The Violence Against Women Act: A New Threat To Employers

April 24, 2002

This summer, employers should keep an eye open for the U.S. Supreme Court's anxiously awaited decision concerning the constitutionality of the Violence Against Women Act of 1994 ("VAWA"). VAWA allows victims of gender-based violence to sue in federal or state court and recover compensatory, injunctive, declaratory, and punitive damages without the caps currently limiting recoveries under other employment laws. Less controversial components of VAWA provide $1.6 billion for police, prosecutors and prevention services of sexual violence or domestic abuse.

Pursuant to VAWA, any person injured due to a "crime of violence motivated by gender" may file a lawsuit and recover unlimited compensatory and punitive damages. A "crime of violence" means an "act or series of acts that would constitute a felony." However, to recover damages under VAWA, the victim's assailant need not have been convicted-or even charged with a crime. VAWA applies if the "crime of violence" is motivated, at least in part, because of the victim's gender or due to an animus based upon the victim's gender.

Almost immediately, employees asserting sexual harassment-type claims began to use VAWA, and many courts have indicated their willingness to hold employers liable. In at least two known cases, employers have been held liable under VAWA. Three former employees at a Denver-area Hooters restaurant were awarded $700,000, and several former Denny's restaurant employees in the greater Seattle area recently settled their sexual harassment and VAWA claims for nearly $500,000.

Until the Supreme Court determines whether VAWA is valid, a decision many constitutional scholars say is too close to call, employers remain exposed to this potent new weapon. Workplace violence programs and anti-harassment policies and training, already a must for employers who seek to limit their legal exposure, provide added protection against VAWA claims as well.

For more information, please contact shardy@cohenlaw.com.