L.S. faced a difficult decision: stay at her job (where she had a steady income and was being trained for a management position) but risk ongoing stalking or leave her job and escape to a domestic violence shelter with her children. She had already moved and changed jobs to escape and stay hidden from her children’s father. When he showed up at her new job and then knocked on her door at home a week later, she knew she was no longer safe.
For help with her dilemma, L.S. went to the Atlanta Volunteer Lawyers Foundation’s Safe Families Office, a courthouse-based walk-in clinic that serves survivors of domestic violence, sexual assault, and stalking. There she met attorney Lindsey Siegel, who was a year into a Skadden Fellowship with the Foundation to work on the housing and employment legal needs of domestic violence survivors. When Siegel talked to L.S. outside the courtroom after L.S.’s temporary protective order hearing, L.S. was still unsure about her job. She really liked working there and needed to support herself and her children, but she felt extremely unsafe. She knew that although her children’s father was in jail at the time, he probably would not stay there long. Siegel explained that if L.S. did end up leaving her job, the Atlanta Volunteer Lawyers Foundation would like to help her apply for unemployment benefits.
L.S.’s situation exemplified the economic dilemma many domestic violence survivors face. The Foundation saw it as an opportunity to test whether domestic violence survivors could receive unemployment benefits if they left their jobs. Even though Georgia’s unemployment rate ranks among the highest, qualifying for unemployment benefits in the state can be difficult. Georgia has no law that specifically covers survivors of domestic violence who are fired from or have to leave their job because of the violence. Dozens of the Foundation’s clients had told Siegel about jobs lost because of violence and stalking, but at that point, no one had wanted help pursuing unemployment benefits.
L.S. had good reason to fear her children’s father. He had been physically abusive to her on many occasions (once sending her to the emergency room), and he had threatened to kill her in the past. He was arrested several times for his violence against her, but the abuse and stalking did not stop. The Danger Assessment is an instrument that helps to determine the likelihood an abused woman has of being killed by her intimate partner. L.S. ranked high on the Danger Assessment due to her abuser’s physical abuse of her during pregnancy, his pattern of avoiding arrest for domestic violence, and his violent jealousy, to name a few factors. L.S. had taken out several protective orders against the father of her children in the past; the most recent one had expired only a week before he came to her job.
The situation L.S. feared the most had occurred before in Georgia. A man murdered his ex-girlfriend, Clara Riddles, in the middle of the CNN Center in 2007; she was an employee at the nearby Omni Hotel. The following year, a man who worked for a law firm killed his ex-girlfriend and himself outside the Atlanta Bank of America building where he worked; his victim, Raven Buckley, also worked at the firm.
When L.S. first escaped to a domestic violence shelter, she took only a leave of absence from her job. She then decided to move to another shelter, far outside the city of Atlanta and closer to her mother and stepfather. Tragically, while she was at the shelter, her stepfather killed her mother and himself in a murder-suicide. Even worse, when L.S. went to their funeral (over 200 miles from Atlanta), her children’s father appeared and approached her. As a result, she felt she could not safely return to her job. She told her employer her reasons for leaving and gave a written notice stating that she could not return to her job because of the domestic violence she faced. She then applied for unemployment benefits.
Domestic Violence and Georgia’s Unemployment Statute
In Georgia, unemployment cases can be difficult to win, especially when an employee quits. On its face, Georgia’s unemployment statute says that an employee who quits for good cause related to the employee’s work is eligible for benefits. But in practice and in the case law, only the most extreme resignation cases qualify under this exception. Until recently, conventional wisdom suggested that the employer had to be at fault for the conditions that forced the employee to quit (such as an employee enduring unaddressed sexual harassment). Because of this difficult precedent, we knew L.S. would likely be denied benefits, especially at the administrative level.
A few other facts hurt our argument that Georgia’s unemployment statute should be interpreted to cover situations like L.S.’s. As of June 2013, thirty-five states had laws stating that employees who quit or are fired from their job because of the violence or stalking are still eligible for unemployment benefits in at least some circumstances. Georgia does not have such a law. Further, when the American Reinvestment and Recovery Act was signed into law in 2009, states had the option of expanding their unemployment systems to qualify for federal funding. To get two-thirds of the money, states had to implement at least two of the four modernization options; one of those was to make unemployment benefits available to employees who have to quit for compelling family reasons, including domestic violence. Although Georgia received all of the available funding, it chose not to implement the family provision.
Initial Administrative Appeal
Not surprisingly, the Georgia Department of Labor denied L.S.’s unemployment claim at the initial claims-examiner stage. The claims examiner determined that L.S. quit “because of personal circumstances… [Her] reason for quitting may have been a good personal reason; however, it is not considered a good work connected reason” (Scott v. Variety Stores, Inc., No. 52003-12 (Claims Exam’r Ga. Dep’t of Labor Oct. 3, 2012)). The Atlanta Volunteer Lawyers Foundation then began to represent L.S. and filed an appeal on her behalf.
The next step was the administrative hearing, where L.S. would have to testify about the details of her relationship with her children’s father and show that she could not continue to work for her employer if she wanted to remain safe. Because L.S.’s case had the potential to set precedent that would affect other clients, Siegel and the Atlanta Volunteer Lawyers Foundation sought out advice and counsel from Kimberly Charles and the Atlanta Legal Aid Society, Inc., who had extensive experience with unemployment insurance cases. Their support was critical at this stage because the administrative hearing was the one chance to get all the necessary evidence in the record. All appeals that followed would be based on the administrative hearing record.
With that in mind, the Atlanta Volunteer Lawyers Foundation and the Atlanta Legal Aid Society sought an expert witness who could give some context to L.S.’s fear and decision-making. We contacted Chastity Rogers, a colleague who works as a victim advocate at the DeKalb County Solicitor-General’s office and who worked for years at a local domestic violence program, Partnership Against Domestic Violence. Not only did Rogers have the knowledge to give solid testimony, but also she had great credentials that we expected would qualify her as an expert.
At the administrative hearing, L.S. testified in detail about the history of violence she had experienced. She explained how scared she became when her children’s father reappeared after a year of relative quiet and began stalking her again. She said that after her parents’ funeral, she knew that the right decision for her was to leave her job because she “didn’t want what happened with [her] mom” to happen to her.
Rogers then testified to explain why L.S.’s actions in quitting her job were not only reasonable to protect her own safety but had the effect of making her coworkers safer as well. Rogers discussed the fact that L.S.’s abuser’s violence and stalking increased in severity after L.S. ended the relationship and how post-separation is an extremely dangerous time for a survivor. Rogers explained that escape to a domestic violence shelter would have been fruitless if L.S. had remained at her job because her abuser would have been able to follow her from her job to any other place she went. The assistant manager who appeared on behalf of the employer did not controvert L.S.’s testimony.
The administrative hearing officer denied L.S. benefits. Despite L.S.’s testimony of the extreme danger she faced by staying at her job, the administrative hearing officer explained that L.S. “may have considered the work environment to have been difficult, [but she had] the burden to do whatever a reasonable person would do to retain her employment.” The administrative hearing officer found that L.S.’s resignation was based on “personal reasons” and not a good cause connected with the work itself.
L.S. appealed the administrative hearing officer’s decision to the Georgia Department of Labor’s Board of Review. Although we wrote a lengthy brief for the appeal, the Board affirmed the decision to deny L.S. benefits in a five-line order, without any further comment or reasoning.
Finally Headed to the Courts
The Georgia Department of Labor’s Board of Review decision was the final agency decision. To appeal further L.S. had to petition for judicial review in the Superior Court of Fulton County. Petitions for Judicial Review of administrative agencies in Georgia are governed by a rule commonly known as the “any evidence rule.” A commonly misunderstood standard, the rule is that if any factual evidence supports the decision of the administrative agency, it will stand. However, the courts conduct a de novo review of the agency’s legal conclusions for potential errors of law.
At oral argument, we appeared unopposed. We argued that the Board’s conclusions were purely legal in nature, not just because L.S.’s testimony was undisputed but also because the Board determined that her reasons for quitting her job did not constitute good cause connected with her work. The Georgia Coalition Against Domestic Violence and its board member Cheryl Legare assisted with an amicus brief. As with the expert testimony, the amicus was designed to give the court context for the danger L.S. faced and how domestic violence often spills over to a victim’s work environment. The judge noted during the oral argument that this was a case of first impression in the State of Georgia. He appeared sympathetic but skeptical of L.S.’s claims.
The Superior Court agreed with the Board and affirmed the denial of benefits. The court stated that the arguments for granting benefits were “unpersuasive” and concluded that evidence supported the Department of Labor’s decision and that it lacked legal error (Scott v. Butler, No. 2013CV226671 (Fulton Super. Ct. 2013)).
At this point, L.S.’s case was 0 for 4, and the next level of appeal—the Georgia Court of Appeals—was a somewhat daunting process. The application for discretionary appeal (like certiorari) is the first obstacle, as the court does not review every unemployment case appealed. A strong application requires a brief that is just as work-intensive as the substantive appeal. Even when it does accept a case, the court does not often grant requests for oral argument. The Atlanta Legal Aid Society and the Atlanta Volunteer Lawyers Foundation gave us excellent organizational support, not only by approving the significant time spent on the case but also by providing senior and highly skilled appellate attorneys to strategize, review briefs, and help with oral arguments. Because L.S.’s case was one of first impression, we felt confident that we had a chance of the court taking our case for review. The Court of Appeals also granted oral argument more frequently in cases of first impression.
The Appellate Arguments
The Court of Appeals did grant both the application for review and the request for oral argument. The main points of the brief were: (1) the danger L.S. faced at work was so extreme that she was reasonable in leaving her job; (2) being in extreme danger at work, whatever the reason, should constitute good work-connected cause to quit; and (3) the statute contains no requirement that the employer be at fault in causing the dangerous conditions. The employer and the Department of Labor failed to submit briefs by their deadlines, but in an odd turn of events, the court directed both to submit briefs and gave them a new deadline for doing so.
The employer did not submit a brief, but the Department of Labor argued that the work-connected cause standard was narrow and did not include L.S.’s reasons for leaving, in part due to her quitting “because of personal circumstances” and in part because the employer did not create the dangerous conditions she faced (Brief of Appellee Department of Labor at 4, Scott v. Butler, 327 Ga. App. 457 (2014)).
At oral argument, one of the judges on the three-judge panel asked if we were trying to create an exception within the statute and compared our case to employees who are married to military personal and have to quit their jobs because of the spouse’s overseas assignment. (Georgia has a specific exception that deems those workers eligible for benefits under the “good cause” standard.) We responded that military spouses needed an exception because their reason for leaving was not “work-connected,” whereas L.S.’s reason was directly connected to work and required no exception. We were particularly sensitive to arguments in that vein because we were concerned the court might determine our problem required a legislative fix.
The Decision and Lessons Learned
Even though the employer did not create or contribute to the dangers at issue, to deny [L.S.] benefits under the circumstances presented would, in effect, require her to work in a dangerous environment wherein she and numerous others would be unnecessarily exposed to the actual threat of violence due to circumstances that are entirely beyond their control. This would be an outcome that is unjust, inequitable, and inconsistent with the expressed purpose of the Act.
The case was a success not only for L.S., who finally obtained unemployment insurance benefits, but also for others who may come after her. Domestic violence survivors like L.S. face many barriers to leaving a dangerous situation and staying safe. Thus, any economic security a survivor can get from unemployment benefits may remove one more barrier to safety.
The Court of Appeals extensively quoted the expert witness, Chastity Rogers, in the decision, and thereby confirmed the value of giving the court context for L.S.’s decision to quit her job. Although we argued the case mostly unopposed, we prepared as if each stage would be contested. The case was stronger as a result of our community partners who assisted with various aspects of the case. Aside from those agencies and individuals already mentioned, we had help from the Georgia Legal Services Program, Allison Smith, Shelley Senterfitt, and many of our colleagues at the Atlanta Legal Aid Society and the Atlanta Volunteer Lawyers Foundation. Not only because they were named counsel in the case but mainly because they spent hours working through drafts and arguments, we owe a special thanks to David Webster and Charlie Bliss at the Atlanta Legal Aid Society.
Appellate cases can be particularly hard on survivors of domestic violence. Those who continue to hide from their abusers can be difficult to find and contact, and they can fear (sometimes rightly so) that the attention will threaten their safety. Many desire to move on and not think about or discuss the past abuse. L.S. pursued the case through many levels of appeal despite knowing the financial benefit to her, even if we succeeded, would be small. She understood, though, the potential benefit to those who would come after her. She, like all survivors, is a model of strength.