The attacker may be another employee or supervisor. An employee's work relationships, productivity and attendance may be affected by his or her role as a victim or offender in domestic violence situations. The effects of domestic violence on victims, offenders and their employers can be physically, emotionally, psychologically and financially devastating.
Intimate or domestic violence has been defined as the rape, sexual assault, robbery, aggravated assault or simple assault by a relation, former spouse or current or former boyfriend/girlfriend of the victim. The U.S. Department of Justice reports that, in each year between 1992 and 1996,960,000 individuals were victimized by spouses, ex-spouses, boyfriends, girlfriends and former boyfriends and girlfriends. On average, eight out of one thousand women (8-1000) and one out of one thousand men (1-1000) are victims of intimate or domestic violence each day. Murders by intimates account for 30% of all female murders and 6% of all male murders. From 1992 through 1996, victims of intimate or domestic violence lost $17,000,000.00 in wages as a result of their injuries or other causes stemming from the violence. One in ten women victimized by an intimate seeks professional medical treatment. About half of the victims reporting abuse say they experienced a physical injury during the domestic violence incident. About half of the incidents of violence by male intimates are not reported to the police. The most common reasons given for not contacting the police are that the incident was considered a private or personal matter, the women feared retaliation or felt the police would not be able to do anything about the incident. Nationwide, intimate murder accounts for about 9% of the murders from 1992 to 1996. Nearly 25% of all offenders report the use of alcohol prior to the intimate violence. The Congressional findings justifying the enactment of the Violence Against Women Act (VA WA) include the following: domestic violence costs employers an estimated 3-5 billion dollars annually due to absenteeism from the workplace; almost 50% of all rape victims lose their jobs or are forced to quit in the aftermath of the crime; fear of gender-based violence deters women from taking jobs in certain areas or at certain hours that pose a significant risk of such violence.
An employer must be, not only sensitive, but also, cautious in revealing information that an employee is the victim/offender in a domestic violence situation. Disclosure of information about an employee's domestic violence situation could result in the employer's liability for invasion of the employee's privacy.
Public disclosure of private facts is a form of the tort of invasion of privacy. Invasion of privacy or public disclosure of private facts occurs when an actor (employer) "publishes private facts concerning another" and the "resulting publicity is highly offensive to a reasonable person." "Publication" means that private facts are made public by communicating to the public at large or to so many persons that the private facts must be regarded as substantially certain to become public knowledge. Publication to a limited number of individuals, as opposed to the public at large, is still actionable where, a special relationship exists between the plaintiff and the public to whom the information has been disclosed, such that, the disclosure is just as devastating to the plaintiff as it would have been if the information had been communicated to the public at large. For example, an employer could be held liable for invasion of privacy, if without permission, he revealed to an employee's co-workers that she had been sexually assaulted by her former spouse. In Miller v. Motorola, 202 Ill.App.3d 976,560 N.E 2d 900 (1" Dist. 1990), an employee sued her employer for disclosing the fact she had a mastectomy to co-workers. The employee had met with a company nurse about her leaves of absence due to her initial and reconstruction surgeries. Later, one co-employee told the plaintiff that she had been informed of the surgeries by the company nurse. Since the employee and her co-workers were found to have a special relationship, the employer could be held liable even though the information was conveyed to a limited number of people.
The rationale in imposing liability is that it would be just as devastating to an employee to have co-workers learn of intimate details of her life as it would for the whole world to know. Employers who are informed of an employee's domestic violence situation must regard and treat the information as confidentially as possible.
An employer may be liable to an employee for damages for failing to protect an employee from physical harm or injury as a result of domestic violence incidents in the workplace. Generally, no one has a duty to control the criminal conduct of third parties, unless there is a special relationship between the person whose negligent conduct creates the risk and the person causing the injury or a special relationship exists between the actor and the person injured. Even where a special relationship exists, such as between an employer and employee, a duty to protect the employee is not absolute.
The employer must have knowledge of the danger to the employee, as the employer is not liable if he neither knows or should have known of an unreasonable risk to his employee. The employer is not required to take precautions against an attack from a third person which he has no reason to anticipate. The danger must be reasonably foreseeable before liability is imposed. Even where the danger is reasonably foreseeable, liability may not be imposed on an employer if in fact the likelihood of injury was small and the magnitude or the burden of guarding against the attack was great.
In addition to a common law duty to protect employees from harm under certain circumstances, OSHA regulations require each employer to furnish its employees a place of employment free from "recognized hazards which are causing or are likely to cause death or serious physical harm." Employers, under certain circumstances, do have an affirmative duty to protect their employees. Such circumstances could exist when an employee notifies the employer that he/she has been the victim of domestic violence and the reoccurrence of violence in the workplace is reasonably foreseeable.
One situation where a duty to protect could arise is when an employee communicates to her employer that she has obtained an order of protection which prohibits the intimate/abuser from being physically present at the victim's place of employment. Armed with the knowledge of the existence of an order, if an employer refused a request to allow the employee to park her car closer to the building and the employee was subsequently attacked by the intimate in the parking lot, the employer may be liable for damages by negligently failing to protect against a known and foreseeable danger.
Two Illinois cases illustrate an employer's potential liability for failing to protect even though the criminal acts were not "domestic" in nature. Ozment v. Lance, 107 Ill. App.3d 348 (5th Dist. 1982) and Rowe v. State Bank of Lombard, 125 Ill. 2d 203,531 N.E.2d 1358,126 Ill. Dec. 519, rehearing denied December 5, 1988. In Rowe, the landlord refused to rekey the locks due to the cost, failed to keep the master keys secure and failed to warn tenants of the possession of master keys by unauthorized persons. A construction laborer who had worked on the premises gained entry to a locked area late at night and shot two women, killing one of them. In Ozment, a teenage worker who made a delivery to a motel room was sexually assaulted by the inhabitants. Though the court in Ozment found the assault was unforeseeable, the potential outcomes in both cases are worth consideration after changing the facts slightly. For example, if the employees had informed their employers of the entry of a domestic violence order against a violent spouse, the employee reported the unauthorized presence of the spouse on the premises and the employer failed to act, a jury could find the employer negligent in failing to take precautions to protect the employee. In Rowe the burden of rekeying the locks was slight in comparison to the harm from the murder and assault of two office workers.
In addition to tort and workers' compensation claims, sex discrimination claims have been filed against employers after domestic violence incidents occur on the job. In Thomas v. Krotz. Inc ., Illinois Human Rights Commission, Charge #1986 SFO112, a female cashier had been separated and divorced from her husband. Some time after her separation, the female employee entered into a romantic relationship with her superior, an assistant store manager. Later the female employee's ex-husband went to the store where his ex-wife worked and beat up the assistant store manager. The female employee was terminated because of her relationship with the assistant manager and her former husband's actions. The assistant store manager was suspended for two weeks based on the affair and the physical altercation which occurred in the store. The female employee sued the employer for sex discrimination in that she and the assistant store manager were similarly situated (i.e. involved in a relationship) and she was terminated while the assistant store manager was not. She successfully proved discrimination and recovered against the employer.
Sexual harassment charges have been made against employers after the termination of a relationship between co-employees and one employee sexually harasses the other. While the law on sexual harassment would apply in these situations, the employer must keep in mind that domestic violence occurring in the workplace could, under some circumstances, result in a sexual harassment complaint. Sexual harassment policies must be enforced even where the harassor/harassee formerly carried on a consensual relationship.
Congress has enacted a civil rights statute which provides a private cause of action for victims of gender motivated violence. The act is referred to as the Violence Against Women Act (VA WA). 42 U.S.C. §13981. "A person who commits a crime of violence motivated by gender and thus deprives another (of the right to be free from violence motivated by gender) shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate." A crime of violence motivated by gender means "a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender.” Some of the few reported cases brought under the VA W A involve employers as party defendants.
In Anisimov v. Lake, 982 F.Supp. 531 (7th Cir. 1997), a female employee filed suit under the
V A W A based on the employers inappropriate sexual advances toward her, including fondling her, attempting to remove her clothing, assaulting and attempting to rape her and finally luring her to a deserted office site and raping her. The Court found the female employee had sufficiently pled a cause of action under the Act.
In Crisonino v. New York City Housing Authority, 985 F. Supp. 385 (S.D.N.Y. 1997) a female employee claimed her supervisor called her a "dumb bitch" and shoved her causing injury. The female employee sued her supervisor under the VA W A. The court refused to dismiss the VA W A claim ,finding that, if the employee's allegations were true, a reasonable jury may conclude the supervisor's actions were committed because of her gender and were due, at least in part, to an animus based on her gender.
When an employer suspects that an employee is being physically abused, but the employee has not or will not confirm the ongoing abuse, an employee assistance program may be the method through which the employer can assist the victim/employee. If the employer does not have an employee assistance program, employees can be provided with a list of relevant community resources to deal with emotional, marital or substance abuse problems.
Mindful of privacy issues, supervisory personnel must approach the situation from a job performance standpoint. Managers and supervisors can use objective job performance measures, such as absenteeism, tardiness, mistakes and conflicts with co-workers to focus on the underlying personal problem and encourage the employee to seek professional counseling and assistance before job loss becomes a possibility.
Management personnel should and have the right to initiate corrective action with an employee whose performance is diminishing. The employer or supervisor is NOT responsible for resolving the personal problems that are causing or impairing employee performance. Once an employee informs the employer of past or ongoing physical abuse, security and legal issues need to be addressed with the employee.
If the employee is not protected by a domestic violence order, he/she should be encouraged to obtain one. At no cost, trained advocates are available to assist victims in obtaining orders of protection, counseling and shelter. In Illinois, an Order of Protection can be obtained on an emergency basis (10 days) without notifying the alleged abuser. Thereafter, Orders of Protection can be extended for up to two years. There are no fees assessed to obtain Orders of Protection. The Order can require the alleged abuser to stay away or have zero contact with the victim; grant exclusive possession of a residence to the victim in addition to prohibiting the abuser from entering or remaining present at the victim's place of employment.
In addition to Orders of Protection, security measures that may be initiated by an employer include:
If the employer is unsure of what type or level of security is needed, local law enforcement agencies will, at no cost, provide an on-site security analysis. The security analysis will include a review of lighting, barriers, access, locks, alarms and emergency procedures.
Employers can initiate a workplace policy regarding violence, including domestic violence. Such a policy could inform employees that disciplinary action will be taken against any employee who threatens, exhibits threatening behavior or engages in violent acts. The policy may require employees to notify management of any threats that they have witnessed, received or been told that another person has witnessed or received. Employees may be under an affirmative duty to report any behavior that they have witnessed which they regard as threatening or violent when the behavior is job related or might be carried out on a company property. Most importantly, employers may require employees, who apply for or obtain an Order of Protection or Restraining Order which lists the employer's property as being a protected area, to provide a management representative with a copy of the petition used to obtain the order, a copy of any temporary order and any subsequent orders which involve the employer's premises.
Employers should watch for behavior that signals a potential for violence from domestic violence offenders. Some of the most frequently displayed signs of potential violence are:
An assessment by a qualified professional to determine whether the employee can safely perform his/her essential job functions without posing a risk to himself or others may be necessary. An attorney should be consulted before the potentially violent person is directed to obtain a psychological examination. Depending upon the method an employer utilizes to direct an employee to obtain a psychological assessment, the employer may be exposed to potential liability based on the invasion of the employee's privacy and/or disability discrimination.
Violent or harassing conduct should be carefully documented. Employees who exhibit violent, harassing or inappropriate behavior should be disciplined as outlined in the company policy. If the behavior is left unchecked, it can escalate.
By knowing when and how to react to employees who are domestic violence victims or offenders, employers can minimize the financial and intangible costs that result from domestic violence.