Know Your Rights
Domestic Violence Job Rights

By JAMES A. BROWN

This column has repeatedly stressed that it is not enough to allege "employment discrimination" or a "hostile work environment." Rather, you must base your discrimination or harassment complaint on your specific "protected class" status, i.e. your age, race, gender, disability, religion, national origin, etc. Today's column focuses on a "protected class" not previously reported here; namely employment discrimination based on one's status as a victim of domestic violence.

James A. Brown is an attorney based in Manhattan. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.

Victims of domestic violence (and sex offenses and stalking) are protected against discrimination under the city's Human Rights Law. Therefore, the city law highlighted in today's column applies only to employees working within the City of New York.

The Act's Origins

In 2001, the New York City Council amended the local Human Rights Law to prohibit employment discrimination against victims of domestic violence. The law was passed, in part, because the City Council recognized that domestic violence victims often need to miss work to obtain medical treatment or legal assistance. The Council observed that such victims "have been terminated or demoted after requesting simple protective measures such as time off or flexible hours to confer with an attorney or a domestic violence counselor, obtain an order of protection or obtain medical or other services for themselves or family members."

The City Council's amendment was intended to encourage victims of domestic violence to request time off from their jobs when necessary and to state the actual reasons without fear of reprisal.

Hurts Productivity

The City Council was also motivated to amend the Human Rights Law because of domestic violence's negative impact on productivity. Reports showed that the cost of absenteeism throughout the nation, due to domestic violence, measured in the billions of dollars. The Council clearly believed that absenteeism would be reduced if it were easier for domestic violence victims to address their needs by scheduling court appearances and medical appointments.

Prior to the amendment's passage in 2001, the only statewide law addressing domestic violence and the workplace was the Penal Law. Section 215.14 of the Penal Law prohibits employers from disciplining crime victims for appearing in criminal proceedings or when they miss work to obtain orders of protection. In addition, the city, state and Federal anti-discrimination laws protect disabled employees. Yet not all victims of domestic violence actually seek or receive medical treatment, and thus may not all qualify as "disabled."

Against this backdrop, the City Council prohibited employers (with four or more employees) from refusing to hire or firing persons because of their perceived or actual status as victims of domestic violence, sex offenses or stalking. The Human Rights Law, as amended, also goes beyond the Penal Law by requiring employers to "reasonably accommodate" a domestic violence victim's need to schedule court appearances, meet with medical providers or obtain orders of protection. It would seem to follow that a reasonable accommodation would also be extended to resolve housing issues resulting from displacement due to domestic violence.

Defining "Victim"

The 2001 amendment elaborately defines a "victim of domestic abuse." In sum, a victim is defined as one who is subjected to acts (or threats) of violence committed by a person: who is a current or former spouse of the victim; with whom the victim shares a child; who cohabitates with the victim; or who has been in a "continuing social relationship of a romantic or intimate nature" with the victim.

If you are a domestic violence victim and require a reasonable accommodation, you must "certify" your status as a victim of domestic violence (or sexual offenses or stalking). You must provide your certification within a "reasonable period" after requesting your accommodation. Such certification may be issued by someone associated with a victim services organization, an attorney, a member of the clergy, or a medical or other "professional service provider." Your employer is required to retain such certification in the "strictest confidence."

The city's Human Rights Law, as amended, seeks to protect persons who are living under the dark cloud of domestic violence. The law reflects the belief that domestic violence victims, amidst all of their hardships, should not also have to worry that they will lose their jobs due to their dire circumstances.