Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

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Americans with Disabilities Act The Americans with Disabilities Act (“ADA”) is the second federal anti-discrimination statute that can benefit survivors in the workplace. The ADA provides two general protections. First, it prohibits firing, demoting, harassing, or otherwise discriminating against employees on the basis of a disability (42 U.S.C. § 12112(b)). Second, in certain circumstances it requires employers to provide a disabled employee “reasonable accommodations” to enable her or him to perform the basic duties of the job (42 U.S.C. § 12111(9)). The remedies available under the ADA are the same as those available under Title VII, but one important way the ADA differs from Title VII is that survivors can use the ADA’s protections even if the sexual violence did not occur at the workplace. For example, the ADA is often useful for survivors who develop severe post-traumatic stress disorder following an attack, which affects their job performance. If there is some accommodation the employer can provide at work to help the survivor cope with the PTSD, the survivor may be entitled to it under the ADA. Likewise, if the employer decides to fire the survivor because of the effects of PTSD, the employer probably has violated the survivor’s rights under the ADA. ADVOCACY ACTION: Before disclosing any medical or psychological condition to an employer, survivors and advocates should consider the impact on the survivor’s privacy. Survivors should be especially cautious if involved in separate civil lawsuits. The ADA requires employers to treat medical information as confidential, and Texas civil courts recognize a physicianpatient privilege, but in some circumstances disclosing medical information may cause the survivor to inadvertently waive that privilege. (p. 58, Inadvertent Waiver/Privilege & Confidentiality) In many cases, the benefits of going through with an ADA claim will outweigh the privacy concerns, but survivors should be aware that personal medical information could become public. State Employment Protections Texas Commission on Human Rights Act In addition to the ADA, Texas has its own disability discrimination statute, called the Texas Commission on Human Rights Act (“TCHRA”). Its provisions are virtually identical to the federal ADA, except the Texas law provides no protection for employees who currently abuse or are addicted to substances. Therefore, many survivors whose rights under the ADA have been violated also have the option to pursue a remedy under TCHRA as well. The TCHRA’s provisions are located in Title 2, Subtitle A, Chapter 21, Texas Labor Code. To pursue claims under the TCHRA, employees should contact the Texas Workforce Division. Other Sources of Compensation We have already discussed some sources of monetary compensation for survivors in the Section B of this chapter, “General Civil Remedies.” When an employer is somehow involved, a civil lawsuit for tort damages could be worthwhile. That is because employers usually have enough money to pay a damages award, unlike many individual perpetrators. (p. 100, Tort Lawsuits) In addition, Crime Victims’ Compensation is highly beneficial for almost all survivors, regardless of any involvement with the workplace. (p. 100, CVC) Beyond those, however, unemployment insurance is also available to certain survivors. Unemployment Insurance Unemployment insurance is a state program that pays temporary income to employees who leave their jobs through no fault of their own. In Texas, the Texas Workforce Commission (“TWC”) administers unemployment insurance. 114
Currently, Texas law makes unemployment insurance available to survivors of family violence or stalking who are forced to leave their jobs as a result, but not to survivors of sexual assault. However, when sexual violence is a form of family violence or stalking, unemployment insurance is a good option for compensation. Survivors who apply for unemployment benefits based on family violence or stalking will need to provide documentation in the form of a recently-issued protective order, a police record documenting the family violence or stalking against the survivor, or medical documentation of violence. There are various, fairly complicated requirements an individual must satisfy to be eligible for unemployment insurance in Texas. Basically, however, a person must have earned a certain amount of money during the last year, left her or his previous job without fault (e.g., because of family violence), remain able to work, and actively search for new employment. Notably, if an employee is fired because of a medical condition that prevented her from working but now can work, she may be eligible for unemployment insurance. If that is the case, the employee can apply for benefits through TWC anyway, and file an administrative appeal in the event the application is denied. Nonlawyer advocates can represent employees in those appeals, which are sometimes conducted via telephone. But be sure to get all the facts from the employee. The employer may claim the firing resulted from some other policy violation, like chronic lateness or failing to call the office when staying home sick. Undocumented persons are not eligible for unemployment benefits. Because of their immigration status, the state does not consider them available to work. ADVOCACY ACTION: Individuals can apply for unemployment insurance online at http://www.twc.state.tx.us/ui/uiclaim.html or by phone with a TWC local office. In addition, TWC provides answers to many unemployment insurance questions on its website at: http://www.twc.state.tx.us/ui/bnfts/claimantinfo.html. Refer to the Appendix for contact information for TWC local offices. Economic Compensation vs. Other Accommodations in Legal Employment Remedies Economic Compensation Other Accommodations • Title VII (back or front pay, damages, court costs) • Americans with Disabilities Act (back or front pay, damages, court costs) • Texas Commission on Human Rights Act (back or front pay, damages, court costs) • Unemployment Insurance • Civil Lawsuit for Damages • Family Medical Leave Act (leave from work) • Title VII (injunctive relief) • Americans with Disabilities Act (reasonable accommodations, other injunctive relief) • Texas Commission on Human Rights Act (reasonable accommodations, other injunctive relief) 115
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Sexual Assault Legal Advocacy Manua
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Table of Contents: 05 Manual Prefac
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6 PART ONE: THE CRIMINAL JUSTICE PR
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i. Basic Procedure: Jurisdiction an
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ii. Substantive Law: The Texas Pena
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Defenses Defenses to Prosecution So
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iii. Sexual Assault and Related Off
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Indecency with a child, Tex. Penal
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Indecent exposure, Tex. Penal Code
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Possession or promotion of child po
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Prostitution, Tex. Penal Code § 43
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Crime Victims’ Rights Introductio
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Attorney Representation Enforcing c
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• The right to a private waiting
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The Criminal Investigation Introduc
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In addition, survivors can complete
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Legal Advocacy for Child Survivors
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iv. Medical Forensic Examinations W
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Not only are survivors entitled to
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The Role of the Legal Advocate in t
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i. The Charging Process and Prosecu
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The victim (or the victim’s guard
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ACP is available to victims of sexu
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v. The Right to HIV/STI Testing Sur
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If a survivor fails to include some
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ADVOCACY ACTION: The survivor has t
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ix. The Trial Preparation Thorough
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Preparing for Pretrial Litigation B
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x. Verdicts and Sentencing Criminal
Page 66 and 67: Under community supervision, the de
Page 68 and 69: xi. Appeals If the prosecutor succe
Page 71 and 72: Sex Offender Monitoring and Treatme
Page 73 and 74: What Does Registration Entail? Regi
Page 75 and 76: Restrictions on Internet Usage for
Page 77 and 78: In addition, regardless of level of
Page 79 and 80: ii. Civil Commitment The idea behin
Page 81 and 82: What Does Civil Commitment Entail?
Page 83: Bottom Line: The Role of the Legal
Page 86 and 87: i. Rights of Crime Victims’ in Ju
Page 88 and 89: ii. Pre-Adjudication Detention As n
Page 90 and 91: Informal Proceedings The consequenc
Page 92 and 93: The biggest difference between a ju
Page 94 and 95: The Process If the prosecutor wants
Page 96 and 97: 94 PART TWO: CIVIL LEGAL REMEDIES F
Page 98 and 99: General Civil Issues Almost every s
Page 100 and 101: Safety Sexual Assault Protective Or
Page 102 and 103: No-Contact Orders as Conditions of
Page 104 and 105: If the survivor incurs any of the a
Page 106 and 107: There are separate and slightly dif
Page 108 and 109: Protections for Sexual Assault Surv
Page 110 and 111: • Eviction of Perpetrator: Public
Page 112 and 113: Initial Strategies The first two so
Page 114 and 115: Title VII of the Civil Rights Act o
Page 118 and 119: Ripple Effects of Sexual Assault: E
Page 120 and 121: Formal Disciplinary Action A formal
Page 122 and 123: • Required Continuing Assistance
Page 124 and 125: Texas Law: Protective Orders and St
Page 126 and 127: Legal Remedies for Survivors of Sex
Page 128 and 129: VAWA Self-Petitions For certain sur
Page 130 and 131: Crime Reporting Mandatory Reporting
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Page 134: 6200 La Calma, Suite 110, Austin, T
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