December 3, 2015
On November 19, 2015 the New York State Attorney General announced a settlement agreement with The Bon-Ton Stores, Inc., following allegations by an employee of one of its stores that the company had discriminated against her because she was a victim of domestic violence. The allegations stemmed from an incident on October 9 when the employee, who worked at one of the department store’s locations in suburban Buffalo, informed store security officials that her estranged husband had threatened to kill her. The employee was told by the store manager to leave the store and stay home until the manager checked in with her. After several days, she was told by the manager that she could not return to work until she received a protective order against her husband.
New York State Human Rights Law provides that it is unlawful for an employer to refuse to employ, to discharge or to discriminate against (in either compensation or in the terms, conditions or privileges of employment) an individual because of his or her status as a victim of domestic violence. The Bon-Ton employee contacted a hotline at the Attorney General’s office, which prompted its investigation into whether Bon-Ton had violated the New York State Human Rights Law. Although the employee was paid for her time off and allowed to return to work shortly after she contacted the Attorney General’s office, Bon-Ton agreed to a settlement with the Attorney General in the face of the investigation.
Under the terms of the settlement, Bon-Ton is required to revise its Random Threat Response Policy, which applies to any threat received by an employee and communicated to Bon-Ton. Specifically, Bon-Ton must explain that discrimination against domestic violence victims is prohibited within the workplace and that a domestic violence victim is not required to obtain a protective order to continue working. Bon-Ton must also ensure that employees who invoke the Random Threat Response Policy will not be subject to retaliation or other adverse treatment, and must provide educational materials and training to all of its New York employees discussing the legal protections provided to victims of domestic violence.
The Bon-Ton settlement demonstrates the importance of having a company-wide domestic violence policy. In particular, policies, materials and training addressing the legal actions an employee may take when faced with a domestic violence concern are critical to avoiding later charges of discrimination that can lead to major investigations and unwanted publicity. Company policies must also explain any state-specific legal protections afforded to domestic violence victims. Although some states, including New York, explicitly outlaw workplace discrimination on the basis of domestic violence victim status, others allow employers to make “reasonable accommodations,” under which the provision of paid leave to the Bon-Ton employee may have been suitable. The Attorney General’s press release announcing the settlement specifically noted that Bon-Ton’s policy did not previously address the legal protections available for victims of domestic violence in New York. Companies should review their applicable policies to ensure that they do not face a similar charge, and may wish to consult an attorney to ensure that their domestic violence policies adequately explain employees’ legal rights.
McGuireWoods Retail Team
McGuireWoods’ global retail team provides coordinated, industry-focused counsel to clients around the world in areas such as real estate, restructuring and insolvency, wage and hour class actions, data privacy and e-commerce, and product safety, among others. Many of our partners have decades of experience serving as outside counsel to regional, national and international retailers whose products and brands are household names. Our goal is to be true partners with our clients, bringing to bear our understanding of the complex and often unpredictable legal and business environments in which they operate. The practice team is chaired by Gerald Stubenhofer in McGuireWoods’ Pittsburgh office.