Domestic Violence Discrimination

A bill pending in the Delaware legislature would expand the state’s anti-discrimination statute.  House Bill 4 would prohibit discrimination on the basis of domestic violence, sexual offense, or stalking.  If passed, the bill would have important implications for Delaware employers.  Here’s what you need to know.

Which Employees Would Be Protected?

If adopted, the bill would prohibit employers from discriminating against employees because the employee was a victim of domestic violence.  There are several scenarios where the implications of the law would be significant.

For example, assume an employee’s spouse is believed to be violent. The spouse comes to the workplace every day and sits in his car in the parking lot as a way to harass the employee.  The employee refuses to report the spouse to law enforcement out of fear of the repercussions.  The employer has a legitimate reason to be concerned.  Not only is the spouse’s conduct disruptive to the workplace but it also gives rise to a potential incident of violence at the workplace.

If the employee continues to refuse to report the conduct, can the employer terminate the employee?  Under the current law, yes.  Under the proposed law, no.  the proposed law prohibits an employer from taking adverse action against an employee because of domestic violence or stalking, both of which may be triggered under these facts.

Another possible scenario could involve co-workers in a domestic relationship.  Assume the relationship goes south and both employees file for a protective order, each alleging domestic violence.  Each has a therapist prepare a statement that he or she is the victim. 

Can you terminate one of the two under the proposed law?  No.  Can you terminate both?  Also, no.  Must you permit both of them to continue to work in the same location, causing a seemingly volatile situation?  Likely so.

What Are Employers Required to Do?

In addition to not discriminating, Delaware employers also would be required to make “reasonable accommodations” to an employee who is the victim of domestic violence, sexual offense, or stalking.  Specifically, employers would be required to accommodate the employee’s “known limitations” related to the offense.

For example, an employer would be required to permit the employee to make use of any accrued leave in order to avoid the spouse in the parking lot.  Or, perhaps, an employer could be required to permit the employee to use a different entrance and exit so to avoid being seen by the spouse.  The scope of required accommodations is unclear, as the term is not defined in the statute but, as with disabilities-based accommodations, would likely be expansive.

How Should Employers Prepare?

If the law is passed, employers could be faced with challenging facts.  Until then, employers may want to consider reviewing the following policies:

Violence in the Workplace.  Be sure your policy contains safeguards to ensure preparedness and that your employees know how to respond in an emergency.

Anti-Fraternization.  Consider whether you should impose restrictions on romantic relationships among employees.

Harassment.  As with other types of harassment, employees should be informed of the appropriate channels of communication when they or their coworkers are being subject to unlawful harassment.

Contact Information