An amendment has been proposed to the Unborn Victims of Violence Bill (HR 1997) to provide employment protections to victims of domestic violence. However, current law already offers substantial protections and aid to such victims, and the proposed amendment would do little more than impose a substantial burden on employers. The amendment's backers have failed to make the case for Congressional action in this area, let alone the heavy-handed approach taken in the amendment.
Amendment 2859, offered by Sen. Patty Murray (D-WA), would create a right to unpaid leave of up to thirty days for victims of domestic violence, including stalking. This leave provision would be separate from and in addition to the leave provided for by the Family Medical Leave Act (FMLA). The amendment would also prohibit discrimination against victims of domestic violence.
In arguing for similar legislation, the National Organization for Women's Legal Defense and Education Fund has cited studies showing that anywhere between 24 and 52 percent of domestic violence victims lost a job due to domestic violence, but this by itself tells us little because these figures include both victims who were fired and those who quit their jobs. In many cases , assuming that employers are at fault in these situations would be extremely unfair. For instance, if a domestic violence victim concludes that she must relocate in order to get away from her attacker, she is likely to leave her job even if her employer is extremely understanding toward her plight.
And while isolated incidents of callous treatment of domestic violence victims by employers are almost bound to happen in a labor market with over 138 million employees, advocates of this legislation have yet to produce data showing that employer mistreatment of domestic violence victims is widespread or that, generally, employers are unwilling to make reasonable arrangements to allow domestic violence victims to change their residences, seek treatment or counseling, attend to legal matters, or take other actions needed to protect themselves or their loved ones.
Existing law already gives considerable protection to domestic abuse victims. FMLA provides for up to twelve weeks of leave to care for a serious health condition or for a family member with a serious health condition. Eligibility for FMLA leave is not limited to physical injuries, and a victim who is undergoing psychological counseling may be eligible for FMLA leave even if his or her physical injuries are slight.
The proposed amendment, meanwhile, puts heavy burdens on employers and does so in a manner that maximizes potential administrative problems. The leave provision is completely separate from FMLA's, and applies to employers with as few as 15 employees - compared to 50 for FMLA. Unlike FMLA, which applies to workers who have been employed for a year, the new leave program has no length-of-service requirement.
Under this amendment domestic violence leave can be taken without advance notice, and without corroborating evidence beyond the employee's own sworn statement; this is a combination of mandates that virtually invites misuse. And because this amendment applies to businesses with as few as 15 employees and applies on an employee's first day, the leave program it creates could be particularly damaging to startups and small businesses that are expanding and hiring new staff.
While it is natural and compassionate to want to protect the victims of domestic violence, it is unlikely that this amendment would provide them with any aid that employers are not already required to offer or are unwilling to provide on their own. What is certain is that this amendment will put heavy and unnecessary burdens on employers, reducing employment possibilities for both men and women.
Paul Kersey is Bradley Visiting Fellow in Labor Policy at The Heritage Foundation.