One Saturday in July 2000, Sophia Apessos called the Plymouth, Mass., police to report that her husband had beaten her. The police arrested him and helped Sophia obtain a temporary protective order. On Monday, Sophia appeared in court to request an extension of the order and testify at her husband’s arraignment. She went to the police station to have photographs taken of her bruised face and returned home to change her locks.
Sophia, a local newspaper reporter, left a voice mail for her supervisor about her Monday court appearances. On Monday, she told the supervisor she needed to meet the locksmith and would be back to work Tuesday. But when she reported to work, the human resources director of Memorial Press Group terminated her. Sophia sued for wrongful termination in violation of public policy, and the Massachusetts Superior Court upheld her claim in September 2002.
“The public policy issues here are primal, not complex: the protection of a victim from physical and emotional violence and the protection of a victim’s livelihood,” the court wrote. “A victim should not have to seek physical safety at the cost of her employment.”
Apessos v. Memorial Press Group put a spotlight on what domestic violence activists claim is an all-too-frequent occurrence–victims losing their jobs because of performance and attendance issues related to the emotional, medical and legal complications of domestic violence or because the employer fears the perpetrator will disrupt the workplace. In fact, studies indicate that one-third to one-half of employed domestic violence victims lose their jobs.
State and local legislatures have stepped in to address the issue. California, Kansas and Dade County, Fla., prohibit employers from discharging or retaliating against domestic violence victims who take time off from work to deal with their legal, housing and medical issues. At least a half dozen other states either provide for leaves of absence or prohibit retaliation for time taken to pursue legal action.
But the most sweeping legislation, signed into law in Illinois in 2003, gives victims broad protection against discrimination, creating a new protected class. Although the New York legislature failed to give final approval to a protected status bill this year, a local ordinance in New York City grants that protection to victims. A protected status bill is pending in California.
“In the coming years, more and more states will likely try to pass legislation giving victims of domestic violence protected status,” says Jerrilyn Malana, shareholder in Littler Mendelson’s San Diego office. “It’s an emerging issue with a lot of legal landmines for employers to be aware of.”
In-house counsel can look to Illinois for a preview of what these laws may look like–and what landmines may await them. The Illinois Victims Economic Security and Safety Act (VESSA) is both comprehensive and onerous, says Peter Donati, partner in Levenfeld Pearlstein in Chicago.
The law creates three obligations for employers with 50 or more employees. They are required to grant unpaid leaves of absence of up to 12 weeks per year for victims or family members of victims who need medical attention, services from victim’s groups, counseling, safety training or legal assistance while other states with leave laws grant from three to 30 days.
VESSA also goes far beyond other states’ protections in the other two provisions. Echoing the ADA, it requires reasonable accommodation for victims of domestic violence based on an assessment of their specific needs. That could include changing the victim’s work phone extension, modifying his/her schedule or installing new locks. Because the courts have yet to interpret what is reasonable, the impact on employers is unclear.
“It could turn out to be routine and appropriate, or it could be how far do we have to go to accommodate the victim, depending on what the courts decide,” Donati says.
The third provision is the most far-reaching. It prohibits employers from firing, failing to hire or retaliating against employees who are, or are perceived to be, victims of domestic violence, or who are the victims of someone who disrupts the workplace. In other words, it creates a new protected class of workers.
“Many employers will be surprised when they get hit by the fact that they can’t discriminate because the workplace was disrupted or threatened by a person the employee says has threatened them,” says Kenneth Jenero, partner in Holland & Knight’s Chicago office. “If the nutty boyfriend has been showing up at the workplace with a gun, some employers would say, ‘I feel sorry for the employee but I have to terminate her.’ But that is flatly prohibited by this statute.”
A saving grace for employers is that the statute provides redress through administrative hearings rather than private rights of action, with no provision for punitive damages. Complaints are filed with the Illinois Department of Labor (DOL), which can order reinstatement, back pay, payment of attorneys fees and reasonable accommodation. The results can be appealed in a hearing before an administrative law judge, whose ruling can be appealed in the courts.
Since VESSA became law in August 2003, only 54 complaints have been filed, resulting in 14 reasonable cause findings and 12 administrative hearings, according to the Illinois DOL. None of the hearing results have been appealed.
The relatively low numbers reflect the fact that VESSA requirements are not well known among employees or employers–particularly among out-of-state employers, many of whom don’t realize they must post notice of employees’ VESSA rights in their Illinois facilities.
“There are a lot of statutes passed that fly under the radar, and this is one of them,” Donati says. “There is not a lot of awareness, but that will change over the next few years as employees become more aware of what is out there.”
While the Illinois law hasn’t generated dramatic results, victims rights groups believe that protected status is important on two levels. Julie Goldscheid, a professor at CUNY Law School in Flushing, N.Y., who formerly advocated for victims at the NOW Legal Defense and Education Fund, says such laws encourage employees to tell their employer that they are victims without fear they will be fired. That enables the employer to safeguard the workplace before violence erupts. They also protect victims from being doubly victimized by being terminated, she says.
“Jobs and economic independence are so important in enabling the victim to move toward safety,” she says.
Employment lawyers argue that the proliferation of protected classes jeopardizes a company’s ability to effectively supervise its workforce.
“Although the employers of this country are compassionate, they need to be able to react if domestic violence situations come into the workplace,” Malana says. “This threatens to create a Pandora’s box–how many categories of protected status should we have?”