By: Stanley J.A. Laskowski, Esquire, Caldwell & Kearns, P.C.

As many employers know Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination based on race, color, sex, religion and national origin and discrimination based upon disability is prohibited by the Americans with Disabilities Act (ADA).  However, not all situations of potential discrimination are readily recognizable.  For example, suddenly an employer finds an employee who is being stalked, harassed or experiencing domestic violence which is effecting the employee and work environment.  Should the employer consider placing the employee on leave possibly terminate them?

EEOC now provides some formal guidance with the November 2012 release of a Q&A fact sheet applying Title VII and ADA to employees who have experienced domestic or dating violence, sexual assault or stalking.  Title VII and ADA do not specifically state a prohibition of discrimination against individuals subjected to domestic violence and employers may be lulled into a false sense of security in taking actions which would be discriminatorily adverse and the EEOC believes are going unnoticed.

The EEOC provides examples now under the new FAQ’s of employment decisions that it may consider violation of Title VII to give further insight into prohibited disparate treatment based on sex.  These include, for example:

  • An employer allows a male employee to use unpaid leave for a court appearance in a criminal prosecution of an assault, but does not allow a similarly situated female employee to use equivalent leave to testify in criminal prosecution of domestic violence she experienced.
  • A hiring manager, believing that only woman 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.

Harassment violates Title VII if it is sufficiently frequent or severe to create a hostile work environment, or if it results in a “tangible employment action” such as a refusal to hire, promote, firing or demotion.  For example, a supervisor learns that an employee has recently been subject to domestic abuse and is now living in a shelter.  Viewing the employee as vulnerable, the supervisor makes sexual advances and when the employee refuses they are terminated.

Title VII prohibits retaliation for protected activities which include filing a charge of discrimination, complaining to one’s employer about job discrimination, requesting accommodations under the EEOC laws, participating in an EEOC investigation, or otherwise opposing discrimination.  An example cited by EEOC is an employee who files a complaint with their HR Department alleging a sexual assault by an employer manager on a business trip.  In response other managers reassign to her less favorable projects, stop including her in meetings and tell co-workers not to speak or interact with her.

The occurrence of domestic violence is reprehensible and even one event is too frequent.  However, employers need be wary not to be naïve that just because an incident off the jobsite  during non-working hours gives them leeway with their treatment of an employee.  EEOC’s guidance demonstrates that employers still must respond quickly and reasonably to employees who report incidents of domestic violence and be mindful that their actions are not adverse to those who identify being subject to abuse.

Different treatment or harassment at work which is based on actual perceived impairments is prohibited by ADA.  EEOC notes this includes impairments  resulting from domestic or dating violence, sexual assault or stalking.  EEOC examples include:

  • An employer searches an applicant’s name online and learns that she was a complaining witness in a rape prosecution and receiving counseling for depression. The employer decides not to hire her based on concerns she may require future time off for continuing symptoms or further treatment for depression.

ADA may require employers to provide reasonable accommodations requested for actual disabilities or a “record of” a disability unless doing so possesses a significant burden.  Where an employer has failed to provide accommodations when disabilities are related to domestic violence, ADA may be violated. For example:

  • In the aftermath of stalking by an ex-boyfriend who works in the same building, an employee develops major depression that a doctor states is exacerbated by continuing to work in the same location as the boyfriend. As a reasonable accommodation for a disability, the employee requests reassignment to an available vacant position for which he is qualified at a different location operated by the employer. The employer denies the request, citing its “no transfer” policy.

With the issuance of this new EEOC guidance employers should be proactive to ensure legal compliance and be prepared to act responsibly when they encounter such situations.  Employers should consult with legal counsel to determine how best to protect their organization, educate employees and management and disseminate appropriate training materials which are updated with this new guidance from the EEOC.