Trouble at home

NFL scandal highlights challenges for employers when it comes to domestic violence
By Liz Bernier
|Canadian HR Reporter|Last Updated: 10/06/2014

It was a scandal that dominated headlines for weeks: NFL star Ray Rice of the Baltimore Ravens was caught on an elevator security camera punching his then-fiancée in the face, apparently knocking her unconscious.

Rice initially faced criminal charges, which were dropped. He also faced a two-game suspension from the NFL, which was upgraded to an indefinite suspension after the video was leaked. Baltimore terminated his contract.

Although high-profile, the case is just one example of the millions of domestic violence cases that occur in North America each year. In Canada alone, about 3,300 women sleep in shelters each night to escape abuse; one-half of all Canadian women have experienced at least one incident of physical or sexual violence since age 16, according to Statistics Canada.

While the NFL has its own procedures for dealing with domestic violence, what should Canadian employers do when domestic violence moves into the workplace?

The response will depend on the individual situation, said Barbara MacQuarrie, community director of the Centre for Research & Education on Violence Against Women & Children at Western University in London, Ont. And it depends on who you’re dealing with — the victim, the perpetrator, or both?

When an employee is the victim

Employers in Canada are obligated to provide a safe workplace for employees, said John Illingworth, partner in the employment and labour group at Gowlings in Waterloo, Ont.

"And that would necessarily include a worker who may be exposed to domestic violence in the workplace," he said. "(Some research suggests) 70 per cent of domestic assault victims are also abused at work at some point… it is naive for an employer to simply conclude that domestic violence is a private affair."

It’s a highly emotional topic when an employee is a victim, said Glenn French, Toronto-based president and CEO of the Canadian Initiative on Workplace Violence. However, it’s also a critical topic for employers to broach.

"Ontario has a requirement that employers view this as an occupational health and safety issue, so there is a requirement on the part of an employer to ask if they suspect, or if they have reason to believe, that there has been abuse," he said. "So in answer to ‘What can employers do?’, they can ask those difficult questions if they suspect or they are concerned about
somebody’s safety."

It’s important to have a policy in place before a crisis ever arises, said MacQuarrie.

"The first thing that employers can do is to think proactively about this. That really means having a policy and having procedures in place. You don’t want to be trying to figure this out in the middle of a crisis," she said.

"Then, you need training. And I think that you need different kinds of training for each level of the organization. My recommendation would be that every single employee in the workplace have a minimal amount of training that at least teaches about warning signs, what the policy (says) about an appropriate response… People who might be expected to be handling complaints need more intense training."

Also important is having a culture that encourages open communication, said MacQuarrie.

"You need to be able to demonstrate to your employees that, first of all, you really do care about this issue, that employees aren’t going to be stigmatized and they’re not going to be penalized… to the contrary, they’re going to be supported."

If a situation does arise, there are practical measures employers can put in place to ensure the victim — and other employees — are protected, said French. Having the employee park close to the entrance, changing her work location, having her calls answered by someone else, changing her phone extension, alerting the reception desk to the situation or escorting her to her car at night are all measures that could potentially help, depending on the individual situation and severity of the threat, he said.

"The other thing employers can do is either through their employee assistance program or through local police, establishing or helping the individual to establish a safety plan for home," he said.

When an employee is the perpetrator

Another challenging situation is when an employee is the perpetrator of the abuse, said Illingworth. In that case, the first obligation is keeping the workplace safe.

It may be tempting to put the employee on leave or even terminate him, but it’s important not to act rashly, said French.

"If someone alleges that an employee is abusive, and that employer comes to that information, there’s a certain point where it is an allegation — charges have not been laid or there’s been no conviction, so I think the employer has to be very careful. They don’t want to overreact based on a reported allegation, because sometimes those allegations may not be accurate," he said.

"I would act cautiously because you don’t want to be seen as constructively dismissing the person by giving them a different job or isolating them or putting them on leave for a period of time, because you don’t know what the circumstance is — unless, of course, there’s something coming from the police."

The question of whether an employer can fire or discipline an employee for off-duty conduct depends on multiple factors, said Illingworth, and it’s a good idea to seek legal advice before acting.

"In Canada, the law typically focuses on the question of reputational harm to the employer in terms of whether or not they have just cause to terminate the employee for their off-duty conduct. The question of whether or not there’s just cause to terminate an employee who’s been found to have committed domestic violence, from a legal standpoint, will often focus on loss of reputation to the employer as a result," he said.

"Obviously, in certain areas of employment where the employee may have a high profile in public or be working in an area where this would cause significant damage to the employer’s reputation, there may well be just cause to terminate the employee. Having said that, even if there isn’t enough to substantiate a just cause termination, an employer may still wish to terminate the employee without just cause — simply because they don’t want that employee in their workplace — or to provide some lesser discipline."

Employers are in a really good position to influence behaviour, said MacQuarrie.

"Most people really value their job and want to keep their job, and that means that the employer can exert influence. They can do this through the policy, through setting expectations about acceptable behaviour, and then through making it clear that there will be consequences if those expectations are violated."

The situation is complicated even further when the perpetrator and victim are both employees at the same workplace, said French.

"For me, that’s where it becomes really difficult, because that person can come into the workplace at any time, and they could do something. But you don’t want to bring it to their attention in the early stages because you don’t want to precipitate something," he said. "In those cases, it really would depend on the circumstance. But you still have a responsibility to protect."

SIDEBAR
Conducting thorough investigations

Investigating domestic violence in the workplace can be complicated, and it’s an area where many employers struggle, said Barbara MacQuarrie, community director of the Centre for Research & Education on Violence Against Women & Children at Western University in London, Ont.