October is National Domestic Violence Awareness Month. As a labor & employment law firm, Reid Kelly, P.C. writes this entry to raise awareness of some of the employment law protections afforded victims of domestic violence.
Domestic violence is a huge problem in our society. It crosses all lines, including economic, political, cultural, and racial. Some significant facts are that:
- Every 9 seconds in the US a woman is assaulted or beaten.
- Around the world, at least one in every three women has been beaten, coerced into sex or otherwise abused during her lifetime. Most often, the abuser is a member of her own family.
- Domestic violence is the leading cause of injury to women—more than car accidents, muggings, and rapes combined.
- Studies suggest that up to 10 million children witness some form of domestic violence annually.
- Nearly 1 in 5 teenage girls who have been in a relationship said a boyfriend threatened violence or self-harm if presented with a breakup.
- Every day in the US, more than three women are murdered by their husbands or boyfriends.
- Ninety-two percent of women surveyed listed reducing domestic violence and sexual assault as their top concern.
- Domestic violence victims lose nearly 8 million days of paid work per year in the US alone—the equivalent of 32,000 full-time jobs.
- Based on reports from 10 countries, between 55 percent and 95 percent of women who had been physically abused by their partners had never contacted non-governmental organizations, shelters, or the police for help.
- The costs of intimate partner violence in the US alone exceed $5.8 billion per year: $4.1 billion are for direct medical and health care services, while productivity losses account for nearly $1.8 billion.
- Men who as children witnessed their parents’ domestic violence were twice as likely to abuse their own wives than sons of nonviolent parents. http://domesticviolencestatistics.org/domestic-violence-statistics/
A typical domestic violence scenario involves the victim having to flee his/her home to escape life threatening abuse to themselves and/or their children. In many cases, the victim is economically dependent on the batterer, making it that much harder for the victim to flee. Given the disruption domestic violence brings to the lives of victims, it should come as no surprise that its effects often spill over into the workplace. In the employment context, victims of domestic violence are often victimized twice. Once by their batterer, and once more by an unsympathetic employer that terminates their employment. This often happens because victims of domestic violence may need to take time off from work to get a restraining order, medical attention, or to get emergency housing situated.
Sadly, many employers see this time off as an abuse of their time and attendance policies, or view the victim as creating an acute safety issue at the workplace, fearing that the batterer may show up and become violent at the worksite. Recognizing the unique circumstances facing victims of domestic violence, legislatures around the country have enacted laws specifically targeted at providing victims of domestic violence with employment protections. These laws are designed to protect the jobs of the victims, and to provide them with the necessary time to get the medical, judicial, and housing assistance they need to enable them to flee their batterer and protect their lives and that of their children.
While this article focuses on the law in New York City, the following jurisdictions have similar laws providing employment protections for victims of domestic violence: California, Colorado, Connecticut, District of Columbia, Florida, Miami-Dade County, Fla, Hawaii, Illinois, Kansas, Maine, New Mexico, New York, Westchester County, NY, North Carolina, Oregon, Philadelphia, Pa, Rhode Island, and Washington.
New York City has a Commission on Human Rights that is responsible for enforcing the New York City Human Rights Law (“NYCHRL” or the “Law”). The Law applies to employers with 4 or more employees, and prohibits discrimination in hiring and firing as well as work assignments, salary, benefits, promotions, performance evaluations, and discipline based upon race, color, creed, age, national origin, alienage or citizenship status, gender (including gender identity and sexual harassment), sexual orientation, disability, arrest or conviction record, marital status, or partnership status. The Law also prohibits your employer from making statements, asking questions during interviews or circulating job announcements that suggest a preference for or prejudice against hiring individuals based on the groups listed above. The Law also applies to employment agencies and labor organizations. See N.Y.C. Admin. Code §8-107.
In 2001, the Law was amended to add status as a victim of domestic violence to the above list of protected classes with regard to employment. The law was amended again in December 2003, protecting victims of domestic violence, sex offenses, and stalking in the workplace. Essentially, the Law now requires all employers provide reasonable accommodation to victims of these crimes. Under this provision, the NYCHRL prohibits an employer from refusing to hire, discharging, or discriminating against an individual because the individual is or is perceived to be a victim of domestic violence, sex offenses or stalking. As such, unlawful discrimination includes taking actions against a victim or perceived victim. An employer is required to make reasonable accommodations for a victim to permit her or him to perform the “essential requisites” of the job, unless doing so would be an “undue hardship” for an employer.
It is clear in the legislative history of the law that the New York City legislature intended that reasonable accommodations under this provision could include providing victims with time off or a modified work schedule. Employers presented with a request for accommodation under this provision may require the employee to provide certification that he or she is a victim. Such certification may come in a variety of forms, including: documentation from a victim services agency, attorney, clergy member, medical or other professional services provider; a police or court record; or “other corroborating evidence.” The request for accommodations and any documentation provided, including the fact of the domestic violence, must be kept confidential by the employer. Simply put, the law provides that if they are a victim of domestic abuse:
THEY MAY BE:
• Entitled to unpaid leave for medical appointments/social services, attorney consultations, and court dates.
• Entitled to unpaid leave to move and get settled in a new residence.
• Entitled to a transfer to another worksite away from the batterer.
• Required to provide proof that they are a victim.
THE EMPLOYER MAY NOT:
• Release any of the information the victim provides except when disclosure is required by applicable federal, state, or local law.
• Fire the victim, refuse to hire them, or otherwise discriminate in terms or conditions of employment based on their status as a victim.
See N.Y.C Admin. Code §8-107.
How this can play out in application is illustrated in an actual matter that I counseled a client on. The employee/victim worked in one of my client’s locations in the NYC borough of The Bronx. She fled her abuser, and was concerned that he may try to find her at her job. She asked for a transfer to one of my client’s locations in the borough of Queens, the closest to the domestic violence shelter that she was assigned to. My client called to get my advice on what they should do, and we discussed the meaning of “reasonable accommodation” and “undue hardship” under the Law. In my client’s case, it was not an undue hardship to grant the transfer, because he had an opening in a Queens store. It is important to note that my client is not unionized. I imagine it could get a little more complicated in a unionized environment if seniority governs transfers and the union is unsympathetic. However, that is for discussion at another time!
As you can see from the above, laws like the NYCHRL give victims of domestic violence much needed employment protections at the critical time period when they are experiencing serious trauma and disruption in their private lives. It requires the employer to pause, look at the employee’s predicament, and grant any requested reasonable accommodation that would enable the employee to remain employed while he/she flees their batterer. Remaining employed is sometimes the only way for the victim to avoid having to return to the batterer for economic means. This can be a life saver.
Also mentioned above is the fact that many local jurisdictions have laws similar to the NYCHRL. However, many jurisdictions do not. As blogged here (http://www.theemployerhandbook.com/2011/10/employer-alert-fmla-for-domest.html) by my friend Eric Meyer, there are some federal legislative efforts to enact national employment protections for victims of domestic violence. We shall pay close attention to these developments. In the meantime, while this article focuses on laws that specifically protect victims of domestic violence, be aware that most states also have laws protecting victims of crimes from being terminated for cooperating with investigations, and/or testifying in court. In addition, existing federal laws covering medical and family leave (“FMLA”), and disability leave (“ADA”), may also apply to protect the jobs of victims of domestic violence in certain circumstances. Still, even combined, none of these laws provide the type of relief that laws that are specifically drafted to protect the jobs of domestic violence victims provide. Employers in jurisdictions with these laws should include policies in their employee handbook, and make sure that managers are trained on the policies. From a compliance standpoint, as with all situations, employers should look at the facts and then determine which laws may apply. Consultation with experienced labor and employment counsel is strongly advised.
If you, or anyone you know is a victim of domestic violence, log onto http://www.thehotline.org/, or call 1-800-799-SAFE for referrals to local resources for victims of domestic violence.
With the experience and expertise of a large law firm, and the flexibility and lower costs of a small law firm, Reid Kelly, P.C. is committed to ensuring that small companies, and not-for-profits, have access to competent representation in labor, employment, and immigration law matters at rates that are reasonable and affordable. For more information, call us at (718) 412-8452.
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