Employers May Face Liability When Domestic Violence Comes to Work

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Greenberg Traurig Alert

Employers May Face Liability When Domestic Violence Comes to Work

September 2001
By Stacey Dougan, Greenberg Traurig, Miami Office

View or download the PDF version of this Alert here.

Stacey Dougan

A Pennsylvania woman recently sued her employer, a national retail chain, after her husband tracked her down at work and shot her in the head before turning the gun on himself. The employee claims that the employer was negligent in failing to call police when her husband arrived at the store; failing to have adequate security; and failing to implement and enforce a domestic violence policy for abused employees. More specifically, the suit alleges that the employer knew that the employee had been abused by her husband days before the shooting and also knew that the employee had obtained a court order requiring her husband to stay away from her. Yet, the lawsuit contends, the employer failed to take reasonable steps to provide the employee a safe place to work.*

While employers should be motivated by humanitarian concerns to assist employees victimized by abuse, this tragedy serves as powerful proof of one inescapable fact: Domestic violence is an issue that no employer can afford to ignore. With one out of every four women reporting physical abuse by an intimate partner at some point in her lifetime, it is a certainty that in any mid-to-large sized company, domestic violence is affecting the workplace.

The Business Impact

Domestic violence does not remain "domestic" by staying at home when its victims go to work. An estimated 13,000 acts of domestic violence are committed in the workplace every year. Homicide is the leading cause of death for women on the job. This violence poses a threat not only to the victim, but it also threatens the safety and well-being of co-workers and customers. Even when domestic violence does not spill over into the workplace, its effects are enormous.

Businesses pay an estimated $3 to $5 billion annually in medical expenses associated with domestic violence.
They forfeit another $100 million a year in lost wages, absenteeism and reduced productivity.
One study reported that 96% of employees who were victims of domestic violence reported some form of workplace problem as a direct result of abuse.
78% of Human Resources professionals polled by Personnel Journal said that domestic violence is a workplace issue.
47% of senior executives polled said that domestic violence has a harmful effect on the company’s productivity.
94% of corporate security directors surveyed rank domestic violence as a high security problem at their company.
A large majority of EAP providers surveyed have dealt with specific partner abuse scenarios in the past year, including an employee with a restraining order (83%) or an employee being stalked at work by a current or former partner (71%).

Legal Liability

In addition to the exorbitant costs associated with domestic violence, employers face the specter of legal liability under an expanding myriad of laws for failing to respond appropriately to this issue. In addition to already-existing traditional statutory and common law remedies, in the past three years alone, more than 30 states and locales have enacted legislation designed to create protections for victims of domestic violence. In addition, currently pending before Congress is the Victims’ Economic Security and Safety Act, which would require private employers to make certain accommodations for employed victims of domestic violence.

These new laws are predicated on the understanding that the workplace is often a prime place for domestic violence to occur because it may be the only place where the perpetrator can gain access to the victim. Moreover, perpetrators deliberately abuse their victims during work hours because they know that victims fear losing their jobs if their employers realize what is happening. Employers who are unaware of the various laws governing their conduct in this area may face exposure to legal liability.

Occupational safety and health laws require employers to maintain a safe workplace.
The Americans with Disabilities Act or state disabilities laws may require job accommodation of a victim of domestic violence who is or becomes mentally or physically disabled.
Family and medical leave laws may require employers to grant leave to employees who are coping with serious health conditions resulting from domestic violence situations.
Victim assistance laws may prohibit employers from taking adverse job actions against women who disclose their situation or who take time off from their jobs to deal with domestic violence-related issues.
Victim assistance laws may require employers to grant periods of unpaid leave for employees to attend court appearances and medical appointments for themselves and/ or their children.
Anti-discrimination laws prohibit employers from discriminating against employees based upon their actual or perceived status as victims of domestic violence.
Insurance legislation prohibits discriminating against victims of domestic violence in determining eligibility for, benefits under and/or the cost of health, life, disability, auto, or homeowner’s insurance.
Unemployment compensation insurance laws may classify domestic violence as ‘good cause’, and exclude domestic violence situations from ‘misconduct.’

What Employers Can Do

As evidenced by the proliferation of protective legislation in this area, employers must act with extreme caution to ensure that their responses to the effects of domestic violence in the workplace do not inadvertently violate federal, state or local law. The employer is tasked with applying its policies in a manner that does not discriminate against the victim on a prohibited basis and that maintains a safe work environment.

Taking a proactive approach to domestic violence should include designing and implementing a specific domestic violence in the workplace policy. The policy should focus on providing information and referrals to employees who are victims of domestic violence and should address issues related to the need for time off and security. Such an approach allows the employer to create a safer and more supportive environment while reducing its exposure. Domestic violence policies are not designed to place the employer or its designated point persons in the position of counselors or advocates. Rather, they are designed to mitigate the effects of domestic violence in the workplace by providing victims with a link to community resources that serve those functions. Thus, the employer’s partnership with a local domestic violence agency is essential to carrying out the policy’s central mission of providing information and referrals to employees who are victims of domestic violence. It also ensures that the employer becomes the link to resources rather than the resource itself.

Substantive training on the dynamics of domestic violence, recognizing domestic violence in the workplace, and responding appropriately to domestic violence in the workplace plays a key role in addressing this complex issue and establishing a policy. This training is not intended to teach employees and supervisors how to counsel victims in terms of what decisions they should be making in the context of their intimate relationships. Rather, it is targeted toward heightening awareness about domestic violence and providing employees with information about the resources available in their communities. Given their experience with and in-depth knowledge of this difficult issue, local domestic violence agencies can assist employers with this critical component of the training program.

How Greenberg Traurig Can Help

An ABA Journal article recently chronicled the unique role lawyers can play in assisting businesses to develop domestic violence policies and procedures.** Greenberg Traurig is one of the few firms in the country that has implemented a domestic violence policy and program for the health and welfare of its own employees. It is also one of the few law firms in the country that has specifically integrated into its labor and employment law practice issues directly related to domestic violence in the workplace.

Led by Assistant General Counsel Stacey Dougan and Labor and Employment Shareholders Mary Bruno and Elizabeth Lewis, we have developed a response plan that, depending on the client’s needs, may provide assistance with the following:

Auditing existing employment policies and manuals to ensure that the domestic violence policy and program fit the client’s needs, culture and various environments (e.g., retail, manufacturing, etc).
Developing customized domestic violence policies, protocols, resource materials, and programs.
Providing assistance in establishing and building relationships between the client and the local domestic violence advocacy community.
Auditing EAP policies and ensuring providers possess the requisite knowledge and experience to identify and respond appropriately to domestic violence.
Designing customized workplace safety plans.
Establishing and training an internal Domestic Violence Response Team, composed of designated managers, supervisors, and employees identified as the "go to" people for victims needing assistance.
Ensuring that the client’s policy is compliant with the applicable laws in every jurisdiction in which it conducts business.
Designing and facilitating internal corporate training and awareness activities.
Working with clients to heighten awareness in the broader corporate community concerning how employers can support victims of domestic violence in and through the workplace.

Greenberg Traurig is particularly well-suited to offer to clients direct and ongoing consultation, assistance, and advice regarding how co-workers and supervisors can effectively and safely respond to employees who are or may be victims or perpetrators of domestic violence. Please contact us to find out how we can assist you with your own program.

Additional Information:

For more information, please review our Labor & Employment Practice description, or feel free to contact one of our attorneys.

This GT ALERT is issued for general purposes only and is not intended to be construed or used as legal advice. Greenberg Traurig attorneys provide practical, result-oriented strategies and solutions tailored to meet our clients’ individual legal needs. The Firm’s responsive approach to client service often cuts across legal subject matter, applying the right experience and resources to provide cost-effective solutions.