EEOC Q&A For Employees Who Experience Domestic
or Dating
Violence, Sexual Assault or Stalking
Federal EEOC Law does not
prohibit discrimination against applicants or employees who experience domestic or dating violence,
sexual assault, or stalking. However, this type of problem could fall under
Title VII of the Civil Rights Act of 1964 (Title VII) and/or the Americans with
Disabilities Act (ADA). Here are a few
of the possibilities:
Disparate Treatment: based on sex, which may include treatment
based on sex-based stereotypes.
·
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.”
Title VII Retaliation: Title VII prohibits retaliation for
protected activity. Protected activity can include actions such as filing a
charge of discrimination, complaining to one’s employer about job
discrimination, requesting accommodation under the EEO laws, participating in
an EEO investigation, or otherwise opposing discrimination. For example:
·
An
employee files a complaint with her employer’s human resources department
alleging that she was raped by a prominent company manager while on a business
trip. In response, other company managers reassign her to less favorable
projects, stop including her in meetings, and tell co-workers not to speak with
her.
ADA: The ADA prohibits different treatment or
harassment at work based on an actual or perceived impairment, which could
include impairments resulting from domestic or dating violence, sexual assault
or stalking. For example:
·
An
employer searches an applicant’s name online and learns that she was a
complaining witness in a rape prosecution and received counseling for
depression. The employer decides not to hire her based on a concern that she
may require future time off for continuing symptoms or further treatment of
depression.
·
An
employee has facial scarring from skin grafts, which were necessary after she was
badly burned in an attack by a former domestic partner. When she returns to
work after a lengthy hospitalization, co-workers subject her to frequent
abusive comments about the skin graft scars, and her manager fails to take any
action to stop the harassment.
Reasonable Accommodation Request: The ADA may require employers to provide
reasonable accommodation requested for an actual disability or a “record of” a
disability. an actual disability is a physical or mental impairment that
substantially limits one or more major life activities (which include major
bodily functions). a “record of” a disability is a past history of a
substantially limiting impairment. an impairment does not need to result in a
high degree of functional limitation in order to be “substantially limiting.” A
reasonable accommodation is a change in the workplace or in the way things are
usually done that an individual needs because of a disability and may include
time off for treatment, modified work schedules, and reassignment to a vacant
position. For example:
·
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 by an intruder in her home. The employer
denies the request because it “applies leave and attendance policies the same
way to all employees.”
·
In the
aftermath of stalking by an ex-boyfriend who works in the same building, an
employee develops major depression that her doctor states is exacerbated by
continuing to work in the same location as the ex-boyfriend. As a reasonable
accommodation for her disability, the employee requests reassignment to an
available vacant position for which she is qualified at a different location
operated by the employer. The employer denies the request, citing its “no
transfer” policy.
Medical Information: The ADA prohibits disclosure of
confidential medical information.
·
An
employee who is being treated for post-traumatic stress disorder (PTSD)
resulting from incest requests reasonable accommodation. Her supervisor then
tells the employee’s co-workers about her medical condition.
ADA Retaliation: The ADA prohibits retaliation or
interference with an employee’s exercise of his or her rights under the
statute.
·
In the
prior example, the employee tells the supervisor she intends to complain to
human resources about his unlawful disclosure of confidential medical
information. The supervisor warns that if she complains, he will deny her the
pay raise she is due to receive later that year.
Keep in mind the above
examples are only a few ways that Title VII and ADA can be violated by
employers. There are numerous more.
