Employment Rights of Domestic Violence Victims

Domestic violence is a critical workplace issue. According to New York City-based Safe Horizon, the largest provider of services to victims of domestic violence in the country, one in five employed adults is a victim of domestic violence. See http://www.safehorizon.org/safework/. Nearly 64% of employees who are victims of domestic violence have indicated that their ability to work is affected by the violence. Id. Employers are said to incur nearly $6 billion annually in health care expenses and lost productivity as a result of domestic violence. Id.

Economic Factors

As the New York State legislature has recently recognized, a domestic violence victim's capacity to escape an abusive relationship is often dependent on economic factors such as finding and keeping a job and gaining financial security and independence. See N.Y.A. A00755A, 2009-2010 Sess. (2009), available at http://assembly.state.ny.us/leg/?bn=A00755. Frequently, victims of domestic violence will need time away from work to meet with attorneys or counselors, attend court hearings, arrange for alternative housing or recover from injuries. Id. However, out of embarrassment or fear of losing their jobs, domestic violence victims will often fail to inform their employers of the circumstances. Id. Accordingly, “it is not unusual for a victim of domestic violence to be terminated from his or her job or demoted because he or she needs time of[f] or flexible hours as a protective measure.” Id.

Amending the NY Human Rights Law

On July 7, 2009, New York State responded to the issue of domestic violence in the workplace by amending its Human Rights Law to include “domestic violence victims” in the category of those persons protected from employment discrimination. See N.Y. Exec. Law ' 292 and ' 296 (hereinafter, the “DV Amendment”). According to New York's Division of Human Rights, the DV Amendment “further[s] the public policy of New York State by protecting victims of domestic violence from discrimination in employment so they may have the ability to deal with the unique circumstances of their lives and achieve financial independence from their abuser.” See http://www.dhr.state.ny.us/pdf/trifold-domestic_violence.pdf.

As shown below, the DV Amendment significantly impacts the manner in which employers and employee victims will deal with the repercussions of domestic violence in the future.

The DV Amendment

New York's Human Rights Law already prohibits employers from discriminating against employees on the basis of age, race, creed, color, national origin, sex, sexual orientation, disability, genetic predisposition or carrier status, or martial status. See N.Y. Exec. Law ' 296. The DV Amendment extends such protections to victims of domestic violence. Id. at (a)(1).

The DV Amendment defines a “domestic violence victim” as “an individual who is a victim of an act which would constitute a family offence pursuant to [N.Y. Family Ct. Act ' 812].” See N.Y. Exec. Law ' 292(34). A “family offence” includes an act of disorderly conduct, harassment, stalking, criminal mischief, menacing, reckless endangerment, or assault and attempted assault (as those terms are defined under the N.Y. Penal Law) that is committed between members of the same family or household. See N.Y. Family Ct. Act ' 812.

Other States' Employment Rights for Domestic Violence Victims

Several states have enacted laws to protect the employment rights of domestic violence victims. See, e.g., Cal. Lab. Code ” 230 & 230.1; Colo. Rev. Stat. ' 24-34-402.7; Conn. Gen. Stat. ' 54-85b; Fla. Stat. ' 741.313; Haw. Rev. Stat. ' 378-72; 820 Ill. Comp. Stat. 180/1-180/45; K.S.A. ” 44-1131 & 44'1132; 26 Me. Rev. Stat. ' 850; N.C. Gen. Stat. ' 50B-5.5 & ' 95-270(a); Or. Rev. Stat. 659A. 270-.285; R.I. Gen. Laws ' 12-28-10; and Rev. Code. Wash. ' 49.76.030. However, the requirements of each state's laws vary significantly. For instance, North Carolina and Rhode Island protect employee victims only in connection with their efforts to obtain orders of protection. See N.C. Gen. Stat. ' 50B-5.5 & '95-270(a), R.I. Gen. Laws ' 12-28-10. By comparison, other states such as California, Hawaii, and Kansas include seeking support services, medical relief and provision of safe housing among the activities for which covered employees are protected. See Cal. Lab. Code ” 230 & 230.1; Haw. Rev. Stat. ' 378-72; and K.S.A. ” 44-1131 & 44'1132. In addition, most states only protect employee victims from discrimination arising from having made a request for leave. See, e.g., Cal. Lab. Code ” 230 & 230.1; Colo. Rev. Stat. ' 24-34-402.7; Haw. Rev. Stat. ' 378-72; and R.I. Gen. Laws ' 12-28-10. However, Illinois includes a general employment anti-discrimination provision in addition to its section protecting leave requests by covered employees. See 820 Ill. Comp. Stat. 180/1-180/45.

While the laws above are intended to prohibit discrimination against employee domestic violence victims, many are limited to requests for leave. By contrast, the DV Amendment in New York protects employee victims from all forms of employment discrimination. Accordingly, the New York law imposes significantly greater requirements on employers in order to protect the employment rights of employee victims.

Implications for Employers with Operations in New York

The DV Amendment addresses the unique circumstances of domestic violence victims by making it unlawful for an employer to discriminate against victims of domestic violence in hiring, compensation, requests for use of leave, job advancement, or other employment practices. See http://www.dhr.state.ny.us/pdf/trifold-domestic_violence.pdf. Employers are now prohibited from treating an employee who is a domestic violence victim differently from any other employee because of that employee's status as a domestic violence victim. Id. For example, if the employer's policies provide employees with time off for personal needs or family emergencies (e.g., paid time off, sick leave or medical leave), the employer may not deny a domestic violence victim the opportunity to use those same policies to take time off, for such things as meeting with lawyers or counselors, attending court appearances, finding new housing, attending doctors' appointments, or seeking other kinds of domestic violence assistance. Id.

The DV Amendment also prohibits employers from terminating an employee simply because the employee is a victim of domestic violence. Id. Thus, for example, an employer may not terminate an employee because the employee's abuser shows up at the workplace, the employee has obtained an order of protection, or the employee's abuser violates the order of protection or becomes abusive toward the employee in the workplace. Id. Instead, “the police should be called as with any other person who engages in misconduct in the workplace.” Id. As is always the case under the Executive Law, employers are prohibited from taking retaliatory action against domestic violence victims for filing a complaint of discrimination. Id.

New York employers should also be aware that failing to comply with the requirements of the DV Amendment ' or any aspect of New York's Human Rights Law ' may result in civil penalties of up to $50,000 or up to $100,000 if the conduct was willful, wanton, or malicious. See N.Y. Exec. Law '297(4)(c)(vi).

Recommendations for Compliance