Part I of this article will discuss domestic violence, explaining the dynamics of domestic violence in an effort to shed light on why it is so difficult for a battered woman to leave the abusive relationship. This understanding is necessary for a sensitive and informed decision-making process. This Part will also discuss the magnitude of the effect that domestic violence has on the workplace. Part II will discuss a company's potential legal liability for: (a) wrongfully terminating the employee-victim and (b) failing to protect other employees (including, perhaps, the employee-victim herself) if the company does not terminate the employee-victim and violence ensues. This part will explore the many possible causes of action that the terminated employee may or may not bring, and will also explore an employer's obligation to protect its employees against workplace violence. Part III will explore the decision from a normative perspective, and will seek to answer such questions as: Can an employer justify its decision to punish the victim of domestic violence? Should it matter if the female employee was unwilling to help herself or take help from the employer? Are there other less severe alternatives an employer could take? Finally, perhaps the most important question: whose rights should trump? In other words, is it the right decision to sacrifice one woman's employment in order to protect the rest of the workforce against the potential risk of harm? If so, how significant should the harm be before such a decision is made? Finally, Part IV will offer this author's solutions to dealing with these very difficult issues. Even though there are circumstances where termination is justified (a conclusion that will be supported below), in this hypothetical, termination was unwarranted. My conclusions draw analogies to the law of the Americans with Disabilities Act to support my proposal that employers should use a direct threat analysis as well as concepts such as reasonable accommodation and undue burden to analyze the conflict between a company's interest in having a safe workplace and the spillover of domestic violence into the workplace. Because, as I conclude, there was not a significant threat of harm to the workplace in the hypothetical, termination cannot be justified.
Nicole B. Porter,
Victimizing the Abused?: Is Termination the Solution When Domestic Violence Comes to Work?,
Mich. J. Gender & L.
Available at: http://repository.law.umich.edu/mjgl/vol12/iss2/2