Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On August 25, 2021, the Supreme Judicial Court (SJC), the highest court in Massachusetts, ruled on the elements of a retaliation claim under the Domestic Violence and Abuse Leave Act (DVLA). The SJC held that an employer could be liable for retaliation under the DVLA where it rescinded an individual’s conditional offer of employment after the individual disclosed that she was a victim of abuse and that her abuser violated a protective order, which she was taking efforts to enforce.
The Domestic Violence Leave Act
The DVLA, enacted in 2014, requires Massachusetts employers of 50 or more employees to permit an employee to take up to 15 days of job-protected leave in any 12-month period when the employee or a “family member” of the employee (as defined in the law) is the victim of abusive behavior.1 The leave may be paid or unpaid at the employer’s discretion. The employee may use the leave for several different purposes related to the abusive behavior, such as to obtain medical, legal or counseling services, to obtain a protective order from a court, or to meet with a law enforcement official.
The DVLA prohibits employers from interfering when an employee attempts to exercise the right to take leave and from taking an adverse action or otherwise discriminating against an employee for invoking those rights. Employees, in turn, are required to provide employers with “appropriate advance notice” of the leave they may need.
Osborne Trussell v. The Children’s Hospital Corporation
In Osborne Trussell v. The Children’s Hospital Corporation, the plaintiff, a registered nurse, brought claims against the defendant for violating the retaliation and interference provisions of the DVLA.2
The plaintiff alleges she was the victim of “repeated stalking, threats, harassment, abuse, and overt threats,” and obtained a harassment protective order under the DVLA. The protective order barred the abuser from contacting the plaintiff directly or indirectly and from making any social media postings that reference the plaintiff. It also required the abuser to remain away from the plaintiff’s home or place of work.
Three months after she obtained the protective order, the plaintiff applied for employment with the hospital. The hospital “aggressively” recruited the plaintiff, invited her to a “number of interviews,” contacted her references, and ordered a background check. Upon accepting the hospital’s job offer for a staff nurse position, the hospital sent a letter to the plaintiff memorializing its acceptance, listing the start date, and explaining that
employment was contingent on successfully completing reference, background, and licensure checks, a fitness for duty assessment, and passing a test during new hire clinical orientation. The hospital then issued the plaintiff a photograph ID card, an employee ID number, and a training schedule.
In the weeks approaching the plaintiff’s start date, her abuser violated the protective order by posting threats and false statements about the plaintiff on social media and tagging the hospital. The plaintiff reported the violation to the police department. She also contacted the hospital’s human resources department to disclose the past abuse and violation of the protective order. In doing so, she supplied the hospital with copies of the protective order and advised that she was cooperating with law enforcement to enforce it.
The hospital requested information about the abuser and a human resources representative told the plaintiff that he intended to speak with the abuser to hear her side of the story. Less than two weeks after the plaintiff disclosed the abusive behavior and protective order to the hospital, it rescinded her offer for the staff nurse position.
The trial court judge allowed the hospital’s motion to dismiss the DVLA retaliation and interference claims. The plaintiff appealed and the SJC transferred the case from the Appeals Court.
The Supreme Judicial Court’s Decision
The SJC reversed the trial court’s order dismissing the plaintiff’s DVLA claims. In doing so, the court rejected the hospital’s position that the DVLA’s protections should be limited to “‘current’ employees who are performing services for the employer.” The SJC reasoned that this temporal limitation would foil the broad, remedial purposes of the DVLA, one of which is to “to protect employees who were experiencing the effects of domestic violence from adverse consequences at work.” The court explained that, if the DVLA applied to “current” employees only, “an individual would have no recourse when, perhaps on the verge of achieving a measure of financial security, he or she were stripped of it by an employer who determined it would be inconvenient to accommodate the individual’s protected rights to leave.” The court concluded that plaintiff’s allegations suggested that she was in an employment relationship with the hospital even though she had not yet commenced her orientation.
The SJC also concluded that, to assert a prima facie case of retaliation under the DVLA, an employee must allege that (1) the employee availed themself of a protected right under the DVLA; (2) the employee was adversely affected by an employment decision; and (3) there is a causal connection between the employee’s protected activity and the employer’s adverse action.
The hospital asserted that the dismissal of the retaliation claim was proper because, among other reasons, the complaint did not allege that the plaintiff notified the hospital that she required leave or that she requested time off for any particular date. The SJC disagreed and reasoned that, like an employee who tells her employer she is pregnant but does not make a specific request for leave under the FMLA, the plaintiff need not request a specific date for leave. Rather, the plaintiff need only give advance notice of a potential leave request to trigger the DVLA’s protections. Specifically, the SJC explained that the plaintiff provided sufficient notice, effectively triggering the DVLA’s protections, when she informed the hospital of the “conditions precedent” for her need for potential DVLA leave, i.e., the existence of the protective order, the violation by the social media posting, and the enforcement efforts she had undertaken. The court concluded that the plaintiff’s complaint sufficiently alleged a retaliation claim.
Currently, victims of domestic violence are not afforded protected status under the Massachusetts anti-discrimination statute. The Osborne Trussell decision, however, may bring us closer to that result as a practical matter. Learning of an abusive situation that could require time off in the future may be enough to trigger exposure for a DVLA retaliation or interference claim. Employers should listen carefully and respond appropriately even if it is unclear whether the employee has an immediate need to take leave for a protected purpose. The employee need not state “I request leave” or “I will need to request leave.” 3 Further, they are not required to know, much less disclose to the employer, the specific date the leave would occur.
The Osborne Trussell decision also confirms that employers should keep the DVLA – and safety concerns – in mind when investigating candidates’ backgrounds. The SJC clarified that the DVLA protects individuals whom employers traditionally classify as “candidates” for employment, i.e., who have accepted an offer of employment conditioned on a background screening, or whose onboarding process otherwise is not complete.
Here, the plaintiff alleged that after learning of the protective order, the hospital’s human resources representative voiced his intention to “hear [the abuser’s] side of the story.” The dissenting opinion of Judges Georges and Gaziano advised that employers should tread carefully when considering making direct contact with the subject of a protective order, and that doing so may not be necessary or appropriate. Contacting an alleged abuser can pose a significant safety risk, as it could tip a perpetrator off to a victim’s whereabouts or efforts to enforce a protective order.
Finally, the SJC’s decision serves as a reminder that employers should consider regularly reviewing their policies and practices to ensure that they comply with the requirements of the DVLA and similar laws across the U.S. and other countries.4 Human resources professionals and other employees may also benefit from training relating to safety and accommodations relating to domestic violence and the workplace. The topics of such training can include recognizing the signs of domestic abuse, responding appropriately to known or suspected domestic violence, providing support to a survivor, backing efforts to obtain or enforce a protective order, and taking security measures to protect the survivor and his or her co-workers.
1 For a thorough summary of the DVLA, please see Asha A. Santos, Domestic Violence Leave Required in Massachusetts, Littler ASAP (Oct. 14, 20214).
2 The plaintiff also sued the hospital for wrongful termination in violation of public policy, a common law claim. The SJC found that the trial judge properly dismissed the public policy claim, reasoning that such a cause of action does not apply where the legislature has also prescribed a statutory remedy, i.e., the DVLA in this instance.
3 The SJC’s broad interpretation of what constitutes appropriate “notice” of a need for leave under the DVLA may also have ramifications for employers facing Family and Medical Leave Act (FMLA) interference and retaliation claims.
4 See, e.g., Stephanie Mills-Gallan and Meg Karnig, Illinois Expands the Victims’ Economic Security and Safety Act, Littler ASAP (Sept. 1, 2021); Barbara Rittinger Rigo, Stephanie Mills-Gallan and Sebastian Chilco, Philadelphia Strengthens Workplace Protections for Victims of Domestic Violence, Littler ASAP (May 14, 2021); Rhonda B. Levy and George Vassos, Canadian Federal Government Provides Practical Guidance on Bill C-65 and Workplace Harassment and Violence Regulations, Littler ASAP (Jan. 4, 2021); David Gartenberg and Jennifer Harpole, Questions and Answers About Proposition 118, Which Enacts Paid Family and Medical Leave in Colorado, Littler Insight (Nov. 12, 2020); Craig T. Dickinson and Lindsay M. Rinehart, What We Know About Connecticut’s Paid Family and Medical Leave Act (and What We’re Still Learning), Littler Insight (Nov. 5, 2020); Jennifer Duke, Dear Littler: Should I Allow Leave for Domestic Abuse Affecting an Employee’s Family Member?, Dear Littler (Oct. 10, 20219).