March 2012

Empowering victims of family violence: Could anti-discrimination laws play a role?

Tashina Orchiston, The University of Sydney
Belinda Smith, The University of Sydney

Financial security is a key enabler for victims of family violence to leave violent relationships.* Most victims are engaged in paid work but are typically reluctant to disclose they are experiencing family violence to employers and colleagues, even when the violence is impacting on their performance, productivity or safety at work, or they desperately need workplace flexibility in order to navigate the criminal justice system or access family violence support services. Feelings of shame, embarrassment or the fear of being negatively treated by colleagues or managers are powerful barriers to disclosure: an employee experiencing family violence may even be dismissed for performance related issues or abandon their job without the underlying problem being revealed. To enable victims to get workplace adjustments and maintain the crucial financial and social support that paid work can provide, this stigma and fear of disclosure must be addressed. Anti-discrimination protection could provide the missing link in Australia’s regulatory response to domestic violence, playing a normative role in discouraging negative stereotyping, and in doing so, empower victims to seek support. The issue is already on the national policy agenda and it is an opportune time to examine it because federal anti-discrimination laws are currently under review, and proposed new legislation is due out ‘in early 2012’ (Attorney-General’s Department 2011).

LAW AND POLICY CONTEXT FOR REFORM

The need for a national response to address family violence is well-established. The most recent estimates show that family violence is the leading preventable cause of death, injury and illness for Australian women under 45 years (VicHealth 2004, p. 10). It remains pervasive across all Australian communities and costs our economy around $423 million annually in lost productivity (Access Economics 2004, p. 43). The Council of Australian Governments’ National Plan to Reduce Violence Against Women and Their Children (‘National Plan’) seeks to both reduce the violence experienced by women and their children and enhance victims’ ‘social and economic participation’ (2011, p. 13). It requires a ‘coordinated framework’ in the response to preventing and reducing violence, which recognises the role of business; additionally, it explicitly requires the Commonwealth to develop ‘workplace measures to support women experiencing and escaping from family violence’ (2011, pp. 10, 16).

The prevalence of family violence is much greater than many would like to believe.

One possible workplace measure—anti-discrimination protection for victims of family violence—has come to the fore through a series of law reform processes. First, the Australian Law Reform Commission (2011) was asked to examine whether federal laws could be reformed to better address domestic and family violence in 2010. Its final report, released in February 2012, recommended numerous changes including amendments to the Fair Work Act 2009 (Cth) in respect of workplace regulation. The Law Reform Commission (2011, p. 23) also recommended that the Australian Human Rights Commission examine the possibility of protection for victims of family violence under anti-discrimination laws. These laws prohibit discrimination in work, education and other public fields, but do not adequately cover victims of family violence (Smith & Orchiston 2011). Second, the Human Rights Commission (2012) took up this proposal and made submissions for federal discrimination laws to be amended to include protection on this new ground of victim of family violence. This submission was made to the Attorney-General’s Department which is currently reviewing all Commonwealth anti-discrimination laws, seeking to consolidate into a single equality law the four federal Acts that cover sex, race, disability and age discrimination (Attorney-General’s Department 2011). A wide range of other submissions to the consolidation process have also called for protection for victims and survivors of domestic or family violence. Finally, providing further momentum for reform, the ALP National Conference in 2011 resolved to ‘ensure that Fair Work and anti-discrimination frameworks provide appropriate protection to victims of domestic violence in the workplace’ (Aveling 2011).

It should be noted that the Law Reform Commission has recommended that a uniform definition of family violence be used throughout Australian legislation (2010, p. 17). The picture of a woman with a black eye is the image traditionally used to portray victims of family violence, but the term is now more commonly understood to extend beyond physical violence to a range of behaviours that are used to coerce or control other people. The Law Reform Commission recommends that the definition of ‘family violence’ should include physical violence, sexual assault and sexually abusive behaviour, economic abuse, emotional or psychological abuse, deprivation of liberty as well as other coercive and controlling behaviour (2010, p. 17). The relationships to be covered should include current and former intimate partners (including same-sex partners), family members and Indigenous kinship relationships (2010, p. 335).

RELEVANCE OF FAMILY VIOLENCE IN THE WORKPLACE

The prevalence of family violence is much greater than many would like to believe. Around 15 per cent of Australian women and 4.9 per cent of Australian men have experienced physical or sexual violence from a partner or ex-partner since age 15 (Australian Bureau of Statistics 2005, p. 11). The overall incidence of family violence is much higher—the ABS figures do not include violence perpetrated by family members other than intimate partners, or other forms of abuse that are non-physical. The majority of victims of family violence (more than 60 per cent) are in paid work (2005, p. 23).

Family violence has tangible impacts in the workplace. The recent National Domestic Violence and the Workplace Survey conducted by the Australian Domestic and Family Violence Clearinghouse (2011, pp. 6, 8, 10) at the University of New South Wales found:

30 per cent of respondents had experienced family violence (including non-physical forms of abuse) over the course of their lifetime
of respondents who had experienced family violence, nearly half reported that it had affected their capacity to get to work (physical restraint, hiding/stealing keys or transportation money or refusal/failure to show up to care for children)
of respondents who had experienced family violence, 19 per cent reported that the violence had impacted on them in the workplace (abusive calls and emails and the abusive person attending the workplace were the most common forms of abuse experienced); and
the overall impacts on victims included feeling distracted/tired/unwell, having to take time off and being late to work.

Women who are victims of family violence have more disrupted work histories.

Workplace participation is a vital structural support for victims, providing them with a degree of financial independence which enhances their ability to escape from a violent relationship. Employment is also integral to self-worth and identity and provides the opportunity to interact with co-workers and capitalise on skills and knowledge. Family violence has markedly adverse effects on labour market connection for victims: a United States Government review found that up to 52 per cent of victims reported losing a job, at least in part, due to family violence (General Accounting Office 1998, p. 8). Women who are victims of family violence have more disrupted work histories, on average have lower personal incomes, have had to change jobs frequently and are more likely to be employed in casual and part-time work than women with no experience of violence (Franzway, Zufferey & Chung 2007, p. 5).

AVAILABILITY OF WORKPLACE SUPPORTS

Ordinary and apparently innocuous workplace rules can operate harshly for employees experiencing violence, thereby exacerbating the harm they already suffer. Work policies about hours of work, performance and personal leave can be difficult for victims to comply with, especially if the policies are applied inflexibly. Victims may need flexibility and support from their workplace due to the impacts of the violence on their performance, safety or productivity. The types of workplace supports required may include changes to location, schedule or hours to avoid contact with the abuser who may know their movements and stalk or attack them on their way to or from work. Some victims might need reduced hours to manage their workload when coping with the physical or psychological effects of the abuse. Alternatively they might need access to paid leave, to attend court and/or appointments with family violence services, medical professionals, child/ren’s schools and/or financial institutions—all of which are typically closed outside regular business hours and all of which (except medical appointments) would not be covered by ordinary sick leave. Other modifications that victims might need include temporarily having someone else answer their work phone, or substitute for them at the counter, for example, if they work in a customer service role that is easily accessible to the public. Often even small, reasonable adjustments to hours, contact details, location of work or leave can provide substantial support for victims trying to maintain employment while dealing with the harm of an abuser and also possibly navigating the criminal justice system, accessing family violence support services, and/or seeking assistance with family law issues.

Undoubtedly major employers and employer associations would be sympathetic to the difficulties faced by victims of family violence and presumably take the position that flexibility and support would be offered to such employees if their circumstances were known. According to the Australian Chamber of Commerce and Industry, ‘[m]any employers already provide important support in the form of employment opportunities and income, access to confidential advice and counselling, time off for personal circumstances in line with employment legislation or on a needs basis’ (2011, p. 2).

Anti-discrimination laws have succeeded in promoting social inclusion in Australia.

Victims, however, often do not reveal anything about the abuse because they are worried about being disbelieved or subjected to negative stereotyping from their colleagues and managers. Possible stereotypes include that they are unreliable, likely to underperform or bring danger or disruption into the workplace. This may reflect negative community attitudes held towards victims of family violence generally. An extensive 2009 survey found very low levels of understanding around the issue of why women remain in violent relationships, with 80 per cent of respondents agreeing with the statement: ‘it’s hard to understand why women stay in violent relationships’ and almost 50 per cent of respondents believing that a woman can leave a violent relationship if she wants to (VicHealth 2010, p. 49). Further, 49 per cent of survey respondents believed (only 28 per cent disbelieving) ‘women going through custody battles often make up or exaggerate claims of domestic violence’ to improve their case (VicHealth 2010, p. 8). These community attitudes operate to stigmatise victims rather than encourage disclosure.

Despite these attitudes and fears that disclosing the violence would subject them to negative judgments, the National Workplace Survey found that nearly half of respondents did disclose to a manager or their human resources department. Unfortunately, only 10 per cent of these respondents experienced a positive response (Australian Domestic and Family Violence Clearinghouse 2011, p. 13). This suggests that victims are left to bear the violence and all its consequences alone. Qualitative responses on the effects of disclosing included: ‘[being] laughed at by fellow staff members’, ‘frosty interactions … and difficulty functioning [as a team], and ‘my workplace swept the whole incident under the carpet’ (2011, p. 14). The catch-22 is that while research shows victims of family violence are perceived as choosing to remain in violent relationships, efforts taken by victims to reach out and gain support to escape those relationships can be thwarted by such reactions of disbelief, derision and denial.

ANTI-DISCRIMINATION LAW AS A MECHANISM FOR ATTITUDINAL CHANGE

Can law play a role in changing these community attitudes and practices, breaking down the prejudice and discouraging stereotyping? Anti-discrimination laws are designed to do just these things: change attitudes about traditionally vulnerable and marginalised groups within society, and challenge barriers to the equal participation of these groups in work, education and other fields of life. They do this by prohibiting discrimination on particular grounds, including sex, race and disability. These laws have had some success in promoting social inclusion in Australia, even if there’s still work to do. We now live in a society where it is well accepted that you can’t fire someone simply because they are pregnant or use slurs such as ‘wog’ or ‘poof’ in reference to colleagues. Law as an authoritative public policy statement about right and wrong could be credited with driving or at least reinforcing this sort of social change.

Should employers bear legal obligations to address the problem of family violence?

It is worth exploring whether anti-discrimination laws could be used to help victims of family violence, recognised as a vulnerable and marginalised group who have an urgent need to gain or maintain economic independence. Currently these laws do not provide adequate protection to victims of family violence because they are not sufficiently tailored to the particular harms and needs experienced by victims (Smith & Orchiston 2011). The existing duties not to discriminate on grounds such as sex, family responsibilities and disability provide limited protection to victims of family violence. For example, while family violence is a highly gendered offence, experienced disproportionately by women, any resulting prejudice and inflexibility experienced in the workplace cannot necessarily be cast as sex discrimination. Protection against family responsibilities discrimination might help some victims, but not all victims have children or other caring responsibilities. Even for those who do, to use these protections they would need to demonstrate a connection between the caring responsibilities and the treatment or workplace inflexibility. To utilise the disability discrimination protections, they would need to be ‘impaired’ and further, while this might entitle the worker to adjustments in respect of their disability it would not provide protection for things such as going to court.

The prejudice and exclusion experienced by victims of family violence combined with the inadequacy of current laws gives rise to the proposal to introduce a separate ground of protection: ‘victim of family violence’. Defining this status as a new ground of protection does pose some theoretical and practical questions, but these are answerable. The first question concerns the definition of family violence. The Australian Law Reform Commission’s definition of family violence, noted above, was formulated to ensure consistency across federal laws. It would thus make sense to adopt this definition for federal anti-discrimination laws too, establishing rights against discrimination to victims of this kind of violence.

A second question relates to the scope of the protection: what duties would the law impose? Although, anti-discrimination laws generally apply in other fields (such as education, provision of goods and services, and accommodation) we have focused here on work because of the importance of financial security to empower victims. If the new ground was introduced, firstly it would prohibit employers from using stereotypes in respect of employees who are victims of family violence (or presumed to be). This protection against different treatment is designed to address stereotyping in workplace decision-making. While treating victims the same as other employees might not be enough to bring about substantive equality, it may be a fundamental step in promoting attitudinal change and empowering workers who experience family violence. To be consistent with protection on other grounds, the law could also require employers to act reasonably in respect of victims of family violence. This would mean conditions, requirements and practices in the workplace would need to be reviewed for their potentially disproportionate impact on this group and assessed for reasonableness. In any particular case of an employee victim, the employer should consider what would be required to enable the employee to engage in work equally with others who are not victims and then explore how this might be done without causing unjustifiable hardship on the employer. Flexibility might need to be built into policies about contact details, hours of work, leave arrangements and work location.

Victims need both practical and structural supports to escape violent relationships.

Some would argue that such laws could not be drafted in a sufficiently clear and sensible way (Parkinson & Aroney 2012, p. 10). But this is not a radical, untested idea; such laws are now operating in many jurisdictions overseas. At least eight US jurisdictions have specific workplace anti-discrimination protections for victims, as does the Philippines and Spain (Australian Domestic and Family Violence Clearinghouse 2012, p. 10). With a population of around 19.1 million, the State of New York is comparable in size to Australia and has had specific anti-discrimination protection for victims of family violence since 2009.

Others question whether employers should bear legal obligations to address the problem of family violence (Johns 2012). Businesses are not separate from the society in which they operate, but integrated institutions vested with benefits that concomitantly impose responsibilities. Corporations are increasingly bound by human rights obligations (United Nations Human Rights Council 2011) and are being held to account not only for economic performance but their adherence to socially responsible corporate practice, sometimes referred to as ‘triple bottom line thinking’. In addition to the obvious human rights case for anti-discrimination protection, there are economic reasons why employers should choose to support victims of family violence—encouraging disclosure and reducing attrition avoids rehiring costs. Anti-discrimination protection would not require businesses to become social workers or solve the challenging and complex problem of domestic violence. It would simply require that businesses not exacerbate the harm experienced by worker victims.

CONCLUSION

Victims need both practical and structural supports to escape violent relationships. Financial security is a key enabler and employment is a major source of income for most victims. Workplaces are not immune to the prevailing negative community attitudes and beliefs about victims and this inhibits many victims from revealing their status and seeking help to stay safely in their jobs. Anti-discrimination laws have been traditionally used to change negative attitudes toward marginalised groups in our society. Existing anti-discrimination laws are inadequate, and as part of the current process of reforming these laws, a separate ground of protection for victims of family violence should be included. This would serve an important normative function, signalling that family violence is unacceptable and acknowledging that the harm experienced by victims can be exacerbated by negative attitudes and inflexible policies in work. This is not a radical idea, but a practical way to empower and enable victims of family violence, furthering COAG’s commitments under the National Plan. Australia’s anti-discrimination laws are in the process of being re-written and this reform is one of many which could improve the capacity of these laws to address marginalisation and inequality in our society.

*The terms ‘victim’ and ‘family violence’ are used interchangeably with ‘survivor’ and ‘domestic violence’. The authors acknowledge the continued debate over the use of these terms.

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Tashina Orchiston is a PhD candidate and researcher at Sydney Law School and adjunct lecturer at the Faculty of Law, University of New South Wales. She previously worked as specialist domestic violence lawyer at Women’s Legal Services NSW and project officer at the Australian Domestic & Family Violence Clearinghouse.

Belinda Smith is a Senior Lecturer at Sydney Law School, The University of Sydney and has published widely in the field of anti-discrimination law and gender equality in work.