Workplace Rights of Domestic Violence Victims

The New York City Human Rights Law was amended to require employers to provide reasonable accommodation to employees and applicants who are victims of domestic violence, sex offenses or stalking, and to prevent employers from discriminating against them because of their status as victims. NYC Adm. Code ” 8-101, 8-102, 8-107 and 8-107.1

According to Mayor Bloomberg, who signed the amendment into law on Dec. 22, 2003, these people are often unable to separate their status as victims from their jobs due to outside harassment or sexual assault impacting them at their workplace. Many times, victims of these crimes are late or miss several days of work, which can eventually lead to the loss of a job. Mayor Bloomberg believes that providing “reasonable accommodation” in the workplace will enable victims to remain productive and self-reliant, as well as help employers to retain their employees, minimize on-the-job disruptions and increase productivity.

'Reasonable Accommodation'

Of considerable importance to employers, a victim requesting a “reasonable accommodation” must be able to provide documentation of his or her status as a victim and otherwise be able to “satisfy the essential requisites of the job.” Examples of proper documentation would include statements of an employee's agent, a victim services volunteer, an attorney, a clergy member, a medical services provider, or a police or court record, or other corroborating evidence. Considering that victims of domestic violence, sex offenses or stalking tend to be hesitant to report this treatment to or to follow up with the proper authorities, some may lack the necessary documentation to claim the statute's protection.

To the extent that the reasonable accommodation requirement is triggered, however, this new law provides absolutely no guidance as to what would be “reasonable.” At the very least, employers may be compelled to grant some time off to abused employees so they can cope with matters related to their abuse and to take steps to protect employees from stalkers and others who attempt to harass them at work. But would it require an armed guard at the workplace; frequent break periods; adjustment of hours to permit off-premises (or on-premises) counseling? The answers to these and other questions are not spelled out in the law or in any statements of the Mayor. Moreover, in the context of psychological injuries arising from domestic violence, sex offenses or stalking, issues of the reasonableness of offered accommodation may lead to a battle of experts or of wills.

'Undue Hardship' Defense

Aside from the reasonableness of the accommodation offered by the employer, this new amendment would permit an “undue hardship” defense. Specifically, the amendment spells out at least four factors that would need to be analyzed in determining whether a reasonable accommodation would be an “undue hardship” for the “covered entity' business.” In short, these factors include: 1) the nature and cost of the requested accommodations; 2) the impact of the reasonable accommodation on overall financial resources or other aspects of the facility; 3) the employer's overall financial resources; and 4) the composition, structure, and functions of the employer's operation.

Conclusion

New York is the first municipality to enact a law extending this type of workplace protection to victims of domestic violence, sex offenses and stalking. Only time will tell if the ambiguities surrounding the documentation of status requirement and the concepts of “reasonable accommodation” and “undue hardship” will frustrate the victims of domestic violence, sex offenses and stalking in the workplace, or create unfair hardships for their employers.

The New York City Human Rights Law was amended to require employers to provide reasonable accommodation to employees and applicants who are victims of domestic violence, sex offenses or stalking, and to prevent employers from discriminating against them because of their status as victims. NYC Adm. Code ” 8-101, 8-102, 8-107 and 8-107.1

According to Mayor Bloomberg, who signed the amendment into law on Dec. 22, 2003, these people are often unable to separate their status as victims from their jobs due to outside harassment or sexual assault impacting them at their workplace. Many times, victims of these crimes are late or miss several days of work, which can eventually lead to the loss of a job. Mayor Bloomberg believes that providing “reasonable accommodation” in the workplace will enable victims to remain productive and self-reliant, as well as help employers to retain their employees, minimize on-the-job disruptions and increase productivity.

'Reasonable Accommodation'

Of considerable importance to employers, a victim requesting a “reasonable accommodation” must be able to provide documentation of his or her status as a victim and otherwise be able to “satisfy the essential requisites of the job.” Examples of proper documentation would include statements of an employee's agent, a victim services volunteer, an attorney, a clergy member, a medical services provider, or a police or court record, or other corroborating evidence. Considering that victims of domestic violence, sex offenses or stalking tend to be hesitant to report this treatment to or to follow up with the proper authorities, some may lack the necessary documentation to claim the statute's protection.

To the extent that the reasonable accommodation requirement is triggered, however, this new law provides absolutely no guidance as to what would be “reasonable.” At the very least, employers may be compelled to grant some time off to abused employees so they can cope with matters related to their abuse and to take steps to protect employees from stalkers and others who attempt to harass them at work. But would it require an armed guard at the workplace; frequent break periods; adjustment of hours to permit off-premises (or on-premises) counseling? The answers to these and other questions are not spelled out in the law or in any statements of the Mayor. Moreover, in the context of psychological injuries arising from domestic violence, sex offenses or stalking, issues of the reasonableness of offered accommodation may lead to a battle of experts or of wills.

'Undue Hardship' Defense

Aside from the reasonableness of the accommodation offered by the employer, this new amendment would permit an “undue hardship” defense. Specifically, the amendment spells out at least four factors that would need to be analyzed in determining whether a reasonable accommodation would be an “undue hardship” for the “covered entity' business.” In short, these factors include: 1) the nature and cost of the requested accommodations; 2) the impact of the reasonable accommodation on overall financial resources or other aspects of the facility; 3) the employer's overall financial resources; and 4) the composition, structure, and functions of the employer's operation.

Conclusion

New York is the first municipality to enact a law extending this type of workplace protection to victims of domestic violence, sex offenses and stalking. Only time will tell if the ambiguities surrounding the documentation of status requirement and the concepts of “reasonable accommodation” and “undue hardship” will frustrate the victims of domestic violence, sex offenses and stalking in the workplace, or create unfair hardships for their employers.