In 2016, before his impending departure, President Obama declared October “Domestic Violence Awareness Month.” The U.S. Department of Justice has defined domestic violence as “a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner. Domestic violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.”
Although domestic violence affects men and women alike, it has a disproportionate impact on women. Statistics reveal that nearly 1 in 3 women versus 1 in 4 men has been victims of [some form of] physical violence by an intimate partner within their lifetime.
Although most people do not view domestic violence as a kind of discrimination against women, it is certainly a consequence of discrimination against women. Violence against women can impede a woman’s progress in many areas, including, least expected, in the area of employment.
The impact of domestic violence on an individual’s employment can occur in various ways, most notably in a domestic abuse survivor’s ability to retain employment. Up to half of employed victims of domestic violence report that they lost their jobs due at least in part to the domestic violence, and almost 50% of sexual assault survivors lose their jobs or are forced to quit their jobs in the aftermath of the crime. Domestic abuse survivors also suffer extreme harassment from their abusers at work. Up to two-thirds of employed victims surveyed have reported that their abusers harassed them at work. Over half of employed victims of domestic violence reported missing work because of the abuse, and 47% were specifically prevented from working by the abuser. Survivors seeking to address the violence in their lives may also deal with excessive absenteeism either because they need to take leave from work to attend legal proceedings associated with incidents of abuse or to physically or emotionally heal from injuries or illnesses caused by the violence they have suffered and the attendant trauma. The National Coalition against Domestic Violence reports that victims of intimate partner violence lose a total of 8.0 million days of paid work each year, which exceeds $8.3 billion per year in cost.
Although domestic violence has been around for decades, U.S. laws and policies have only recently begun to address the impact of this violence on victim’s work lives. Currently, there are no federal laws that expressly prohibit employment discrimination against domestic violence victims. However, three Federal statutes provide some protection against domestic violence or the effects of domestic violence at work: Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Family and Medical Leave Act.
Sex-Based Disparate Treatment
The impact of domestic and sexual violence at work may result in a cause of action for disparate treatment against the employer when the employer extends a privilege to a co-worker of a different sex. There may also be a disparate treatment cause of action if the business employs both the victim and the abuser and treats them differently upon learning about the abusive relationship- absent some legitimate business reason for doing so.
Courts in various jurisdictions, including Maryland, have also recognized claims of disparate treatment based on sex-based stereotyping that might take place in the workplace. Such stereotyping might include statements or comments that the victim “deserved” the abuse. In Mosby-Grant v. City of Hagerstown, 09-2161 (4th Cir. 2010), Plaintiff Tiffany Mosby, a Maryland police officer, brought suit against her employer for subjecting her to a hostile work environment based, in part, on comments male officers made about victims of domestic violence. Specifically, during domestic violence training and in front of instructors, several of Mosby-Grant’s fellow recruits belittled the value of the training stating “women ‘cry this or that’ and then after they call the police ‘they just go back to the same guy who just beat them up.’ Another day, during physical training, instructors asked the male recruits how they felt about domestic violence classes. The recruits responded that the training was boring and repeated their comments about female victims returning to their assailants…” Id. The Maryland Court of Appeals found that the comments made by the male police officer were derogatory and constituted a hostile work environment based on sex, and fell into the same category as other sexist and disparaging language used against women.
Domestic Abuse as a Disability?
Being a survivor of domestic abuse does not, by itself, qualify you as a person with a disability as defined by the Americans with Disability Act (“ADA”). However, individuals who have suffered domestic abuse may experience injuries or illnesses such as post-traumatic stress disorder, depression, anxiety and or a variety of other physical injuries that could render them disabled by law. As with any qualified disabled employee, employers are required to engage in the interactive process and provide the employee with a “reasonable accommodation.”
The Victim’s Right to Recovery
When an employee has suffered abuse, not only might that employee become disabled as a result, he or she might face injuries that lead to a “serious health condition.” The Family Medical Leave Act (“FMLA”), covered under 29 CFR Part 825, provides certain employees with up to 12 workweeks of unpaid, job-protected leave a year, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. Under the FMLA, a covered employer must grant this leave if the employee needs to care for an immediate family member (spouse, child, or parent — but not a parent “in-law”) with a serious health condition; and when the employee is unable to work because of a serious health condition.
The FMLA defines a serious health condition as any illness, injury, impairment, or physical or mental condition that involves, among other things: 1) any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or 2) a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or 3) any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated.
What You Should Know?
Because the law is still evolving regarding the employer’s obligations to address workplace violence or the effects of domestic abuse at work, it is important to check your state’s laws and codes to determine what you are required to do and what the law allow to protect domestic abuse victims in the workplace.
Many states, for instance, go above and beyond the federal laws, regulations or requirements about this issue. In Maryland, for example, state employees who have suffered domestic abuse are protected in three additional ways that the federal laws do not recognize:
- Domestic Abuse Victims are a Protected Class: Maryland state employees are protected solely based on their status as a victim under Md. Executive Order No. 01.01.1998.25, and may not be disciplined or penalized because she is a victim of domestic violence. This Executive Order also states that employees with job performance or conduct problems that are caused by domestic abuse must first be referred to the State’s Employee Assistance Program.
- Public Policy Exception to Wrongful Discharge: Wholey v. Sears Roebuck, 370 Md. 38 (2002) states that employees who report suspected criminal activities to law enforcement are “statutorily protected from retaliation for such conduct.” Employers who fire employees because of such conduct might face a cause of action for the tort of wrongful discharge.
- Domestic Abuse Victims are Permitted Unemployment Compensation: In 2012 a new law went into effect that allows victims of domestic violence to collect unemployment insurance benefits if leaving their job is linked to the domestic violence. Lab. and Emp. Code Ann. §8-1001(3). The employee must reasonably believe that continued employment would jeopardize his/her safety and is required to provide documentation, including an active or recently issue a protective order, or other court document attesting to the abuse, or a police record documenting the abuse.
No matter the state where your business is located, it can only behoove you and your employees to maintain a workplace free of violence and to protect workers who are facing the effects of such abuse in their personal lives. Work with your human resources department to tailor your workforce policies pertaining to domestic violence accordingly.
- Md. Executive Order No. 01.01.1998.25
- Lab. and Emp. Code Ann. §8-1001(3)
- Wholey v. Sears Roebuck, 370 Md. 38 (2002)
- Mosby-Grant v. City of Hagerstown, 09-2161 (4th Cir. 2010)