Settlement in New York Domestic Violence Case May Set Broader Precedent
The New York State attorney general has reached a potentially significant settlement with Bon-Ton Stores, which has more than 200 department stores across the northern part of the country, over a workplace discrimination complaint filed by a victim of domestic violence.
The settlement, to be announced on Thursday, stems from an episode in early October at the company’s store in Williamsville, N.Y., a suburb of Buffalo. It requires the company to educate all employees of its New York stores that victims of domestic violence are protected by state law against retaliation and harassment relating to their abuse.
In a possible violation of the law, the Bon-Ton employee was sent home by a manager shortly after revealing that her estranged husband had threatened her life the day before. Under the terms of the settlement, Bon-Ton did not admit any wrongdoing, but agreed to change its policy so that employees in a similar situation are not required to procure a protective order to stay on the job.
“Victims of domestic violence face unspeakable hardships in every aspect of their personal lives,” the attorney general, Eric T. Schneiderman, said in a statement. “Our agreement with Bon-Ton Stores stands as a model for other employers.”
Experts on workplace discrimination hailed the settlement as an important step in protecting victims of domestic violence.
“It has a great value in spreading awareness about the law,” said Amanda Norejko, of Sanctuary for Families, an advocacy group and service provider for survivors of domestic violence. “Employers who are willing to flout the law will be given pause by the fact they know the attorney general’s office is investigating these things.”
Bon-Ton declined to comment on the case or the settlement agreement.
In a variety of studies over the years, victims of domestic violence have reported that the abuse interfered with their job performance and undermined their livelihoods. A significant fraction — as high as around 50 percent in some studies — reported having lost their jobs or being forced to quit at least partly as a result of the situation.
“It’s particularly an issue for workers at the lower end of the income spectrum,” said Maya Raghu, a lawyer with Futures Without Violence, a nonprofit that works to end violence against women and children. “They work shifts, don’t have a lot of control or benefits like paid leave, sick leave to deal with this.”
The law in New York, one of a handful of jurisdictions around the country to have enacted similar measures, prevents employers from firing or otherwise punishing employees on the basis of their having experienced domestic violence.
Unlike a similar New York City law, the state law does not explicitly require employers to make accommodations for employees who have experienced abuse — such as granting time off for medical treatment and to obtain protective orders against their abusers. But some of these steps may be necessary for an employer to demonstrate that it was handling the situation appropriately, experts say.
The episode involving Bon-Ton began on Oct. 9, when Jodi Porter, the employee, turned up for her shift as a saleswoman and informed store security officials that her estranged husband had threatened to kill her.
Ms. Porter said in an interview that, within an hour, the store had developed a safety plan that allowed her to go about her work. But shortly thereafter, the store manager told her to leave the store immediately. She was told to stay home until she checked in with the manager several days later, missing at least one more shift in the meantime.
When she spoke with the manager again, Ms. Porter said, she was told she could not return to work until she received a protective order against her husband, which was not immediately forthcoming because he had fled after a warrant for his arrest was issued. She was given no indication that her leave would be paid.
Ms. Porter contacted a hotline at the attorney general’s office on Oct. 13 regarding an unrelated issue and also mentioned her employment situation, which prompted the investigation. Bon-Ton informed her that it would pay her during the leave after she contacted the attorney general, and she was told she would be able to return to work less than one week after that.
The safety plan the store ultimately put into effect under pressure from the attorney general — including allowing her to park closer to the store, giving her access to a safe room to elude her husband and allowing her to use her cellphone while working in the event of a threat — was essentially the same plan the store proposed at the outset of the incident, Ms. Porter said.
She said that being unable to work created a level of emotional distress above and beyond the uncertainty of not knowing whether she would have a source of income.
“I went there going, everything is fine, everything is fine,” she said. “I was trying to go about my work, just do what I’ve got to do to take my mind off of everything.”
Instead, she added, being sent home “made me feel like a victim all over again. It was like a slap in the face.”
Advocates said one of the company’s key missteps was not having a policy in place to deal with such contingencies, leading to the confusion that surrounded Ms. Porter’s situation.
“You don’t want to have a low-level manager operating off the seat of their pants,” said Penny M. Venetis, the executive vice president and legal director of Legal Momentum, a group that works on a broad range of gender equity issues, include domestic violence.
Ms. Venetis said that sending home a worker who has been threatened by a partner was often the most dangerous response an employer could choose. The employee may be less safe alone at home than at work, and the loss of a livelihood can make abused partners even more dependent on their abusers.
Ms. Porter “acted responsibly for reporting it,” Ms. Venetis said. “The actions Bon-Ton took discourage people from coming forward.”
The law in New York and many other states does not necessarily require that employers always allow victims of violence to return to work, some experts say. There may be instances in which a violent threat is imminent and an employer reasonably concludes that the victim, fellow workers and customers may be safer if the abuse victim takes time off, said Jennifer Schwartz, an employment lawyer at Outten & Golden in California.
But in those instances, it is important for the employer to go out of its way to seek input from the employee in order to get a complete picture of the circumstances, including the employee’s needs.
“We’re not saying employers should become experts on sexual violence, stalking,” Ms. Raghu said. “Just that they should be supportive of people who are victims.”
An earlier version of a picture caption with this article misstated Ms. Porter’s status at Bon-Ton. She is a current employee, not a former one.