In a series of Questions and Answers entitled, “Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking,” the U.S. Equal Employment Opportunity Commission has reiterated its commitment to ensuring justice for vulnerable individuals. While the EEOC’s October 12, 2012, guidance does not change fair employment practice law, it reminds employers to review their workplace anti-discrimination and anti-harassment policies and training for compliance with recent developments in equal employment opportunity law.
As the EEOC explains, “Because… federal EEO laws do not prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking as such, potential employment discrimination and retaliation against these individuals may be overlooked.” Nonetheless, the EEOC says, Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act may apply to employment situations involving applicants and employees in these situations.
In its Qs & As, the EEOC reminds employers that Title VII prohibits disparate treatment based on sex, including sex-based stereotypes, as well as sexual or sex-based harassment and to consider these protections when dealing with employees who experience domestic, dating or other sexual violence. The EEOC includes the example of a hiring manager who fails to select a male applicant who obtained a restraining order against a male domestic partner, because the manager believes that “men should be able to protect themselves.” With respect to sexual harassment, there is the example of a supervisor who makes sexual advances toward an employee who recently was subjected to domestic abuse and is now living in a shelter. Employers should consider including these examples in their materials for preventive in-house training.
The EEOC’s Qs & As also remind employers that the ADA prohibits different treatment or harassment at work based on an actual or perceived impairment, which could result from domestic or dating violence, sexual assault or stalking. In addition, the EEOC says that the ADA may require employers to provide reasonable accommodations for a disability or record of disability including, among other things, anxiety or depression stemming from a traumatic incident. Finally, the Qs & As remind employers that the ADA prohibits disclosure of confidential medical information.
Some states, including Florida, Washington, Illinois and California, already require employers to provide leave or extend other benefits to victims of domestic violence. Companies also may consider doing more as part of an effective employee-relations program to protect their vulnerable workers.
The EEOC’s Qs & As should be viewed together with the agency’s recent Draft Strategic Enforcement Plan for Fiscal Years 2012 through 2016. The draft Plan, released on September 4, 2012, lists systemic recruiting and hiring discrimination as the Commission’s first priority, followed by protecting immigrant and migrant workers from discrimination. The EEOC also has committed to investigating “emerging” issues, including common ADA defenses invoked by employers, utilizing Title VII to protect members of the LGBT community, and pushing employers to accommodate pregnant women.
While the EEOC increasingly is focused on class litigation, the agency recently has shown an interest also in litigating individual pregnancy discrimination claims on behalf of women working in lower paying jobs.