Labor: Wisconsin shootings remind employers to address domestic violence in the workplace

Workplace situations involving domestic violence are fact-intensive and the liability an employer faces will likely be complex

Oct. 21, 2012 was a dark day in Wisconsinas Radcliffe Haughton fatally attacked his wife, Zina Haughton, at her place of employment nearMilwaukee. Along with killing his wife, Radcliffe murdered or injured six other individuals at Azana Salon & Spa in what authorities described was domestic violence. All this occurred despite the fact that Zina Haughton obtained a four-year restraining order from her husband just days earlier and after he slashed her car tires while she worked at Azana. The Oct. 21 Brookfield shootings confirm what domestic violence professionals have long known—domestic violence is rarely isolated to the home.

These unfortunate circumstances make clear that employers should be prepared to address domestic violence that is apparent in the workplace. This can occur in a variety of situations, including when two employees who work with each other are in a relationship, an employee is a victim of domestic violence, or an employee is an abuser and brings the harm to a third-party while working. In some circumstances, an employer’s primary concern may be ensuring it complies with the law and does not face liability through a charge of discrimination. However, in many circumstances, the employer’s primary concern may be ensuring the safety of employees.

Employees who are victims of domestic violence may hold certain rights under the law. An employee who is harmed to the extent that they suffer from a serious health condition may use up to 12 weeks of unpaid leave under the Family and Medical Leave Act. These rights apply to employers with 50 or more employees at a worksite. The harm an employee suffers may be physical or mental in nature. As with many of the rights discussed here, comparable state or local laws may exist that provide additional rights to unpaid medical leave.

Victims may also be protected from employment discrimination in certain circumstances based on employee rights under Title VII and the Americans with Disabilities Act (ADA). The EEOC recently reminded the public of how these laws can apply to employees who suffer from domestic violence by providing several examples in a “question and answer” publication. For example, the EEOC states that an employer may be liable under Title VII if it allows a male employee to take leave to attend a criminal prosecution but not a similarly situated female employee who asks to appear at the prosecution of her partner on domestic violence charges. An employer may also face liability for the sexual harassment by one employee against another employee if the victim suffers a tangible employment action through the harassment or is placed in a hostile work environment. Moreover, an employee is protected under theADAfrom being subject to a hostile work environment on the basis of disability or discrimination on the basis of an actual or perceived impairment, such as depression, associated with domestic violence. In addition to these protections, employers who are made aware of an actual disability that results from domestic violence must provide a reasonable accommodation for that disability.

Where an employee suffers harm by another employee who commits domestic violence in the workplace, the victim may seek monetary relief under worker’s compensation. For the employer, this is likely to be the exclusive remedy for employee recovery if worker’s compensation applies. However, an employer with knowledge of domestic violence and an abusive partner may be subject to a violation of the Occupation Health and Safety Act’s General Duty Clause. This provision requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Depending on the employer’s knowledge, this clause may apply where an employee-victim is harmed at the workplace.

An at-will employee who commits an act of violence in the course of employment may be discharged for such conduct. To prevent claims of discrimination, an employer should implement and enforce a zero-tolerance policy that applies to acts of violence. Employers should take care that an adverse employment decision against an abuser is not made on the basis of an arrest or conviction record where jurisdictions recognize this as a protected class status. Relying on the results of the employer’s independent investigation into allegations of domestic violence occurring at the workplace may help avoid claims of protection based on such laws.

While state and local laws may provide similar protections to those discussed above, they may also provide unique requirements such as laws that protect an employee’s privacy. Additionally, claims based in tort may exist in an employer’s jurisdiction to create additional liability. For example, an employer who fails to properly supervise an employee who presents a known danger to others may be subject to a claim for negligent supervision.

Workplace situations involving acts or allegations of domestic violence are fact-intensive and the liability an employer faces will likely be complex. Employers should consult counsel well-versed in state and federal employment laws to navigate any employer requirements and help keep employees safe.

Contributing Author

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Mark Spognardi

Mark Spognardi is a partner at Arnstein & Lehr. He focuses on representing management in traditional and non-traditional labor and employment law matters, including counseling,...

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Contributing Author

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Jesse Dill

Jesse R. Dill is an associate in the Milwaukee office of Arnstein & Lehr. He is a member of the firm’s Labor & Employment Practice Group....

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