By Kendra Saathoff*
Discriminating against a woman for being a victim of domestic violence is sex discrimination under Title VII of the Civil Rights Act. Domestic violence is a workplace issue, whether from an abuser threatening an office and the workers in it or because a survivor needs to miss work to ensure she obtains an Order for Protection. Though Title VII of the Civil Rights Act of 1964 does not explicitly prohibit discrimination against applicants or employees who experience domestic violence, it does explicitly prohibit discrimination based on sex. Therefore, survivors can arguably still gain protection against discrimination under Title VII by arguing that discrimination against them because of their status as a victim of domestic violence is sex discrimination.
I. Domestic Violence is a Workplace Issue
Domestic violence is insidious. One in four women and nearly one in ten men have experienced physical violence, sexual violence, and/or stalking during their lifetime, and over 43 million women and 38 million men have experienced psychological aggression by an intimate partner in their lifetime. Leaving an abusive relationship is the most dangerous time for survivors. Domestic violence is a workplace issue because this danger can extend to the victim’s workplace—such as when an abuser comes to the victim’s workplace and puts others in danger. There are other workplace impacts on survivors of domestic violence, including missed work to go to court and obtain an order for protection, interference by the abuser with work, and harassment at the workplace. 19 percent of organizations in a Society for Human Resource Management survey had a domestic violence incident in the past year. Another survey estimates that survivors of domestic violence who are bothered in some way by their abusers at work (e.g. through harassing phone calls) range from 36 to 74 percent, and that domestic violence can also impact a survivor’s ability to get to work (e.g. through physical restraint), and can even lead to job loss for 5 to 27 percent of survivors. Despite the pervasiveness of domestic violence impacts on the workplace, victims of domestic violence can still be legally fired from their jobs for being victims in most of the U.S.
II. How the Law Can Help
The law can help by ensuring survivors keep their jobs and preventing them from being negatively impacted at work. Because domestic violence mainly affects women, and is associated with survivors losing their jobs, there is an argument that employers firing employees for being victims of domestic violence is sex-based discrimination under Title VII of the Civil Rights Act.
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, sex, religion, or national origin. It does not explicitly prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking, therefore potential employment discrimination and retaliation against these individuals may be overlooked.
How could Title VII’s prohibition of sex discrimination include prohibition of discrimination against someone because they are a victim of domestic violence? There could be two avenues. The first argument is that victims are disproportionately women and therefore discriminating against victims of domestic violence is discriminating against women and therefore sex discrimination. A victim would have to statistically demonstrate that a facially neutral practice of terminating any employee in a domestic violence incident impacts more women than men. Similarly, even if there is not a workplace incident of DV, if an employer were to fire anyone with a protection order, a plaintiff would need statistical evidence to support a claim that a policy requiring the termination of all employees who hold orders of protection disproportionately affects women. Though the cited article takes for granted that discrimination of domestic violence is sex discrimination, stating that “[g]iven the existing gender asymmetry of domestic violence, plaintiffs should be able to easily demonstrate that any practice predicated on an employee’s condition as a victim of domestic abuse will disproportionately affect women,” courts have struggled to recognize that as fact—see the discussion of Taylor v. Children’s Vill. and Johnson v. All Metro Home Care Servs. below.
The second possible argument for why employment discrimination against survivors of domestic violence is sex discrimination under Title VII is that it is sex-stereotyping. Title VII of the Civil Rights Act “prohibits an employer from treating you differently, or less favorably, because of your sex, which is defined to include pregnancy, sexual orientation, and gender identity. This law also prohibits employment decisions based on stereotypes (unfair or untrue beliefs) about abilities and traits associated with gender.” There could be an argument that firing someone for being a victim of domestic violence relies on sex stereotypes, for example instead of firing a survivor because their abuser has threatened the workplace, an employer fires a survivor for fear of the “drama” women who’ve experienced DV can bring to the workplace. Arguing that employment discrimination against survivors of domestic violence is sex discrimination because of sex-based stereotypes would also include discriminating against male survivors of domestic violence, for example a hiring manager could believe that men cannot be victims of domestic violence because they should be able to protect themselves, and therefore does not select a male applicant when the manager learns that the applicant obtained a protection order against a partner.
Many courts have found that being a survivor of domestic violence is not a protected class under Title VII and therefore there is little recourse for survivors who lose their jobs because of the domestic violence they have faced. The court in Taylor v. Children’s Vill. (S.D.N.Y. Apr. 21, 2021) stated “. . .being a survivor of domestic violence or human trafficking is not a protected class under Title VII.” And in Johnson v. All Metro Home Care Servs. (N.D.N.Y. Nov. 7, 2019) the court stated that the plaintiff failed “to allege facts plausibly suggesting that, as a ‘survivor of domestic violence,’ she was a member of a protected class pursuant to Title VII.”
Further, not all domestic violence survivors are women. Can a practice that discriminates against both women and men, but more women, be deemed sex discrimination under Title VII? That will be a challenge for survivors who seek recourse under Title VII. It would also make it difficult for survivors who are men to seek recourse against discrimination under Title VII. And for survivors who are nonbinary or gender nonconforming, it could be challenging for them to find protection from discrimination based on their status as survivors under Title VII’s sex-based discrimination as well.
Finally, abusers often do pose a threat to workplaces of victims, and therefore employers have a right to do what they can to protect their employees. Is it discrimination if employers are acting in the interest of safety of themselves and the organization?
There are many obstacles survivors face in seeking legal protection from discrimination under Title VII of the Civil Rights Act. This is an area without much legal precedent but could be an avenue through which survivors seek recourse in the future against discrimination based on their status as a survivor of domestic violence.
*Kendra Saathoff, J.D. Candidate, University of Minnesota Law School Class of 2022, JLI Vol. 40 Note & Comment Editor