Can an employer fire me or refuse to hire me based on the fact that I am a victim of domestic violence?
Under the law, a person who is a victim of domestic violence cannot be discriminated against by an employer. This means that an employer may not fire you or refuse to hire you solely because you are a victim of domestic violence. Additionally, your employer may not treat you differently than other employees in terms of privileges, benefits, or pay, based on the fact that you are a domestic violence victim.1
Note: This law only applies to employers with four or more employees. However, all the employees do not need to work in the same location.2
1 NY Exec Law § 296(1)(a)
2 NY Exec Law § 292(5)
If I am a victim of domestic violence, how do I know if an employer’s actions are based on discrimination?
It may be difficult to know if the employer is discriminating against you. Here are a few possible situations that could indicate you have been discriminated against:
Example #1: In an interview for a new job, you reveal that you are in an abusive relationship. The employer says something like, “Although you are well-qualified for the position, I am not hiring anyone who can’t stand up for herself and lets someone beat her up.”
Example #2: You are currently employed and your employer regularly allows anyone to take off from work with one day’s notice for personal issues (i.e., if the babysitter cancels or if someone has to bring his/her car in to be fixed). You give one day’s notice and tell the boss you need time off to deal with a domestic violence issue (i.e., to plan a move to a safe place or to go to family court). Your boss refuses to grant you the time off for no good reason.
Example #3: You get an order of protection and show it to your boss. You mention to your boss that you suspect that the abuser may try to come to your workplace or call to look for you. Your boss says that s/he “doesn’t want to deal with that” and fires you.
If you are not sure whether or not you have been discriminated against, you can call or visit the NYS Division of Human Rights office nearest you to speak with a staff member about your situation. You can find information on filing a complaint based on discrimination here and the addresses and phone numbers for the various regional offices here.
If I have to miss work due to a domestic violence legal proceeding, can I be fired?
No. If you are the victim of a domestic violence crime, there is a criminal law that forbids an employer from punishing you for missing work for any of the following reasons:
- to testify in the criminal case;
- to meet with a district attorney about a criminal case; or
- to seek an order of protection in criminal or family court.1
The law requires employers, with prior day notification, to allow time off for victims or witnesses of domestic violence to pursue these legal actions. However, the employer can ask for proof from the district attorney or the court staff that you were present in court that day and why you where there. Therefore, it is a good idea to ask for a letter or other proof while you are in court. Note: The employer does not have to pay you for the time missed.1
If the employer does fire you or punish you for missing work, you can contact the police since s/he may actually be committing a crime for which s/he can be arrested. Additionally, you may be able to file a claim with the NYS Division of Human Rights, because this behavior could also qualify as discrimination. See Can an employer fire me or refuse to hire me based on the fact that I am a victim of domestic violence? for more information.
Note: Even if you are not the victim of the crime but you have been subpoenaed (ordered) by the court to testify at a trial, this law applies to you as well.1
1 NY Penal Law § 215.14
If I feel that my employer did discriminate against me because I am a domestic violence victim, what can I do?
If you believe you have been the subject of employment discrimination based on your status as a victim of domestic violence, you can file a complaint with the NYS Division of Human Rights. The NYS Division of Human rights is a state agency created to enforce the human rights laws of New York by reviewing complaints of discrimination and prosecuting violators.1
You can file a complaint at the nearest regional office of the NYS Division of Human Rights. The headquarters is located in the Bronx, but there are many regional offices located throughout the state. Click here to find the office nearest you.
You can also download the form to file a complaint here. Once you download the form, here are the steps you can take:
- Fill out the form and sign it in front of a notary.
- Mail the form to the nearest regional office of the NYS Division of Human Rights (NYSDHR). You can find the address of the one nearest you by clicking here.
- In addition to the complaint form, you should be prepared to supply the office with the names and addresses of the employer and any witnesses, as well as any documents that support your claim.
- You must file the complaint within one year of the unlawful discrimination.
- The regional office will review your complaint and notify the employer about your complaint.
- The regional office will investigate your claim to determine if there is enough proof to believe that an act of discrimination has occurred, and will notify you and the employer of their decision in writing. Additionally, the office will send a copy of your complaint, upon your request, to the Equal Employment Opportunity Commission (EEOC). The EEOC enforces the federal laws that forbid workplace discrimination.
- If the NYSDHR decides that there is not enough proof of discrimination, they will dismiss your claim. You may appeal this dismissal in the state supreme court within 60 days.
- If the NYSDHR finds that there is evidence of discrimination, a hearing will be held. An NYSDHR attorney or agent will be assigned to assist you throughout the hearing process and will present the case to the judge on your behalf, free of charge.
- At the conclusion of the hearing, the judge will make a decision and a “recommended order” will be sent to you and the employer. You will each have an opportunity to review and object to the order.
- The commissioner of the NYS Division of Human Rights will review the “recommended order” and any objections that are filed to it and will issue a final “commissioner’s order.”
- If the judge and commissioner find that discrimination has occurred, they may order the employer to hire you or give you your job back. They may also order the employer to pay you damages and/or back pay.
- If after the hearing, the judge and commissioner find that discrimination has not occurred, they will dismiss your complaint. You may appeal the dismissal in the state supreme court within 60 days.1
Note: There is no filing fee to file this complaint.1
You may also want to consider suing the employer in civil court for this discrimination. We strongly suggest that you talk to an attorney who specializes in civil rights law or employment law to discuss whether or not you have a good case against your employer and to figure out what the possible outcome of a lawsuit may be. You may be able to find an attorney through the Bar Association’s Legal Referral Service which you can find on our NY Finding a Lawyer page.
1 Adapted from the NYS Division of Human Rights website