Articles Posted in Domestic Violence Discrimination

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On August 8, 2014, Massachusetts Governor Deval Patrick signed a new law that offers leave from work to domestic violence victims and their family members; so that they can take necessary steps such as getting medical attention; seeking victim services; submitting police reports; talking to attorneys, police or courts; making arrangements for child custody; etc. The Family and Medical Leave Act offers only limited leave for the specifically medical needs of the victim, but the new law recognizes many other ways in which domestic violence can disrupt the victim’s working life.

About a dozen other states have enacted similar laws. The provisions of those laws vary widely. Washington D.C.’s law is the only one that mandates paid leave. The laws vary in the activities for which leave is allowed. They also vary in the amount of time granted: some offer a set number of days, others require only a “reasonable” amount of leave, while others are silent about the length of time and only prohibit disciplining or firing employees who take time off for reasons relating to domestic violence. The Massachusetts law mandates “up to 15 days of leave from work in any 12 month period.”

The new law also specifies that, while employees can be required to provide “appropriate advance notice of the leave to the employer…if there is a threat of imminent danger…the employee shall not be required to provide advanced notice of leave; provided, however, that the employee shall notify the employer within 3 workdays that the leave was taken or is being taken under this section.” An obvious problem for domestic violence victims is that they can suddenly miss work, violate their employer’s policy regarding notice for absences, and lose their jobs. The employee will now be guaranteed 30 days to provide any required documentation to the employer regarding the reason for their absence from work.

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In October 2013, the United States District Court for the Southern District of New York dismissed the Plaintiff’s claim of sexual harassment in Wang v. Phoenix Satellite Television, Inc. The court found that since as an unpaid intern Ms. Wang was not paid by the defendant, she was therefore not an employee for purposes of the New York City Human Rights Law (NYCHRL) and thus not able to assert an actionable hostile work environment claim under the NYCHRL.

The District Judge’s legal reasoning about the case might have been sound. However, the idea that unpaid interns, generally the least powerful people in their organizations, have no recourse in cases of discrimination or exploitation in virtue of being unpaid seems like exactly the kind of situation laws like the NYCHRL aim to prevent. Seeing that the existing law offered no recourse for people like Ms. Wang, the case became a catalyst for the New York City Council (NYCC) to change the law so it would encompass cases like hers by protecting unpaid interns from workplace discrimination and harassment. So on March 26, 2014, after defining “intern” broadly as “an individual who performs work for an employer on a temporary basis whose work: (a) provides training or supplements training given in an educational environment such that the employability of the individual performing the work may be enhanced; (b) provides experience for the benefit of the individual performing the work; and (c) is performed under the close supervision of existing staff. The term shall include such individuals without regard to whether the employer pays them a salary or wage,” the NYCC unanimously voted to add the following wonderfully succinct passage to the NYCHRL: “The provisions of this chapter (of the administrative code of the City of New York) relating to employees shall apply to interns.”

The NYCHRL now explicitly affords the same protections to interns and paid employees, protections from discrimination based on their age, race, national origin, gender, disability, or other protected characteristics. Companies will now also be required to make reasonable accommodations in certain circumstances, and to refrain from retaliatory responses to complaints by interns about discrimination.

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In a resounding victory for victims of domestic violence, New York State has recently amended Executive Law, which prohibits certain types of discrimination, to include protection for victims of domestic violence from being discriminated against in employment matters. The law, which is long overdue, extends legal protections to the victims of domestic and sexual abuse, and helps ensure that this vulnerable class of individuals is not further punished for the intolerable actions of others.

Previously, it was legal for employers to discriminate against an employee who had been abused or harassed without penalty. For instance, employers could fire individuals suffering from domestic abuse, claiming that it caused a nuisance in the workplace, or had caused many absences from work and unpredictable behavior in the employees. Employers had also been concerned with angry and abusive spouses showing up at places of employment, causing disturbances.

The change in law should be greatly applauded as it extends benefits to these victims, and helps them hold on to their employment in the face of troubling circumstance. These individuals should be helped and protected, not punished further by losing their jobs.

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