Section of Individual Rights &
Responsibilities
Double Jeopardy: Victims of Domestic Violence Face Twice the Abuse |
| Robin Runge coordinates the
Domestic Violence and Employment Project. The
identity of Mary has been changed and the name of her employer as well as
the city in which this incident took place are omitted. She was represented
by the author of this article in her Unemployment Compensation Appeal and
continues to be assisted by the Domestic Violence and Employment Project
before the California Unemployment Insurance Appeals Board.
This article is not intended to be a comprehensive discussion of the
employment law remedies available to domestic violence victims. For such
a discussion see Julie Goldscheid & Pamela Coukos, "Violence Against
Women Affects the Workplace: Legal Remedies for Women and Advocates,"
Clearinghouse Review Special Issue 195 (1996); Sharon Dietrich, Maurice Emsellem,
& Sue McNeil, "Violence and the Workplace: Exploring Employee Rights
and Remedies," Clearinghouse Review Special Issue 467 (1994). |
Mary worked as a counselor for people living with autism. She loved her job, got along well with her supervisor, and was considered reliable. Things began to change, however, when she attempted to end a relationship and her partner beat her so badly that she was hospitalized. A year after the breakup, Mary's ex-partner repeatedly threatened to kill her, harassed her, and stalked her while she pursued prosecution for the assault. Terrified, she obtained a civil protection order against her ex-partner and had it renewed several times. As a result of this continual harassment, Mary often had difficulty sleeping at night, anxiety-ridden and fearful of how her ex-partner might harm her. Continuing to work in spite of her ex-partner's crusade to destroy her life, Mary obtained judicial restraining orders and attended domestic violence counseling without missing more than four days of work. Unfortunately, her valiant efforts to keep her job were thwarted when Mary missed a last day of work. Her ex-partner had come to her home over the weekend armed with a gun and threatened to kill her. She called the police and fled to another city to stay with a friend. On Monday, when she was leaving her friend's home on her way to work, she saw her ex-partner waiting for her outside. Fearful that her ex-partner might attack her again, Mary returned to her friend's house and notified the police. Her employer fired her two days later, citing her poor attendance record. As if losing her job weren't bad enough, when Mary applied for unemployment compensation, her employer challenged her entitlement, stating that she was fired for misconduct. In fact, the Employment Development Department initially denied her benefits. On appeal, Mary prevailed after explaining how her fear for her safety prevented her from leaving her friend's home and caused her to be absent from work. Mary's employer has appealed this decision, however, and she continues to fight for her benefits. Mary's story exemplifies the issues confronting many victims of domestic violence who continue to work out of economic necessity in the face of life- threatening situations. Although Mary lost a job that she loved, she was more fortunate than most domestic violence victims in her situation. She was able to get restraining orders against her batterer, attend counseling, and eventually obtain unemployment compensation that enabled her to continue to look for a job without losing her home or succumbing to welfare. It is often necessary for victims of domestic violence to take time from work to address the violence in their lives, and when they do, they are frequently victimized yet again when they are fired, forced to quit their jobs, or fail to complete job training programs. While domestic violence victims sometimes are fired because of poor attendance or declining performance, in all too many cases, they are fired simply because their employer determines that it cannot have a domestic violence victim in the workplace. Faced with the risk of jeopardizing their economic security, many victims forgo legal assistance or stay with the batterer in order to keep their jobs. As battering tends to escalate at the time of separation and victims fear that the batterer may stalk them at work, they choose to remain in dangerous relationships rather than risk having their batterer find them at work and subsequently face termination. There are few express employment rights available to victims who are faced with the threat of losing their job when they take affirmative steps to leave their domestic violence situations. Compounding this problem is the fact that most victims of domestic violence are unaware of the employment rights they do have under such laws as the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and other state and federal laws that may provide them with job-protected unpaid leave, job accommodations or unemployment compensation. This situation heightens the need for legislative and policy initiatives to address gaps in existing law to increase employment protections and for advocacy to increase awareness of existing employment protections among domestic violence victims. The epidemic of domestic violence in American society is well documented. Two to four million American women are physically abused by their boyfriends or husbands each year. Although the majority of studies and statistics about domestic violence are based on women in heterosexual relationships, domestic violence is as prevalent in same sex relationships. Efforts to assist domestic violence victims include greater civil and criminal protections and increased funding for battered women's programs such as shelters. The goal is to prevent domestic violence and to help people escape these violent situations by recognizing that domestic violence is a crime, and by punishing batterers. Unfortunately, increased funding and legislative efforts have been unable to adequately address the powerful economic barriers that prevent many domestic violence victims from escaping violent relationships. Domestic violence and the injuries that flow from the abuse necessarily affect job performance. The fear of losing her job if she takes the time from work to get legal or medical assistance deters many victims from leaving violent relationships. Recent studies have documented the impact of domestic violence on employment. In a 1992 study by Domestic Violence Intervention Services, Inc., Tulsa, Okla., 96 percent of employed victims of domestic violence surveyed experienced some type of work-related problem. A 1996 report by the New York State Department of Labor found that 74 percent of domestic violence victims were harassed by their abusive partners at work. In another study, one-quarter of victims surveyed said that they had lost their jobs at least in part due to domestic violence. The dire need for advocacy to increase employment protections for domestic violence victims is even more compelling when we consider that welfare reform requires welfare recipients to work for their benefits. It has been estimated that more than 50 percent of female welfare recipients have been victims of domestic violence. Analyzing these statistics and translating them into specific examples of workplace problems suffered by domestic violence victims clarifies the need for increased employment protections. A victim of domestic violence often requires medical attention and counseling for physical or psychological injuries caused by battering. Obtaining a restraining order often necessitates time off from work to appear in court during work hours. In addition, a victim may be harassed or attacked by her batterer at her job and consequently be forced to quit her job for her own safety or the safety of others at work, or she may simply be fired. Domestic violence victims do have limited recourse under existing law, however. An employee who needs time off from work to seek medical attention for a serious health condition resulting from domestic violence suffered by her or her children may be entitled to job-protected leave under the federal Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. (1997). A victim of domestic violence may experience many forms of physical and emotional abuse that result in serious health conditions requiring medical attention. Even a single act of violence by a family member may cause long-lasting trauma as well as immediate harm to a victim or an observer. Repeated abuse and severe violence causes significant psychological distress and may result in post-traumatic stress disorder, depression, dissociative anxiety or mood disorders that may qualify as serious health conditions under the federal Family and Medical Leave Act. If an employer is covered under FMLA, it may not discharge a survivor of domestic violence who is an eligible employee for taking up to 12 weeks of leave to care for her own serious health condition or that of her child due to domestic violence. (29 U.S.C. § 2614(a)). An eligible employee who is entitled to take leave must be employed for at least 12-months by the employer and for at least 1,250 hours of service during the previous 12-month period. (29 U.S.C. 11(2)(A)). Yet, the FMLA does not address the needs of many domestic violence victims who are trying to keep their jobs. The FMLA does not provide for job-protected leave to attend a civil protection order hearing or to make other arrangements to leave a batterer. It does not prohibit an employer from firing a victim of domestic violence because of her status as a victim. While a few states like Maine (Me. Rev. Stat. Ann. tit. 26, §1193) have interpreted their unemployment laws to permit domestic violence victims who are forced to leave their jobs due to circumstances involving domestic violence to qualify for unemployment compensation benefits, this is a question open to interpretation on a state-by-state basis. Legislation is currently pending in California that would expressly provide for unemployment compensation benefits for domestic violence victims forced to leave employment because of domestic violence situations. (S.B. 165 (Cal. 1997)). Recognizing the limited options available for domestic violence victims, advocates are working to enact federal and state legislation that would afford victims of domestic violence leave from work to seek legal assistance, counseling, or to terminate the relationship without fear of losing their jobs. One example of legislation that would increase employment protections for victims of domestic violence is the Battered Women's Employment Protection Act (BWEPA) that is currently pending in Congress. (S. 367, 105th Cong. 1st Sess. (1997)). On February 26, 1997, Senator Wellstone introduced BWEPA as an amendment to FMLA to provide job-protected unpaid leave to victims of domestic violence so that they could obtain legal representation, counseling or assistance with safety planning. It would also expressly provide for unemployment insurance for those victims of domestic violence who are forced to leave their employment as a result of domestic violence. Certainly, BWEPA would have been invaluable to Mary. If she had had the option of taking job-protected leave from work to get a restraining order or counseling, she may not have missed those four days of work and perhaps would have avoided termination. If she was fired while on leave provided by BWEPA, she could file an action against her employer for reinstatement. These are just two examples of how BWEPA could help domestic violence victims take steps toward leaving violent relationships and prevent domestic violence by providing victims with job-protected unpaid leave. Many domestic violence victims are often fired when their employer learns about their violent situation through physical injuries, gossip in the office, or harassment by the batterer in the workplace. Advocates are also working to address another gap in employment protections for victims of domestic violence by creating a right of action for victims who are terminated just because of their status as victims. The Victims' Employment Rights Act (VERA) is one of several proposals to be included in the second Violence Against Women Act addressing women's continued employment and economic security in the face of violence. VERA would prohibit employers from taking or threatening to take adverse job actions, including demotions or suspensions, dismissals, involuntary transfers or from imposing any other losses of pay or benefits against an employee based on her status, experience, or condition as a crime victim. This law would have provided Mary with the opportunity to fight for a job that she loved by suing for reinstatement after her termination for missing work because of her domestic violence situation. |