Domestic Violence:
Can You Fire the Perpetrator?

by Maureen Minehan.

You wake up some morning, grab breakfast, and begin to read your local paper. You nearly choke when you spy an article detailing the arrest of an individual in a domestic violence incident. The individual is an employee of yours.

Or, an employee comes to you and says she has been assaulted by her husband. Her husband also happens to be one of your employees.

Or, you've searched and searched for just the right candidate and think you finally have found him. You make him an offer, conditional on passage of a background check. The check results come back--replete with a conviction for spousal battery.

Because October is Domestic Violence Awareness Month, HRWire explored employers' options and obligations when an employee is accused of and/or convicted of domestic violence. With figures from the Bureau of Justice Statistics showing that nearly 1 million violent crimes were committed against persons by their intimate partner in 1998 (intimate partner is defined as a current or former spouse, boyfriend, or girlfriend), many employers have been or will be confronted by this problem.

To fire or not to fire?

Employers who find out an employee has been accused of domestic violence often are disgusted by the individual's behavior. They also are concerned about the implications for their businesses, including a negative impact on their reputation and potential liability if the employee has extensive contact with the public.

The first reaction is to want to terminate the employee. If he--or she (while women are the victims in 85 percent of domestic violence cases, they also can be perpetrators)--is capable of violence at home, he certainly is capable of violence at work, right? Isn't it best to just get rid of him?

The short answer is probably no. Not initially.

While you should always consult with your attorney to get advice specific to your situation, in general, employers should be cautious about terminating employees on the basis of arrests, especially if they don't have a written policy in place that addresses such circumstances.

Federal and state laws apply

Under the Equal Employment Opportunity Commission's interpretation of Title VII of the Civil Rights Act, for example, employers who routinely take adverse action against employees or applicants on the basis of their arrest or conviction records alone are vulnerable to adverse impact-related discrimination charges. Because members of certain minority groups are arrested at disproportionately higher rates than whites, the potential exists for disproportionately higher adverse employment outcomes if companies base their employment decisions solely on criminal charges, the EEOC says.

When considering arrest records, the EEOC suggests employers take action only if the conduct was job-related and relatively recent. Employers, the EEOC says, should "examine the surrounding circumstances, offer the applicant or employee an opportunity to explain and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility." The agency notes that "a blanket exclusion of people with arrest records will almost never withstand scrutiny."

In addition to EEOC regulations, many employers also are governed by state laws addressing the use of criminal records in employment decisions. In California, for example, arrest records cannot be considered at all for employment purposes. In Connecticut, only members of the HR department or the person in charge of employment can see the portion of the job application that inquires about an applicant's criminal history. In New Jersey, the government has initiated a campaign to "Rehabilitate Convicted Offenders," passing a law that generally prohibits discrimination by licensing authorities against individuals who have been convicted of crimes.

Make the business case

The best way to avoid litigation related to termination of employees accused or convicted of domestic violence is to make the business case for their dismissal. Examples of the business reasons for termination include:

• damage to the company's reputation;
• extensive contact between the employee and clients or the public for which you could be held liable should a similar incident occur; or
• the potential for harm to your employees.

Written policies also are crucial for litigation avoidance. Joe Vater, a partner at Meyer, Unkovic & Scott in Pittsburgh, tells HRWire that smart employers "will have in place a policy for what you are going to do and how you are going to do it, before you need to do it." By adopting a policy that spells out the consequences for criminal arrests or convictions and applying them consistently to all employees, employers generally can take action against employees accused of domestic violence without running afoul of the law.

Assess the risks

Vater suggests assessing the risks to your business before drafting a policy. "Do your employees go into customer's businesses or homes or are they handling property? If so, you might want to have a policy that if anyone is accused of a crime involving theft, deception or violence, they will be suspended," he says. "You need to think through the kinds of crimes and arrests you would be concerned about."

If there is little threat to your business or other employees from the accused employee's actions, "await the results of the criminal proceeding" before taking action, Vater says. In general, he says, "fairness should require that individuals not be terminated prior to the final disposition of the matter."

Worst case scenario: Employing both parties

What about cases in which both parties to the incident work for your organization? Lynn McClure, Ph.D, president of McClure Associates in Phoenix who specializes in managing high-risk employee behaviors, tells HRWire "it is not unusual for domestic violence to occur between two employees, because many couples work at the same place." Instead of having special policies for such couples, "employers should have policies for abusers and policies for victims." When the event involves a couple, each policy should be carried out separately.

McClure recommends that policies for abusers contain provisions for paid or unpaid leave (depending on the circumstances), required counseling, required classes in anger management, evidence that the abuser is actively taking steps that will lead to cessation of abusive behavior, and a statement that further transgressions will lead to termination, even if there is no conviction. Many domestic violence cases end without convictions because the victim is unwilling to assist with the prosecution.

The policy applied to victims should include provisions for paid leave, counseling, classes in assertive behavior, classes in self-defense and access to an attorney, McClure says.

Should counseling be an option?

Vera E. Mouradian, a social psychologist and research scientist at the Stone Center at Wellesley College in Massachusetts, tells HRWire that employers should think about the broader social impact of their actions when they consider terminating employees for domestic violence incidents.

"There are two sets of reasons for not terminating employment: one having to do with the victim's well-being, the other having to do with the lost opportunity to effect change, which is everyone's responsibility" she says. "Many victims of domestic violence are wholly or heavily dependent on their abusive partner's income. Unemployment for him will likely mean more hardship for her and her children, if she has children." Even if the victim leaves the abuser, "his employment status affects her ability to obtain adequate alimony and/or child support from him," she notes.

Two other side effects for the victim of terminating an employee are loss of health insurance and, since the outcomes of many court cases involving domestic violence charges do not include jail or prison time, "terminating an employee because of a domestic violence charge might provide an abusive individual who is depressed and angry about losing his job with more time on his hands and another excuse to launch another episode of abuse," Mouradian explains.

By offering counseling through an EAP or some other source, employers have an opportunity to tell the employee his or her behavior is wrong and provide him or her with the resources to change it. Because it is important that such employees be treated by providers with specialized training in treating batterers, "employers should identify programs in their locale that are certified in this area or individual therapists with this expertise," Mouradian recommends.

Taking responsibility

The worst thing an employer can do when confronted with an employee accused of domestic violence is to do nothing. Unfortunately, that's just what many victims' advocates say happens. They contend that employers don't treat charges and convictions for domestic violence as seriously as they do other criminal activities.

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