Posted Sep 29, 2005 06:39 am CDT
Domestic violence cases are a painful illustration of the reality that home and the workplace are seldom very far from each other, no matter how long or short the commute might be.
When an employee is victimized by domestic violence, the employer often finds itself at a troubling intersection where concerns about the victim and the company’s larger interests can collide.
More than 1.5 million adults are victims of domestic violence in the United States each year, according to Legal Momentum (formerly the NOW Legal Defense and Education Fund), an advocacy and research organization based in New York City.
More than 85 percent of them are women, the organization estimates. (The gender based pronouns used in this story reflect the occurrence patterns of domestic abuse.) Many of those women have jobs. But in an abusive relationship, a job can be another tool of manipulation.
Studies by Legal Momentum and others find that abusers often retain control over victims by forcing them to be economically dependent. An abuser will often sabotage the victim’s job, forcing her to rely on his income and thus preventing her from leaving him. As many as half of all victims report losing a job due at least in part to domestic violence. “Domestic violence in the workplace is a really untold story,” says Julie Goldscheid, a law professor at the City University of New York.
“Commonly, victims are afraid to talk to their employers, so they just let the situation develop, and it affects their productivity. All too many employers are unaware of the signs and don’t spot what’s going on,” says Goldscheid, the liaison from the ABA Commission on Domestic Violence to the association’s Section of Individual Rights and Responsibilities.
Often enough, though, employers take the hit. Legal Momentum’s research indicates that U.S. employers lose between $3 billion and $13 billion a year as a result of domestic violence. That amount includes lost productivity by employees victimized by domestic violence and the costs of hiring and training new workers when domestic violence victims leave their jobs.
“The first thing employers and their counsel need to know: You cannot afford to ignore this,” says Stacey P. Dougan, an Atlanta lawyer who advises companies about policies for dealing with domestic violence issues. “You can be held liable for not responding appropriately.”
A company may face tort liability if an employee is stalked and injured by a domestic abuser on company property, or if her abuser is able to reach her during work hours because the company failed to take appropriate security precautions, says Dougan, a member of the Domestic Violence Commission. Other employees might also have claims against the company if they are injured in a domestic violence incident in the workplace. On the other hand, Dougan says, a company may find itself on the wrong end of a discrimination lawsuit if it fires an employee for reasons that can be attributed to her status as a domestic violence victim.
Dougan says it is important for employers and their lawyers to be well-versed in the laws of their jurisdictions that might govern employer responsibilities to domestic violence victims. Some employers try to ignore the problem, unsure of what to do and simply hoping that the employee will “get her personal life together.” But usually the problem just gets worse, Dougan and other experts say, until some action must be taken. In some cases, the employer tries to get rid of the problem by firing the employee: no more harassing phone calls that disrupt the business day, no more worries about potential violence erupting at the workplace, no more lost productivity from someone with a recurring need for time off to seek counseling and medical and legal help.
Other employers respond aggressively in the opposite direction. In efforts to protect an employee, they want to seek restraining orders, provide funds to help the victim move and seek other means to stand up to the abuser.
But all those responses are flawed, Dougan says.
“Sometimes, people want to help too much,” she says. “It’s not usually an option to save someone from domestic violence. What you’re seeing is a snapshot of their life, but there’s a whole film there.”
She notes, for instance, that a direct inquiry about the nature of an employee’s injuries may violate medical privacy laws. It can also be unwise for an employer to give substantive advice, such as telling a victim that she needs to seek a restraining order against the abuser. If the victim interprets that advice as an order from the boss, it could be construed as inherently coercive—especially if the employee follows it to her detriment, Dougan says.
The problem with such off-the-cuff advice, Dougan says, is that in some circumstances the timing of a restraining order can decide whether it actually protects a domestic violence victim. Some abusers can become inflamed and escalate the violence after being served with a restraining order, she notes.
It can be just as legally problematic to fire an employee in efforts to sweep a domestic violence problem out of the workplace, Dougan says.
Only six states—California, Colorado, Hawaii, Illinois, Maine and North Carolina—have laws giving domestic violence victims specific job protections.
But at least half the states, Dougan says, have case law finding that companies violated statutes or public policy when they fired employees as a result of factors arising out of domestic violence, such as work absences for court appearances, medical treatment or meetings with counselors. Many states’ unemployment compensation laws also specifically allow a fired worker to qualify for benefits if she can show that the underlying cause of the firing was behavior, such as excessive absences, related to domestic violence.
In addition, some local jurisdictions apply what Dougan describes as “protective” ordinances to businesses. South Florida’s Miami-Dade County, for example, requires employers to give domestic violence victims as many as 30 days off to attend to matters related to their cases.
Similarly, New York City requires employers to make “reasonable accommodations” for crime victims. In a 2004 case, New York’s trial-level Supreme Court ordered a fired Department of Correction employee to be reinstated and awarded back pay after finding that the department failed to make reasonable accommodations for her status as a homeless victim of domestic violence. Reynolds v. Fraser, 781 N.Y.S. 2d 885.
Federal law also recognizes the rights of domestic violence victims in the workplace.
Dougan cites the Family and Medical Leave Act, which provides workers up to 12 weeks of unpaid leave to deal with medical issues. Last year, the Supreme Court of Alaska ruled that a female police officer who left the state after telling her department that she needed time to “get her life back together” and deal with post-traumatic stress due to domestic violence had provided sufficient notice to trigger the protections of the Family and Medical Leave Act. The court said the issues cited by the officer in her wrongful termination suit were exactly the sorts of things the act was meant to cover and the city should have granted her leave. Municipality of Anchorage v. Gregg, 101 P.3d 181. The most notable federal law dealing with the rights of domestic violence victims is the Violence Against Women Act, which funds shelters for battered women, rape prevention programs, law enforcement services to deal with domestic violence cases and civil legal representation for victims.
The 1994 law was reauthorized by Congress for the first time in 2000. The law is up for reauthorization again this year, and it will sunset on Sept. 30 if Congress does not vote to continue it.
The ABA has urged Congress to strengthen the Violence Against Women Act as part of the reauthorization process. “VAWA programs and policies have led to profound improvements in the criminal justice system’s response to domestic violence and sexual assaults,” said ABA President Robert J. Grey Jr. (whose term ended in August) in a letter sent June 22 to members of Congress leading the reauthorization push. “We must not let this successful program languish, as there is much more that must be done to combat the violence.”
There are multiple versions of the reauthorization bill in Congress, but most share some key elements. One provision, for instance, would mandate confidentiality for domestic violence victims to reduce the chance that insurers or others would deny them benefits. A key provision in the proposed Senate version would mandate unpaid leave for tending to matters arising out of domestic violence.
The proposed House version mandates only that employers allow domestic violence victims to use their accumulated regular leave time for such matters without penalizing them or unreasonably restricting the amount of leave that can be used in a given time frame. (About 60 percent of U.S. workers receive regular leave time, according to Labor Department figures.)
The Senate version also would promote insurance practices that do not discriminate against domestic violence victims.
Legal Momentum endorses the insurance provisions in the Senate version as a way to preserve coverage for domestic violence victims, says Lisalyn Jacobs, the group’s vice president for government relations.
Goldscheid downplays concerns expressed by some in the business community that proposed revisions to the Violence Against Women Act would have the effect of creating what amounts to another category of protected employees.
“People flinch at the idea of creating new protected classes, but this shouldn’t be controversial,” Goldscheid says. “Having workplace policies has been shown to help prevent violence and actually reduce the economic impact of domestic violence in the workplace.”
Businesses and other companies are not in a legal position to stand by and do nothing when an employee’s domestic violence problems land in the workplace, say Dougan, Goldscheid and other experts. But nor should an employer seek to tackle an employee’s situation as its own legal issue.
Instead, Dougan and Goldscheid endorse an approach that seeks a middle ground. “More and more employers are understanding that the best way to address this problem in the workplace is to help women reduce the chances of having violence follow them,” Goldscheid says.
Samples of some company policies are available on the Web site of the Corporate Alliance to End Partner Violence. The alliance is made up of large U.S. firms working to reduce the impact of domestic violence in the workplace by assisting employee victims, advocating for better protective legislation and funding research on the issue.
Dougan advises businesses to create a companywide domestic violence policy that includes statements about the company’s desire to assist employees dealing with abuse. This sends a message to victims and managers that the company will not simply fire an employee or discriminate against her in hiring, promotion or other job related activities, Dougan says.
Goldscheid and Dougan also recommend training every employee about domestic violence. This training should be conducted by an expert, such as an advocate from a local domestic violence community organization, or an employment lawyer with specific experience in domestic violence workplace issues, Dougan says. The training should include how to recognize the signs of domestic violence, the company’s policy on helping domestic violence victims and information on accessing community resources. In companies where many workers are from a particular ethnic or cultural group, the training is best conducted by someone versed in how domestic violence victims are treated within that group, says Jacobs of Legal Momentum.
She notes that a new provision in some proposed versions of the reauthorized Violence Against Women Act would provide specific funding for reaching out to victims in communities of color, those with disabilities, and those whose religious or cultural traditions may make it especially hard for them to escape domestic violence.
Under this approach, managers should refer the employee to domestic violence experts rather than try to deal directly with the issue, Dougan says. She recommends that every company designate someone to maintain ties with community organizations that help victims. That point person can then direct an employee to the help she needs. Allowing employees to deal with such a point person also resolves some of their embarrassment in dealing directly with a supervisor on such a personal matter, Dougan says.
Dougan also cautions against allowing other employees to become overly involved in trying to help a co-worker. She cites an incident when a group of co-workers collected money to help a fellow employee who had to run from her violent husband in the middle of the night. Dougan says the employees felt betrayed when their co-worker later returned to her abuser.
But sometimes a company’s employee is the perpetrator of domestic violence rather than the victim. In these cases, Dougan says, state laws vary about whether an arrest or even a conviction for violent behavior off the job provides a basis for firing an employee.
California and some other states have laws that exempt off-the-job activities from the scrutiny of employers. These laws are meant primarily to protect the right of workers to engage in political activities, potentially dangerous sports, and even to drink and smoke on their own time without fear of employer retribution. But Dougan says the courts have not thoroughly tested the question of whether the laws might also help an employee to avoid being fired for domestic violence if he has never been violent at work.
Dougan says the typical course of domestic violence doesn’t bring it into the workplace—although the exceptions often are tragic.
“As a general rule, most batterers are only violent at home,” Dougan says. “When someone is accused of domestic violence, their co-workers are often shocked and disbelieving. They might say, ‘I’ve never seen any signs of violence in him.’ But most people just don’t understand the nature of domestic violence—the need to control someone at home often comes with not feeling in control elsewhere.”
It is prudent to prepare for the exceptions without overreacting, Dougan says. Some businesses offer to change an employee’s work schedule, phone extension or location to help ensure her safety. The employer also might provide her abuser’s name and photo to security personnel with instructions to deny the abuser access to the building and call the police if he trespasses. In some cases, moving an employee’s assigned parking space closer to the building or having her escorted to her car by a security guard also are options worth considering.
Upon learning that an employee is an abuser, a company should be vigilant about watching for signs that the employee is engaging in that behavior in the course of his work or using company resources, Dougan says. Sometimes, a review of company telephone logs, e-mail or company vehicle records will reveal that they have been used to stalk or harass the victim. When that happens, the employee’s behavior becomes the employer’s business, she says. Employers with policies on domestic violence, sexual harassment or the use of company resources for personal activities likely have grounds to discipline or dismiss the employee, she says.
Dougan says most states give employers virtually unfettered rights to review employee e-mail because the employer owns the system and has the right to set policies about personal use. Similarly, while employers are not supposed to listen to the content of employee telephone conversations, they are allowed to review phone logs to determine where calls were made and the duration of those calls. Employers may also review time cards, travel logs and other information relating to how an employee spent time while on the employer’s clock.
“The minute you find out the perpetrator has used company time or resources, the employer must react in some way, or you may find you are liable for not acting the next time he hurts her,” Dougan says.
Employers are not obligated to make these reviews, according to Dougan, but their policies should require them to do so if they have knowledge that an employee has been accused of domestic violence.
Dealing with domestic violence problems in the workplace is just one aspect of the justice system’s efforts to strike a balance between often competing priorities in addressing the full scope of the issue.
Legal thinking is still developing, for instance, on the question of how to provide for the interests of children caught up in families where domestic violence occurs. “All too frequently, courts and the general public fail to see the connection between the abuse of the mom and potential abuse of the children,” says Margaret Drew, the ABA Domestic Violence Commission’s chair.
James M. Riehl, a district court judge in Kitsap County, Wash., across Puget Sound from Seattle, agrees with Drew’s assessment. Judges have made great strides in understanding some of the dynamics of domestic violence, but they should make an effort to be aware of the impact such orders have on the parties involved, including children, he says.
Riehl, a member of the Domestic Violence Commission, is now chair elect of the National Conference of Specialized Court Judges in the ABA’s Judicial Division. He says judges must be aware that abusers will sometimes turn their wrath on the children when the adult victim is no longer accessible. “Courts are very traditional,” Riehl says. “They rely on culture and tradition and are loath to interfere with a parent’s right to unrestricted access to his children.”
Riehl suggests allowing the abuser only supervised visitation with the children, at least until a full professional evaluation can be done to gauge the threat of abuse. A recent decision by the U.S. Supreme Court has focused attention on issues of the enforceability of orders in domestic violence cases.
On June 27, the Supreme Court ruled 7-2 that domestic violence victims may not sue municipalities or law enforcement agencies under federal law for failing to enforce protective orders. Writing for the court, Justice Antonin Scalia said statutory language stating that police officers “shall” make an arrest when an order is violated does not negate their traditional discretion regarding enforcement. Town of Castle Rock v. Gonzales, 125 S. Ct. 2796.
State and local officials had feared that a decision recognizing a right of domestic violence victims to sue for failure to enforce protective orders would leave them open to thousands of lawsuits over police handling of those orders.
But in the wake of the Castle Rock decision, some advocates for domestic violence victims say they will have to focus efforts to work with police and the courts to make enforcement more effective.
“As a practical matter, much of the progress advocates can make on enforcement is local,” Drew says. “We will have to work very hard to encourage policies to enforce the terms of protective orders.”
Margaret Graham Tebo, a lawyer, is a senior writer for the ABA Journal.
Margaret Graham Tebo, a lawyer, is a senior writer for the ABA Journal.