Victimizing the Abused?: Is Termination the Solution When Domestic Violence Comes to Work?
57 Pages Posted: 11 Jan 2007 Last revised: 22 Feb 2009
Domestic violence is a tragic yet all-too-common occurrence in our society. It affects not only the victim of the violence, but often those in the victim's life: her children; her family, friends and neighbors; and even her workplace. Not only does an employee's experience of violence in the home affect her attendance, productivity, and social/emotional status, but it also could affect her employer in another (perhaps more significant) manner. When one is in an intimate relationship with a batterer or is trying to escape that relationship, there exists a very real threat of the domestic violence following the victim to work. There are countless stories of batterers pursuing their victims at work and inflicting harm on the victims and/or other employees in the workplace. Many employers are aware of this risk and have implemented workplace violence policies to minimize the risk. Unfortunately, for many employers, minimizing the risk often entails terminating the victim, which is usually the easiest way of ensuring that the violence she suffers does not become the violence the employer (or its employees) suffers. Of course, such a termination inflicts significant damage on the victim, and is akin to "revictimizing the abused."
This Article explores the issue of whether termination is ever the appropriate solution to minimizing the risk of domestic violence, both from legal and policy perspectives. One goal of this Article is to raise the reader's awareness that there are two compelling sides to this issue and one should not be too hasty in passing judgment on what the "right" thing to do is, either legally or normatively. The second goal of this Article is to offer my solutions to the conflict that arises when domestic violence threatens the workplace. In my three-part conclusion, I borrow from the law of the Americans with Disabilities Act (ADA) to conclude that: (1) in some situations termination is never warranted because the victim can be reasonably accommodated without creating an undue burden for the employer; (2) sometimes safety mandates termination; and (3) most importantly, because of the significant harm inflicted by termination, an employer should undergo a "direct threat analysis," borrowed from the ADA, to determine if termination is necessary to keep the workplace safe.
Keywords: domestic violence, discrimination, workplace violence, direct threat, reasonable accommodation
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