The Equal Opportunity Commission has issued a new fact sheet titled: 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. Because these laws do not expressly prohibit discrimination against those who experience domestic violence, sexual assault, or stalking, the potential discrimination and retaliation against these individuals may be overlooked, the Commission explained. The Fact Sheet does not establish new employee protections; rather, it is a reminder to employers that actions they take with respect to employees who are victims of such conduct can create liability.

The Commission illustrates its point by providing numerous examples of workplace situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking in disparate treatment, disparate impact and retaliation cases that would trigger liability. Some of the examples provided in the Fact Sheet include:

Title VII

  • An employer who 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 male applicant does not get a job after the decision maker who, believing only women can be true victims of domestic violence because men should be able to protect themselves, refuses to hire the male when he learned the applicant filed for a restraining order.
  • 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.

ADA

  • Discrimination. An employer learns an applicant was a 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.
  • Discrimination. 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.
  • Failure to Accommodate. 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 addition to these examples, the EEOC reminds employers of the need to maintain the confidentiality of any medical information that it acquires from the employee and the unlawfulness of retaliating against any employee who asserts his or her rights under the ADA. All in all, the EEOC's guidance breaks no new ground, but provides a good reminder to employers. The examples provided actually are instructive regardless of whether the employee's victimization is domestic or sexual in nature.

Takeways:

  1. Update Training Materials. Employers should update their training materials to include the EEOC's examples, or similar ones.
  2. Recognize the Potential for Liability. Employers should recognize that situations involving applicants or employees who have been subjected to domestic violence, sexual violence, or stalking trigger their legal obligations and provide these applicants and employees legal protections.
  3. Protections Under Other Federal and State Laws. Employers should also be aware that other federal laws, like the Family and Medical Leave Act, and state laws may be apply to employees who are victims of domestic violence, sexual violence, or stalking. For example, Ohio employers should be aware that the following laws apply:

Crime Victims: Employers may not discharge, discipline or retaliate against crime victims, victims' families or victims' representatives for participating in preparations for criminal or delinquency proceedings (at the prosecutor's request) or for attendance at criminal or delinquency proceedings (pursuant to subpoenas), if attendance is necessary to protect victims' interests. O.R.C. § 2930.18.

Witnesses: Employer are also prohibited from discharging (or threatening to do so), punishing or penalizing employees because of time lost from regular employment due to attendance at criminal proceedings pursuant to subpoena. O.R.C. § 2945.451.