This essay, Attorney Dillan’s thesis for Professor Margaret Drew’s Domestic Violence Law seminar, was awarded third place in the American Bar Association Family Law Section’s 2023 Howard C. Schwab Memorial Essay Contest. Attorney Dillan would like to thank the American Bar Association Family Law Section, the Family Law Quarterly editorial team, the Massachusetts Women’s Bar Association’s Domestic Violence Anti-Discrimination Task Force, Professor Margaret Drew, Jennifer A. White, and Catherine N. Summa.
“You’ve Got Dreams He’ll Never Take Away”
—Dolly Parton, “9 to 5”
“[L]egal systems continue to have difficulty viewing certain groups of people as individuals worthy of protection in their own right.”“When I was here at work, I felt good because my job validated me. It made me feel good about myself, and no one in my life had ever done that.”
As a survivor of domestic violence (DV), I lived a double life throughout my relationship with my abuser: I spent 35 hours per week presenting as a hardworking employee who loved her job and the rest of the week’s hours living as a “battered woman.” I desperately fought to keep these two lives separate, fearing any workplace stigmatization or retaliation that would cause me to lose an identity that I had come to rely upon more than most of the American workforce. In many ways, that job saved my life: It protected me from further abuse by getting me out of the house, it reminded me of who I was outside of the context of the relationship, and it gave me the financial stability I needed to leave. I can only imagine how different my situation would have been if I were unemployed.
DV is not limited to the confines of the home; its tentacles reach almost every aspect of a survivor’s life, including their employment. In one 2005 survey, 64% of survivors reported that their ability to work was affected by the violence, and according to studies reviewed for a 1998 federal report on public assistance recipients and DV, 44–60% of survivors who were interviewed said they were reprimanded by their employers for conduct stemming from the abuse and 24–52% said they had lost their jobs (through termination or a need to quit) because of the abuse. Moreover, in one survey nearly 70% reported that the abuse negatively affected their job performance, and roughly 50% reported that the abuse had negatively impacted their career advancement. While it is tempting to believe that this affects a very small percentage of our workforce, a survey of 1,200 employed adults revealed that 21% were victims of DV.
The effects of DV in the workplace are not just felt by survivors: A 1998 article indicated that DV cost employers approximately $5 billion per year in lost productivity, absenteeism, turnover, and health care costs. The issue also impacts other employees, with 44% of employed adults reporting that they have personally been impacted by a colleague’s experience. Most chilling is that 38% of those surveyed indicated that they were “extremely” to “somewhat concerned” for their own safety when they discovered a colleague was a victim of DV, and 25% of those surveyed reported that they resented their survivor colleagues and the effect that the abuse had on their workplace.
Given these statistics, it is understandable why survivors hide their situations from their employers: Survivors fear that their professional reputations may be harmed, or their job security may be lost, if their colleagues learn of the abuse. Regardless of existing statutory protections, survivors are hesitant to discuss the abuse with their employers and fear that their jobs could be terminated for the chronic tardiness and absenteeism resulting from the same. Furthermore, the abuser may repeatedly call or visit the workplace to maintain the power and control they have over their partner, which can impact a survivor’s focus and concentration while at work. No matter how hard a survivor tries to hide the realities of their relationship, it eventually may impact their workplace.
It is critical that survivors of DV maintain their employment. In addition to protecting them from further abuse and helping them maintain a sense of self, employment provides a steady income that a survivor will need to leave their abuser. According to a presentation by the American Bar Association, financial insecurity is the number one obstacle to leaving a violent relationship, and the average cost attributed to female survivors is $104,000. Without adequate financial resources, it is challenging for survivors to find housing, purchase vehicles, or otherwise provide for themselves and their families after leaving their abuser. Providing statutory safeguards to protect survivors’ employment empowers them to leave their abusers because it reduces the fear associated with job loss due to DV or other forms of employer retaliation. These statutes also increase a survivor’s confidence because the statutes recognize DV as pervasive throughout society and remind survivors that they are not alone in addressing the problem and that their professional contributions to society are valued.
It is, therefore, imperative to grant survivors broader employment protections to preserve their financial security and independence. Survivors who are not yet ready to leave their abusers also benefit from such protections because employment protections promote a sense of personal autonomy; isolation is one of the biggest tactics used by abusers to keep their target partners under their control, and having a legal framework in place to keep survivors in the workplace would help minimize this pattern.
There are currently no federal statutes exclusively providing employment protections for DV: The Family and Medical Leave Act does not adequately protect all survivors, the Violence Against Women Act does not afford a workplace remedy, and survivors are not a protected class under Title VII. Furthermore, while individuals who experience mental illness relating to the abuse could potentially seek relief under the Americans with Disabilities Act (ADA), this solution is not ideal because it would not apply to all survivors, could require disclosure of private health information in addition to the abuse, and may be perceived as stigmatizing. However, the federal government has not been wholly silent; the Office of Personnel Management issued guidance for federal agencies stating that “[a]gencies should not discriminate against victims of domestic violence, sexual assault, or stalking in hiring, staffing, discipline, or other terms and conditions of employment.”
Given the absence of federal employment protections, state or local law provides a survivor’s primary hope in protecting their livelihood and escaping abuse. Fortunately, there is an observable trend among the states to enact legislation broadening employment protections to victims of abuse, and courts have broadly interpreted these statutes to maximize the protections afforded to survivors and their employers. While this legislation is clearly necessary to preserve survivors’ livelihoods, many states have yet to follow suit and many of the existing statutes are not comprehensive enough to fully protect this population. However, there is a bill pending before the Massachusetts legislature, titled “An Act Relative to Employment Protections for Victims of Abusive Behavior,” that addresses this very issue: Designed to expand upon existing state employment law, the bill broadens various definitions under the state’s Domestic Violence Leave Act (DVLA) and provides for state-level ADA-style accommodations within the workplace. Because of the bill’s comprehensive scope, and its sensitivity to the needs of both survivor-employees and their employers, other states should use it as a model of legal reform within the DV context and enact their own similar legislation.
Part I of this article focuses on existing legislation that protects survivors across the country. Part II reviews the provisions of Massachusetts’ DVLA, the governing statute protecting survivors’ employment in the state, and a recent decision from the Massachusetts Supreme Judicial Court, Osborne-Trussel v. Children’s Hospital Corporation, in which the court broadly interpreted the DVLA. Part III introduces the proposed Massachusetts “Act Relative to Employment Protections for Victims of Abusive Behavior” and contrasts it to the existing DVLA as well as other states’ statutes. Finally, Part III also illustrates why this statute should be enacted, not just in Massachusetts, but across the country.
At least 25 states and the District of Columbia expressly allow survivors to take DV-related leave from work. Additional states provide leave for victims of crime only, under which some survivor-employees may qualify. A minority of states offer no explicit statutory leave protections to either category of persons, although some states’ statutes implicitly provide relief for survivors in certain circumstances. Focusing on the states that explicitly provide DV-related leave, at least 23 states and the District of Columbia also allow for leave to protect an abused member of the employee’s family or household, with the definition of family or household member varying by state. For example, Vermont’s law allows employees to use earned sick time to help arrange services or care for a “parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child” who is a DV survivor, while Delaware and North Carolina limit leave protection to the survivors themselves. Most states offering statutory leave list the types of actions or events that qualify for leave or protection, such as seeking medical assistance or counseling, relocating, or other forms of safety planning and victim services. However, some states do not specify and seemingly permit leave for any action or event relating to the abuse.
Regarding employer size, some states mirror the FMLA and only provide leave if the employer exceeds a statutorily designated number of employees, commonly 25 or 50. Some states require that the employee obtain a certain employment tenure to qualify for statutory protection, such as 90 days. Some states limit the amount of time per year that a survivor may be considered on leave, or, alternatively, provide escalator provisions, whereby the amount of leave for which a survivor-employee is eligible is dependent upon the employer’s size. Further, some states also include a notice requirement prior to taking leave, but many of these states contain exceptions for emergency and/or unforeseeable circumstances. Some states require documentation confirming the survivor’s status while mandating employer confidentiality, and some require regular reporting to the employer as pertaining to the survivor-employee’s leave status and intentions for continued employment. Finally, most states that authorize leave allow a survivor to utilize accumulated paid leave to address the consequences of the abuse; significantly, Oregon allows such leave for survivors who are state employees, provided that they first exhaust all other forms of leave to which they are entitled. In addition, statutory leave protections for survivors are clearly gaining legislative momentum among the states.
Some states have enacted protections against workplace discrimination or retaliation, with the scope of the protections varying by state. While at least 12 states and the District of Columbia prohibit discrimination based on survivor status, other states limit these protections to prohibitions on employer retaliation for the survivor’s taking leave. Some states require some form of notice of the survivor’s status as an abused party. In addition, some states expressly prohibit employers from discriminating against survivors during the hiring process. Finally, some states offer antidiscrimination protections to victims of crime, but these provisions widely vary.
Of the three broad categories of employment protections, “reasonable accommodation” statutes have been the slowest to gain traction. Most of these statutes are modeled after the ADA, whereby employers are not required to provide such accommodations if doing so would impose an undue hardship on the employer’s business. Notwithstanding this slow progress, at least nine states and the District of Columbia allow for reasonable accommodations to be made in the workplace to protect the survivor-employee’s safety, and Florida proposed a bill that would have mandated reasonable accommodations to be made for employees who have witnessed domestic violence crimes.
On August 8, 2014, Massachusetts enacted Mass. Gen. Laws ch. 149, § 52E, which provides leave from public or private employment when an employee, or a family member of the employee, is the victim of abusive behavior. The law affords up to 15 days of leave per year, provided that the employer employs 50 or more employees, and allows the employer the discretion to determine whether such leave will be paid or unpaid. However, unless the employer waives this requirement, the employee must first exhaust any other employer-provided leave before taking leave under the statute. Under § 52E, employees may take leave to:
Seek or obtain medical attention, counseling, victim services or legal assistance; secure housing; obtain a protective order from a court; appear in court or before a grand jury; meet with a district attorney or other law enforcement official; or attend child custody proceedings or address other issues directly related to the abusive behavior against the employee or family member of the employee.The law requires the employer to provide this leave so long as the employee (or employee’s family member) is a victim of abusive behavior as defined by the statute, the employee is using the leave for the above-enumerated reasons, and the employee is not the perpetrator of the abuse.
In exchange, the employee must provide proper notice to the employer as required by the employer’s existing leave policy. This notice is not required if there is a threat of imminent danger to the employee or their family member, but the employee must notify their employer of the necessity for leave within three business days. The law provides a carveout if the survivor is unable to notify their employer themselves, and allows notice to be delivered by third parties, including family members, counselors, social workers, medical personnel, clergy members, shelter workers, legal advocates, or “other professional[s] who [have] assisted the employee in addressing the effects of the abusive behavior. . . .” Notably, the statute also provides an exception to the notice requirement for what it deems “unscheduled absences,” and this exception is satisfied provided the employee produces certain documentation within 30 days of the absence. The employer also may request this documentation at their discretion, and this documentation must be provided within an unspecified “reasonable period” upon the employer’s request; however, the employer may not request evidence of an arrest, conviction, or other law enforcement action to illustrate the abuse. The statute also mandates the employer’s confidentiality with limited exceptions.
Finally, § 52E prohibits the employer from interfering with the survivor’s statutory rights, discharging or discriminating against the employee for exercising their statutory rights, or creating conditions whereby the employee’s right to leave is made contingent on their contact with their abuser. Moreover, the statute prohibits the employer from withholding any employment benefits accrued by the employee prior to the date of leave, mandates that the employee be restored to their original or equivalent position upon returning to work, and prevents discrimination against the employee for exercising their rights. The state’s Attorney General is to enforce § 52E and the statute empowers them to seek injunctive or other equitable relief. The statute also provides that its benefits are not relevant in proceedings relating to the abuse unless a judge determines, after a hearing, that the benefit is relevant to the allegations of DV.
Although Mass. Gen. L. ch. 149, § 52E is comprehensive, Osborne-Trussell v. Children’s Hospital Corporation proved that even the most comprehensive statutes are not without fault. In Osborne-Trussell, the plaintiff brought an action under the DVLA against her employer, Boston Children’s Hospital. The plaintiff was a nurse and DV survivor who had had an active harassment prevention order against her abuser since 2018. The plaintiff applied for employment with the defendant, the Children’s Hospital Corporation (CHC), in February 2019 after what was described as an “aggressive” recruitment. CHC tendered a job offer effective March 18, which the plaintiff accepted, and CHC memorialized this acceptance in a letter dated February 14, 2019. The letter further stated that “plaintiff’s employment was ‘at-will’ and subject to termination at any time,” as well as contingent upon the completion of various tasks; CHC nevertheless issued the plaintiff an employee identification card, an employee identification number, and a training schedule.
On February 28, 2019, the plaintiff’s abuser violated the order by posting various lies and threats about her on social media, tagging CHC in these posts. The plaintiff accordingly notified both local police and CHC about the violation, and alerted them to the existence of the order and her history; she also provided copies of the order to CHC and notified them of her communication with law enforcement. In response, CHC’s human resources department requested information about the plaintiff’s abuser and informed her that the department “intended to speak with [the abuser] to hear [the abuser’s] side of the story.” Less than two weeks later, and one week before the plaintiff was due to start at the hospital, CHC sent the plaintiff a termination letter stating that her “employment offer for the Staff Nurse position at Boston Children’s Hospital has been rescinded effective March 12, 2019.”
In a three-count complaint filed in the superior court, the plaintiff contended that CHC violated both the nonretaliation provision and the noninterference provision of the DVLA, and CHC’s termination of her employment constituted a violation of public policy. CHC moved to dismiss, arguing that the plaintiff “was not an ‘employee’ within the meaning of the DVLA and was not entitled to its protections,” and that even if plaintiff was considered an employee, the complaint “failed to allege that she had provided CHC with notice that she was requesting leave under the DVLA; that such request was for any of the purposes set forth in [the DVLA]; or that she intended to undertake any of the statutorily protected actions.” Finally, CHC argued “that the complaint did not state a valid claim for a violation of public policy.” The superior court then found that the plaintiff was an “employee” under the DVLA but dismissed the claims for discrimination and noninterference. The plaintiff appealed to the Appeals Court, and the Supreme Judicial Court transferred the case sua sponte.
The Supreme Judicial Court affirmed the grant of the motion to dismiss as relating to the public policy claim. However, the court also affirmed the superior court’s judgment that the plaintiff qualified as an “employee” for the purposes of the DVLA, and consequently reversed, remanding the case with respect to the discrimination and noninterference claims. The court compared CHC’s proposed temporal restrictions upon the term “employees” to the definition of “domestic violence” within the DVLA and noted that “[t]he absence of similar temporal qualifications in the definition of ‘employees’ suggests that the Legislature did not intend to restrict the protections of the DVLA to current employees.” Thus, the court broadly interpreted the term “employees” under the DVLA to include employees who had been hired by their employers but had yet to perform any services.
With respect to the unlawful retaliation claim, the court noted that this was a case of first impression under the DVLA and looked to the FMLA and other sources for guidance. The court held that the plaintiff provided sufficient notice for DVLA purposes by informing CHC that her abuser had violated the order and that she was cooperating with law enforcement as a result. The court further held that this disclosure was sufficient to put CHC on notice of a potential need for leave under the DVLA, even though the plaintiff did not yet know the specific dates for which leave was required. Finally, the court rejected CHC’s arguments regarding the unlawful interference claim for the same reasons as the unlawful retaliation claim.
The sole dissenting opinion concurred with the court’s holding that the plaintiff “alleged sufficient facts to establish that she was an ‘employee’ under the Domestic Violence and Abuse Leave Act” and that relief on public policy grounds was unavailable. However, it concluded that the plaintiff did not provide “appropriate advance notice” to CHC regarding the need for leave under the DVLA, and the court should have dismissed the retaliation and unlawful interference claims because the notice requirement is a statutory prerequisite. The dissent thus strictly construed the DVLA’s notice requirement to require “a specific request for time off on a particular date, or a statement of the need for some number of days of leave time within the next thirty days.” Under this view, a protective order does not necessarily require absence from work, and the dissent distinguished this from a qualifying condition under the FMLA, which “necessitates that the employee be absent from his or her position.” The dissent further argued that a textualist interpretation of the DVLA “would not lead to an ‘absurd result,’ or contravene the Legislature’s clear intent,” and that it “would ensure that employers have a clear understanding of when an employee needs to take advantage of his or her statutory leave rights” without “discourag[ing] [employees] from pursuing enforcement actions against their abusers.” Finally, it noted that the Massachusetts Legislature could have modeled the notice requirement after the FMLA if it wished to intend for an “employee’s provision of a ‘condition precedent’ for leave, without more, to satisfy the act’s notice requirement. . . .”
In March 2021, while the plaintiff’s appeal in the Osborne-Trussell case was pending, “An Act Relative to Employment Protections for Victims of Abusive Behavior” was introduced to the Massachusetts legislature. The bill was not enacted and was reintroduced in 2023, and it remains pending as of the time of this article. If enacted, the bill would expand on the statutory definitions of abuse, domestic violence, and family member; provide alternatives to the required documentation and the associated procedures under the statute; and expressly include prospective employees within the protections afforded under § 52E. Additionally, the bill would modify Mass. Gen. Laws ch. 151B, which addresses unlawful employment discrimination in a manner akin to Title VII. The bill would make “status as a victim of abusive behavior” a protected category under Massachusetts employment discrimination law. It would further require that employers provide reasonable accommodations to victims of abusive behavior, provided that such accommodations do not impose undue hardship on the employer’s business, and prohibit discrimination, retaliation, and other adverse employment action against the survivor as a result of their status.
The Massachusetts bill’s expanded definition of domestic violence would cover all forms of abuse: physical, psychological, emotional, sexual, stalking, and harassment. This definition is critical for the survivor-employee because psychological and emotional abuse can be as traumatizing to an individual as physical abuse; the statute would thus protect those survivor-employees whose abuse is rarely or never physical. This definition therefore would provide both legitimacy and protection to the survivor suffering from the effects of “hidden” abuse and be an acknowledgment by policymakers that abuse does not have to be physical to impact an individual’s work performance.
Employers may be concerned that employees will take leave to which they are not entitled. However, statutes like the Massachusetts bill also protect an employer’s interests because the notice requirement avoids last-minute situations (e.g., regular callouts, tardiness, and other such staffing emergencies), and employers are empowered under the statute to request documentation to confirm the survivor’s status as well as the event(s) necessitating emergency leave. Moreover, the inclusion of a notice requirement means that employers will have adequate time to make alternative arrangements, and while notice is not always possible, the instances in which a survivor is unable to provide notice are emergency situations in which a survivor was apt to call out anyways. Truly, these callout situations are already an unavoidable consequence of doing business for the employer, and the statute entitles an employer to thereafter request supporting documentation. This helps avoid the issue of excessive leave, and employers are free to terminate employees who are unable to follow protocol and produce supporting documentation, or otherwise abuse their statutory rights. States may also include provisions that limit statutory protections to employers of a certain size to allay the concerns of smaller employers, who may be concerned that these leave provisions will disproportionately affect their business. Ultimately, providing leave to survivors will eventually result in an increase in productivity in the aggregate because they would have the opportunity to address the abuse’s ramifications on their personal lives. Once a survivor has the ability to access medical treatment, counseling, and legal services, they are empowered to stop the abuse once and for all, thereby eliminating the need for continued absenteeism and tardiness from work.
Similarly, statutes of this nature do not adversely impact an employer’s business with respect to reasonable accommodations because they contain carveouts whereby an employer need not honor the accommodation if it were to impose an undue hardship. While this may disadvantage survivors who work for smaller businesses, it also balances the employer’s and survivor’s interests and protects employers who may want to help but face significant constraints.
Regardless of the statutory protections at issue, many employers believe that protecting a survivor can come at the cost of endangering clients and other employees. Indeed, a 2004 survey indicated that approximately 10% of responding employers reported incidents of violence in their workplace. To help circumnavigate this concern, some states allow an employer to obtain a protective order for the business or allow an employer to obtain a protective order on behalf of their employee, provided that the employer shows that an employee “has experienced some form of violence or stalking or that a credible threat of violence or stalking can be demonstrated.” These workplace protective orders are practical, and states seeking to enact employment protections for survivors should consider adding this provision because it provides an added layer of security for the employer and minimizes the issue of other employees feeling unsafe in their workplace. However, there are significant criticisms of these laws because an employer seeking a protective order could put a survivor in grave danger if the abuser becomes aware of the order’s existence, and an employer’s protective order limits a survivor’s autonomy and privacy in deciding how best to address the abuse. Thus, it is critical that employers seeking protective orders first communicate with the survivor regarding the dangers associated with the employer’s obtaining such an order, and, ideally, obtain the survivor’s consent before seeking one.
Many Americans spend more time at work each week than they do in their own homes, and for many of us, our colleagues become a second family. Providing employment protections for survivors of abuse is a common-sense approach to helping free our “family members” from its constraints. Likewise, enacting legislation that helps survivors retain their employment ensures financial security, which is the principal limitation that prevents many survivors from leaving their abusive partners. Currently, roughly half of our nation provides some form of employment protection for this population. Massachusetts should expand on its existing protections and enact the “Act Relative to Employment Protections for Victims of Abusive Behavior,” and states should look to the Massachusetts legislation as a model for their own legislative reform. Without these statutes, we are preventing many survivors from escaping their abuse, becoming better and more productive employees, and contributing to our national economy. Accordingly, the time has come for states to adopt this common-sense legislation and protect survivor-employees as well as their employers from the impact of abuse.
