On July 1, 2015, new legislation aimed at helping victims of stalking and domestic violence maintain their employment went into effect. Specifically, House Enrolled Act (“HEA”) 1159, codified at I.C. 22-5-7 et seq., prohibits Indiana employers from terminating an employee based on: (1) the filing, by the employee, for a petition for a protective order for the protection of the employee; or (2) the actions of an individual against whom the employee has filed a protective order. However, the law does not prohibit an employer and employee from mutually agreeing upon the alteration of certain aspects of the employee’s employment. Such an agreement may adjust the employee’s work location, compensation or benefits, or a term or condition of employment. The requirement of a mutual agreement indicates that an employer may not unilaterally make a significant change in the employment relationship based on the employee’s filing of a protective order.
Potential Sex Discrimination? The EEOC Weighs In
In the event that an employer desires to alter conditions of such an employee’s employment, in addition to HEA 1159, the employer should also consider whether its actions would be consistent with Title VII of the Civil Rights Act. The EEOC has provided guidance on this topic in a Q&A publication available here. In that publication, the EEOC identifies several situations in which an employer’s actions could be considered sex discrimination in the context of domestic violence:
- 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.”
- A hiring manager, believing that only women can be true victims of domestic violence because men should be able to protect themselves, does not select a male applicant when he learns that the applicant obtained a restraining order against a male domestic partner.
- An employer allows a male employee to use unpaid leave for a court appearance in the criminal prosecution of an assault but does not allow a similarly situated female employee to use equivalent leave to testify in the criminal prosecution of domestic violence she experienced. The employer says that the assault by a stranger is a “real crime,” whereas domestic violence is “just a marital problem” and “women think everything is domestic violence.”
Things to Think About
Beyond HEA 1159 and Title VII, employers should also consider the effect that altering an employee’s working conditions may have on overall employee morale. On the one hand, employers want to ensure the safety of their workforce and thus may feel the need to heighten security or even adjust such an employee’s work conditions. On the other hand, if an adjustment is made but handled or communicated poorly, other employees may question the employer’s motives and genuine concern for employee welfare. Thus, employers should approach such situations carefully from both a legal and operational perspective.