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October is Domestic Violence Awareness Month - Learn about Discrimination based upon Domestic Violence Victim Status

Posted by Giovanna A. D'Orazio | Sep 14, 2017

What is Discrimination Based on Domestic Violence Victim Status?

There is No Federal Law Protecting Victims of Domestic Violence in the Workplace.  New York Law Does.

The New York State Human Rights Law protects victims of domestic violence from discrimination in the workplace.  A “domestic violence victim” is defined as “an individual who is a victim of an act which would constitute a family offense pursuant to subdivision one of section eight hundred twelve of the family court act.”  The referenced provision of the Family Court Act can be found here.

The human rights law protects domestic violence victims from both discrimination and harassment.  The law also prohibits retaliation against individuals who have complained of or opposed discrimination or harassment related to domestic violence victim status.

What is your recourse if you have been discriminated 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.  This 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.  In the harassment and hostile work environment context, the law is more favorable to employees if they have made such complaints.  Additionally, 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 so you may want to consider filing a complaint even if you haven't been fired yet.  If you work for a public employer, including a school district, the clock would also start ticking on any notice of claim requirements.

Employees who have been discriminated against or harassed to the point of a hostile work environment under the law, or retaliated against for making complaints or discrimination or harassment, 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.  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 that includes those claims.

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.  

If you believe you have been the victim of harassment or discrimination based on your status as a domestic violence victim, 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.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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