VAWA II, SEC. 721 - 726



SEC. 721. SHORT TITLE.

This subtitle may be cited as the `Victims' Employment Rights Act'.

SEC. 722. PURPOSES.

Pursuant to the affirmative power of Congress to enact this Act under section 5 of the fourteenth amendment to the Constitution, as well as under clause 3, section 8 of article I of the Constitution, the purposes of this subtitle are--

(1) to promote the national interest in ensuring that crime victims can recover from the effects of crime and participate in the criminal justice process without fear of adverse economic consequences from their employers;

(2) to minimize the negative impact on interstate commerce from dislocations of employees and decreases in productivity that may arise when employees are victimized by violent crime;

(3) to promote the purposes of the fourteenth amendment by protecting the rights of victims of crime and by furthering the right of crime victims to employment free from discrimination; and

(4) to accomplish the purposes set forth in paragraphs (1) through (3) in a manner that accommodates the legitimate interests of employers and protects the safety of all of those in the workplace.

SEC. 723. DISCRIMINATION.

(a) GENERAL RULE- An employer shall not take or threaten to take any adverse job action against any employee who is or has been a victim of crime based upon that employee's status, experience, or condition as a victim of crime.

(b) DEFINITIONS- For the purposes of this subtitle--

(1) the term `employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee, and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization;

(2) the term `employ' includes to suffer or permit to work for wages, benefits, or other compensation;

(3) the term `employee' means any person employed by an employer; this term includes full- or part-time persons employed for a fixed time period, temporary or leased basis, independent contractors, and persons participating in work assignments as a condition of receipt of State or Federal welfare benefits;

(4) the term `victim of crime' includes any employee who an employer knows or has reason to know has been the target of an Act or series of Acts that would come within the meaning of State or Federal offenses described in section 16 of title 18, United States Code, or that would form the basis for a felony or misdemeanor crime of domestic violence, assault, battery, sexual assault or stalking under State or Federal law, or that would form the basis for obtaining an order of protection as defined in 18 U.S.C. 2266 under applicable civil or criminal State or local law; this term also includes those employees against whom threats to commit such criminal offenses have been made, provided the employer knows or has reason to know that such threats have occurred;

(5) the term `adverse job action' means any action adversely affecting the employment status, wages, or benefits payable to the victim, including--

(A) demotion or suspension;

(B) dismissal from employment;

(C) refusal to hire;

(D) involuntary transfers;

(E) failure to make a reasonable accommodation as requested by the employee of the victim's health and safety needs arising from the offense;

(F) loss of pay or benefits; and

(G) disciplinary procedure or action;

this provision shall not interfere with lawful employment policies providing for unpaid leave, except where State or Federal law or the employer's existing leave policies provide for paid leave or continued benefits, that can lawfully be exercised to attend court proceedings or other activities related to the criminal offense;

(6) the term `based upon the employee's status, condition, or experience as a crime victim' means any action affecting the terms or conditions of employment, as defined in subsection (b)(4) of this section, which would not have been made in the absence of the employee's status, condition, or experience as a crime victim, and which does not qualify for the exemptions allowed by section 726 of this subtitle;

(7) the term `reasonable accommodation' may include--

(A) job restructuring, part-time or modified work schedules, or reassignment to a vacant position or to another department or facility with equivalent wages and benefits or reassignment of the perpetrator if the perpetrator is also an employee, if necessary to protect the health or safety of the crime victim;

(B) making adjustments to existing facilities, for example, installing locks or alarms, which are necessary to protect the safety of the crime victim and others in the workplace;

(C) delaying disciplinary action for a reasonable period of time while the employee seeks assistance; and

(D) authorizing reasonable leave from work to seek medical help, legal assistance, counseling, safety planning, and any other activity necessitated by the crime that must be undertaken during hours of employment;

(8) the term `undue hardship' means an action requiring significant difficulty or expense, or any action that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature of operation of the business, when considered in light of the following factors:

(A) The nature and cost of the accommodation needed under this section.

(B) The overall financial resources of the employer; the number of persons employed at the facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility.

(C) The relationship between the seriousness of the crime and injuries suffered by the employee, or threatened to be made against the employee, and the proposed accommodation. In cases where the employee is a victim of domestic violence, the employer shall take into account the fact that incidents of domestic violence frequently escalate in seriousness, and that threats against the employee may result in violence.

SEC. 725. ATTORNEY'S FEES.

Section 722(b) of the Revised Statutes (42 U.S.C. 1988(b)) is amended in the last sentence by inserting `title VII of the Violence Against Women Act of 1998,' after `title VI of the Civil Rights Act of 1964,'.

SEC. 726. DEFENSES.

(a) EXTRAORDINARY THREATS TO WORKPLACE SAFETY- It may be a defense to liability under this subtitle if an adverse job action was necessary to protect the safety of an employee or other persons at the place of employment; provided, to qualify for this exception, an employer must prove--



(1) that the employer took all reasonable steps to protect the safety of the crime victim and others at the workplace which, if successful, would not have required the adverse job action; and (2) no less adverse action was reasonably possible without endangering the safety of the employee or others at the workplace.

(b) ESSENTIAL JOB FUNCTIONS IMPAIRED- It may be a defense to liability under this subtitle if, despite reasonable accommodation by the employer, the employee's experience as a crime victim has left the employee unable to perform the essential functions of the employee's job. For purposes of this section, consideration shall be given to the employer's judgment as to what functions of a job are essential.

(c) UNDUE HARDSHIP- It may be a defense to liability under this subtitle if the employer can demonstrate that reasonably accommodating the health and safety of the crime victim would impose an undue hardship on the operation of the business of the employer or would severely threaten the integrity of the employer's physical plant or facilities. To qualify for this exemption, an employer shall make good faith efforts to implement the employee's proposals for such reasonable accommodations.

(d) RESTORATION TO POSITION- An employee who is lawfully discharged, transferred, demoted, or suspended under subsection (a) of this section shall be entitled to restoration to the employee's former position provided the conditions necessitating the change in employment no longer persist, and provided that restoration does not constitute an undue burden. The employee shall be entitled--

(1) to be restored by the employer to the position of employment held by the employee when the discharge, transfer, or suspension commenced; or

(2) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

(e) BURDEN OF PROOF- Once an employee establishes that an employer took an adverse job action against the employee after it knew or had reason to know that the employee had been a victim of crime, it shall be the employer's burden to prove--

(1) that the adverse job action was not based upon the employee's status, condition, or experience as a victim of crime; or

(2) that the employer's actions fall within the defenses allowed under this section.