Yukon case puts domestic violence leave – and manager bias – in spotlight

Domestic violence leave is in every employment standards statute in Canada in one form or another but an ongoing Yukon University discrimination case is highlighting how unclear policies and bias-based management can land employers in human rights hearings.

The case revolves around a researcher who took a five-day domestic violence leave and then saw her contract terminated the day after her return over a month early, even though HR and her previous supervisor had no concerns with her performance or attendance.

The complainant told CBC that she was told by her supervisor to wrap up her projects “in the next day or two” and that she had “a lot of accrued leave” – which she thinks played a part in the decision. She said that until then, her contracts were reliably renewed before termination date, and that she had already secured funding to continue.

Weak and unreliable: gender bias and domestic violence

In a recent Tribunal hearing, the university admitted that the decision was discriminatory, after initially defending the actions of the supervisor who carried out the termination.

For Jennifer Koshan, professor of law and research excellence chair in family violence at the University of Calgary, this case reveals how gender bias around domestic violence survivors can filter into employment decisions.

She points to the supervisor’s alleged biased attitude in the termination and the university’s recent admission as evidence of the “myths and stereotypes” that persist, even with increased legislation.

“We know that intimate partner violence is disproportionately experienced by women,” Koshan says, noting the comment by the Yukon Human Rights Commission’s lawyer that domestic violence victims can be seen as “weak, unassertive, fragile [and] unreliable.”

This bias can lead managers to assume an employee is unavailable or not committed without ever speaking to them, she says.

“It's really important for employers to approach these kinds of cases without making any assumptions about the person's mental state, their reasons for needing to take leave,” which can vary widely from case to case, Koshan says.

“There's a lot of barriers in addressing domestic violence, and that may affect how the employee presents themselves, ultimately, to the employer.”

Jurisdictional variation in domestic violence leave

Koshan’s research shows domestic violence leave provisions differ widely across provinces and territories – including on pay, eligibility and documentation. For example, Alberta offers no paid domestic violence leave, while British Columbia provides leave without requiring proof or verification of length of employment.

“Employees can sometimes be excluded from receiving these benefits if they fall into certain categories of workers,” she says.

“Domestic workers, some farm workers are excluded from these provisions. There's a lot of variation amongst provinces and territories in terms of whether the leave is paid and whether the employee needs to have worked for a certain amount of time for the employer before they'll get any paid leave.”

The ability to have paid leave makes a huge difference for lower-wage and precarious employees for whom even a few unpaid days from work can be “very, very detrimental to their socio-economic well-being," says Koshan.

Domestic violence verification required 

Other jurisdictions require employees to provide verification of domestic violence in the form of medical certificates, a note from police, or protection orders, for example – a hoop which many survivors of abuse would reasonably find difficult to obtain, let alone share with an employer.

“There's different ways that the domestic violence could be verified, but we know that a lot of victims don't necessarily tell anyone right at the beginning,” Koshan says.

Her advice to employers is straightforward: do not demand more proof than the statute requires and consider waiving verification where the law allows: “There's lots of barriers to them obtaining those sorts of verifications. So that's certainly a barrier in some jurisdictions.”

It’s the employer’s responsibility to meet survivors where they are by reducing barriers, says Koshan.

“It is very, very difficult for survivors of intimate partner violence to talk about the violence in most cases … there can be shame and trauma involved with experiencing intimate partner violence,” she says.

“[It’s] important that the employer and the employee have a good relationship of trust, for the employee to be able to disclose this to their employer and get the necessary benefits that come along with that disclosure.”

She also points to unions’ role in collective bargaining to “try to negotiate better terms and conditions for their employees,” such as longer paid domestic violence leave.

Include coercive control in policies

Koshan stresses that how employers define domestic violence in their policies is crucial. A serious gap in provincial and territorial laws, she says, is that they don't all reference 'coercive control' as a form of domestic violence – a fact which she encourages employers to rectify in their own policy language.

“One best practice for employers is to include coercive control in their consideration of domestic violence, even if it's not explicitly mentioned in the statute,” she says.

“Employers can always go beyond whatever definition the legislature provided and can be more generous in thinking about the kinds of intimate partner violence that may affect an employee.”

The reason why attention to coercive control is so important, even in the employer context, is that it is “one of the most pervasive forms” of intimate partner violence, says Koshan.

“It focuses on patterns of behaviour that accumulate over time and create fear and entrapment on the part of the victim,” she says, adding that this can include a person being prevented from going to work, harassed while at work, or prevented from working altogether.

“It's this sort of ongoing pattern of isolation, manipulation, denigration, control over every aspect of the victim's life, and sometimes that includes control over their access to employment … really trying to undermine their safety and sense of well-being in the workplace,” says Koshan.

“This is something that employers may or may not be aware of, other colleagues in the workplace may become aware of it. It can really have an impact on the entire workplace. And so that's why I think it's especially important that employers pay attention to coercive control."