Employment and Housing Protections for Sexual Assault Victims

1. Employment and Housing Protections forSexual Assault Victims Ebony Tucker, Esq. Legal Project Director Florida Council Against Sexual Violence

2. Learning Objectives • Learn which housing and employment laws are there to protect victims of sexual assault. • Learn the options for financial assistance when a client is out of work. • Learn how federal and state discrimination laws apply to sexual assault and domestic violence victims

3. Employment Statistics • “Ninety-six (96%) percent [of survivors surveyed] reported that domestic abuse affected their ability to perform their job duties” (Ridley et al., 2005). • "Fifty-six (56%) percent of victims of domestic violence reported late to work because of job interference tactics used by their batterers" (Swanberg & Logan, 2005). • "Women victims of recent domestic violence had a 26% higher rate of absenteeism and tardiness than non-victims" (Reeves & O’Leary-Kelly, 2007). • “The annual cost of lost productivity due to domestic violence is estimated at $727.8 million, with over 7.9 million paid workdays lost each year” (National Center for Injury Prevention and Control, 2003).

4. Leave/ Time Off • Annual/Sick Leave • Family Medical Leave Act (FMLA)

5. Annual/Sick Leave • Earned by employee during their time of service • Generally, must be exhausted before FMLA leave, donated leave or statutory protections can be utilized

6. Family Medical Leave Act • Provides up to 12 weeks of unpaid leave if employees have been employed for at least one year and the employer has 50 or more employees. • Unfair denial of legitimate leave requests may constitute FMLA discrimination. • If your client believes his/her FMLA claim has been wrongfully denied, contact the U.S. Department of Labor at 1-866-4-USA-DOL or visit their website at http://www.dol.gov/ for more information or to find a local office.

7. Public Benefits for Victims in Mississippi • Victim Compensation Fund • Unemployment Compensation

8. Crime Victim Compensation Program • Provides financial assistance and referrals to victims of crime. • benefits are only for lost wages and expenses that are directly related to the crime • Operated by the Mississippi Office of the Attorney General • Eligible Expenses? • Medical up to $15,000 • Transportation costs • Counseling • Funeral expenses • Lost wages • Lost dependent or child support • Relocation and temporary housing • Crime scene clean up and repairs for damaged windows and locks for crimes that occurred at the victim’s residence

9. Victim Compensation Cont. Those Who Qualify: • A victim of a violent crime who has suffered physical or extreme psychological trauma; • A relative of a deceased victim who must pay funeral expenses; • A person who witnessed a violent crime; • A MS resident who was victimized by a crime in a foreign country with no victim compensation program; • Anyone authorized to act on behalf of the victim; or • Dependents of the deceased victim Those Who Do Not Qualify: • Claimant who engaged in illegal conduct or aided the offender • A claimant with two previous felony convictions • A claimant convicted of any felony after he or she is a crime victim • Anyone incarcerated when the crime occurred.

10. Victim Compensation cont. Other Important Program Restrictions • To qualify for this program, you must have reported the incident to law enforcement within 72 hours of its occurrence or show good cause for not doing so. • Application must be received within 36 months after the date of the crime • Child sexual abuse is 36 months after date of first report • Victims must apply and qualify for this program in order to have their expenses or lost wages reimbursed. • All other benefits (Medicare, Workers’ Comp, etc. must be paid out first) • Claimant must cooperate with law enforcement investigation and prosecution

11. Unemployment Compensation • Twenty-four states have passed laws allowing survivors of domestic violence to leave their jobs due to the violence. • “good cause” standard • States which define "domestic violence" to explicitly include sexual assault and/or stalking: IN, NC, TX and WA. • In MS, recent attempts (2006) to establish the same type of law have been unsuccessful. • It may be a good option for victims to apply but there is no guaranteed right to benefits.

12. Disclosure to Employer • Should you tell your supervisor/manager about domestic violence? Sexual Assault? • Will this information be kept confidential? • Be specific about what you want from your employer. • Document! Document! Document!

13. Anti-Discrimination Laws • Why are they important for sexual assault and victims? • Title VII of the Civil Rights Act (42 U.S.C. § 2000e et seq)

14. Sex Discrimination Claims • Victim should be an employee who is treated unfairly or differently from another employee who missed work or underperformed for a different reason • Usually involves sexual assault/battery that takes place outside the workplace • Employer must have known or reasonably should have known about employee’s situation

15. Sexual Harassment Claims • Sexual assault/battery in the workplace constitutes sexual harassment • Coworker vs. Supervisor abuse • “Knowledge” can be imputed to employer if abuser is a manager with sufficient authority • If abuser is a coworker, employer must have known or reasonably should have known abuse was happening and made no meaningful attempt to stop the abuse or remedy the situation in order to be held liable

16. Housing Protections • What are some of the problems with housing that sexual assault victims face? • Stalking Victims? • Do these problems differ from domestic violence victims?

17. Apartment Leases • What happens when a victim wants to break a lease? • What protections are in most leases? • Two reasons always allowed – death and military service • Penalties for breaking a lease • Subleasors

18. Housing Rights/Protections • VAWA (Violence Against Women Act of 2005) • Federal Fair Housing Act (§ 42 U.S.C. 3601 – 3631) • Mississippi State Laws?

19. VAWA Housing Protections • Who does it protect? • Victims of domestic violence, dating violence, and stalking living in federally-funded public housing or receiving federal housing assistance vouchers (tenant-based and project-based “Section 8” vouchers). • What does it do? • It states that public housing authorities and private landlords accepting Section 8 vouchers may not deny admission to housing or voucher assistance to an individual based on his or her status as a victim of domestic violence, dating violence, or stalking. • It establishes that victims cannot be evicted or terminated from voucher assistance based on incidents of actual or threatened domestic violence, dating violence, or stalking, or based on criminal activity directly relating to such violence, unless an “actual and imminent threat” is posed to other tenants of the property.

20. VAWA Housing Protections cont. • What effect does VAWA have on private landlords who do not receive Section 8? • How does VAWA protect victims of non-intimate partner sexual violence? • VAWA Reauthorization 2010?

21. QUESTIONS?????

22. Immigration Information for Sexual Assault Victims Ebony Tucker, Esq. Legal Assistance for Victims Project Director Florida Council Against Sexual Violence Aisha N. Chaney, Esq. The Law Office of Aisha N. Chaney, PLLC.

23. Learning Objectives • Basic immigration language, forms and resources • The differences between T Visas and U Visas • VAWA provisions for immigrant victims of sexual assault

24. ACRONYMS • USCIS United States Citizenship and Immigration Services • ICE Immigration and Customs Enforcement • USC United States Citizen • LPR Lawful Permanent Resident • INA Immigration and Nationality Act • VTPA Victims of Trafficking Protection Act • VAWA Violence Against Women Act

25. BASIC RULES • Never tell an undocumented person to go alone to the Citizenship and Immigration Services. • Undocumented immigrants, including survivors, should never contact USCIS without talking to an immigration attorney. • Undocumented survivors should have an immigration attorney and an advocate if possible.

26. Factors that Contribute to Repeat Violence • Lack access to information about laws that can protect them. • Distrust for the legal system. • Do not speak English. • Typically sends money to family in home country. • Are isolated from family, friends, and social service providers. • Fear of employment sanctions. • Limited number of interpreters in jails, courts and social services programs.

27. History of the U Visa The U Visa was created under the Trafficking Victims Protection Act of 2000 (TVPA). It was reauthorized in 2003, 2005, and 2008. This is a fairly new and untested classification. It was passed in 2000 without Federal Regulations to fully implement the visa. Regulations published after January 12, 2009 clarified the fees. U visas were adjudicated after this date.

28. What is a U visa? The U visa is a nonimmigrant status that may be available when: - The victim has suffered substantial physical or mental abuse as a result of being a victim of an enumerated crime. - May apply for LPR status after 3 years.

29. Examples of Enumerated Crimes: Rape; Torture; Trafficking; Incest; Domestic Violence; Sexual Assault; Prostitution; Sexual exploitation; Female genital mutilation; Being held hostage; Peonage; Involuntary servitude; Slave trade; Kidnapping, abduction; Unlawful criminal restraint; False imprisonment; Blackmail; extortion; Murder; manslaughter; Felonious assault; Witness tampering; Obstruction of justice; Perjury; Attempt, Conspiracy, or solicitation to commit any of the above

30. Adjustment of Status after 3 years • 10,000 allocated U visas issued each year for principal (this does not include family members) • No number limitation for derivatives: spouses, sons , daughters, children, or parents • Children are sons and daughters that are not yet over 21 • Sons and daughters typically indicate sons and daughters over 21 but not married • Once the cap is met, the applicants are placed on a wait list and are issued deferred action (they will get work status during this period).

31. DIRECT & INDIRECT VICTIMS One who is directly and proximately harmed by qualifying criminal activity. A person who is not directly harmed but witnessed the crime. May include bystanders, “where bystander suffers an unusually direct injury as a result of qualifying crime.”

32. Forms to Know • I-918 – U Visa Application • I- 765 – Employment authorization document (EAD) is Typically granted and may be provided to derivatives. Available in one year increments. • I-192 is a waiver that is submitted when a victim is inadmissible.

33. T VISA Was created by the Trafficking Victims Protection Act of 2000. A person may apply for a T Visa if he or she is a survivor of a severe form of trafficking: (A) Sex trafficking in which a commercial sex act is induced by force, fraud coercion, or in which the person induced to perform such an act has not reached the age 18. (B) The recruitment , harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage debt bondage, or slavery

34. T VISA FACTS Unlawful presence in the U.S. must relate to trafficking. Victim must have complied with reasonable request for assisting an investigation or If under the age of 18 and show that he/she would suffer extreme hardship involving unusual and severe harm if deported.  5,000 visas available to the principal. Like U visa, there is no number limitation to derivatives. Can apply for LPR after 3 years but status lasts up to 4 years. May be extended if necessary.

35. VIOLENCE AGAINST WOMEN ACT VAWA initially implemented in 1994 but expanded from 1994-2000 to included immigration relief to immigration victims of sexual assault, human trafficking, and other violent crimes. Purpose is to cut off the ability of abusers, traffickers and perpetrators of sexual assault to blackmail their victims with threats of deportation, thus avoiding prosecution.

36. VAWA CONTINUED Who Qualifies Under VAWA? • Four Elements for I‐360 • Relationship to USC or LPR Abuser • Joint Residence with Abuser • Abuse (Battery or Extreme Cruelty) • Good Moral Character

37. VAWA FACTS Good Faith Marriage Must file within 2 years of final divorce Petitioner can be a parent of a child who has been abused by a spouse even if parent was not abused May apply for permanent residency immediately after receiving VAWA status.

38. ASYLUM Asylum is a form of relief available to a refugee who possesses a well-founded fear of being persecuted based on race, religion, nationality, membership in a particular social group, or political opinions. Well founded fear: a reasonable person in those circumstances would fear persecution if removed to his or her home country. Must apply within 1st year in the U.S. Must be credible.

39. What are 287(g) agreements? Enacted in 1996. Authorizes (DHS) to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions.

40. QUESTIONS?????

41. Resources • Florida Council Against Sexual Violence • (850)297-2000 • North Mississippi Rural Legal Services • (662)234-8731 (Administrative Office – Oxford) • Equal Employment Opportunity Commission (EEOC) • 1-800-669-4000 • Mississippi Attorney General’s Office Crime Victim Compensation Division • 1-800-829-6766 • U.S. Department of Justice • 202-514-2000 or AskDOJ@usdoj.gov • American Immigration Lawyers Association • www.aila.org or 202-507-7600 • ASISTA • www.asistahelp.org