E.C. was in a desperate but all-too-common situation. As she tried repeatedly to end her romantic relationship with M.L., he retaliated with threats, property destruction, and violence. After their first attempted break-up, he spray painted expletives and threats all over the outside of her apartment building. She later lost that apartment because he refused to stay away from the property. The second time she tried to break up with him, he slashed her car tire. The third time, he assaulted her and kicked in her car window as she tried to drive away from him.
Like more than half of domestic violence survivors, M.L.’s abuse followed E.C. into her workplace. E.C. was employed for more than a year by RCM of Washington, a provider of housing and other supportive services to individuals with disabilities. According to RCM’s human resources manager, “[n]o one [at RCM] ever complained about [E.C.] Everybody liked [her], and they still do.” However, her employment was threatened by M.L., who repeatedly stalked her at work. One time he followed her to work from domestic violence court where, without the benefit of a lawyer, she had attempted—but failed—to obtain a civil protection order against him. Dejected, she gave in to his apologetic pleading and allowed him inside her workplace. Two other times when the relationship was in the “honeymoon” phase, E.C. allowed M.L. into her workplace for a few minutes to appease him.
The fourth and final time E.C. ended the relationship with M.L., he appeared at her job, irate, and threatened to get her fired. Later that day, he lodged exaggerated complaints about E.C. to her supervisors. Her employer launched an investigation and ultimately fired E.C. after she admitted to allowing M.L. onto RCM’s property three times—a violation of the employer’s rules.
The law in the District of Columbia (as in most other places) does not clearly protect E.C. from being fired in this situation. However, she should have qualified for unemployment benefits—a crucial safety net for survivors seeking financial independence from an abuser—as she looked for a new job. A 2004 amendment to the District of Columbia’s unemployment compensation statute protects domestic violence survivors like E.C. who lost their jobs “due to domestic violence.” However, with no regulations or case law interpreting this provision of the law, the District government denied E.C. her benefits after her initial application.
The Legal Aid Society of the District of Columbia represented E.C. at her administrative hearing and before D.C.’s highest court. At her hearing, the administrative law judge partially overturned the District government’s decision but still denied E.C. 8 (out of a possible 26) weeks of benefits. In E.C. v. RCM of Washington, Inc., the D.C. Court of Appeals reversed the administrative law judge’s decision and found E.C. qualified for full benefits. In this case of first impression, the court found that a claimant qualifies for full unemployment benefits if domestic violence (considered in light of an entire abusive relationship, not just isolated instances of abuse with a direct link to the workplace) was a substantial factor in the separation from employment. This broad reading of the domestic violence amendment will help other survivors in the District (and potentially in 18 other states that use the same or similar “due to domestic violence” language in their statutes).
E.C. is a case study in how to use appellate advocacy to win a case for an individual client while pursuing systemic reform and then to expand that victory by collaborating with government agencies and implementing a media strategy to increase awareness of a critical law. When we first took the case, we were aware that the law had not yet been interpreted and that E.C. was at risk of losing. We therefore treated her case as a test case at the administrative agency level and presented an expert witness to support and put in context our client’s testimony. Throughout the case, including subsequent efforts to educate District government workers about unemployment protections for survivors, we worked closely with domestic violence case handlers who helped us develop and implement our strategy to educate the administrative law judge, the D.C. Court of Appeals, and, ultimately, the District government about the realities of domestic violence and how such sustained abuse affects the actions of claimants in the workplace.
Strengthening the Unemployment Compensation Safety Net for Domestic Violence Survivors
Unemployment compensation is a temporary wage-replacement benefit for workers who lose their jobs through no fault of their own. Eligible workers are presumed qualified for up to 26 weeks of benefits after a job loss unless an employer proves they (a) voluntarily quit their job without good cause or (b) were terminated for misconduct, an intentional or grossly negligent act that they knew was wrong. The District of Columbia defines two levels of misconduct: gross misconduct, for severe violations, which will totally disqualify a worker from receiving benefits, and simple misconduct, for minor violations or severe violations with mitigating circumstances, which will disqualify a worker for the first 8 weeks of benefits (out of 26).
Many domestic violence survivors lose their jobs for reasons that might otherwise disqualify them for unemployment benefits. Without a statutory exception, leaving a job because one is coping with a “domestic” situation such as abuse would not be considered good cause to quit even if the abuse interferes with work. A survivor who is frequently tardy because the abuser hides her car keys could be found to have committed misconduct depending on the circumstances surrounding her termination.
To ensure that domestic violence survivors would have access to these vital benefits, survivors and their advocates lobbied the D.C. City Council to amend the unemployment insurance law to account for these types of situations. After hearing powerful stories demonstrating the need for such an amendment, the Council amended the District’s unemployment statute in 2004 to provide benefits to such otherwise-qualified individuals. In doing so, the District followed the example of 24 other states that had enacted similar protections in various forms. This provision was expanded in 2010 to protect family members of victims so the District could qualify for federal incentive payments.
The domestic violence provision, D.C. Code § 51-131(a), states:
[N]o otherwise eligible individual shall be denied benefits ... because the individual was separated from employment by discharge or voluntary or involuntary resignation due to domestic violence against the individual or any member of the individual’s immediate family, unless the individual was the perpetrator of the domestic violence.
The statute defines domestic violence as an “intrafamily offense,” which is most commonly an act punishable as a criminal offense committed against a romantic or sexual partner, family member, or roommate.
Thus, under D.C. Code § 51-131(a), misconduct related to domestic violence does not disqualify a claimant from receiving benefits. However, at the time of E.C.’s hearing in July 2012, no District regulations or judicial guidance from the D.C. Court of Appeals or any other state appellate court interpreted the meaning of the phrase “due to domestic violence.” (The day before the E.C. decision was published, the Georgia Court of Appeals issued an important decision on behalf of survivors who quit their jobs because of domestic violence, Scott v. Butler.* However, this case would not have been dispositive for E.C. because Georgia did not have a statutory provision like D.C. Code § 51-131(a) for its Court of Appeals to interpret and because the Georgia case did not involve allegations of misconduct.)
Developing a Litigation Strategy
Legal Aid attorneys challenged the denial of E.C.’s benefits on the grounds that she was terminated “due to domestic violence.” At the hearing, we knew we would have to explain several facts that an administrative law judge might find troubling. RCM had fired E.C. for allowing M.L. onto its property on three occasions; indeed, E.C. had signed a statement admitting to having done so as part of the employer’s investigation of M.L.’s allegations against her. On one occasion, M.L. followed E.C. onto RCM’s property after domestic violence court. On another occasion, when she had asked him to pick her up, a coworker had let him onto the property. On a third occasion, when she had been called into work unexpectedly, E.C. asked M.L. to come to her work and bring her breakfast. An administrative law judge viewing this third occasion as an isolated incident might not see how allowing M.L. onto the property to bring her breakfast would be “due to domestic violence.”
To prepare for her hearing, E.C. patiently collaborated with Legal Aid attorneys at several lengthy meetings. As she later told the Washington Post, “No one wants to air their dirty laundry.... It was very embarrassing to have to go to court and reveal every detail of my private life. But because it was necessary, I did.” She told us about the violence she had suffered and how—as she would later testify—she “didn’t feel safe because [M.L.] had a habit of giving me threats of what he would do and later on, as the relationship continued, he made good on some of those threats.”
With help from experienced domestic violence attorneys in our office, we understood that E.C. might have seemed to be interacting with M.L. willingly when asking for a ride home from work and for him to bring her breakfast. However, these actions were likely part of a common pattern of behavior that victims adopt to appease their abusers, thereby keeping themselves safer. We were thus convinced that E.C. was still eligible for benefits because she had acted due to domestic violence.
At the hearing, E.C. maintained that she allowed M.L. onto the property in order to “give into what [M.L.] want[ed]” so that he would not create a scene at her workplace and cause her to lose her job. In describing the first of the three incidents that led to her termination, E.C. testified:
I know what happens when I don’t give in to what he wants. My work is very important. I have children I have to provide for. I have to keep a roof over my head and the last thing I needed was to lose my job, so, therefore, I did not want to make a scene at my workplace.
To support E.C.’s testimony—and to contextualize E.C.’s actions—we presented an expert witness, a licensed social worker with many years of experience working with domestic violence survivors. The expert’s undisputed testimony, based on her interview of E.C. and review of the record, laid out the nexus between E.C.’s termination and domestic violence. In the hearing, the expert opined:
Appealing a Disappointing Hearing Decision
Despite the unrefuted testimony of our client and expert witness, the administrative law judge ruled that E.C. had committed simple misconduct; he found that she had intentionally harmed her employer’s interests by allowing M.L. on the employer’s property but that no harm had occurred. As such, E.C. was disqualified from receiving benefits for eight weeks. In his decision, the judge “acknowledge[d], and [found that] the evidence demonstrates that [E.C.] was involved in a turbulent relationship with M.L., and was a victim of domestic violence.” However, with the dearth of legal guidance on the domestic violence provision, the administrative law judge also found that
We were disheartened that the administrative court adopted a narrow test for the causal connection between the domestic violence E.C. experienced and the reasons for her termination, despite the expert evidence in the record about the nature of domestic violence and common patterns of appeasement that might appear to be misconduct but are really efforts to stay safe.
Structuring the Appeal
Knowing that this was a case of first impression before the D.C. Court of Appeals, we advocated a broad interpretation of D.C. Code § 51-131 to help both our client and the others who would follow her. We asked the court to award benefits to E.C. and, in doing so, interpret D.C. Code § 51-131 in a way that would recognize the realities of domestic violence and the common nexus between such abuse and job loss. In our brief we challenged two aspects of the administrative decision: (1) the implicit conclusion that domestic violence must be the sole cause of a separation from employment, and (2) the limited examination as to whether there was violence only at the moment that E.C. took the actions that caused her termination, which led to the finding that E.C. had “willingly and voluntarily” allowed M.L. onto the property because “there were no threats or coercive behavior on these occasions.”
We based our legal argument on a statutory analysis of D.C. Code § 51-131 and the phrases “due to” and “domestic violence.” We argued that “due to” is capable of many meanings and that one needs to look at the language, history, and purpose of the underlying statute for interpretation. Because D.C. Code § 51-131 is a remedial provision of a remedial statute, the finding of a broad nexus between domestic violence and job loss is consistent with the language and purpose of the law and its legislative history.
In analyzing the meaning of “domestic violence,” we faced the challenge that at first blush the D.C. Council appeared to have defined the phrase somewhat narrowly for purposes of this statute. By defining domestic violence as an “intrafamily offense,” the Council required the claimant to prove that an action punishable as a crime had occurred between the abuser and survivor. We therefore ran the risk that the court could find that a termination had to be due entirely to an intrafamily offense to constitute domestic violence under D.C. Code § 51-131.
To counter this possible interpretation, we urged the court to rely on a line of family law cases requiring that courts “meaningfully analyze” the “entire mosaic” of an abusive (or neglectful) relationship rather than focus on isolated incidents when deciding which parent should get primary custody or whether to remove a child from the parents’ home. We used these cases to argue that, because M.L. had committed the intrafamily offense of stalking (on one of the occasions for which E.C. had been terminated) and because the entire mosaic of their relationship revealed a pattern of abuse, fear, and appeasement, the stalking incident, considered against the backdrop of these dangerous patterns, led E.C. to behave as she did on all three occasions.
We reached out to the Domestic Violence Legal Empowerment and Appeals Project, an organization dedicated to pursuing the rights of domestic violence survivors in appellate cases, and asked it to submit an amicus brief analyzing the impact of domestic violence on victims and their ability to maintain employment. This brief, co-counseled with Arnold & Porter, LLP, educated the court about other forms of domestic violence—such as the financial abuse committed by M.L. when he threatened E.C.’s employment and carried out that threat—that would not by themselves constitute intrafamily offenses but certainly contribute to the entire mosaic of a “turbulent relationship.”
After oral argument, the court asked the District government to submit an amicus brief analyzing the meaning and legislative history of D.C. Code § 51-131. We met with representatives of the District’s Office of the Attorney General to present our arguments. The District ultimately filed a brief that supported our statutory analysis on all points.
The Court of Appeals issued its ruling in June 2014 and found not only that E.C. was entitled to full benefits (without a remand for additional proceedings) but also that the broad interpretation of “due to domestic violence” for which we had argued was correct.
Broadening the Reach of E.C.
Now that E.C. has received her benefits, we are working to expand this victory to benefit more unemployed survivors of domestic violence. First, we reached out to the media to raise awareness about this issue. On June 17, 2014, the Washington Post ran an article about the decision in which we and E.C. were quoted. Think Progress ran an article the next day that discussed the decision and its impact while raising the broader issue of the lack of employment protections for domestic violence survivors.
Second, we collaborated with our family law colleagues to do outreach and education about these protections. So far, Legal Aid has trained 80 employees of the D.C. Department of Employment Services (the agency that administers unemployment claims) on both D.C. Code § 51-131 and how to apply it as well as on the realities of domestic violence. We gave the Department input on sample notices and interview questionnaires to use in these cases. We are also educating domestic violence service providers and other family law practitioners about this law so that they can screen their clients for possible unemployment insurance eligibility.
Third, we are working to fill gaps in employment law protections for survivors. Although unemployment insurance is a crucial support for victims who lose their jobs and need resources to leave an abuser, ideally, survivors would not lose these jobs in the first place. Many survivors have told us about being placed in impossible positions, such as having to choose between maintaining their employment and pursuing a civil protection order after their abusers have followed them to work or (in at least one case) when their abusers work for their employers. We are collaborating with employment lawyers to assist survivors under current civil rights laws. And we are working with a coalition of domestic violence prevention groups to expand the reach of these laws by advocating an amendment to the District of Columbia Human Rights Act that would protect employees from being fired as a result of their status as domestic violence survivors.
We see our victory in E.C. as a starting point in Legal Aid’s ongoing efforts to support survivors of domestic violence as they protect themselves and their families. As E.C. told the Washington Post, “I just feel that I’m not the only one that may have been wronged.” We must ultimately ensure that no survivor will have to choose between safety and the economic devastation of unemployment without a safety net.
We would like to thank our colleagues Eric Angel, Chinh Le, Westra Miller, Wemi Peters, and Blair Greenwald for their contributions to this advocacy story.
Legal Aid Society of the District of Columbia
1331 H St. NW Suite 350
Washington, DC 20005