How to Address Domestic Violence in the Workplace
Author: Beth P. Zoller, XpertHR Legal Editor
Domestic violence is a very serious issue that can have a drastic impact on the lives of the affected employee, his or her co-workers and the workplace as a whole if not handled properly by the employer. Although the violence takes place outside the workplace, it has the ability to impact every facet of a victim's life including their work situation; it can follow an employee into the workplace and cause myriad issues. An employer should be prepared to implement policies, practices and procedures to help manage domestic violence victims, assist them in seeking the treatment they need and prevent workplace violence. In order to address domestic violence in the workplace and provide protection to employees and co-workers, an employer should do the following:
Step 1: Understand What Domestic Violence Is
Domestic violence is defined as violence committed by a spouse or family member in which one individual uses physical, violence and/or sexual, mental or economic abuse to control the other partner. It is not only physical, but can be experienced in the form of harassment, threats, intimidation, bullying, isolation and other coercive and controlling acts. It is important for an employer to understand that domestic violence does not discriminate and anyone can be a victim. It is not dependent on race, sex, religion, ethnicity or economic status.
Step 2: Recognize the Cost of Domestic Violence to Employers
An employer should recognize that domestic violence carries significant risks and high costs for employers. In the short term, domestic violence can lead to lower workplace productivity, decreased employee morale, increased employee turnover, strained relationships between co-workers and well as poor job performance, lack of concentration and attendance issues. Further, if an employer fails to properly manage domestic violence victims by refusing to grant them time off to attend court hearings or obtain medical treatment for injuries or illnesses caused by domestic violence incidents, the employer may face claims under Title VII, the Americans with Disabilities Act (ADA) and state laws. Additionally, domestic violence can lead to increased health care costs for employers as victims need to seek medical treatment for physical and mental issues as well as counseling.
Further, the violence may follow the employee into the workplace. A perpetrator of domestic violence may stalk the victim at work, call or visit the workplace repeatedly, or interfere with and disrupt workplace productivity. An employer may also face tort liability or liability under the Occupational Safety and Health Act (OSH Act) for failing to provide a safe and secure workplace free from hazards and for failing to protect other employees from harm should an incident occur at work. Further, an employer may open itself up to claims of negligence, negligent failure to warn and intentional infliction of emotional distress if the domestic violence occurred between co-workers or if the employer failed to adequately protect the victim and co-workers from violence. In the very worst of scenarios, domestic violence victims and their co-workers may face serious harm and even death.
Step 3: Adopt Policies and Procedures Against Violence
It is essential for an employer to develop and implement policies and procedures addressing workplace violence and domestic violence. With regard to workplace violence, an employer should advise employees that hostile, abusive, threatening or violent conduct is against workplace policy and will not be tolerated. It should institute a workplace violence protection program and attempt to keep employees safe from harm.
With regard to domestic violence, the policy should notify employees of the protections and assistance the employer will provide to victims of domestic violence, sexual assault and stalking and set forth that it will take all necessary steps to provide a safe and secure working environment. It should incorporate a complaint procedure allowing employees to bring discrimination, harassment or retaliation complaints in confidence if they face adverse action based on their status as a domestic violence victim. It should assure such individuals that the employer will respond with an investigation, remedial measures and discipline if needed. It should assure employees that the employer will provide reasonable accommodations to employees who are domestic violence victims in the form of workplace modifications (such as scheduling modifications or changing the work station or work telephone number) or time off if doing so would not cause an undue hardship for the employer. Further, victims of domestic violence should be instructed to report if they have obtained a restraining order against another individual so that an employer can take appropriate measures to keep co-workers and the workplace safe. The policy should be provided to all employees and new hires and placed in an employee handbook or on the employer's intranet.
Step 4: Provide Training to Employees and Supervisors
An employer should make sure to provide comprehensive training to employees and supervisors on domestic violence and workplace violence. The training should remind employees of the importance of reporting potentially dangerous situations to the employer. The employer should stress that domestic violence is a serious issue that will not be tolerated. Employees should be assured that all reports of violence will be kept confidential to the greatest extent as permitted by law so that employees are more likely to report situations. Further, an employer may want to consider offering workshops and guest lecturers from counseling centers or the employee assistance program, if one exists.
Supervisors should be trained to recognize problems among their employees and identify victims of domestic violence, including signs and symptoms of stress or physical harm caused by domestic violence. If a supervisor begins to notice signs that an employee is being physically abused away from the workplace, such signs should not be ignored and the supervisor should do anything that he or she can to help that employee. Not only will this help the employee, but it may prevent violence from entering the workplace.
Supervisors should also know how to report all instances to HR or the employer so that the employer may immediately respond and take action. Supervisors should be trained on the importance of privacy and confidentiality when handling issues of domestic violence. Employees should feel comfortable bringing their concerns to management and having their complaints addressed in a timely and confidential manner. Supervisors should be trained on how to respond in a sensitive manner and show employees they are available to provide necessary support. Employees should feel afraid to voice their concerns and should be assured that the employer will address them.
Step 5: Provide Domestic Violence Victims with Assistance and Time Off
An employer should provide domestic violence victims with the assistance they need in terms of time off to tend to injuries or attend court appearances and social services. It is best practice for an employer to be accommodating and understanding and provide victims with needed support so they remain effective employees.
The Equal Employment Opportunity Commission (EEOC) suggests that an employer should provide reasonable accommodations to domestic violence victims by, for example, allowing them to take time off to tend to injuries, attend court hearings or provide leave to treat depression in order to avoid discrimination claims under Title VII and the ADA. Further, a handful of states such as New Jersey and California as well as the District of Columbia specifically permit domestic violence victims to take time off to attend court hearings or seek medical treatment or counseling. Other states permit employees who are victims of a crime to take time off to attend criminal court proceedings. Further, some recently enacted paid sick leave measures in states and cities allow domestic violence victims to take paid leave to seek treatment.
Other employees may be permitted to take time off under federal or state family and medical leave acts in order to treat domestic violence injuries if the injuries rise to the level of a serious health condition. Further, some employers may adopt procedures that allow employees to used sick time, vacation time, personal time or disability leave to take time off for domestic violence issues.
Additionally, an employer may want to consider developing employee assistance programs and/ or assisting victims in seeking help from community resources. An employer should also provide a safe environment and assist domestic violence victims in bringing their complaints to law enforcement.
Step 6: Avoid Discrimination Against Domestic Violence Victims
Although no federal law prohibits employers from discriminating against domestic violence victims, employers may face liability if they discriminate against domestic violence victims on the basis of sex or disability. For example, an employer may be liable for sex discrimination if it treats a female victim differently than other employees experiencing the same or similar performance or absence issues. An employer may be liable for sexual harassment if both the victim and the perpetrator work for the employer and the extent of employer liability will depend upon whether the perpetrator is a supervisor or a co-worker. Additionally, an employer may face liability for disability discrimination if it discriminates against an individual suffering from mental or physical health issues such as head injuries, depression, post-traumatic stress disorder based on incidents of domestic violence. In such cases, employers should be prepared to provide individuals with disabilities who are victims of domestic violence with reasonable accommodations if it would permit them to perform the essential functions of their job.
On the state level, some states have enacted laws specifically prohibiting discrimination and retaliation against domestic violence victims and recognizing them as a protected class. A handful of states also require employers to provide employees who are domestic violence victims with reasonable accommodations so that they may perform their job safely. Such reasonable accommodations may include changing the victim's work schedule, transferring the victim, changing the parking arrangements, separating a perpetrator and a victim if both work for the employer, alternative work hours, or screening contact between the perpetrator and the victim.
In light of potential employer liability, it is critical for employers to have policies and procedures banning discrimination against victims of domestic violence, sexual assault and stalking. Further, if an employer has to take an adverse employment action against a domestic violence victim, make sure that there is legitimate nondiscriminatory reason for doing so.
Step 7: Cooperate with Law Enforcement and Increase Safety Measures
Additionally, if an employer is aware that an employee is a victim of domestic violence, the employer should develop a safety plan that lets the employee and co-workers know what to do if the perpetrator enters the workplace. The employer may want to consider enhancing security measures and increasing protections which may include changing locks or key cards, hiring additional security guards, transferring the employee, changing the employee's hours, alerting the police and making the identity of the perpetrator known. The employer should make sure to consult with the victim and asses the safety risk.
Step 8: Proceed Cautiously When Taking Adverse Action Against Employees Who Perpetrate Domestic Violence
An employer should be sure to show its employees that it takes incidents of domestic violence, sexual violence and stalking very seriously and that the employer has a zero tolerance policy for threatening, abusive and violent conduct. It may also seek to state that employees convicted of a serious crime or felony may be terminated. While it may be premature to take adverse action against an individual who is involved in a domestic dispute, once an employer has concrete evidence that domestic violence has occurred in the form of a criminal conviction or guilty plea, or that an individual has engaged in hostile, abusive, threatening or violent behavior that violates the employer's policies, the employer should take appropriate action. However, an employer should be cautious and not jump to conclusions by assuming guilt before it is proven unless there is a clear connection to the employee's work or the domestic abuse extends into the workplace and is between co-workers. In any event, an employer should proceed cautiously and make sure not to compromise workplace safety.