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Workplace Protections for Victims of Domestic Violence, Sex Offenses, or Stalking

by mjpospis on December 11, 2013

in Articles, Domestic Violence Victim Discrimination, Employment Discrimination

An eye-opening Metro article highlights the difficulties faced by victims of domestic violence with respect to obtaining appropriate housing.

Victims of domestic violence may also suffer discrimination in the workplace, where its effects can be particularly devastating. As explained by the New York Supreme Court court in Reynolds v. Fraser, decided in 2004:

The ability to hold on to a job is one of a [domestic violence] victim’s most valuable weapons in the war for survival, since gainful employment is the key to independence from the batterer. A batterer causing the victim’s job loss can incite financial despair when the victim realizes that she cannot provide for herself or her children without the batterer’s assistance. … Moreover, with each firing it becomes more difficult for victims to obtain new jobs. They are labeled as problematic employees while no effort is made to hold the abusers responsible[.]

Fortunately, state and local anti-discrimination laws extend protections to employees who are victims of domestic violence, sex offenses, and stalking.

New York State Human Rights Law

For example, Section 296 of the New York State Human Rights Law makes it an unlawful discriminatory practice:

For an employer or licensing agency, because of an individual’s … domestic violence victim status, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. (Emphasis added.)

Section 292 of that law, in turn, defines “domestic violence victim” as “an individual who is a victim of an act which would constitute a family offense pursuant to [Family Court Act § 812(1)].”

New York City Human Rights Law

The New York City Human Rights Law (NYCHRL) provides more detailed and broader protections, which are codified in section 8-107.1 of the New York City Administrative Code (titled “Victims of Domestic Violence, Sex Offenses or Stalking”). Specifically, the NYCHRL makes it an unlawful discriminatory practice

for an employer, or an agent thereof, to refuse to hire or employ or to bar or to discharge from employment, or to discriminate against an individual in compensation or other terms, conditions, or privileges of employment because of the actual or perceived status of said individual as a victim of domestic violence, or as a victim of sex offenses or stalking.

The law is not limited to abuse arising in the marital relationship, and broadly defines “victim of domestic violence” as

a person who has been subjected to acts or threats of violence, not including acts of self defense, committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim, by a person who is or has been in a continuing social relationship of a romantic or intimate nature with the victim, or a person who is or has continually or at regular intervals lived in the same household as the victim.

In addition to preventing outright discrimination, the NYCHRL also requires employers to

make a reasonable accommodation to enable a person who is a victim of domestic violence, or a victim of sex offenses or stalking to satisfy the essential requisites of a job provided that the status of a victim of domestic violence or a victim of sex offenses or stalking is known or should have been known by the covered entity.

An employer may assert an affirmative defense “where the need for a reasonable accommodation is placed in issue” and “the person aggrieved by the alleged discriminatory practice could not, with a reasonable accommodation, satisfy the essential requisites of the job or enjoy the right or rights in question.”

Case Law

In an early (and apparently the first) case interpreting and applying NYCHRL § 8-107.1, Reynolds v. Fraser, the New York State Supreme Court explained the salutary purposes of the law:

In 2001, based on the foregoing public policy considerations, the New York City Council enacted an amendment to the City’s Human Rights Law to prevent employers from discriminating against victims of domestic violence (Administrative Code § 8-107.1). The stated purpose of this amendment was “to protect the economic viability of victims of domestic violence and to support their efforts to gain independence from their abusers” by “enabl[ing] victims of domestic violence to speak with their employers without fear of reprisal, about a domestic violence incident or about possible steps that will enhance their ability to perform their job without causing undue hardship to the employer”. (Citing Local Law No. 1 [2001] of City of NY § 1.)

The Reynolds petitioner was a “victim of domestic violence” under the statute.  The court proceeded to determine “whether the [employer]’s sick leave policy — or its implementation with respect to petitioner and those similarly situated — is impermissibly discriminatory.”  Defendant continued to employ the petitioner and terminated her “when she was living in a shelter for abused women with an apparent unverifiable address.”

The court vacated the decision to fire the plaintiff, reasoning:

Respondents may not have intentionally acted in bad faith, as petitioner contends, but they did act in contravention of Local Law No. 1 in that they failed to make reasonable accommodations for petitioner’s status as a homeless victim of domestic violence. The end result here, petitioner’s loss of a job at the point when she was finally getting her living situation under control, is exactly the kind of fallout that Local Law No. 1 was enacted to prevent.

Actionable Conduct

Of course, not all cases implicating the statute will fit Reynolds‘ fact pattern. Other types of conduct that may implicate the State and City Human Rights Laws’ protections of domestic violence victims may (but do not necessarily) include:

  • Terminating you because your employer suspects you may be the victim of domestic violence, sex offenses, or stalking.
  • Terminating you because your employer believes your abuser may confront you at work.
  • Terminating you because you obtained an order of protection against your abuser.
  • Prohibiting you from taking time off for going to court, moving, or seeking assistance due to domestic violence, while permitting other employees to take time off for personal needs and family emergencies.

If you believe you have suffered discrimination at work because of your status as a victim of domestic violence, sex offenses, or stalking, feel free to contact us today to discuss your rights.

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Categories: Articles, Domestic Violence Victim Discrimination, Employment Discrimination

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