Before You Discipline, Ask: What IPV Survivorship as a Protected Ground Requires of Employers

In May, the Yukon Human Rights Board of Adjudication became the first Canadian tribunal to hold that surviving intimate partner violence is protected under human rights law. In Antony v Yukon University, the Board found that domestic violence is a characteristic protected from discrimination under the ground of sex.

Two more cases are pending. KL v Canada Post is before the Canadian Human Rights Tribunal. Ms. F v Translink Security Management is before the BC Human Rights Tribunal. In both, the employers are contesting whether IPV survivorship is protected at all.

All three cases ask some version of the question, "Is an adverse job consequence following an IPV disclosure discriminatory?" But they don't get into what an employer is supposed to do instead.

Why a duty to inquire is part of it

Human rights law already recognizes a duty to inquire. It is best developed in disability cases, where the protected characteristic itself impairs the person's ability to disclose it.

Substance use disorder is the clearest line of authority. An employer who watches an employee's performance deteriorate, moves to discipline, and never asks whether something protected might be in play does not get to defend itself by saying nobody told them. The reasoning is that denial and concealment are features of the condition, so an employer cannot rely on the absence of a disclosure that the condition itself prevents.

IPV has many parallels with that.

The barriers to disclosure are structural, not incidental

There are serious, rational reasons a survivor does not tell her employer what's happening.

She may fear that disclosure will reach her partner. This is not paranoia. Separation and disclosure are among the highest-risk periods in an abusive relationship, and an employer who handles information carelessly can escalate the danger.

She may fear losing her job. That fear is well founded, which I return to below.

She may feel shame, because of societal stigma, or self-doubt about what she is going through.

She may fear that her employer will expect her to leave her partner or impose some other unilateral action plan on her.

And a survivor with an undiagnosed brain injury may struggle to track deadlines, follow multi-step procedures, or participate meaningfully in an accommodation process.

Returning to the subject of substance use disorders, it's also important to recognize that IPV and substance use frequently travel together. The research is clear that treating one without addressing the other tends to work for neither. Any employer response that engages only with the substance use (or only with the violence) is likely to fail. And the stigma attached to both compounds the silence: a survivor weighing disclosure is weighing not only her safety but how she will be seen afterward.

What this means for discipline

Put those barriers together and you have a protected characteristic that systematically suppresses its own disclosure. This is exactly the type of case in which human rights law imposes a duty to inquire.

So my expectation is this: where an employee's performance or attendance deteriorates without explanation, tribunals will start asking whether the employer inquired before disciplining, and will treat a failure to ask as fatal to the employer's explanation.

And once an employer does learn of abuse, the duty to accommodate to the point of undue hardship is triggered.

How you ask determines what you learn

A survivor will not answer honestly unless she trusts that you know what to do with the answer. That trust is built before the conversation, not during it.

It's important to have a program in place that tells survivors how far their disclosure will travel, and who will know. What you will do to protect their safety. And that any plan will be built with them rather than imposed on them.

This is what trauma- and violence-informed practice actually requires. The phrase circulates constantly in employment law, HR, and investigations practice, often without much shared understanding of what it entails. There is real technique to opening one of these conversations and keeping it open, and it is learnable. A key pillar is strengths-based support, which means treating the survivor as the expert on her own risk rather than as someone to be managed.

The safety duty runs alongside

There is a second legal obligation pushing employers in the same direction.

In Ontario, section 32.0.4 of the Occupational Health and Safety Act requires an employer who is aware, or ought reasonably to be aware, that domestic violence may expose a worker to physical injury in the workplace to take every precaution reasonable in the circumstances to protect that worker. Similar duties exist in most Canadian jurisdictions.

"Ought reasonably to be aware"

That phrase is a constructive knowledge standard. It means an employer cannot escape the duty by declining to look. If risk factors are present and you ignore them, liability can still attach.

Which is the second reason proactive inquiry serves employers.

But when is the duty actually triggered?

Suppose you inquire and she discloses. Does that trigger your duty to take precautions? Not necessarily. The OHSA duty turns on whether domestic violence may expose the worker to physical injury in the workplace, not on the existence of abuse at home. So the question becomes whether the violence could reach work, and there is almost no guidance on how to assess that.

Records I obtained through a freedom of information request show that even Ministry of Labour inspectors have no guidance on when the duty is triggered.

In the absence of regulatory guidance, the best available reference point is the research produced by Domestic Violence Death Review Committees. These committees review IPV deaths and identify the risk factors that preceded them, which provides the closest thing to an evidence base for what an employer ought reasonably to know constitutes danger.

It is also, notably, becoming more institutionalized. Manitoba recently established its IPV Death Review Committee by statute. As these bodies produce recommendations, they will increasingly define what a reasonable employer response looks like.

Why these two duties cannot be separated

Once you are assessing risk, you are building a safety plan. And a workplace safety plan can often be an accommodation.

Consider, for example:

• A change to the worker's schedule, so their arrival and departure times are not predictable.
• A different entrance or parking spot.
• Remote work, or an end to remote work, depending on where the risks are.
• A change to which coworkers know what, and to reception protocols.

It's important that the health and safety and human rights procedures are seamless in these cases. Dividing these responsibilities between different departments can at best create miscommunications and at worst increase risk to the employer and the worker.

The clearest illustration is counselling. Supporting a worker to attend counselling is a textbook accommodation. But if the counselling is scheduled at a location and time the worker's partner can predict, the accommodation has created a risk the safety plan was supposed to eliminate.

The same integration problem runs the other way. A safety measure imposed without regard to a worker's employment interests (e.g. relocating or reassigning without consultation) might not meet the threshold of "reasonable" accommodation.

Start with what is already owed: job-protected leave

Before accommodation is even on the table, there is a statutory entitlement.

Every Canadian jurisdiction now provides job-protected leave for employees dealing with domestic or sexual violence, with a portion paid in some jurisdictions. Entitlements vary in length and structure, so check your own statute.

As this is an employment standards entitlement, there is no undue hardship exemption.

Keep in mind that the barriers that make disclosure difficult are the same barriers that make it difficult to comply with a strict leave procedure (e.g. the documentation requirements, the notice periods, the forms, the expectation that she can produce a police report or a counsellor's letter on your timeline). Leniency in leave administration is will convert this statutory entitlement into something survivors can actually use.

What accommodation actually looks like

A 2025 US survey by Futures Without Violence and the National Domestic Violence Hotline found that a majority of survivors experienced negative employment consequences after disclosing, ranging from unsafe work environments to reduced hours to termination. Canadian research has found the same pattern, including a 2014 study by the Centre for Research & Education on Violence Against Women & Children and the Canadian Labour Congress.

If survivorship is protected, most of those consequences are prima facie discriminatory, and the employer bears the burden of proving undue hardship.

So what are you accommodating? The effects of IPV on the employment relationship: irregular attendance beyond the statutory leave, performance fluctuations, reduced capacity, the need for schedule flexibility, and the safety measures described above.

Build leniency into the process itself

The law of accommodation typically imposes a duty to cooperate on the employee. That includes being responsive, providing information, and following through. With IPV, this might not be realistic.

A survivor may be physically or psychologically unable to cooperate in the conventional sense because of trauma, an undiagnosed brain injury, a co-occurring substance use disorder, among other things.

Accommodations also have to be genuinely accessible. Counselling in the next town is not an accommodation for an employee with no car. A phone-based support line is not an accommodation for someone whose phone is monitored.

Where the law stands

Antony isn't binding. And the pending CHRT and BCHRT decisions won't beeither.

But the Yukon Board's reasoning is readily transferable to other jurisdictions. The decision rested on four principles drawn from the expert evidence of Dr. Peter Jaffe: that IPV predominantly affects women; that it can affect work performance; that perpetrators may harass survivors at work; and that known stigmas attach to survivors.

Dr. Jaffe filed a similar report in the CHRT proceeding, which means the same evidentiary foundation is already before the federal tribunal. The Yukon Board also quoted the BCHRT's interim decision, which acknowledged a potential nexus between IPV and the grounds of sex and marital status.

The reasoning is converging. If the CHRT and the BCHRT reach the same conclusion, I expect most Canadian jurisdictions to follow.

What to do now

I have been advising employers to plan as though survivorship is protected. Here are some concrete steps you could take:

Train the people who receive disclosures on how to have the conversation and keep the door open to ongoing dialogue.

Integrate your files. Whoever handles accommodation and whoever handles workplace safety need to be in the same conversation.

Audit your leave administration. Can a survivor realistically access domestic violence leave? Do they even know about it?

Get a sense of where your workplace stands on IPV readiness. Download the free self-assessment here.