Domestic Violence and the Workplace

DOMESTIC VIOLENCE AND THE WORKPLACE

EMPLOYER LIABILITY UNDER TITLE VII

I. INTRODUCTION

The Journal of the American Medical Association estimates that at least one fifth of all women will be physically assaulted by a partner during their lifetime. According to the United States Surgeon General, domestic violence is "the single largest cause of injury to women in the United States," stating that domestic violence is the cause of more injuries than automobile accidents, rape, and muggings combined.

According to the United States Department of Justice, more than ninety percent of victims of domestic abuse are women. Department of Justice statistics also show that women are six times more likely than men to experience violence committed by a partner and nine times more likely to be killed by their partner.

Domestic violence may result in death, rape, maiming, disability, and other physical injuries. Victims' Economic Security and Safety Act, S. 1249, 107th Cong. § 2 (2001). These issues sometimes extend beyond the home and may carry over into the workplace. For victims of domestic violence, the violence they suffer can become a barrier to employment, affecting their ability to obtain or maintain a job. Id.

Further, thirty-five to fifty-six percent of domestic violence victims are harassed by their abusers at work. Id. In some cases, the abuser can be a manager or co-employee who harasses, abuses, or assaults the victim in the workplace. In many cases, however, the abuser does not work with the victim. The batterer may either harass the victim in person or harass the victim at work without approaching the workplace. Id. For instance, the batterer may make telephone calls, follow the victim to and from work, or send offensive mail, e-mails, or notes. United States General Accounting Office (1998).

Outside the workplace, a batterer may also impact their victims' ability to work. A batterer can destroy the victim's clothing, inflict visible injuries, or affect child care. Id. Even when the batterer does not directly interfere with the victim during business hours, the domestic violence itself may impact a victims' ability to perform the job. For example, seventy-five percent of domestic violence victims use company time to obtain legal and medical services, to call shelters and counselors, or simply to talk to family or friends about the abuse. New York State Labor Department. All of these have an effect on the workplace, on both the victim and on their employers. Domestic violence costs employers an estimated three to five billion dollars every year in absenteeism, lost productivity, higher turnover, and increased health care costs. Victims' Economic Security and Safety Act, S. 1249, 107th Cong. § 2 (2001). However, employers tend to treat domestic violence as a private matter and not a work related issue. United States General Accounting Office. Employers that do not address domestic violence may be exposing themselves to legal liability. Employers who discriminate against a battered woman, as a victim of domestic violence, can be held liable under Title VII of the Civil Rights Act. 42 U.S.C. § 2000e-2 (2002).

II. MAKING A TITLE VII CLAIM

Title VII prohibits discrimination against employees on the basis of their sex with respect to hiring, firing, or other terms and conditions of employment. 42 U.S.C. § 2000e-2(a)(1) (2002). A victim of domestic violence may pursue a Title VII claim using one or more of three available theories: sexual harassment, disparate treatment, and disparate impact.

A. Sexual Harassment Theory

The sexual harassment theory allows a victim of domestic violence to sue her employer for its agents' behavior. Faragher v. City of Boca Raton, 524 U.S. 775, 790-92 (1998). Under this theory, an employer may be liable for the acts of its employees, customers, or business partners. Id. This theory enables victims who suffer their batterers' harassment during business hours to sue their employers for failing to protect them from the abusive behavior. There are two types of sexual harassment claims, quid pro quo harassment or hostile work environment.

Quid pro quo sexual harassment occurs when submission to or rejection of unwelcome sexual conduct is used as the basis for employment decisions. 29 C.F.R. § 1604.11(a)(1) (2001). The quid pro quo theory requires that the batterer be in a position of authority over the victim. Id. Victims who work directly under the supervision of their partner or in a department managed by their abuser may use this theory. Id. For instance, to litigate a quid pro quo claim a battered woman would have to show that her harasser threatened her with termination if she broke off the relationship. Keppler v. Hinsdale Township High Sch. Dist. 86, 715 F. Supp. 862, 869 (N.D. Ill. 1989).

A hostile work environment exists whenever an employee's conduct "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986). A battered woman must show that the harassment is "sufficiently severe or pervasive to alter the conditions of employment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Simply proving the existence of a hostile work environment is not enough. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). An employer will only be liable if the court finds that the employer was aware, or should have been aware, of the harassment but failed to take prompt remedial action. 29 C.F.R. § 1604.11(d) (2001). Thus, only those who disclose the abusive nature of their relationships to their employers or those who show physical signs of abuse can successfully sue under this theory.

Social context is also a factor in a sexual harassment claim as shown by the Supreme Court's decision in Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75, 81-82 (1998). In Onacle, the Court held that the "impact of particular behavior on the workplace could only be understood in the context of the social milieu in which the employees interact." Id. "Social context is necessary to determine if a reasonable person would find the behavior hostile or abusive." Id. Therefore, the Onacle decision essentially creates a defense for employers by allowing them to argue that the work environment may be offensive, but is acceptable based on the social context of that workplace. Id. In cases of domestic violence, social context refers to the consensual relationship the victims share, or have shared, with their harassers. Galloway v. Gen. Motors Serv.