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The Practical Employer

The Practical Employer

EEOC Opines on Domestic Violence, Sexual Assault, or Stalking as Title VII and ADA Violations

October 25, 2012
Related Topics: Top Stories - Frontpage, Disabilities, Retaliation, Harassment, Discrimination and EEOC Compliance, Policies and Procedures
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There is no federal law that expressly gives workplace rights to employees who find themselves victims of domestic violence, sexual assault, or stalking. That omission, however, does not unchain employers to discriminate against employees who find themselves in these unfortunate circumstances.

Earlier this month, the Equal Employment Opportunity Commission issued a Q&A entitled, Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking [pdf].

While Title VII and the Americans with Disabilities Act do not expressly protect victims from discrimination, they do protect against employers' use of stereotypes rooted in protected classes (e.g., sex or mental illness) to treat these employees differently.

The EEOC is kind enough to provide some examples of these stereotypes in action:

Title VII—Disparate Treatment Based on Sex

  • An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential "drama battered women bring to the workplace."

Title VII—Sexual Harassment

  • An employee's co-worker sits uncomfortably close to her in meetings, and has made suggestive comments. He waits for her in the dark outside the women's bathroom and in the parking lot outside of work, and blocks her passage in the hallway in a threatening manner. He also repeatedly telephones her after hours, sends personal emails, and shows up outside her apartment building at night. She reports these incidents to management and complains that she feels unsafe and afraid working nearby him. In response, management transfers him to another area of the building, but he continues to subject her to sexual advances and stalking. She notifies management but no further action is taken.

ADA—Disparate Treatment Based on Actual or Perceived Disability

  • An employer searches an applicant's name online and learns that she was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire her based on a concern that she may require future time off for continuing symptoms or further treatment of depression.

ADA—Denial of Reasonable Accommodation

  • An employee who has no accrued sick leave and whose employer is not covered by the FMLA requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by an intruder in her home. The employer denies the request because it "applies leave and attendance policies the same way to all employees."

Retaliation

  • An employee files a complaint with her employer's human resources department alleging that she was raped by a prominent company manager while on a business trip. In response, other company managers reassign her to less favorable projects, stop including her in meetings, and tell co-workers not to speak with her.

The Q&A contains many more examples. It is worth reading, and incorporating into your harassment/EEO training so that managers and supervisors are aware of these issues.

Hat tip to the Workplace Prof Blog for bringing this to my attention.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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