law negligence against the hospital and university. The trial court granted the hospital’s motion to dismiss and the university’s motion for judgment on the pleadings. The plaintiff appealed in part and a divided panel of the court of appeals affirmed.

Compensation not required. On review of the plaintiff’s petition, the Minnesota Supreme Court reversed in part. First, it explained that dismissal of the plaintiff’s employment discrimination claim based on the statute of limitations was improper. Second, and more importantly, it considered, and rejected, the district court’s conclusion that she could not maintain a claim because she was unpaid. Thus, the court answered a question of first-impression regarding “whether the employment discrimination provision, Minn. Stat. § 363A.08, subd. 2(3), provides a cause of action for a practicum student despite a lack of compensation.”

Although the majority looked to Title VII cases for guidance, it recognized that the Minnesota Human Rights Act has “historically ‘provided more expansive protections to Minnesotans than federal law.’” Thus, the court sought to “avoid a construction” that would read compensation in as a prerequisite when it was not actually mandated by the statutory language.

Under “hybrid test” plaintiff was employee. The court determined that the “hybrid test” was the most appropriate formulation of the analysis to determine whether an employment relationship existed. Under that test “the existence of an employment relationship ‘is construed in light of general common-law concepts, taking into account the economic realities of the situation.’” No single factor is dispositive. In this case, the court concluded that the employment discrimination claim should not be dismissed based on the lack of compensation.

“Like a traditional employee,” the court explained, the plaintiff went through an application process and was selected. As part of the program, she accessed “traditional employee resources,” such as HR and IT support. She alleged that she performed the work of an employee and clients paid the hospital for the work she performed. Thus, the court concluded that the absence of compensation did not bar her claim as a matter of law.

Common-law claims. The court also reversed the decision with respect to the employee’s common-law negligence claims against both the hospital and university. The court concluded that the hospital’s actions, at least as alleged, constituted misfeasance and that not only could the hospital reasonably expect harm to the practicum students, but it knew the harm was occurring. The employee, moreover, was a foreseeable plaintiff. Taken as a whole, the court concluded, the employee’s allegations support a conclusion that the hospital had a duty to protect her, based on its own conduct creating a foreseeable risk of harm to a foreseeable plaintiff. The same was true with regard to the university. It also concluded that a decision preempting the negligence claims based on the Human Rights Act’s exclusivity provision was premature.

Dissent. Chief Justice Gildea, joined by Justice Anderson, dissented, arguing that the lower courts had properly dismissed the plaintiff’s employment discrimination and common-law negligence claims. The dissent argued that the absence of compensation is dispositive and that the majority expanded the potential liability of employers beyond the intent of the Minnesota Legislature. She argued that most federal courts had adopted the Second and Eighth Circuits’ conclusion and the “common sense view” that remuneration is essential for an employment relationship. She argued that she would have reached the same result under the hybrid test. Chief Justice Gildea also argued that the majority erred with regard to the negligence portion of its decision by “conflating misfeasance with nonfeasance.”

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