On October 12, 2012, the Equal Opportunity Commission issued a new fact sheet titled Questions and Answers: Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking, which explains how employment decisions related to employees who are victims of domestic violence, sexual violence, or stalking might violate Title VII or the ADA.
Title VII prohibits discrimination based on race, color, sex, religion, or national origin, while the ADA prohibits discrimination on the basis of disability. Neither expressly prohibits discrimination against individuals who experience domestic violence, sexual assault, or stalking. The EEOC opined that because they were not explicitly protected under federal law, potential discrimination and retaliation would be overlooked.
The EEOC’s Fact Sheet notes that it is not establishing domestic violence, sexual assault, or stalking as new protected classes. Rather, it explained that in numerous situations, such applicants and employees can find protections under federal employment laws.
The EEOC did so by providing an extensive list of questions and answers that provide examples of hypothetical workplace situations where the employer’s actions violate Title VII or the ADA. Some of those examples include:
Title VII
Title VII claims may be based upon discrimination based on sex, including treatment based on sex-based stereotypes, sexual or sex based harassment, or retaliation.
- An employer terminates an employee after learning she has been subjected to domestic violence, because he fears the potential “drama battered women bring to the workplace.”
- A hiring manager refuses to hire a male applicant after learning that the applicant filed for a restraining order, because he believes only women can be true victims of domestic violence because men should be able to protect themselves.
- An employer allows a male employee to use unpaid leave for a court appearance based upon a criminal assault, but does not allow a female employee to use unpaid leave to testify in a criminal prosecution, because assault by a stranger is a ‘real crime” whereas domestic violence is “just a marital problem.”1
- A supervisor learns a subordinate has recently been subject to domestic abuse, and is now living in a shelter. Viewing her as vulnerable, he makes sexual advances, and when she refuses he terminates her.
- An employee complains that she was raped by a company manager on a business trip. In response, other managers reassign her to less favorable projects, stop including her in meetings, and tell co-workers not to speak with her.
ADA
ADA claims may be based on discrimination, reasonable accommodations, disclosure of confidential medical information, and retaliation or interference with an employee’s exercise of his or her rights under the statute.
- An employer does an internet search and learns an applicant was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire the applicant based on a concern that she may require future time off for continuing symptoms or further treatment of depression.
- An employee has facial scarring from skin grafts, which were necessary after the employee was burned in an attack by a former domestic partner. When the employee returns to work after a lengthy hospitalization, co-workers subject the employee to frequent abusive comments about the skin graft scars, and the employee's manager fails to take any action to stop the harassment.
- 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. The employer denies the request because it “applies leave and attendance policies the same way to all employees.”
- In the aftermath of a stalking ex-boyfriend, an employee develops major depression that her doctor states is exacerbated by continuing to work in the same location as the ex-boyfriend. As a reasonable accommodation for her disability, the employee requests reassignment to an available vacant position for which she is qualified at a different location operated by the employer, but the employer denies the request, citing its “no transfer” policy.
- An employee is being treated for post-traumatic stress disorder resulting from incest requests reasonable accommodation. Her supervisor tells the employee’s co-workers about her medical condition.
- In the prior example, the employee tells the supervisor that she intends to complaint to human resources about his unlawful disclosure of confidential medication information. The supervisor warns that if she complains, he will deny her the pay raise she is due to receive later that year.
As the EEOC has stated, it is not establishing domestic violence, sexual assault, or stalking as new protected classes. However, the Fact Sheet signals a clear area of focus for the Commission. Therefore, employers should recognize that Title VII or the ADA may be invoked when dealing with applicants or employees who have been subjected to domestic violence, sexual violence, or stalking. Employers are encouraged to update their EEO training materials to include some of the EEOC’s examples and provide EEO and harassment prevention training to their managers and HR on these issues.
If you have would like a full copy of the EEOC’s Fact Sheet, or wish to discuss EEO training, or have any other questions regarding employment practices; please contact one of our Employment Practices Liability Practice Group Members.