Gender violence and work: reckoning with the boundaries of sex discrimination law.

• Author: Goldscheid, Julie

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. It has been more than twenty years since the Supreme Court ruled that sexual assault at work creates a hostile environment that violates Title VII. (20) But domestic and sexual violence affect women's employment in a range of ways, which include, but are not limited to, sexual assault at work. (21) Inevitably, the ingrained, gender-based biases that inform both the circumstances in which abuse is committed and the response victims receive from officials, including law enforcement, health care, and employers, will inform at least some decisions about survivors' employment status. (22) This Article proposes a more robust interpretation of antidiscrimination law's sex bias prohibitions that would require engagement and negotiation between employer and employee about workplace issues that result from abuse.

Requiring antidiscrimination law to more fully account for the nuanced expressions of sex discrimination is important for a number of reasons. As an initial matter, it allows antidiscrimination law to more meaningfully fulfill its goal of eliminating discrimination in the workplace. This approach also incentivizes workplace policies that encourage interactive problem-solving. Businesses and human resources professionals increasingly recognize that such policies promote safe and productive workplaces. Moreover, it holds transformative potential by exposing the gender bias that continues to inform domestic and sexual violence.

Part I of this Article provides an overview of the literature on unconscious bias and how it can be applied to the circumstances that survivors of gender violence encounter when they try to maintain their jobs in the face of abuse. It summarizes that body of literature and links it to the extensive scholarship framing domestic and sexual violence as a form of sex discrimination. It then grounds the problem of gender violence and work in studies and statistics detailing the ways gender violence impacts the workplace. It places the discussion of antidiscrimination law in context by surveying the range of applicable laws and recent legislative initiatives as well as the emerging scholarly commentary. It describes the workplace policies and practices that best address the issue. This discussion highlights the importance of workplace policies that encourage victims to disclose their experiences of abuse, but do not require them to do so. That disclosure enables employees and employers to engage in good faith dialogue about how best to implement safety measures that can both reduce the risk of violence in the workplace and promote victims' employment security.

Part II discusses the application of antidiscrimination law. It analyzes the common situations in which domestic and sexual violence result in adverse actions against victims. It categorizes cases that are covered, versus those that are excluded, under current antidiscrimination paradigms. These cases demonstrate the ways that subtle gender bias negatively impacts women's employment in cases involving abuse-related workplace issues.

Part III proposes a framework under which antidiscrimination law can better account for subtle forms of sex discrimination associated with domestic and sexual violence. Antidiscrimination law should recognize unexplained adverse actions taken against victims of domestic and sexual violence as sex discrimination if those actions are taken without a good faith negotiation between the employer and employee. Assuming an employee facing employment issues has voluntarily disclosed her experience with abuse, her employer would engage in an interactive process about employment issues and whether a modest accommodation would facilitate her ongoing safe and productive employment. By requiring a conversation with the victim, this approach would interrupt the operation of subtle bias. Absent a required interaction, employers often react reflexively and overreact to survivors' employment-related issues. Although a similar result could be accomplished through statutory reform that, for example, explicitly prohibited adverse actions against survivors absent reasonable accommodation, the proposed framework advances both the instrumental goal of better ensuring women's equality, and the normative goal of interpreting antidiscrimination law in a way that responds to the nuanced realities of discrimination.

1. UNCONSCIOUS BIAS, GENDER VIOLENCE, AND WORK

   Domestic and sexual violence advocates, academics, and policymakers have in recent years begun to highlight the economic impact of domestic and sexual abuse. This shift has been sparked by a growing recognition of the limitations of the criminal justice system (23) and also by mounting evidence that a woman's economic independence is one of the best predictors of whether she will seek and maintain safety in the aftermath of abuse. (24) Since work is central to economic security, and given the prevalence of gender violence--committed predominantly by men against women (25)--the impact of domestic and sexual violence on women's work is a key issue for both safety and equality. (26) Moreover, survivors of gender violence inevitably will be subjected to the outdated, gendered stereotypes that surround abuse, both inside and outside the workplace. (27) Data indicating that survivors of domestic and sexual violence often lose their jobs or suffer other employment-related losses as a result of the abuse highlight the importance of further inquiry into the ways that workplace responses to survivors may perpetuate women's inequality.

   At the same time, recent employment law scholarship recognizes and critiques the limits of antidiscrimination law's traditional disparate treatment, disparate impact, and facial discrimination theories for ridding the workplace of impermissible bias. (28) Instead of deliberate discrimination, cognitive bias, structures of decision-making, and patterns of interactions increasingly...