by Margaret C. Thering and Lauri F. Rasnick
Violence against women has been in the headlines lately – the reauthorization of the Violence Against Women Act is engendering vigorous debate, and as of last month, federal agencies were ordered to implement policies to assist their employees who are victims of domestic violence. Also last month, the National Institute for Occupational Safety and Health and the Injury Control Research Center at West Virginia University published a paper entitled “Workplace Homicides Among U.S. Women: The Role of Intimate Partner Violence” in the Annals of Epidemiology. The study found that from 2003 to 2008, 648 women were murdered in the workplace. And workplace homicides against women are on the rise – in 2010 they were up 13% (even though workplace homicides have generally been declining).
Employer liability can result from workplace violence incidents, even when committed by a non-employee. Indeed, although the Occupational Safety and Health Administration (“OSHA”) has no specific standard addressing workplace violence hazards, OSHA has released voluntary guidelines to address these issues in various industries. Guidance is also offered by OSHA to all employers to help them prepare for and handle emergencies and to develop a workplace violence program. A more detailed discussion is located on our OSHA blog. See Workplace Violence Policies and Background Checks Are Essential Components of a Prevention Plan. Failing to properly implement procedures or handle these difficult situations correctly may lead to liability or even OSHA citations.
Given these trends, employers should review ways they can prevent domestic violence in the workplace and accommodate employees who may be victims of domestic violence:
- Employers should review their safety policies and procedures and consider ways in which they address workplace violence issues.
- Policies prohibiting women from working alone are not advisable since they could violate anti-discrimination laws. Nevertheless, sex-neutral policies about employees working alone (especially during certain shifts when there are fewer people or a higher risk of violence) may be advisable.
- As many workplace homicides occur in parking lots, employers may want to examine their parking lot areas to see whether they are adequately lit, or whether security patrol or escorts may be helpful to reduce possible violent attacks.
- To assist workers facing domestic violence, employers may want to adopt policies that encourage workers concerned about domestic violence to seek protection or particular accommodations in the workplace without fear of retaliation.
- Employers should review their policies and ensure they do not directly or indirectly impact certain protected groups adversely when domestic violence is at issue.
- Employers may want to include domestic violence victims as a protected class in their equal employment opportunity statements/policies. Several jurisdictions, including New York, prohibit discrimination against victims of domestic violence, and several other jurisdictions have similar legislation pending.
- Employees who are victims of domestic violence, depending on the severity of the violence, may fall under the protections of the Family Medical Leave Act or even the Americans with Disabilities Act (“ADA”) in certain cases. Thus, employers receiving requests for leave or other accommodations for victims of domestic violence should consider whether there are federal legal requirements in responding to such requests.
- Many states, including New York and California, require employers to provide victims of domestic violence with time off for certain reasons, such as attending court proceedings. Employers should make sure they are complying with applicable state domestic violence laws if time off for domestic violence-related proceedings is requested.
- In the absence of an applicable state law providing leave for victims of domestic violence, employers everywhere should make sure that requests for time off to attend a court proceeding due to one’s status as a domestic violence victim are treated in the same way as requests for time off to attend other court proceedings. Failure to do so could lead to claim for disparate treatment.
- Employers should review their anti-bullying and workplace violence policies. The policies should cover situations in which intimate partners might be bullying or otherwise abusing each other in the workplace.
- It may be beneficial for employers to include a discussion on domestic violence during their anti-bullying and workplace violence training.