Domestic Violence, Sexual Assault, and Stalking: Develop a Workplace Response
By Erin Winters, JD
Pacific Employment Law
Victims of domestic violence, sexual assault, and stalking lose tens of thousands of work hours and jobs annually. Employers that utilize a response plan to support employees are able to address dangerous situations quickly and stay in compliance with the myriad of state and local laws protecting victim rights.
Abuse Is Prevalent
Domestic violence, sexual assault, and stalking affect the personal and professional lives of millions in the United States. The abusive behavior can be physical, sexual, emotional, economic, or psychological. Victims report a decline in job performance and miss work to seek medical attention, obtain a restraining order, or find a safe place to stay. Others cannot get to their job when an abuser disables their car, sabotages childcare arrangements, or leaves them without cash for public transportation.
Identify the Legal Patchwork
Congress has not passed laws addressing victims’ employment rights; however, a 2012 guidance from the Equal Employment Opportunity Commission (EEOC) confirms that Title VII and the Americans with Disabilities Act (ADA) apply. Examples provided in the agency’s guidance (note that men also may be victims) illustrate problematic scenarios for employers:
- An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential “drama battered women bring to the workplace.”
- A seasonal farmworker’s supervisor learns that she has recently been subject to domestic abuse and is now living in a shelter. Viewing her as vulnerable, he makes sexual advances, and when she rejects his advances, he terminates her.
While the federal response is lacking, dozens of states, counties, and cities have developed robust protections for victims in three areas: anti-discrimination, harassment, and retaliation rights; leaves of absence; and workplace accommodations. The number of locations passing laws has grown dramatically in the past five years. 1 Several states and cities passed or began enforcing new laws in 2018, with many more legislatures and city governments considering similar laws this year.
Develop a Response
Employer action plans should prioritize employee safety and provide guidance for human resources (HR) professionals and managers who will need to navigate a maze of state and local laws when responding to a victim’s request for a leave of absence or an accommodation. Companies with multistate operations will have to determine whether they will adopt a one-size-fits-all or state-by-state approach when creating their response program. Here are key components for an employer to consider during development of a response plan.
Extensive Manager Training
Supervisors must know how to speak with victims, as well as understand the types of abuse and potential injuries, and possibility for exacerbation of pre-existing injuries.2 They must also be trained about associated employee rights2 and know who at the organization will take reports of violence and respond to leave and accommodation requests.
This training will help managers and leave administrators coordinate the proper leave designation and tracking, whether through state and local leaves designated for victims, leave provided under the federal Family and Medical Leave Act (FMLA), or the state equivalent for qualifying injuries or illness. Many state and local laws allow victims to take time off from work to obtain protective or restraining orders, engage in safety planning, seek medical care and counseling, or find services from a domestic violence shelter, program, or rape crisis center. The amount of leave time varies from a fixed number of days to a “reasonable” time that is paid in some locations. Those leave rights are in addition to laws ensuring crime victims can take time off work to serve as a witness in a court proceeding, or to use leave under the FMLA or state equivalent.
Cities and states also allow victims to use paid sick leave to cover absences because of the abuse. Several sick leave laws include a carve out for “safe time” so employees can take paid time off because of the abuse and seek services such as counseling, safety planning and implementation, attend court hearings, or participate in legal proceedings related to abuse.
Consider accommodations to ensure safety. Some states require a full interactive process to determine reasonable accommodations for victims who may need a modified work schedule or a transfer to a new work location. California requires workplace “changes” to ensure safety, including installation of locks, changing your shifts or telephone numbers, reassignments, or keeping a record of what happened to employees.
Handbooks and stand-alone policies need to designate victims as a protected class.
Nearly a dozen cities and states have passed laws that prohibit victim discrimination, retaliation, and harassment.1,2 In California, for example, an employer cannot treat victims differently or terminate their employment because they are victims. Leave, safe time, and accommodation rights need to be outlined so that an employee has a written resource of available options and employer requirements.
Employees must be aware of their rights and employer resources. Employers should update new hire packages with required notices (such as California’s Rights for Victims) and undertake employee outreach efforts. Employers will want to review their posted notices and ensure compliance with state and local laws. Notices should be in posted in languages other than English as needed, based on workforce demographics.
Distribution or posting of a list of designated employees appointed to support and provide resources to victims as well as information about employee assistance programs can assist in educating the workforce.
Prioritizing employee confidentiality need not prevent employers from proactively protecting their workforce. Several states have proposed or enacted laws allowing employers to apply for restraining orders to prevent violence, harassment, or stalking of their employees.
When an employee is granted a protective order, employers must comply with the requirements, including measures such as limiting or prohibiting contact with employees. At least one court has found an employer liable when it failed to protect an employee who had an order of protection.3
Employers are often surprised to learn that a majority of states provide unemployment benefits for victims who are forced to leave their jobs, which can happen frequently in such cases.
Employees who are victims of domestic violence, sexual assault, and stalking require immediate support and guidance about their growing set of rights. Employers who deploy a workplace response in coordination with HR and managers can effectively assist victims facing a terrifying situation and remain in compliance with the rapidly changing legislative priorities on state and local levels.
- For a frequently updated list of major leave requirements in U.S. private sector jurisdictions, visit https://www.xperthr.com/fifty-state-charts/leave-laws-by-state-and-municipality/20973/.
- Resources to develop supervisor training include https://www.workplacefairness.org/domestic-violence-workplace and https://family.findlaw.com/domestic-violence/domestic-violence-in-the-workplace.html.
- See the case of Gantt v. Security USA, Inc., and VSI, Inc., 356 F.3d 547 (4th Cir. MD 2004),cert denied534 U.S. 814 (2004).