Citation

Widiss DA. Fla. State Univ. Law Rev. 2008; 35(3): 669-728.

Copyright

(Copyright © 2008, Florida State University, College of Law)

DOI

unavailable

PMID

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Abstract

In recent years, domestic violence legislation has migrated out of its traditional locus in family law and criminal law to include a rapidly growing body of employment law. The new laws respond to a relatively simple problem: Economic security is one of the most important factors in whether a victim of domestic violence will be able to separate from an abusive partner, but domestic violence often interferes with victims’ ability to maintain jobs, thus causing job loss that further traps victims in abusive relationships. By providing support to victims and empowering employers to take direct legal action against perpetrators of actual or threatened workplace violence, the new legislation helps employers and employees work together to address a shared interest in reducing the effects of domestic violence on the workplace. Thus, addressing domestic violence as an “employment” issue bolsters other strategies for combating domestic violence. Equally important, because the vast majority of victims of domestic violence are women, the new legislation complements traditional employment laws, such as Title VII and the Family and Medical Leave Act, that seek to promote sex equality by addressing a significant, though little recognized, barrier to women’s full participation in the workplace.

This Article situates the burgeoning body of new state legislation within developments in domestic violence law and employment law, particularly those relating to accommodation of individual needs within the workplace. It shows that domestic violence legislation modeled on employment law accommodation mandates, such as the Family and Medical Leave Act or the Americans with Disabilities Act, imports provisions in those laws that excuse relatively small or resourcepoor employers. By contrast, new laws borrowing from criminal justice, public health, or unemployment insurance models either impose costs on all employers or spread costs among employers. As such, the emerging legislation offers an interesting counterpoint to debates over whether and when it is appropriate to require employers to make workplace modifications or permit employee absences. It shows that reframing the interest at stake as furthering larger public interests seems to dramatically increase legislatures’ willingness to require employers to make such accommodations. Building on this finding, the Article further demonstrates that approaching the issue more comprehensively could increase the efficacy of new legislation and it offers several specific recommendations for future reform.