The Equal Employment Opportunity Commission has released a question and answer fact sheet that appears to extend Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA) to protect employees or applicants who have experienced domestic or dating violence, sexual assault, or stalking outside of the workplace. The EEOC acknowledges that no federal employment statute specifically prohibits discrimination based on these categories, but provides examples of situations in which it believes employer actions stemming from the employee’s experience with sexual/domestic violence or stalking can give rise to Title VII or ADA violations.
In the first section of the Q&As, the EEOC provides examples of situations in which it believes an employer’s actions based on an employee’s experience with domestic violence may constitute sex-based stereotyping in violation of Title VII. For instance, an employer could be held accountable under Title VII if it fires or refuses to hire a woman who experienced domestic violence out of fear that battered women bring unnecessary drama to the workplace. In another example, the EEOC takes the position that failure to select a male applicant who obtained a restraining order against a male domestic partner because the hiring manager believed that only women can be victims of domestic violence may violate Title VII.
The fact sheet also provides examples, consistent with current law, of instances in which an employee’s or supervisor’s behavior rises to the level of actionable harassment under Title VII and re-emphasizes that an employee who reports sexual harassment is protected from retaliation.
The EEOC also provides examples of situations in which an employee might also be able to assert a claim under the ADA for actual or perceived impairments resulting from domestic or dating violence, sexual assault or stalking. The EEOC explains, for instance, that an employer cannot fire or refuse to hire a rape victim who received treatment for depression on the grounds that the individual might need to take leave to treat ongoing or future bouts of depression. In another example, the EEOC explains that an employer is responsible for taking steps to stop abusive comments about an employee’s scars resulting from domestic violence, as such comments/questions could amount to a violation of the ADA’s prohibition of harassment based on an actual or perceived impairment.
Finally, the fact sheet describes certain instances in which an employer might be required to provide a reasonable accommodation under the ADA for victims of sexual assault, domestic violence, or stalking. Such accommodations might include providing leave to allow the employee to obtain treatment for depression or anxiety resulting from an assault, even if the employee has no accrued sick leave and the employer is not covered by the Family and Medical Leave Act (FMLA). If the employee works at the same location as her abuser, the employee may be able to request a transfer to an alternate worksite as an accommodation, even when the employer has a “no transfer” policy.
Although EEOC guidance does not have the force of a statute or regulation, it provides insight into how the agency interprets its laws. Therefore, it would behoove employers to carefully review the document.