The Legal Response to the Employment Needs of Domestic Violence Victims

Vol. 37 No. 3

By

Robin R. Runge is assistant professor at the University of North Dakota School of Law. From 2003 to 2009, she was the director of the ABA Commission on Domestic Violence.

Twelve years ago, I wrote an article for this publication entitled, “Double Jeopardy: Domestic Abuse Victims Face Twice the Abuse” about the need for employment protections, including the passage of legislation, to address the needs of domestic violence victims.

At the time, there had been very little research conducted regarding the experiences of victims of domestic violence who work and almost no legislative response to the challenges they faced. Since then, much progress has been made to develop civil legal remedies for victims of domestic violence, sexual assault, and stalking, including the passing of numerous pieces of state legislation clarifying eligibility for unemployment insurance benefits, the providing of job-guaranteed leave for victims, and the prohibiting of discrimination in employment against victims of domestic violence. Yet, survivors of intimate-partner violence continue to be forced to choose between their health and safety (and that of their children) and their jobs. See generally Julie Goldscheid and Robin Runge, Employment Law and Domestic Violence: A Practitioner’s Guide (ABA 2009) (providing an overview of the employment protections for victims of domestic violence); Deborah A. Widiss, Domestic Violence and the Workplace: The Explosion of State Legislation and the Need for a Comprehensive Strategy, 35 Fla. St. U.L. Rev. 669, 674 (2008).

In the last twelve years, the civil legal response to domestic violence has developed and expanded to include housing rights, employment rights, and increased access to visas for immigrant victims, including victims of sex trafficking. These advances reflect a progression from addressing the immediate legal needs of victims to addressing the long-term needs that enable them to live lives free from violence. After all, what good is a civil-protection order if a victim is fired from her job because she missed a day from work to obtain the order, thus losing income for herself and her children, or if she is denied housing or evicted because of her status as a victim?

The development of enhanced civil legal remedies for victims coincides with the increased awareness that the experiences and legal needs of victims of domestic violence, sexual assault, and stalking are unique -- although these crimes often co-occur. The new state laws providing protections for victims in employment also reflect this increased awareness and need for inclusive responses.

 

The Realities of Domestic and Sexual Violence and the Workplace

Domestic violence is a pattern of behavior in which one intimate partner uses physical violence; coercion; threats; intimidation; isolation; and emotional, sexual, or economic abuse to control the other partner. It is not defined by physical acts -- it is a combination of factors and affects the entire family, community, and workplace. It knows no economic, racial, ethnic, religious, age, or gender limits. According to the Department of Justice, one in four women is a victim of domestic violence in her lifetime (Patricia Tjaden and Nancy Thoennes, U.S. Dep’t of Justice, Extent, Nature, and Consequences of Intimate Partner Violence 9 (July 2000). In 2001, 248,000 people in the were raped or sexually assaulted; 91 percent were women (National Center for Victims of Crime statistics).

Over the last twelve years, extensive research has been conducted regarding the number of employees in the workforce who are victims of domestic violence, the ways in which domestic and sexual violence affects victims who are employees, and the ways in which that violence negatively affects a workplace overall. In 2005, a national benchmark survey of 1,200 employed adults by the Corporate Alliance to End Partner Violence found that intimate-partner violence has a wide- and far-reaching effect on Americans’ working lives: Forty-four percent of employed adults surveyed personally experienced domestic violence’s effect in their workplaces, 21 percent of respondents (men and women) identified themselves as victims of intimate-partner violence, and 64 percent of domestic violence victims indicated that their ability to work was affected by the violence (Corporate Alliance to End Partner Violence, National Benchmark Telephone Survey on Domestic Violence in the Workplace 1 (2005), available at www.ncdsv.org/images/CAEPVSurvey.WorkPlace.pdf).

Victims may need to miss work to go to court to seek safety for themselves and their families or need job accommodations because of injuries or illnesses caused by the violence. Victims may not feel comfortable disclosing the reason for missing work or they may exceed their limited annual leave, leading to job loss. Victims may also need to miss work to seek ongoing counseling to cope with trauma caused by the abuse. In some instances, the victim and perpetrator may work at the same workplace, so incidents of abuse may take place onsite. Finally, survivors may experience difficulty focusing and concentrating at work because of their fear that the perpetrator may come to the workplace or harm them or their children when they return home. Studies and surveys show that almost 50 percent of sexual assault survivors lose their jobs or are forced to quit in the aftermath of the crime (S. REP. NO. 138, 103rd Cong., 2d Sess. 54, n. 69 citing E. Ellis, B. Atkeson and K. Calhoun, An Assessment of the Long-Term Reaction to Rape, 50 J. Abnormal Psychology No. 3, 264 (1981)). Thirty to 53 percent of employed victims of domestic violence lose their jobs due at least in part to the domestic violence. See, e.g., Health, Educ., & Human Servs. Div., U.S. Gen Accounting Office, Domestic Violence Prevalence and Implications for Employment Among Welfare Recipients, 7–8 (1998), available at www.gao.gov/archive/1999/he99012.pdf (finding between 35 and 56 percent of employed battered women surveyed were harassed at work by their abusive partners and that up to half lose their jobs because of the abuse). Seventy-four percent of employed battered women were harassed at work by their partner (Family Violence Prevention Fund, The Workplace Guide for Employers, Unions and Advocates (1998)).

Although the focus of studies and responses regarding the intersection of domestic violence and employment have been about the experiences of abuse victims, it is critical to understand that perpetrators of sexual and domestic violence are employees too, and their abusive behavior has a dramatic, negative effect on the victim and their workplace. A 2003 study conducted by the Maine Department of Labor found that 78 percent of surveyed perpetrators used workplace resources at least once to express remorse or anger toward, check up on, pressure, or threaten their victim; 74 percent had easy access to their intimate partner’s workplace; and 21 percent reported that they had contacted their victim at the workplace in violation of a no-contact order (Ellen Ridley, Maine Dep’t of Labor and Family Crisis Services, Impact of Domestic Offenders on Occupational Safety and Health: A Pilot study 13–14 (2004), available at www.cobar.org/Docs/MaineDVStudy-FullReport2004.pdf).

 

Employer and Legal Responses to Domestic Violence against Employees

Across the country and around the world, employers—large and small, state and local, government and private sector—have begun to voluntarily develop effective policies and protocols to address domestic and sexual violence in the workplace. The most effective employer strategy includes the creation of a taskforce composed of employees from all levels of the company who develop policies and procedures for ongoing training of all staff regarding their response to incidents of workplace violence. See www.caepv.org, www.endabuse.org, www.safeatwork.org for model policies and responses for employers to the impact of domestic and sexual violence on their employees. In the fall of 2002, Liz Claiborne, Inc., completed its second Corporate Leader Survey on the topic of domestic violence. Findings from this survey included the following statistics: Sixty-six percent of corporate leaders said domestic violence was a major problem in today’s society, 56 percent said they were aware of employees within their organization who were affected by domestic violence, 68 percent said a company’s financial performance would benefit if domestic violence were addressed among its employees, 50 percent reported that domestic violence had had a harmful effect on their organization’s insurance and medical costs, and nearly one-third (32 percent) said their company’s bottom-line performance had been damaged.

Survivors of domestic and sexual violence have the same rights and responsibilities as other employees. Although federal employment laws did not consider the needs and experiences of victims of domestic and sexual violence in terms of their status as employees, in recent years, several laws have been interpreted to apply to their specific and unique experiences, including the Family and Medical Leave Act (FMLA), Title VII of the Civil Rights Act of 1964 (Title VII), and the Americans with Disabilities Act (ADA). In addition, over the last twelve years, several states have enacted legislation providing specific protections and rights to employees who are victims of domestic and sexual violence, including job-guaranteed leave and anti-discrimination provisions.

FMLA is the only federal law that provides job-guaranteed leave from work for employees. Although this law does not expressly mention domestic or sexual violence, it may offer job-protected leave for victims to heal from mental or physical injuries or to care for a child who is healing from injuries if a victim is eligible and if the injuries rise to the level of a “serious health condition.” See, e.g., Municipality of Anchorage v. Gregg, 101 P. 3d 181 (Alaska 2004) (holding that a woman’s incapacitated condition resulting from domestic violence, a car accident, and pregnancy rises to the level of a “serious health condition”). An employee who has experienced an injury or illness caused by domestic or sexual violence and who has missed work because of the injury may qualify for job-guaranteed leave under FMLA, instead of facing termination because of missed work. () In addition, almost half of the states have family or medical leave laws that provide unpaid job-guaranteed time off for a variety of reasons related to family or illness, including to attend a child’s school event or to heal from the employee’s serious health condition. See www.nationalpartnership.org/site/DocServer/StateunpaidFMLLaws.pdf?docID=969 (containing a chart of all state leave laws as of March 2003). Additionally, thirty-three states have “crime-victim leave laws” that give victims of crimes, including domestic and sexual violence, time off or some form of job protection to go to criminal court if subpoenaed to appear as a witness or victim of a crime or to participate in legal proceedings. See Legal Momentum, State Law Guide: Employment Rights for Victims of Domestic Violence or Sexual Violence (April 2010), available at www.legalmomentum.org/assets/pdfs/employment-rights.pdf (for descriptions of the bills and pending legislation). These laws suggest a strong public policy argument for permitting necessary leave without penalty. These laws enable victims to take the necessary time to assist in the prosecution of the perpetrators without fear of job loss or other negative consequences related to employment.

Another more recent source of job-guaranteed leave for survivors of domestic and sexual violence is state laws that provide support specifically designed with the survivor’s needs in mind. Today, eleven states (California, Colorado, Florida, Hawaii, Illinois, Kansas, Maine, New Mexico, North Carolina, Oregon, and Washington) have statutes providing unpaid, job-guaranteed leave or leave as a reasonable accommodation specifically to victims of domestic violence and sexual assault/violence. () The laws vary, but generally provide leave for victims to go to civil court to obtain protection for themselves or family members, seek medical attention for injuries caused by the abuse, obtain services from a victim services program, and retain legal assistance. These laws all prohibit an employer from discriminating against an employee for exercising their right to the leave; however, the employer may require the employee to provide certification of their qualifying need for leave (D.C. Code §§ 32-131.01, 32-131.02 (2009)). In addition, the has adopted legislation providing paid leave from work that may be used by victims of domestic violence, sexual abuse, or stalking to obtain medical services, social services, or legal services for themselves or their family member who is a victim.

Finally, if none of these laws provides protection, survivors still may have some recourse if their employers voluntarily provide any type of paid or unpaid sick time, vacation time, personal time, or disability leave, or if these provisions are included in a collective bargaining agreement. It is more and more common for employment policies and collective bargaining agreements to specifically mention benefits for victims of violence. See generally, A Guide For Employers: Domestic Violence In The Workplace 36–38 (1999) (discussing how an employee who is a victim of domestic violence may use her sick time, flextime, and other leave options).

 

State and Federal Responses to Domestic Violence against Employees

When domestic or sexual violence takes place at work, either inside the building or on the premises controlled by the employer, an employer may be at risk for liability under state and federal anti-discrimination laws if the victim’s employer fails to take action regarding the assault or retaliates for an assault that is reported. Title VII, as amended, prohibits employers with fifteen or more employees from discriminating against an employee in hiring; terms and conditions of employment; and firing based on sex, race, pregnancy, national origin, religion, and color (42 U.S.C. § 2000e (2004)). Courts have also recognized that sexual harassment is a prohibited form of sex discrimination. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 64–65 (1986). Sexual assault may constitute sexual harassment when the perpetrator is a supervisor or an agent of the employer and commits an act of rape or sexual assault while on the job. Rape may create a sufficiently severe or pervasive hostile environment to hold an employer liable for the resulting damages. See, e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) (sexual assault by supervisor with whom employee had a prior social relationship); Little v. Windermere Relocation, Inc., 265 F.3d 903, 911 (9th Cir. 2001) (serial rape on one occasion during a business trip); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995); Brock v. United States, 64 F.3d 1421, 1423 (9th Cir. 1995) (every rape committed in the employment setting constitutes discrimination based on the employee’s sex); Jones v. United States Gypsum, 81 FEP Cases (BNA) 1695 (N.D. Iowa 2000) (upholding a sexual harassment claim based on assault in genital area, including discussion citing cases). Sexual harassment can also be considered to have occurred when the perpetrator is a coworker or non-employee, such as a customer, and the employer knew or should have known of abuse that involved the workplace and failed to take prompt and appropriate remedial action. See, e.g., Little v. Windermere Relocation, Inc., 265 F.3d 903 (9th Cir. 2001) (rape by client); Hall v. Gus Constr. Co., 842 F.2d 1010, 1012 (8th Cir. 1988) (unwanted touching and offensive comments by coworkers); Menchaca v. Rose Records, Inc., 67 Fair Empl. Prac. Cases (BNA) 1334 (N.D. Ill. 1995) (harassment by employer’s customer); Otis v. Wyse, 1994 WL 566943 (D. Kan. 1994) (harassment by coworker); Powell v. Las Vegas Hilton Corp., 841 F. Supp. 1024, 1025–26 (D. Nev. 1992) (harassment by employer’s customer); see also 29 C.F.R. § 1604.11 (d)-(e) (EEOC guidelines confirming employers’ liability for sexual harassment by coworkers and customers); Win For Gantt, Ann Parks, Maryland Daily Record, Feb. 14, 2005. Sexual harassment laws apply to all employees, regardless of the relationship between the perpetrator and the victim. See, e.g., Fuller v. City of Oakland, 47 F.3d 1523 (9th Cir. 1995) (holding city liable for failing to take steps to stop a police officer from harassing another officer after she ended their relationship); see also Excel v. Bosley, 165 F.3d 635 (8th Cir. 1999) (finding that sexual harassment at work by employee’s ex-husband violated Title VII).

Like Title VII, the prohibits discrimination against an employee because she has a qualified disability as defined in the statute (42 U.S.C. § 12102 (2004)). The also may require an employer to take affirmative steps through a “reasonable accommodation” for a qualified disabled employee (42 U.S.C. § 12111(9)). A victim of domestic or sexual violence may develop severe post-traumatic stress disorder (PTSD) or another physical or mental disability as a result of the violence that qualifies as a disability under the or the state equivalent, and thus may be entitled to an accommodation at work related to her PTSD. Each state also has anti-discrimination statutes that prohibit discrimination on some or all of these bases as well, some of which provide more protections such as covering smaller employers.

In recent years, states have begun to pass legislation specifically prohibiting discrimination against sexual assault survivors. As of this writing, Illinois, New York, and Oregon have adopted state statutes that make it illegal for employers to discriminate against employees because they are victims of domestic violence, sexual violence, and/or stalking (820 Ill. Comp. Stat. 180/1–45 (West 2004)) (covered employers may not fail to hire, fire, constructively discharge, harass, or otherwise discriminate or retaliate against any individual because the individual is, or is perceived to be, a victim of domestic or sexual violence or has a family or household member who is, or is perceived to be, a victim of domestic or sexual violence); N.Y. Exec. L. § 296–1(a) & § 292(34) (victims of domestic violence are protected from employment discrimination); Or. Rev. Stat. §§ 659A.290, 659A.885 (prohibiting employers from discharging, discriminating, or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking because of the employee’s status as a victim). The law also requires an employer to make “reasonable accommodations” for victims. Such accommodations could include safety measures, time off, modified schedules, and so on. Before providing a reasonable accommodation, the employer may ask for “certification” establishing that the employee is a victim. Employers must keep information they receive, and the request for leave, confidential. Under these provisions, discrimination is defined to include firing or penalizing a victim because of actions of her abuser.

 

Workplace Protection Orders

Beginning in the 1990s, led by and , states began passing statutes enabling employers to obtain workplace protection orders on behalf of employees who were threatened at the workplace. These statutes developed out of experiences with workplace violence unrelated to domestic violence or sexual assault. Today, ten states have statutes enabling employers to obtain workplace restraining or protection orders. See Legal Momentum, State Law Guide: Workplace Restraining Orders (2009), available at www.legalmomentum.org/assets/pdfs/workplace-restraining-orders.pdf. Some of the newer statutes specifically reference sexual assault survivors. Obtaining a workplace protection order may be an effective way for the employer to improve the safety of the workplace and meet its duties under state and federal Occupational Safety and Health Acts. Employees should always be consulted, however, before such an order is obtained, as obtaining that type of protection order may place them at greater risk by angering the perpetrator.

 

Workers’ Compensation, Tort Action, and Occupational Safety and Health Administration

If employees are injured in the workplace or while on the job, they may be entitled to compensation either through the workers’ compensation system or from a tort claim. State laws generally permit employees to pursue one or the other but not both sets of remedies. Workers’ compensation is a state-run system of workplace insurance that each employer is required to carry, and in many states it is the presumptive remedy. To be eligible for workers’ compensation, the victim must have suffered the domestic or sexual violence within the scope of employment. For example, the Georgia Court of Appeals has specifically found that where the circumstances of the employment are such that there is an increased risk of sexual assault and the assault was not personal, then such an assault is compensable under the Georgia Workers’ Compensation Act (Insurance Company of Alabama v. Wright, 108 Ga. App. 380, 133 S.E.2d 39 (1963)). However, where employees can prove that they were equally exposed to the hazards of sexual assault outside of their employment and that the risk of sexual assault was unconnected with the responsibilities of the employment, the employee may be able to successfully pursue a tort action.

In situations in which workers’ compensation laws do not apply, an employee who is a victim of sexual or domestic violence may succeed in pursuing a tort action against her employer. Tort actions are generally used in accordance with negligence theories to hold the employer liable for the act of violence committed in the workplace. For example, if an employee were sexually assaulted at the workplace by a coworker, she could seek damages from her employer by filing a claim for negligent hiring or retention of the perpetrator or both if the employer knew or should have known that the perpetrator posed a risk of violence and failed to take preventive or remedial action.

Another theory of tort liability that an assault victim might be able to pursue is intentional infliction of emotional distress if the victim can demonstrate a causal connection between the employer’s intentional or reckless behavior and her emotional distress. See Kennedy v. Pine Land State Bank, 439 S.E.2d 106 (1993); Gantt v. Security U.S.A. Incorporated, 356 F.3d 547 (4th Cir. 2004) (holding that a supervisor’s behavior constituted the necessary intention and causal connection for a jury to conclude that intentionally placing the victim in harm’s way resulted in her emotional distress).

Employers also may face liability when domestic violence affects the workplace for failing to take adequate measures to keep the workplace safe. Inadequate safety measures can trigger an employer’s obligations under the general duty clause of the Occupational Safety and Health Act (29 U.S.C. § 651 (2004)).

 

Wrongful Termination in Violation of Public Policy

Almost every state recognizes “wrongful discharge in violation of public policy” as an exception to the general rule of at-will employment. This type of action protects employees who are fired for a reason deemed in violation of a state’s public policy (e.g., firing a whistle-blower). Public policy generally must be based in the state’s statutes—every state has strong public policy statutes in support of victims and survivors of crime. For example, firing an employee after she took one day off from work to get a protective order may violate public policy. See, e.g., Aspessos v. Memorial Press Group, No. 01-1474-A, 2002 Mass. Super LEXIS 404 (Mass. Super. Sept. 30, 2002) (denying motion to dismiss claim that terminating employee because she was a victim of domestic violence violated public policy).

 

Unemployment Insurance Benefits

Unemployment insurance (UI) is a state-run social insurance program that provides temporary income to workers who lose their jobs through no fault of their own. Unemployment insurance is primarily funded through employers’ payroll tax deductions. Federal law provides guidance but leaves most decisions under the control of participating states, including monetary earnings requirements, eligibility requirements for benefits, disqualification provisions and penalties, and benefit levels and duration.

Until recently, it was unclear whether victims of domestic violence, sexual assault, or stalking were eligible for unemployment insurance if they were fired or forced to quit their jobs because of the violence. As of this writing, thirty-two states and the have amended their unemployment insurance codes to clarify whether victims of domestic and/or sexual violence and stalking are eligible for benefits. See Legal Momentum, State Law Guide: Unemployment Insurance Benefits for Victims of Domestic Violence (2010), available at www.legalmomentum.org/assets/pdfs/unemployment-insurance.pdf. Some of these statutes require that an applicant for unemployment insurance provide proof that she is a victim in addition to meeting all other eligibility requirements for unemployment benefits. Importantly, even in jurisdictions where these statutes have not been adopted, a victim who is forced to quit her job or is fired because of the abuse may still be eligible under case law, regulations, or other provisions.

 

The Evolving Federal Legislative Response

In 1995, the first federal legislation was introduced to provide employment-related protections to victims of domestic violence in the workplace. The Battered Women’s Employment Protection Act provided for an amendment to the Family and Medical Leave Act and access to unemployment insurance for victims of domestic violence. Every year since 1995, some form of this bill has been reintroduced in every Congress.

Most recently, several bills were pending in the 111th Congress that, if passed, would provide protections for victims of domestic violence. These bills include the Domestic Violence Leave Act and the Security and Financial Empowerment Act, which would each provide some form of job-guaranteed leave from work for victims of domestic violence. See Domestic Violence Leave Act, H.R. 2515 and H.R. 3047, Security and Financial Empowerment Act, S. 1749, 111th Cong. (2009); Security and Financial Empowerment Act, H.R. 739, 111th Cong. (2009). The Healthy Families Act would enable victims to use accrued paid leave to address the violence in their lives. See Healthy Families Act, H.R. 2460, 111th Cong. (2009). In addition, the Victims’ Employment Sustainability Act and the Security and Financial Empowerment Act would prohibit discrimination in employment against victims of domestic and sexual violence. It is also noteworthy that the American Recovery and Reinvestment Act of 2009 and the Worker, Homeownership, and Business Assistance Act of 2009 contain provisions that grant states additional funding if they extend eligibility for unemployment insurance benefits to workers who leave their jobs for “compelling family reasons,” including domestic violence and sexual assault (Pub. L. No. 111–5, Division B, Title II, Sec. 2003; Pub. L. No. 111–92 (2009)).

 

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