October is Domestic Violence Awareness Month. Today we are talking about workplace and voting protections for individuals affected by domestic violence.
Employment: What is Discrimination Based on Status as a “Victim of Domestic Violence”?
There is No Federal Law Protecting Victims of Domestic Violence in the Workplace. New York Law Does.
The New York State Human Rights Law (NYHRL) protects victims of domestic violence from discrimination in the workplace. The relevant provisions of the NYHRL were recently amended, with amendments effective November 18, 2019. Rather than being referred to as a “domestic violence victim” the protected class will be referred to as a “victim of domestic violence” which will “have the same meaning as is ascribed to such term by section four hundred fifty-nine-a of the social services law.” Social Services Law 459-a can be found here.
The Human Rights Law protects victims of domestic violence from both discrimination and harassment. Effective October 11, 2019, the legislature removed the difficult to meet “severe and pervasive” standard previously applicable to harassment claims. Harassment is now “an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment because of the individual's membership in one or more of these protected categories [which include victims of domestic violence]”. The law also prohibits retaliation against individuals who have complained of or opposed discrimination or harassment.
Effective November 18, 2019, there is also a new section of the NYHRL (adding a subsection (22) to Executive Law 296) specifically addressing victims of domestic violence and which also requires employers to provide “reasonable accommodations.” Reasonable accommodations include the following:
(i) Seeking medical attention for injuries caused by domestic violence including for a child who is a victim of domestic violence, provided that the employee is not the perpetrator of the domestic violence against the child; or
(ii) Obtaining services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence; or
(iii) Obtaining psychological counseling related to an incident or incidents of domestic violence, including for a child who is a victim of domestic violence, provided that the employee is not the perpetrator of the domestic violence against the child; or
(iv) Participating in safety planning and taking other actions to increase safety from future incidents of domestic violence, including temporary or permanent relocation; or
(v) Obtaining legal services, assisting in the prosecution of the offense, or appearing in court in relation to the incident or incidents of domestic violence.
What is your recourse if you have been discriminated against or harassed in violation of this provision?
If you are still employed, we encourage employees to make complaints after consulting their employee handbooks about designated complaint procedures. While New York recently loosened the requirement to complain as relevant to an employer's liability, complaints still are useful as they will not only document the harassment or discrimination and potentially protect the employee from illegal retaliation, but may also allow the employer the opportunity to correct the situation.
Employees who have been discriminated against or harassed to the point of a hostile work environment under the law, may either file a complaint with the New York State Division of Human Rights and allow that agency to investigate and pursue the claim, or they may file a lawsuit. Even if you are still employed, if you have suffered an adverse employment action like a suspension or demotion, the clock starts ticking on a potential claim. If you work for some public employers, including school districts, the clock would also start ticking on any notice of claim requirements. (Cities have been interpreted as being exempt from notice of claim requirements in NYHRL cases).
If the employee has only state law claims, the lawsuit would be filed in the New York State Supreme Court either where the employee lives or where the employer is located. If under the circumstances of the particular case, there are federal claims as well (more on that below), the employee would need to file a complaint with the Equal Employment Opportunity Commission (“EEOC”) in order to preserve any federal claims and prior to filing a lawsuit.
When Might Federal Law Come Into Play?
While there is no federal law protecting domestic violence victims from workplace discrimination or harassment, other laws may come into play depending on the circumstances. For example, the Americans with Disabilities Act (“ADA”) protects individuals from discrimination based on a disability and also requires reasonable accommodations for disabilities. This could apply in the domestic violence context if, for example, an employee needs time off or an accommodation because of an injury or treatment for mental health issues like PTSD. The Family and Medical Leave Act (“FMLA”) also allows for time off for serious health conditions, but applies only to public and larger employers (with 50 or more employees). Title VII protects individuals from sex discrimination and may also apply in this context depending on how employees are treated versus members of the opposite sex or based on certain gender stereotypes. The EEOC has issued some guidance on the possible interplay between domestic violence, sexual assault and stalking and Title VII and the ADA.
Election Day is coming up, and the law provides privacy protection for victims of domestic violence. Specifically, upon court order, voter registration records of domestic violence victims may be kept separate from other registration records and not be made available to the public or any other person other than election officials acting in their official capacity. You can read the full law here.
If you believe you have been the victim of harassment or discrimination based on your status as a victim of domestic violence, including being denied time off or an accommodation because of a related injury or medical issue, you should contact an experienced employment attorney as soon as possible so that you may determine if you have a claim, preserve your rights and comply with any applicable deadlines.