It is uncontroverted ... that Hossack was terminated because management feared her husband's threats and that he might very well cause workplace disruption in the future ... [consequently] no reasonable jury could find that the defendant terminated [her] employment because she is a woman. (1)
Workplace inequality based on sex, as well as discrimination based on other protected characteristics, persist notwithstanding several decades of antidiscrimination laws. (2) An extensive body of scholarship examines this and related forms of persistent inequality and identifies a number of approaches, such as reforms that would target cognitive bias, entrenched structures of decision-making, and unconscious discrimination, to redress what has been termed "second generation" employment discrimination. (3) This Article takes that project in an unexplored direction. The treatment of domestic and sexual violence (4) survivors at work often reflects a subtle (5) form of sex discrimination that antidiscrimination law currently fails to adequately reach. (6) This subtle bias inevitably informs and distorts workplace decisions involving domestic and sexual violence victims. (7) This Article proposes a "second generation" discrimination solution that requires employers to engage in an interactive process with survivors of gender-based violence before taking adverse actions against them. This would bring the issue to the surface, reduce stigma, and ensure that any adverse employment action is based on legitimate reasons, as opposed to subtle biases. By identifying and accounting for this nuanced manifestation of sex discrimination, antidiscrimination law can more fully advance its goal of eliminating sex-based inequality at work. (8)
Feminist advocacy increasingly emphasizes the economic dimensions of gender violence as a complement to the traditional focus on criminal justice, family law, and social service reforms. (9) United States v. Morrison, one of the Supreme Court decisions that most explicitly analyzed domestic and sexual violence, hinged on the proper Congressional response to the economic effects of gender-based violence. (10) Nevertheless, the legal impact of domestic and sexual violence on women's (11) market-based employment has received limited scholarly attention. (12)
In the last decade, policymakers, advocates, and human resources professionals have begun to recognize the impact of domestic and sexual violence on women's employment. (13) A growing literature documents the ways abusers use the workplace to perpetuate abuse, the costs of abuse to employers, and the detrimental effects of abuse on women's employment. (14) For example, abusers may stalk their partners at work, call incessantly to distract them from their jobs, or use coercive measures to keep them from succeeding at work. (15) Employers have begun to develop policies and programs to assist victims and to promote workplace safety. (16)
However, even as awareness of the impact of domestic and sexual violence in the workplace grows, and as appropriate responses expand, women continue to be terminated, denied positions, and subjected to other adverse job actions because of their experiences with domestic or sexual violence. (17) Given the deep connections between gender bias and domestic and sexual abuse, in at least some of these cases subtle bias may skew both an employee's perception of available choices and an employer's response if she self-identifies as experiencing abuse. As a practical matter, the growing experience of survivors (18) and their employers demonstrates that both parties' interests are best served when employees feel safe enough to disclose their experiences of abuse and work with their employer to determine how they can most safely and productively navigate both the abuse and their employment. (19) Yet current legal frameworks neither require nor encourage such an approach.
To some extent, antidiscrimination law has long recognized that sexual violence at work is a form of sex discrimination. …