NY work discrimination protections for domestic abuse victims

On Aug. 20, Gov. Cuomo signed a bill strengthening New York law prohibiting unlawful employment discrimination against victims of domestic violence. The legislation amends the New York Human Rights Law, which first placed domestic violence victims into a protected class against workplace discrimination in 2009.

The bill’s new provisions will take effect on Nov. 18.

More victims protected

The bill changes the operative language from “domestic violence victim” to “victim of domestic violence” and includes more victims within the definition. Currently, protected employees are victims of “family offenses,” which are specific offenses that can be heard in family court or criminal court.

Under the new legislation, a victim of domestic violence can be a victim of any act that would constitute a crime under state law. The act of domestic violence also must have been perpetrated by a “family or household member” and have either caused “actual physical or emotional injury” or “created a substantial risk of physical or emotional harm” to the victim or the victim’s child.

Reasonable accommodations

The bill adds a lengthy, complex subdivision to the main anti-discrimination statute. The new subdivision explains “unlawful discriminatory practices” against victims of domestic violence. Discrimination is broadly described as refusal to hire, termination, unequal compensation or discrimination in the “terms, conditions or privileges of employment” as well as printing anything suggesting discrimination toward these victims.

The only reason an employer can ask about domestic victimization is to offer assistance or develop reasonable accommodation. An employer with this knowledge must keep it confidential to the extent the law allows.

Significantly, the subdivision requires an employer to provide reasonable accommodation to an employee-victim through reasonable time off, but only for specific, related reasons:

• Medical care for self or child
• Services from a “shelter, program, or rape crisis center”
• Counseling for self or child
• Safety planning, including relocation
• Receipt of legal services, assistance in criminal prosecution and court appearances

If the absence would cause the employer “undue hardship,” considering the business size, type, budget and other factors, the employer is not required to provide the time off.

The employee should give reasonable notice of the need for absence if feasible. If it is not feasible, the employee must provide certification that they were off work for an allowable reason.

The employer may require the use of earned paid time off or may provide unpaid leave.

In a press release, the governor said that these victims need legal protections against discrimination and require reasonable accommodations because their needs can have “far-reaching, lasting ramifications that can understandably interfere with their work schedules” and that they should “never have to fear losing their job as they deal with the aftermath of these unthinkable traumas.”