Recent amendment to NYSHRL protects domestic violence victims from workplace discrimination

According to the Center for Disease Control and Prevention, one in four women in the United States will experience domestic violence at some point in her lifetime.1 Domestic violence is the leading cause of injury to women between the ages of 15 and 44 in the United States; more than car accidents, muggings, and rapes combined.2 The numbers are staggering. What was once a personal problem to be dealt with privately by a victim has now become a social pandemic in the U.S., requiring new laws and regulations to curtail its growth and minimize its harmful effects. Fortunately, legislatures have responded to these issues by increasingly taking steps to remedy this national problem. On July 7, 2009, Governor David A. Paterson signed legislation amending the New York State Human Rights Law (NYSHRL) to protect victims of domestic violence. The amendment to the NYSHRL makes it unlawful for employers to take actions against employee-victims for work-related problems that they experience as a result of domestic violence. A “domestic violence victim” is defined under the amendment as “an individual who is a victim of an act which would constitute a family offense” under Family Court Act section 812. A “family offense” under Family Court Act section 812 is one in which an act of harassment, stalking, menacing, reckless endangerment, criminal mischief, assault, or attempted assault is committed between members of the same family or household. The amendment took effect immediately and extended employment protections that have previously been afforded to employees on the basis of age, race, creed, color, national origin, gender, sexual orientation, disability, predisposing genetic characteristics, or marital status to victims of domestic violence. While protections for domestic violence victims have existed for some time under the New York City Human Rights Law3 and Westchester County Code,4 the NYSHRL now extends these protections to victims outside of New York City and Westchester, including those employed in Long Island. Employee-victims throughout New York State must now be allowed time off from work to consult with attorneys, attend court appearances, find alternative housing, seek medical attention and recover from their violence-related injuries.

New York has joined the rank of states passing bills to address the effect that domestic violence has on a victim’s employment. And it is not an inconsequential effect. Recent studies have found that domestic violence is significantly injurious to an employee-victim’s work performance. Nearly 40 percent of women who experience domestic violence report that the abuse has an impact on their work in the form of lateness, missed work, keeping a job, or career promotions.5 Victims lose nearly 8 million days of paid work annually – the equivalent of more than 32,000 full-time jobs – as a result of domestic violence.6 Moreover, lost productivity resulting from domestic violence alone costs employers over 700 million dollars every year.7 These workplace issues cause employee-victims to be undeservedly disciplined by employers and to lose jobs through no fault of their own.

The new amendment also joins a series of other laws adopted in New York to protect the rights of domestic violence victims. For instance, section 593 of the New York Labor Law provides that a claimant shall not be disqualified from receiving unemployment insurance benefits for separation from employment due to “any compelling family reason,” including domestic violence, even where that employee terminates his or her employment voluntarily. Section 215.14 of the New York Penal Law makes it a crime for employers to penalize an employee who, as a victim or witness of a criminal offense, is required or chooses to appear as a witness, consult with the district attorney, or exercise certain other rights. The law requires employers, with prior day notification, to allow time off for victims or witnesses to pursue legal action related to domestic violence. Section 2612 of the New York Insurance Law prohibits insurance companies from discriminating against domestic violence victims by, for instance, specifically designating domestic violence as a preexisting condition or denying, canceling or increasing premiums of a domestic violence victim’s insurance policy.

One of the greatest barriers to a domestic violence victim’s ability to escape an abusive relationship is the difficulty of gaining economic viability, an issue that has largely been overlooked by New York State laws up to now. Many women remain in abusive relationships because they cannot financially provide for themselves and their children without the support of their abusers. Fear of losing a job while attempting to break away from an abusive situation can clearly be severely damaging to a victim’s hope for independence. Protections in the workplace may allow victims to achieve the financial independence necessary to break away from their abusers and survive on their own. The new amendment is in line with Governor Paterson’s commitment to helping those New Yorkers who need the most support during this economic downturn. Since Governor Paterson was sworn in last year, he has taken substantive measures to protect the safety and economic viability of low-income families and domestic violence victims in New York. In October, 2008, for example, all New York state agencies adopted comprehensive “Domestic Violence and the Workplace” policies that address the significant health and safety issues associated with domestic violence. According to the New York State Office for the Prevention of Domestic Violence (OPDV), under Governor Paterson’s leadership state agencies adopted policies including “training of employees on domestic violence awareness and prevention; personnel procedures that respond to the needs of domestic violence victims; creation of workplace safety plans; and measures to hold accountable those who may use state resources to commit acts of domestic violence.” The hope was that by having state agencies and officials take the lead on this issue, private businesses would soon follow suit.

With the new amendment in place, New York employers should consider taking proactive steps to minimize exposure to liability by adding workplace protections for victims of domestic violence. Because employee-victims are often self-conscious about discussing these issues and employers are often not comfortable with what they consider to be prying into the personal, problematic lives of their employees, there is usually little or no mechanism in place in for victims and their employers to broach the subject of domestic violence. However, where possible, employers should update their handbooks to include domestic violence victims as a protected category and supervisors should be educated about how to recognize domestic violence situations and how to accommodate employee-victims by, for example, providing the victim with information about counseling options as well as additional sick days. Additionally, supervisors should seek the advice of their attorneys before firing any employee who the employer knows is a domestic abuse victim. The OPDV has model policies available for any business interested in pursuing these initiatives.8

Employers and employees alike should be aware of the new legislation and work together to assure that victims of domestic violence are adequately protected.

Maryam Parvaneh is a Commercial Litigation associate at Lazer, Aptheker, Rosella & Yedid, P.C. in Melville.

1. See Patricia Tjaden and Nancy Thoennes, Extent, Nature, and Consequences of Intimate Partner Violence, National Institute of Justice and the Centers of Disease Control and Prevention, 2000, at iii.
2. See Committee on the Judiciary, “Violence Against Women, A Majority Staff Report,” United States Senate, 102nd Congress, October 1992, p.3.
3. N.Y.C. Admin. Code, § 8-107.1. 4. Westchester County Code, § 700.03(8)
5. See EDK Associates, The Many Faces of Domestic Violence and Its Impact on the Workplace, The Body Shop, 1997.
6. See National Center for Injury Prevention and Control, Costs of Intimate Partner Violence Against Women in the United States, Centers for Disease Control and Prevention, 2003, at 19. 7. Id.
8. New York State Office for the Prevention of Domestic Violence, State of New York Model Domestic Violence and the Workplace Policy for Private Business, (last visited Oct. 1, 2009).