Domestic violence is a recognized cause of workplace violence and disruption of the workplace. Taking safety precautions at the work- place can reduce this risk. Responding to the need for workplace modifications, Illinois and New York City borrowed from the Ameri- cans with Disabilities Act framework to enact legislation requiring employers to “reasonably accommodate” victims of domestic violence to permit them to perform their jobs.134 Illinois defines several illus-
trative accommodations within its statute:
“Reasonable accommodation” may include an adjustment to a job structure, workplace facility, or work requirement, including a transfer, reassignment, or modified schedule, leave, a changed telephone number or seating assignment, installation of a lock, or implementation of a safety procedure, in response to actual or threatened domestic or sexual violence.135
should be actionable under Title VII and also argues for adding victims of domestic vio- lence as an explicitly protected class under antidiscrimination law. See Goldscheid, supra note 43, at 46-57. She notes, however, that the practical concerns regarding political oppo- sition to enacting such legislation are considerable. See id. at 58. I agree that a strong case can be made for antidiscrimination law applying more broadly to termination of victims. However, as discussed in Part V, I think moving away from antidiscrimination models of- fers significant conceptual and practical benefits.
133. See sources cited supra note 44.
134. 820 ILL. COMP. STAT. 180/30(B)(3) (2006); N.Y.C. Admin. Code § 8- 107.1(3)(a) (2007).
135. 820 ILL.COMP.STAT.180/30(B)(3) (2006). New York City’s law does not substan- tively define reasonable accommodation within the text of the law, but a Committee Report issued when the city council was considering the provision describes it similarly:
[The reasonable accommodations] provision would require employers to allow victims of domestic violence, sex offenses, or stalking to take leave from work to seek legal assistance, counseling, or assistance in developing a safety plan. Other reasonable accommodations could include but not be limited to re- assigning seating so that a victim need not sit near an entrance, changing a victim’s telephone number, removing his or her name from the company’s phone directory, or adjusting starting and leaving times. In sum, this require- ment could enable victims to remain viable and productive members of the workforce and to maintain a source of reliable and independent income.
As discussed above, the ADA (and comparable state laws) is a rela- tively unusual employment law in its requirement that employers accommodate the specific individual needs of employees with dis- abilities; accordingly, the ADA framework was an obvious model for laws requiring employers to make necessary changes to address the effects of domestic violence on individual employees and the work- place.
However, again, this approach comes with certain limitations, both in terms of how it frames the issue and its likelihood of passing. As noted above, “domestic violence victim status” is not a personal characteristic, and likewise, workplace changes to reduce the threat of harassment or violence are not the equivalent of accommodating an individual’s disability.136 They are changes responding to violent
or harassing conduct by a third party against the individual victim and her employer. Many such changes, by reducing the likelihood of such disruptions, benefit the employer at least as much as the em- ployee. Framing the change as a “reasonable accommodation” for the individual employee obscures this reality.
The reasonable accommodation model also seems to carry with it certain political limitations. That is, just as leave laws modeled on the FMLA adopted the 50-employee threshold, both the New York City and the Illinois legislation requiring reasonable accommoda- tions adopt the “undue hardship” employer defense built into the ADA.137 This means that individuals who work for relatively re-
source-poor employers may not have a right to necessary safety pre- cautions. More generally, as with the expansion of antidiscrimination protections, modeling legislation on the ADA predisposes businesses to oppose it and makes it quite difficult to pass such legislation. Interestingly, the Occupational Safety and Health Act (OSHA) explicitly requires employers to provide a workplace “free from rec- ognized hazards that are causing or are likely to cause death or seri-
NEW YORK CITY COUNCIL,REPORT OF THE GOVERNMENTAL AFFAIRS DIVISION &COMMITTEE ON GENERAL WELFARE, 3-4 (2003), available at http://webdocs.nyccouncil.info/attachments/59086.htm (regarding New York City Council Prop. Int. No. 107, March 25, 2002).
136. It is important to note that many disability rights advocates and commentators argue that disability accommodations are not necessary because of an “intrinsic” lack of capability on the part of the person with the qualifying disability but rather necessary be- cause of the mismatch between the social world and that person’s condition. In other words, for example, using a wheelchair only precludes access, and thus requires specific accommodations, in a world in which curb cuts, ramps, and elevators are not standard. 137. See N.Y.C. Admin. Code. § 8-102(18) (2007) (defining “reasonable accommodation” as change that can be made without causing “undue hardship” to the covered entity’s busi- ness). Illinois’ law defines undue hardship similarly. I am not suggesting that any accom- modation, no matter how expensive, should be required, but rather that consideration of costs, as well as the related possibility of terminating a victim’s employment because of po- tential safety threats, be integrated with other provisions to ensure in such situations that a victim maintains an independent income source. See infra Part V.A.
ous physical harm” to employees.138 OSHA covers all U.S. employers.
The agency that administers OSHA has made it clear that it under- stands the general duty clause as requiring employers to take steps to address potential workplace violence, including violence that spills over from domestic violence outside the workplace.139 Likewise, the
National Institute for Occupational Safety and Health (NIOSH), the branch of the CDC that oversees workplace violence, and the FBI also emphasize that businesses have a duty to address potential workplace violence stemming from domestic violence.140 All three en-
tities recommend many of the same kind of changes categorized as reasonable accommodations under the Illinois and New York City laws.141 Additionally, standard tort law also recognizes that employ-
ers may be held responsible for failing to address potential workplace violence.142 These other frameworks help make clear that safety-
increasing modifications are not individual employee benefits but rather changes that respond to a third-party threat and that benefit an entire workplace, as well as larger public interests.