Domestic Violence Victims Emerging as a New Protected Class

Author: Beth P. Zoller, XpertHR Legal Editor

Domestic violence, sexual assault and stalking can impact the health, productivity and performance of victims, resulting in a loss for employers of those victims. To help prevent these issues from negatively affecting the workplace, there has been significant movement at both state and federal levels to increase protections for victims.

Federal Efforts

While there is no federal law specifically protecting victims of domestic violence, stalking or sexual assault from employment discrimination or requiring employers to provide domestic violence leave, there have been significant efforts at the federal level to raise awareness of discrimination against these victims and provide them with increased protections and accommodations in the workplace.

Violence Against Women Reauthorization Act of 2013

After a heated debate last week, Congress voted to reauthorize the Violence Against Women Act (VAWA) for another five years and President Obama signed the bill into law on March 7. +2013 Bill Tracking S. 47. Originally passed in 1994, the VAWA protects women from domestic and sexual abuse and had been used by victims in cases of workplace sexual harassment. The reauthorized measure will create and expand federal programs to assist communities with law enforcement and aid sexual abuse and domestic violence victims. It provides funding to improve the criminal justice response to sexual assault and makes sure that victims have access to necessary services. The new law also offers protection for Native American, immigrant, gay, bisexual and transgender victims.

Federal Agencies to Develop Workplace Policies

In 2012, President Obama released a memo noting that it was the federal government's policy to promote the health and safety of its employees by preventing the impact of domestic violence in the workplace, and by providing support and assistance to federal employees who are victims of domestic violence. Following this, the Director of the US Office of Personnel Management (OPM) has issued a memo to federal agencies directing them to create policies and procedures that will address the effects of domestic violence, sexual assault and stalking on the workforce by June 2013. The OPM further announced that it will offer webinars touching on the impact of domestic and sexual violence on the workplace; the role of employers when responding to domestic violence, sexual assault and/or stalking in the workplace; and the critical components of a workplace response. The OPM has provided agencies with guidance on creating workplace policies on issues such as permitting employees time off or flexible working schedules, addressing confidentially concerns, fostering safety and security in the workplace, establishing employee assistance programs and taking disciplinary actions against those who perpetrate domestic violence.

EEOC Guidance

Last fall, the Equal Employment Opportunity Commission (EEOC) released new guidance for employers on handling employees who are victims of domestic violence, sexual violence or stalking. The agency warned that adverse employment actions against these individuals may violate Title VII and the Americans with Disabilities Act. The EEOC provided examples of how certain employment decisions, such as denying a request for leave for a domestic violence hearing or employment decisions based on stereotypes of battered women, can violate Title VII. Further, the EEOC demonstrated how failing to provide victims with reasonable accommodations for a domestic violence injury, failing to permit an employee to take leave to treat depression, or permitting co-workers to make derogatory and abusive comments about facial scarring due to a domestic attack may lead to ADA liability.

State Laws

Providing Necessary Leave to Victims of Domestic Violence

Several states, including Arizona, California, Colorado, District of Columbia, Florida, Hawaii, Illinois, Kansas, Maine, New Mexico, New York, North Carolina, Oregon and Washington, have laws permitting victims of domestic violence, sexual assault or stalking and their family members time off or some form of leave from work to attend court/criminal proceedings, obtain orders of protection or seek medical care. Likewise, states such as Missouri (2013 MO S.B. 367); Montana (+2013 MT S.B. 221) and New Jersey has proposed similar measures. Further, almost all states allow employees who are crime victims time off from work to attend court or serve as a witness in a court or criminal proceeding. Employers should also consider the potential effect of federal and state FMLA laws that permit employees to take leave for a serious health condition.

Prohibiting Discrimination Against Domestic Violence Victims

Some states have gone one step beyond providing leave to domestic violence victims by protecting them from employment discrimination and providing them with reasonable accommodations.

While New York specifically makes victims of domestic violence a protected class under the New York State Human Rights Law (NYSHRL), new legislation has been proposed in New York that would expand the scope of discriminatory acts and require employers to provide reasonable accommodations to victims. Senate Bill 2509 seeks to provide victims of domestic or sexual violence with 90 days of unpaid leave in order to seek medical attention or legal assistance or attend counseling, among other things. The New York Assembly has introduced legislation that amends the NYSHRL by prohibiting employers from discriminating against individuals based on their status as domestic violence victims. +2013 Bill Text NY A.B. 898. It also requires employers to provide reasonable accommodations to victims of domestic violence in the form of leave to seek medical attention, counseling or legal services. Legislation has also been proposed in the Senate that would prohibit discrimination against domestic violence victims. +2013 Bill Text NY S.B. 3371; +2013 Bill Text NY S.B. 3385.

In Rhode Island, an employer, employment agency or licensing agency cannot refuse to hire any prospective employee or discharge any employee or otherwise discriminate against an employee based upon the employee seeking or obtaining a domestic violence protective order or refusing to seek or obtain such a protective order.

Illinois has enacted the Victims' Economic Security and Safety Act, which provides that employers may not fail to hire, refuse to hire, discharge, harass or discriminate against any individual because the individual:

Is or is perceived as a domestic violence or sexual assault victim;
Attended, participated in, prepared for or requested leave to attend a criminal or civil proceeding related to domestic violence or sexual assault for which the individual or a family or household member was a victim; or
Requested an adjustment because of domestic violence.

Requested adjustments may include:

A change in job structure or workplace facility;
Transfer, reassignment or modified schedule;
Leave;
Changing the employee's phone number, seat assignments or lock; and
Implementing a safety response procedure.

Additionally, when a domestic violence or sexual violence perpetrator disrupts or threatens a victim's workplace, the Illinois employer may not discriminate or discharge the employee because of the perpetrator's actions. In fact, domestic violence victims may request orders of protection requiring their abusers to stay away from their places of employment.

In Connecticut, an employer cannot deprive, threaten, discharge, penalize, threaten or coerce an employee because:

The employee obeys a legal subpoena to appear in court as a witness to a criminal proceeding;
The employee attends court or participates in a police investigation related to a criminal case in which the employee is a crime victim or attends or participates in court proceedings related to a civil case in which the employee is a victim of family violence;
A restraining order has been issued on behalf of the employee relating to domestic violence;
A protective order has been issued on the employee's behalf; or
The employee is a victim of family violence.

Similarly, in California, lawmakers recently proposed legislation that would prohibit an employer from discharging or discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault or stalking, and would require the employer to provide reasonable accommodations to such victims. In doing so, an employer may not discriminate against such a victim who takes time off to appear in court or obtain medical help. Reasonable accommodations may include:

A transfer, reassignment or modified schedule;
A changed work telephone or work station;
An installed lock;
Assistance in documents regarding domestic violence, sexual assault or stalking accruing in the workplace; and
Other adjustments to job structure, workplace facility or work requirements.

The proposed law would permit aggrieved employees to bring a private cause of action to enforce victim status protection and obtain reasonable accommodations. +2013 Bill Text CA S.B. 400.

Advice for Employers

As a result of these legislative and policy changes, prudent employers should:

Update training materials and workplace policies and practices to prohibit discrimination and harassment against victims of domestic violence, sexual assault and stalking;
Understand the potential situations that could arise with applicants or employees who have been subjected to domestic violence, sexual assault and/or staking;
Understand and train their employees that other federal laws (i.e., the FMLA, ADA) and state laws may apply to such victims; and
Aim to provide domestic violence victims with the necessary support and reasonable accommodations including, but not limited to: leave and time off for medical reasons and to attend court/criminal proceedings; adjustments to the job structure or facility to increase safety; transfer or reassignment; changes in work schedule or work station; and increased safety measures such as installing locks and security cameras.