Journal Title Abbreviation
Brook. L. Rev.
Over five million acts of domestic violence are committed every year.1 The prevalence of these acts makes domestic violence “the leading cause of injury to women.”2 Detrimental wherever they occur, these acts are not limited to the privacy of one’s home. Instead, domestic violence regularly and repeatedly spills over to the “public” workplace.For example, Francescia La Rose’s former boyfriend called her supervisor and threatened to come to the office to kill La Rose if she was not fired. Her employer responded by warning La Rose to keep her personal problems out of the workplace. The next day, the ex-boyfriend walked into the building where La Rose worked, past the security guard, and shot and killed her. La Rose’s family filed a wrongful death case against her employer claiming that the employer failed to adequately protect La Rose after being notified of a specific threat.3 In another example, a perpetrator of abuse began harassing his target’s coworkers after the perpetrator was served with a protection order sought by the targeted employee. Neither the employer nor the coworkers had standing to seek a protection order in response to this new harassment.4 These stories are not the only ones that can be told. In fact, domestic violence has a significant impact on America’s workplaces. Individuals subjected to abuse, their coworkers, and other third parties (like volunteers, contractors, and customers) all suffer consequences as a result of domestic violence that occurs or spills over into the workplace. One out of every five employed adults is a victim of domestic violence,5 and 96% of victims have experienced trouble at work related to domestic violence.6 Employees experience decreased productivity during and after actual or threatened violence and may require time off from work to address safety concerns, medical needs, and legal issues. In addition, employers need to address the consequences of domestic violence. America’s workplaces are faced with significant economic losses from lost productivity, administrative difficulties when employees take unplanned time off, increased medical costs and insurance premiums, and the threat of liability for firing employees experiencing domestic violence in hopes of maintaining a safe workplace or for failing to adopt and/or enforce appropriate domestic violence prevention policies. Generally speaking, however, the business community has not yet realized the significant burden domestic violence imposes or changed the usual employer response of ignoring a “personal” problem or taking ill-advised actions that result in further negative legal and practical consequences. Despite these real consequences, the workplace is not the first societal structure that most people think of when they think of changes that are needed to address domestic violence. Instead, when most people think of solutions to the problem of domestic violence, they think of things like increased education on how to prevent the cycle of abuse, changes that need to be made to the prosecution of related crimes, or increasing emergency housing for victims and their children.7 In many respects, this represents a significant service that past feminist scholarship on domestic violence has made—it recognizes that domestic violence is not simply a private matter. Rather, it is a public problem that is in need of a societal solution. However, by not thinking of the workplace in response to this question, a significant area for which change is needed is missed. There is a legitimate basis for proposing a societal solution to domestic violence that is rooted in employment law. There are already various rules that are being used to respond to the effects of domestic violence at work (e.g., tort law, statutory leave laws, occupational safety regulations, etc.). This Article argues that the workplace has a greater affirmative role to play in reducing the impact of domestic violence on the workplace. Moreover, society has an obligation to create a coherent structure and system for this issue to be addressed. This Article argues that the best way to do that is through a federal approach. The federal government has an affirmative societal role to play in pushing the workplace to confront this issue. Moreover, there is utility for a societal solution to this problem that engages the workplace directly to respond to domestic violence and reduce its impact on the victim and others. Obviously, a federal approach will result in the consideration of complicated legal terrain that involves both constitutional issues and conceptual federalism issues as to the proper role of the federal and state governments. (The latter is necessary because the federal government would need to work with the state structures already in existence.) But it is worth trying to figure this out. This Article makes the case that there is a crucial role for the federal government to play and that it can do so both creatively and constitutionally.
74 Brooklyn Law Review 377 (2009)