Anti-Discrimination Laws May Now Apply to Violence Victims

An Equal Employment Opportunity Commission fact sheet says employers can now be liable for discrimination by showing bias against applicants and employees who experience domestic or sexual violence.

Wednesday, November 28, 2012
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A new fact sheet from the U.S. Equal Employment Opportunity Commission adds yet another wrinkle to the quest by employers to stay ahead of the latest rules and regulations governing sexual harassment in the workplace.

The fact sheet, issued Oct. 12, titled Questions and Answers: Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault or Stalking, includes a litany of ways employers can be held liable under Title VII of the Civil Rights Act and the Americans with Disabilities Act by shortchanging such victims.

In the case of Title VII, which prohibits disparate treatment based on sex and sex-based stereotypes, an employer would be liable if it terminated an employee "after learning she has been subjected to domestic violence, saying he fears the potential 'drama battered women bring to the workplace,' " the sheet states. Or, it says, 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."

Harassment could be charged under Title VII, it says, "if it is sufficiently frequent or severe to create a hostile work environment, or if it results in a 'tangible employment action,' such as refusal to hire or promote, firing or demotion." For example, it says, "an employee's co-worker sits uncomfortably close to her in meetings, and has made suggestive comments. He waits for her in the dark outside the women's bathroom and in the parking lot outside of work, and blocks her passage in the hallway in a threatening manner. He also repeatedly telephones her after hours, sends personal emails and shows up outside her apartment building at night.

"She reports these incidents to management and complains that she feels unsafe and afraid working nearby him," the example goes on. "In response, management transfers him to another area of the building, but he continues to subject her to sexual advances and stalking. She notifies management but no further action is taken." The agency also lists examples of retaliation against victims of sexual or domestic abuse that would be considered liable as well.

Examples of employment decisions that would violate the ADA are also itemized, including "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."

Failing to provide reasonable accommodation for victims of such actions could also violate the ADA in this scenario, 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.' "

Or: "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.

The EEOC also reminds its readers that, "whether discrimination has actually occurred in a particular instance must [still] be determined through an investigation of the facts alleged," despite the thorough and detailed examples.

What should employers and their HR professionals take away from all this?

Brian D. Pedrow, a partner in the labor and employment group of Philadelphia-based Ballard Spahr, suggests in this legal alert that employers "may wish to consider adding one or more of the examples contained in the EEOC fact sheet to their workplace harassment policies. In addition," he writes, "when designing anti-harassment training, employers also should consider including examples involving domestic or dating violence, sexual assault or stalking."

In a follow-up note to HRE, he adds that, when defending against claims of sexual harassment under Title VII, it's "important to note that the EEOC is not elevating [harassment victims] to a new 'protected class' -- i.e., age, disability, gender, race, etc. -- rather, it is illustrating how the existing laws, without any expansion of the laws themselves, already reach such harassment."

When considering workplace harassment policies, Pedrow adds, it's important also to keep in mind that "the EEOC fact sheet addresses a different kind of harassment than the type of sexual 'hostile environment' that many of us have come to understand and recognize.

"An employer could choose to expand its anti-harassment policy to recognize expressly that harassment or discrimination on the basis of one's status as a victim of domestic or dating violence, sexual assault or stalking also may violate Title VII . . .  and/or state and local laws," he notes. "To further illustrate, an employer could choose to add an example or two to its policy to illustrate this principle."

In other words, according to Pedrow, it's all about being able to prove that you have an effective anti-harassment policy in place, that the workforce has received proper training on the laws and that you've done everything in your power to communicate your policies, including these new interpretations and nuances.

To avoid ADA violations, make sure you have fully considered and provided the reasonable accommodation a victim of sexual abuse or harassment may need to perform his or her job effectively. And remember, "the employer is required to enter into an 'interactive dialogue' with the employee," he writes, "to explore the need for accommodation, to determine what might be effective, and to assess whether an accommodation might impose an undue hardship on the employer."

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This legal alert from Chicago-based Seyfarth Shaw cautions further that, while the new publication doesn't necessarily change the law or protected characteristics, "it does provide insight into the EEOC's focus [as outlined in its recently published 2012-2016 Strategic Plan] to (1) target outreach to vulnerable workers and underserved communities and (2) provide up-to-date and accessible guidance on the requirements of employment anti-discrimination laws."

The new guidance, it states, "demonstrates that the EEOC will stretch existing law to find protection for those who may not otherwise be deemed covered by the statutes."

In light of this, and in keeping with some of Pedrow's tips, Seyfarth Shaw lists these specific actions employers should take:

*     Amend equal employment opportunity, harassment prevention and other policies -- to the extent that they include hypotheticals -- to include examples of what constitutes discrimination or harassment when interacting with employees or applicants who have experienced domestic violence, sexual assault or stalking.

*     Deploy and/or revisit workplace training programs (such as EEO or harassment prevention programs) to ensure that frontline managers and HR professionals are acutely aware of the EEOC's broad reading of Title VII and the ADA, and of how all non-discrimination laws can be implicated when dealing with such employees and applicants.

*     Become familiar with state and local laws that explicitly provide protection for applicants and employees who are victims of domestic or dating violence, sexual assault or stalking, many of which require employers to provide leave for employees to seek medical care, legal assistance and/or to attend court.

*     Understand how the Family Medical Leave Act and state medical leave laws could be implicated by issues arising in the workplace regarding domestic or dating violence, sexual assault or stalking.

*     Develop a protocol to ensure a safe workplace when notified of a potential domestic or dating violence situation that could impact an employee and/or that employee's co-workers.









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