Reforms in both criminal and family law over the last 30 years have heightened protection for victims of domestic violence. More recently, an awareness of the effect of domestic violence on the workplace has emerged, and legislatures have responded with an assortment of employment-related reforms. Employers need to be aware of these legal developments and consider proactively responding in their own workplaces.
Domestic violence—defined as a pattern of behavior in which one intimate partner uses physical violence, coercion, threats, intimidation, isolation and emotional, sexual, or economic abuse to control the other partner in a relationship1—persists as a significant, societal problem. Approximately 25 percent of women and 7 percent of men in the United States report that they have experienced such abuse in their lifetime. Each year, more than 1.5 million women and 800,000 men are raped, stalked, or assaulted by an intimate partner.2 And the violence can be fatal. Nationally, 1,181 women and 329 men were killed by an intimate partner in 2005.3 In Minnesota in 2009, domestic violence led to the death of at least 12 women, one man, and ten children.4
Over the last 30 years, criminal and family laws have evolved to address this epidemic. More recently, there is a growing (albeit incremental) recognition that employment laws and policies may complement these efforts. Lawyers who advise and litigate on behalf of companies should be aware of the social science and legal developments that support the need for companies to acknowledge and address the effects of domestic violence in the workplace.
Impact on the Workplace
There is little doubt that domestic violence impacts nearly every workplace. In a 2007 survey of over 500 employees working at Fortune 1,500 companies, 26 percent of the women and 8 percent of the men identified themselves as victims of domestic violence.5 In another study of 2,400 employees across three different industries (insurance, academia, and transportation), 10 percent of the employees had experienced domestic violence in the last 12 months, and between double and triple that number had experienced domestic violence in their lifetime.6 The violence may follow the victim-employee to work, as abusive partners seek to sabotage employment in an attempt to expand their realm of control and make the victim more dependent.7 For those employees who attempt to leave an abusive relationship, their former partners may seek them out at work because of the predictability of their location.8 Current victims’ productivity may thus suffer because of workplace harassment or stalking or because of the stress and distraction caused by the abuse at home.9 Current victims may also miss work in an attempt to address the effects of domestic violence: recovering from or seeking medical assistance for injuries, participating in counseling, finding new housing, developing safety plans with a victim advocate, or obtaining legal advice and attending court proceedings.10
The workplace impact is not limited to the victims’ experiences. Coworkers also suffer consequences, including increased stress and distraction because of their perception of the abuse and an increased workload due to the victims’ decreased productivity.11 Perpetrators may also harass or threaten coworkers and even supervisors directly;12 in extreme cases, though relatively uncommon, perpetrators may even physically harm them.13 Although less work has been done to demonstrate the effect that perpetrators have on their own workplaces, several recent studies support that they also are less-productive employees.14 Two small-scale studies of men in batterer-intervention programs found that they often missed work or had difficulty concentrating at work because of the violence. Many perpetrators also admit to using company telephones, email, and vehicles to stalk or harass their partners.15 All told, the impact of domestic violence in the workplace, at least in terms of the victims’ productivity losses and health-care costs, has been estimated at $5.8 billion annually.16
The Employers’ Role
The financial incentives alone could inspire employers to devise strategies to address domestic violence in their own workplaces. Collectively, employers could also play an important societal role in combating domestic violence. For those experiencing domestic violence, stable employment, or some level of economic independence plays a critical role in enabling them to separate from their partner.17 The workplace also serves as an effective vehicle for disseminating information about available resources, such as counseling and services provided by employee-assistance programs and local and national domestic abuse and batterer-intervention programs. Further, employers can train employees to recognize early warning signs of domestic abuse and to intervene if the employee wants protection or other assistance to reduce, or even prevent, future violence.18
Many companies already recognize the benefits of adopting workplace domestic violence policies and programs.19 Nationally, the Corporate Alliance to End Partner Violence, founded in 1995 by business leaders who view the workplace as an effective vehicle for combating domestic violence, has dozens of corporate members (including several Minnesota companies) who “exchange information, collaborate on projects, and use their influence to instigate change.”20 Locally, as part of its Initiative for Peaceful Families and Communities, Ramsey County established the Workplace Action Team, a collaboration of businesses and nonprofits, that for over 20 years worked together to develop tools and resources aimed at creating violence-free, respectful workplaces. In particular, the Workplace Action Team worked with Theatre-at-Work, the Sheila Wellstone Institute, and Verizon Wireless to create theatre-based training and to produce a video, “None of Our Business,” about appropriate workplace responses to domestic violence. Although the team no longer meets, the tools and resources it created are still available and Ramsey County continues to train employers.21 Another initiative, the Community Violence Prevention Institute, led by Metro State University, developed resources and training with the goal of making “domestic violence the business of the employer.”22
Notwithstanding the great need for employers to address domestic violence and the many resources available to those who choose to do so, relatively few employers have domestic-violence-specific policies or programs. According to a 2005 Survey of Workplace Violence Prevention, only 29.1 percent of businesses have policies addressing workplace violence generally, and less than half of those address domestic violence specifically. Only 4 percent of businesses conduct training on how to respond to issues of domestic violence.23 Similarly, very few Minnesota businesses have policies or programs directed at addressing domestic violence. Karen Gureghian, president-elect of Human Resource Professionals of Minnesota, commented that in her over 15 years of human resource experience she has rarely seen a separate policy addressing domestic violence. “Most companies now have a workplace-violence policy in place and will sometimes include language regarding domestic violence within this policy,” she said.
A recent survey of corporate executives further reveals this disconnect: Although two in three corporate executives say that domestic violence is a major problem in our society and 55 percent cite its harmful impact on productivity in the workplace, only 13 percent say that companies should play a role in addressing domestic violence.24 Nearly all view the family and social service organizations as the appropriate groups or institutions for addressing the problem.25 Many companies are reluctant to involve themselves in what is still predominantly viewed as a personal matter.26 Even those who see the value of intervening may fear increased liability from knowing about, and then failing to prevent, the violence.27 Those who advise companies, however, need to be aware of the evolving body of law that strengthens the business case for employers proactively addressing domestic violence.
The Legal Response
Historically, victims of domestic violence have had little legal recourse if their employers chose to discharge or demote them because of the violence. Nationally, and in Minnesota, this seems to be happening regularly. A 1998 report by the General Accounting Office indicated that 25 percent to 50 percent of victims lost a job at least in part due to domestic violence.28 In a recent, informal survey of 41 domestic violence advocates working with clients throughout Minnesota, nearly 40 percent responded that, in the last year, one or more clients reported being fired and over 50 percent had clients report suffering workplace consequences after filing for an order for protection. Thirty-five percent of the advocates had one or more clients report losing a job simply because they were known or perceived to be a victim of domestic violence.29
Because most employees are at-will, they may be fired for any reason that does not otherwise violate the law. For example, in a 1995 case from the Eastern District of Pennsylvania, Green v. Bryant, an employee who reported to her employer that she had been violently assaulted by her husband and sought medical treatment for her injuries not only lost her job, but the employer retroactively terminated her health insurance so that her costs were not covered.30 Because she was an at-will employee, the court found no liability on the part of the employer for this seemingly outrageous conduct.31 While some employers may terminate the victim’s employment based on a genuine concern for tort liability if the violent partner were to enter the workplace, those fears may be misplaced. Even in the most extreme circumstances, courts generally seem reluctant to hold employers responsible for this harm.32
Federal Employment Law. While there have been several federal legislative initiatives seeking workplace protection for victims of domestic violence,33 none of the current federal employment laws directly applies to these employees.34 Some employees who suffer workplace consequences because of domestic violence can establish a Title VII gender-discrimination claim, particularly when their abuser is a coworker.35 The most significant development in this area, however, has been at the state level, through both the courts and the legislatures.
Public-Policy Exception to At-Will Employment. A few states have recognized a public-policy exception to the at-will employment doctrine that prohibits employers from discharging employees because of their experience with domestic violence.36 Most recently, the Washington Supreme Court concluded that the state had a “clear mandate of public policy of protecting domestic violence survivors and their families and holding their abusers accountable”37 and applied the policy to allow “employees to do what they must to prevent domestic violence, without fear of losing their economic independence.”38 As the Massachusetts Superior Court explained several years earlier:
The public policy interests here are primal, not complex: the protection of a victim from physical and emotional violence; and the protection of a victim’s livelihood. The preservation of a livelihood should serve to reduce domestic dependence and its concomitant vulnerability to abuse. The two are connected. A victim should not have to seek physical safety at the cost of her employment.39
Even the dissenting opinion in the Washington case agreed that “public policy clearly prohibits employers from discharging an employee for obtaining a protection order, filing a complaint against an abuser, cooperating with the investigation and prosecution of the alleged abuser, finding alternative living arrangements, or accessing support services for domestic violence victims.”40 Its concern was its view that the majority opinion essentially prohibited an employer from discharging an employee for absenteeism-related domestic violence.41
Most states, including Minnesota, have not addressed this issue explicitly, but there is at least some potential that other states will follow Washington’s lead.42 In two earlier cases, where the court rejected the public policy arguments,43 one at least acknowledged that the result might have been different had the employee sought court protection from the violence. Employment laws and policies should not require employees to seek court relief, however, because in some circumstances, such efforts only exacerbate the violence.44
State Legislation. The most significant legal response to the workplace effects of domestic violence is the state employment laws adopted over the last decade. The legislative approaches are varied—from mandating job-protected time off to prohibiting discrimination to requiring reasonable workplace accommodations—but more than half of the states have enacted at least some kind of domestic-violence-specific employment law.45
Illinois has taken the lead in comprehensively addressing this societal issue. Enacted in 2003 and further strengthened last legislative session, Illinois’s Victims’ Economic Security and Safety Act begins with a strong statement of its purpose:
[T]o promote the [s]tate’s interest in reducing domestic violence, dating violence, sexual assault and stalking by enabling victims of domestic or sexual violence to maintain the financial independence necessary to leave abusive situations, achieve safety, and minimize the physical and emotional injuries from domestic or sexual violence, and to reduce the devastating economic consequences of domestic or sexual violence to employers and employees.46
While comprehensive in its reach, VESSA does not provide a private right of action against employers; it instead places the enforcement responsibility with the Department of Labor.47 Nonetheless, VESSA contains several components, each of which at least some states have also adopted.
Job-Protected Leave. The core of Illinois’s law provides job-protected leave to employees who have experienced or who have a family or household member who has experienced domestic or sexual violence. The leave may be used to seek medical attention or recover from injuries, obtain assistance from a victim-services organization, attend counseling, participate in safety planning, or seek legal assistance. The law, as recently amended, requires employers who have between 15 and 49 employees to provide up to eight weeks of leave and those with over 50 employees to provide up to 12 weeks. The law also protects the benefits, pay, and other terms and conditions of employment, including medical benefits, for all employees who take such leave. Employees seeking leave are to provide at least 48 hours’ notice, unless it is not practicable, and employers may require certification of the need for the leave. All information provided to the employer in this context must be “retained in the strictest confidence,” however, and employers may not retaliate against any employees who exercise their rights under the law.48
Eight other states currently provide similar work-protected leave. Four more states, including Minnesota, provide time off but only to seek judicial relief from the abuse.49 In March 2008, the District of Columbia passed the nation’s first law requiring employers to provide paid time off to employees seeking services related to domestic abuse. And the trend is continuing in this direction. Fourteen states, including Minnesota, introduced new leave legislation in the last session, the majority of which sought paid time off for victims of domestic violence. Minnesota’s proposed legislation seeks paid leave for absences related to domestic violence that could be used for medical attention, psychological or other counseling, victim services, and relocation assistance.50 Both bills tie the permissible leave to hours worked, however, and cap it to a certain number of hours per year, depending on the size of the employer.
Many of the current or proposed laws, including the most recent D.C. legislation, follow an FMLA approach in that they apply only to larger employers and tie the amount of time off to the number of hours the employee has worked for the employer. Illinois’s approach is more generous than that of any other state: it provides significant leave (eight or 12 weeks per year as compared to three to 30 days provided by other states) that is not directly related to the number of hours worked. Similar to many other states’ leave legislation, Illinois’s law applies to employers with 15 or more employees.
Anti-Discrimination/Workplace Accommodation. Illinois’s VESSA also protects employees who are victims of domestic violence or perceived as having experienced such abuse from workplace discrimination.51 VESSA defines discrimination as including the failure to provide a reasonable accommodation to the employee for the “known limitations resulting from the circumstances relating to being a victim of domestic or sexual violence.” Imitating the language of the Americans with Disabilities Act, Illinois’s law thus affirmatively requires employers to accommodate qualified employees who have experienced domestic violence unless such accommodations would “impose an undue hardship” on the employer. In response to “actual or threatened domestic or sexual violence,” employers are to consider accommodations such as:
… adjustment to a job structure, workplace facility, or work requirement, including a transfer, reassignment, or modified schedule, leave, a changed telephone or seating assignment, installation of a lock, or implementation of a safety procedure, or assistance in documenting domestic or sexual violence that occurs at the workplace or in work-related settings … .52
This aspect of Illinois’s law is the most unique. Although states’ leave legislation often includes an antidiscrimination or retaliation provision related to the leave requests, only New York City and Westchester County, New York have antidiscrimination and accommodation provisions like those in Illinois. The recent federal proposals have included both of these provisions, however, and New York and Oklahoma introduced antidiscrimination legislation in the last session.53 Workplace accommodation legislation seems to hold the most promise for encouraging proactive strategies for reducing and even preventing harm to an individual and added cost to the employer. The legislation requires employers to address the individual needs of employees affected by domestic violence. Certainly, reasonable, job-protected time off could be one of the many accommodations an employer could provide, but it need not be the exclusive assistance provided and other, protective and proactive action by the employer may be even more effective. Such legislation also may, in effect, encourage employees to report the abuse they are experiencing and, in turn, require employers to develop policies and train key personnel to effectively handle such reports.
Unemployment Insurance. Illinois, like many other states, also provides unemployment compensation to individuals who voluntarily leave work for safety reasons related to domestic violence.54 As of last fall, 30 states, including Minnesota, had similar provisions, and even more may be adopting such legislation in response to the 2009 American Recovery and Reinvestment Act, which grants states extra funding for extending unemployment insurance benefits to individuals who leave their jobs for “compelling family reasons,” including domestic violence.55 Minnesota’s current unemployment compensation laws, just expanded last session, provide benefits both to persons who quit their employment because of domestic abuse and to those who were “discharged as a result of conduct that was the result of the applicant or [their] immediate family member being a victim of domestic abuse.”56
Illinois’s comprehensive approach to addressing domestic violence from another angle, the role that employers can and should play, is one that Minnesota and other states committed to this issue may seek to emulate.
A Call for Corporate Allies
Even absent legislation to serve victims of domestic abuse, employers can and should be part of the larger, community response to this societal problem. Implementing strategies to address the effects of domestic violence in the workplace makes financial sense and may help avoid other liability. More importantly, employers have the unique ability to provide financial stability and other meaningful support to employees experiencing domestic violence and, perhaps, to make a difference in their lives. As one survivor of domestic violence has stated, “Were it not for my company’s program on intimate partner violence, not only would I probably not have a job, I would probably not be alive today.”57
Depending on the size and resources of the employer, effective strategies will vary, but corporate leaders recommend these steps for creating an effective workplace program:58
- Organize a Multidisciplinary Team: With support from upper management, employers should create a committee dedicated to this issue that has representatives with different perspectives, including human resources, legal, security, internal communications, public or media relations, community outreach, employee assistance, and union.
- Establish a Policy: Employers should develop a policy that provides key definitions and clearly states their commitment to creating a safe workplace. The policy should also provide sufficient flexibility for managers to use alternate work schedules, paid time off, or even leaves of absence to allow employees time to take care of themselves without losing their jobs. The Corporate Alliance to End Partner Violence and other web resources provide sample policies.
- Provide Training and Ongoing Education: Employers should train key personnel on how to implement the policy. In particular, security must understand how to assess risk and create and implement a workplace safety plan for an individual employee. Employers should also educate all employees on possible warning signs of domestic violence and how to respond sensitively and confidentially. Most important, the training should emphasize that employees are not the ones to “fix” the problem, but they need to know where to refer their coworkers for assistance. Domestic violence education should be part of the employees’ overall experience, as part of orientation, reinforced in employee handbooks, and included in ongoing awareness programs or events.
- Network with Community Resources: Employers can benefit from working with service providers in their community, both in terms of training and education, but also as resources for employee referrals. Employers may also seek to connect their employees with these agencies as volunteers to further strengthen the relationship. Employers engaging in this kind of work will also benefit from networking with other similarly involved employers, sharing case studies and best practices.
1 American Bar Association Commission on Domestic Violence, A Guide for Employees: Domestic Violence in the Workplace (1999), p. 11.
2 Jessie Bode Brown, “The Costs of Domestic Violence in the Employment Arena: A Call for Legal Reform and Community-Based Education Initiatives,” 16 Va. J. Soc. Pol’y & L. 1, citing Patricia Tjaden & Nancy Thoennes, Extent, Nature, and Consequences of Intimate Partner Violence: Findings From the National Violence Against Women Survey (July 2000), p. 9.
3 Bureau of Justice Statistics, Homicide Trends in the U.S., available at http://www.ojp.usdoj.gov/bjs/homicide/tables/intimatestab.htm.
4 Minnesota Coalition for Battered Women, 2009 Femicide Report, available at http://www.mcbw.org/files
5 Corporate Leaders and America’s Workforce on Domestic Violence, Summary of Findings (09/25/07) at 16, available at http://www.ncdsv.org/images/Corporate%20Leaders%20and%20America’s%20Workforce%20on%20DV%20Summary_9-25-07.pdf.
6 Carol Reeves & Anne O’Leary-Kelly, “The Effects and Costs of Intimate Partner Violence on Organizations,” 22 J. Interpersonal Violence 327, 335 (2007).
7 Anne O’Leary, et al., “Coming into the Light: Intimate Partner Violence and Its Effects at Work,” 22 Acad. Mgmt. Persp. 57, 59 (2008).
9 TK Logan, et al, “Partner Stalking and Implications for Women’s Employment,” 22 J. Interpersonal Violence 268, 285 (2007).
10 Deborah A. Widiss, “Domestic Violence and the Workplace: The Explosion of State Legislation and the Need for a Comprehensive Strategy,” 35 Fla. St. U. L. Rev. 669, 677-78 (2008), citing 1998 report of the U.S. General Accounting Office.
11 Christine Lindquist et al., Inventory of Workplace Interventions Designed to Prevent Intimate Partner Violence §1.1.3 (2006), available at http://www.caepv.org/membercenter/files/Inventory%20of%20Workplace%20Interventions%20Designed%20to%20Prevent%20IPV%20%28May%202006%29.pdf.
12 Christopher Blodgett & Jennifer Stapleton, Intimate Partner Violence: It’s a Workplace Issue (Spokane, WA: Program Research Findings, Washington State University et al., 2005) at 19, available at http://www.peaceatwork.org/resources/DVImpactonWorkplace-SpokaneStudy-2005.pdf.
13 Widiss, supra n. 10, at 686, citing Bureau of Labor Statistics, U.S. Dep’t of Labor, Survey of Workplace Violence Prevention (2005), available at http://stats.bls.gov/iif/oshwc
14 Emily F. Rothman & Phaedra S. Corso, “Propensity for Intimate Partner Abuse and Workplace Productivity,” 14 Violence Against Women 1054, 1061 (2008).
15 Id. at 1055.
16 Widiss, supra n. 10, at 679.
17 Id. at 677-78.
18 See generally, Lindquist, supra n. 11, at §3.2.
19 Id., §1.2.
ph/hb/violence_prevention.htm; Interview with Donald Gault, Healthy Communities Section Manager, Saint Paul – Ramsey County Public Health (06/17/09).
22 Casey Selix, “Domestic Violence: A Workplace Concern,” St. Paul Pioneer Press (04/08/01), at 1C.
23 Bureau of Labor Statistics, U.S. Dep’t of Labor, Survey of Workplace Violence Prevention, supra n. 13.
24 Corporate Leaders on Domestic Violence, CEO and Employee Survey (2007) at 2, 3, 6. Survey results on file with author; summary available at http://www.caepv.org/getinfo/
25 Id. at 6.
26 Jane A. Randel & Kimberly K. Wells, “Corporate Approaches to Reducing Intimate Partner Violence Through Workplace Initiatives,” Clinics Occupational & Envtl. Med. 821, 834 (2003).
27 Nicole Buonocore Porter, “Victimizing the Abused? Is Termination the Solution When Domestic Violence Comes to Work?” 12 Mich. J. Gender & L. 275, 279 (2006); John E. Matejkovic, “Which Suit Would You Like? The Employer’s Dilemma in Dealing with Domestic Violence”, 33 Cap. U. L. Rev. 309, 311 (2004).
28 Marcy L. Karin, “Changing Federal Statutory Proposals to Address Domestic Violence at Work”, 74 Brook. L. Rev. 377, 382 (2009), citing 1998 report of the U.S. Gen. Accounting Office.
29 Survey conducted by and on file with the author.
30 Green v. Bryant, 887 F. Supp. 798, 800 (E.D. Pa. 1995).
31 Id. at 801.
32 See Matejkovic, supra n. 27, at
33 Karin, supra n. 28, at 397-98.
34 See, e.g., Nina W. Tarr, “Employment and Economic Security for Victims of Domestic Abuse,” 16 S. Cal Rev. L. & Soc. Just. 371, 391 (2007).
35 Rohde v. K.O. Steel Castings, Inc., 649 F.2d 317, 323 (5th Cir. 1981); but see also Julie Goldscheid, “Gender Violence & Work: Reckoning with the Boundaries of Sex Discrimination Law,” 18 Colum. J. Gender & L. 61, 62, 84. (2008).
36 Danny v. Laidlaw Transit Servs., Inc., 193 P.3d 128 (Wash. 2008) (en banc); Apessos v. Memorial Press Group, No. 01-1474-A, 2002 WL 31324115 (Mass. Super. 09/30/02).
37 Danny, 193 P.3d at 130.
38 Id. at 141.
39 Apessos, 2002 WL 31324115, at *3.
40 Id. at 146 (Alexander Madsen, J., concurring & dissenting).
42 Sandra S. Park, “Working Towards Freedom from Abuse: Recognizing a ‘Public Policy’ Exception to Employment-At-Will for Domestic Violence Victims,” 59 N.Y.U. Ann. Surv. Am. L. 121, 138-57 (2003).
43 Imes v. City of Asheville, 594 S.E.2d 397, 399 (N.C. App. 2004), aff’d, 606 S.E.2d 117 (N.C. 2004) (per curiam); Green v. Bryant, supra n. 30, at 801.
44 Green v. Bryant, Id. at 801; see also Tarr, supra n. 34, at 389.
45 Widiss, supra n. 10, at 670-71.
46 820 Ill. Comp. Stat. 180/15(1).
47 820 Ill.Comp. Stat. 180/35.
48 820 Ill.Comp. Stat. 180/20.
49 Legal Momentum, State Law Guide: Employment Rights for Victims of Domestic Violence (updated August 2009), pp. 1-6, available at http://www.legalmomentum.org/assets/pdfs/employment-rights.pdf.
50 H.F. No. 612, §4(3); S.F. No. 461, §4(3).
51 820 Ill. Comp. Stat. 180/30(a).
52 Id. 180/30(b)(3).
53 Legal Momentum, State Law Guide, supra n. 49, at 1-6, 10, 13-14.
54 820 Ill. Comp. Stat. 405/601(B)(6).
55 Legal Momentum, State Law Guide: Unemployment Insurance Benefits (updated Sept. 2009), available at http://www.legalmomentum.org/assets/pdfs/unemployment-insurance.pdf.
56 Minn. Stat. §268.095, subd. 1(9), 6(b)(10) (2009).
57 Randel & Wells, supra n. 26, at 836.
58 Id. at 825-36 (2003), discussing strategies developed by the Corporate Alliance to End Partner Violence, also available on its website.