I was asked this question by a friend asking on behalf of someone else and thought the answer might be useful here.
An employee has become involved with multiple abusive men, who then end up calling the office and harassing or verbally abusing other employees. The latest was a call where he threatened to beat up the boss. They want to know if they can fire her.
They’re in Texas, which doesn’t have a law protecting domestic violence victims from firing, but I wonder what the right way would be to handle this if they did.
And can they legally tell her that while they're sympathetic to the situation she’s in, they can’t put other employees and clients at risk, and that they can’t continue to employ her if people from her personal life continue to call her office and threaten people?
Boo to Texas for being behind the times. Many states have laws protecting domestic violence victims. In those states, the answer would be different. A proposed federal law to protect domestic violence victims from discrimination at work went nowhere. Are we surprised? Here is a brief summary of some state and local laws protecting domestic violence victims from employment discrimination:
- California law says an employer can't fire an employee for being a domestic violence victim, and it also requires employers to make reasonable accommodations to secure the workplace for the victim's safety. Employers with 25 employees or more must grant victims reasonable leave to deal with court dates and other issues relating to the domestic violence. Colorado provides up to 3 days of leave if the employer has 50 or more employees.
- Connecticut provides for up to 12 days of leave and bans discrimination against domestic violence victims.
- Delaware’s law makes it illegal to discriminate against domestic violence victims and requires employers to make reasonable accommodations such as schedule changes or changes in job duties.
- Florida law grants domestic violence victims up to 3 days of protected leave. Employers cannot discharge, demote, suspend, retaliate or otherwise discriminate against an employee for exercising their rights to domestic violence leave. To our legislature's credit, this law has been in place since 2007, so we were a whopping 7 years ahead of pro-employee Massachusetts for a change. Miami-Dade County has an ordinance providing for up to 30 days of protected leave.
- Hawaii also has a protected leave, the amount of which depends on the size of the employer. Employers can't discriminate against victims and also must provide reasonable accommodations.
- Illinois law requires reasonable accommodations, prohibits discrimination and 8 - 12 weeks of protected leave, depending on the size of the employer
- Indiana prohibits discrimination for either filing a petition for a protective order or for actions taken by the abuser. It also provides that employer and employee may mutually agree to accommodations.
- Kansas law says employers can't discriminate against domestic violence victims who need time off.
- Maine law grants reasonable protected domestic violence leave.
- Massachusetts law requires employers with 50 or more employees to give up to 15 days off for medical attention, securing new housing, court proceedings and other needs related to the domestic violence.
- New Mexico provides up to 14 days of protected leave.
- New York state prohibits discrimination against domestic violence victims. New York City and Westchester County require reasonable accommodations for domestic violence victims.
- North Carolina prohibits discrimination against victims for taking reasonable domestic violence leave.
- North Dakota allows state employees up to 40 hours of sick leave for domestic violence victims and their family members.
- New Jersey's law says an employee/victim is entitled to time off for treatment or counseling, and also says they have to be allowed to attend legal proceedings, civil or criminal, relating to the incident.
- Oregon requires employers with 6 or more employees to grant reasonable leave and prohibits discrimination. Portland also requires protected domestic violence leave.
- Philadelphia provides leave depending on the size of the employer.
- Rhode Island prohibits discrimination.
- Washington DC has a sliding scale for leave depending on how large the employer is.
- Washington state provides reasonable leave. Seattle has its own leave ordinance and also bars discrimination.
Now, back to Texas (and this applies to most other states too). Some things to look into before even thinking about firing this employee are:
Subpoena: If she has been subpoenaed to testify in the court proceedings, Texas Labor Code § 52.051 prohibits termination of an employee for complying with a subpoena. Many states protect people from being terminated for testifying under subpoena, especially crime victims.
Sex discrimination: If a male crime victim was not terminated under similar circumstances, then firing the female for being a crime victim could be illegal sex discrimination. Particularly if a male domestic violence victim was not fired, she might have a case. But any male victim of a violent crime could be a valid comparator if they were being threatened, stalked or subjected to anything that could potentially land in the workplace.
Disability discrimination: Therefore, there is an argument that she is being terminated due to a disability or being regarded as disabled.
FMLA: If she is suffering from depression, anxiety, PTSD or another condition resulting from the domestic violence, she could be entitled to FMLA. Offering that might be an alternative to termination.
Other discrimination: If a member of a different race, age, national origin, or other protected category was the victim of a similar crime and was not fired, she could argue discrimination.
I would think another avenue, rather than termination, would be to assist the employee in getting an injunction. Plus, the boss who was threatened could also be entitled to an injunction against him. Wouldn’t it be better to try to help her by keeping him out of the workplace? Wouldn’t that send a better message to other domestic violence victims? It would be a terrible message to send to other domestic violence victims. It could even make them afraid to report the crime to the authorities if they think they will be fired for being a victim.