People stalked or attacked by domestic partners shouldn't have to worry about having job offers rescinded by employers who just don't want to deal, court rules

A registered nurse pursued by an angry woman who tagged Children's Hospital in a Facebook rant after learning the nurse had gotten a job there can continue her suit against the hospital for suddenly rescinding her job offer under a state law intended to protect victims of domestic violence and harassment, the Supreme Judicial Court ruled today.

In 2019, Children's "aggressively" recruitedKehle Osborne-Trussell for a job in its orthopedic/general surgery unit and she accepted a job, according to the court's summary of the case. The hospital sent her a letter that welcomed her to the hospital, detailed her pay, benefits, supervisor and hospital unit and scheduled her for new-employee training. She was issued an employee ID and told that all that was left was some last-minute paperwork, licensure checks and her passing a test on her skills.

But then, about two weeks before she was scheduled to start in March, 2019,

[T]he plaintiff's abuser posted threats and false statements about the plaintiff on social media, in violation of the HPO [harassment prevention order Osborne-Trussell had obtained]. The post also "tagged" the social media profile "Children's Hospital," in an apparent attempt to bring the falsehoods to CHC's attention. The plaintiff reported the violation of the HPO to the Merrimac police department.

Additionally, she informed CHC's human resources department about the HPO and her abuser's past abusive behavior. The plaintiff provided CHC with copies of the HPO and told CHC that "she was pursuing enforcement of the HPO [with a local police department]. CHC requested additional information about the abuser, and CHC's human resources representative told the plaintiff that he "intended to speak with [the abuser] to hear her side of the story."

The hospital rescinded its employment offer the next week.

Osborne-Trussell sued, arguing this violated her rights under the Domestic Violence and Abuse Leave Act, a state law passed in 2014 that requires employers to give workers time off for court appearances and other time needed to deal with domestic abuse. She contended the hospital changed its mind about hiring her because it just didn't want to have to give her any time off to fight her stalker in court..

The hospital argued she wasn't an employee because she had yet to actually report for work and that the case should be tossed just for that, but that even if she were, she never specifically asked for any time off under the act, so it was within its rights to change its mind about hiring her.

A Suffolk Superior Court agreed to toss the case. Although Judge Douglas Wilkins agreed with Osborne-Trussell that she was, in fact, an "employee," based on everything the hospital initially told and sent her, he continued that she had never told the hospital she was planning to take time off to fend off her stalker and so the law didn't apply to her.

In its ruling today, the state's highest court disagreed and ordered most of her lawsuit reinstated.

First, as Wilkins did, the court ruled against the hospital on the issue of whether Osborne-Trussell was an employee under the law.

The law was passed in part so that employees would not have to choose between their job and doing something about another person going after them, the court said.

Limiting the term "employees" as CHC proposes would foil these broad, remedial purposes. It would allow employers to discriminate against an individual who, prior to his or her start date, notified an employer of a situation, such as a violation of an HPO, that might require leave to address the collateral consequences of harassment or abuse. Such an individual would have no recourse when, perhaps on the verge of achieving a measure of financial security, he or she were stripped of it by an employer who determined it would be inconvenient to accommodate the individual's protected rights to leave. A construction that excludes from the definition of "employees" those who have accepted employment but have not yet begun work would be directly contrary to the clear intent of the DVLA to allow employees to attend to the consequences of the abuse without risking loss of their jobs, and to prevent future harassment and abuse when victims step forward to confront their abusers.

Also, unlike some other laws that grant employees rights, the act did not specify any amount of time an employee had to be on the job before she could claim time off under it.

To interpret the leave provision of the DVLA as imposing a precondition that, in order to make use of the leave it affords, an employee first must accrue and have available some period of another form of leave not only would contravene the plain statutory language, but also would frustrate the protective purpose of providing leave to employees who are victims of abusive behavior for the enumerated purposes tied to the harassment or abusive behavior.

The court also dismissed Children's argument that Osborne-Trussell had no case because she never specifically stated "I request leave."

In essence, the court said an employee does not have to utter a very specific incantation to summon the law's protection. In Osborne-Trussell's case, she alerted hospital HR about the situation and that she was pursuing enforcement of the anti-harassment order with the police and that that was enough to put the hospital on notice that she might be seeking leave under the law.

It was sufficient, as alleged in the complaint, that the plaintiff notified CHC [Children's Hospital Corp.], two weeks before her start date, that her abuser had violated the HPO and that she was working with law enforcement authorities. This disclosure was enough to put CHC on notice that, while the plaintiff did not then know of any specific date on which she would require leave, she might need to exercise the leave provisions of the DVLA and was invoking her rights to leave under it.

The court continued that while Osborne-Trussell's complaint does not provide sufficient details to prove that the short time between her alerting the hospital of the issue and its decision to not hire her were related, she should be allowed to flesh out that argument at a trial.

The complaint alleges that the plaintiff had been aggressively recruited by CHC. She had undergone further vetting, had accepted CHC's offer of employment, and had been issued an identification badge and employee identification number. She was scheduled to begin training. She then provided notice to CHC. Within two weeks and, as alleged in the complaint, in an otherwise inexplicable about face, CHC terminated her employment. In these circumstances, the adverse employment action "very close" to the protected activity was sufficient, for purposes of pleading, to suggest the requisite "but for" causation.