Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

Initial Strategies
The first two sources listed above represent what the employer gives to the employee voluntarily. If an
employment contract or a collective bargaining agreement gives an employee greater rights and protections
than the ordinary at-will rule, the employer is legally bound to that agreement. Therefore, if a survivor
indicates problems with employment, she or he should first consult the contract with the employer to see
whether it provides assistance. For example, if the contract allows for paid leave for an injury, the survivor
may have the added benefit of not having to disclose the cause of an injury to the employer.
Even if it doesn’t, however, an informal discussion with the employer is often helpful. Certainly, not all
employers will be sympathetic to the survivor’s needs, but many will attempt to do what they can, even if
it’s not legally required. For example, an employer might be willing to adjust a survivor’s work schedule,
change the survivor’s phone number or extension, allow her or him to transfer to a safer location, or beef
up security (p. 98, SAPO Enforcement). However, that strategy requires the survivor to disclose the assault
to one or more people at work who have authority to make those decisions. An advocate can help decide
who to talk to about specific accommodations, such as between an immediate supervisor and a human
resources officer.
Whether an informal request for accommodations is a good option for a survivor depends heavily on
the employer’s attitude and the survivor’s willingness to disclose the assault. But if the survivor chooses
to make an informal request, she or he should always ask that private information remain confidential,
and that the survivor will be notified if other parties must be informed. If she or he doesn’t request
confidentiality, it’s very likely that news will spread.
Because individual employment contracts, collective bargaining agreements, and employers’ willingness
to assist voluntarily will vary from case to case, the remainder of this chapter will concentrate on the third
category of job protections: those enacted in state and federal law.
Federal Employment Protections
Family Medical Leave Act
The federal Family Medical Leave Act (“FMLA”) allows qualifying employees to receive unpaid leave for
medical reasons, and job protection while taking the leave. A covered employee has the right to take up to 12
workweeks of unpaid leave within any 12-month period, for proper family or medical reasons. The employee
cannot be fired for taking the FMLA leave, but the employee must use her or his vacation and sick time first.
The employer must also continue whatever health benefits the employee had previously, and the employee
must be allowed to return to the same or equivalent position at the end of the leave period.
FMLA’s specific purpose is not to protect sexual violence survivors, but its protections cover people who
have suffered physical or mental injuries. Therefore, survivors who need to miss work as a result of mental or
physical injuries should be informed about FMLA’s protections and to determine whether it covers them.
110