As HR professionals, we often think about how to prevent domestic violence from spilling over into workplace violence, through the use of workplace violence policies, domestic violence response teams, and “no guns in the workplace” policies.
You may not, however, have given much thought as to how to prevent discrimination and retaliation against victims of domestic violence who are employed by your company, or who have sought employment with your company. This issue is crucially important to victims of domestic violence; when they lose their jobs, or fail to obtain employment, they lose the ability to be economically independent, and oftentimes then remain controlled by their abuser. This issue is also critically important to employers, who may inadvertently subject themselves to liability if they are not aware of the federal, state, and local laws that protect the victims of domestic violence from discrimination and retaliation.
The most recent development in this area occurred last month, when the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a new fact sheet, entitled “Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking.” This document notes that while Title VII and the ADA “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.”
The fact sheet then sets forth a number of examples demonstrating how Title VII and the ADA may be applied to domestic violence victims. It suggests three main ways in which Title VII could apply: (1) disparate treatment; (2) harassment; and (3) retaliation. It also suggests four different means by which the ADA could apply: (1) different treatment or harassment based upon an actual or perceived impairment, which could include impairments related to domestic or dating violence, sexual assault, or stalking; (2) failure to provide a reasonable accommodation for disability related to domestic violence, sexual assault, or stalking; (3) disclosure of confidential medical information; and (4) retaliation or interference with the employee’s exercise of his rights under the ADA.
First, the fact sheet suggests that each of the following examples could be found to violate Title VII’s prohibition against disparate treatment based on sex, including treatment based upon 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.”
Next, the fact sheet addresses the category of sex-based harassment, noting that harassment can violate Title VII when it is frequent or severe enough to create a hostile work environment, or if it results in a tangible employment action such as a refusal to hire or promote, for example. The fact sheet suggests that each of the following examples could be found to violate Title VII’s prohibition against harassment:
- 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 blogs 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. In response, management transfers her to another area of the building, but he continues to harass and stalk her. She notifies management and no further action is taken.
- A seasonal farmworker’s supervisor learns that she has recently been subjected to domestic abuse and is now living in a shelter. Viewing her as vulnerable, he makes sexual advances, and when she refuses, he terminates her.
The last category related to Title VII that was addressed by the fact sheet was retaliation for protected activity, including, for example, filing a charge of discrimination, complaining about discrimination to the HR department, or requesting accommodation under the EEO laws. The fact sheet sets forth the following example of improper retaliation for protected activity:
- An employee files a complaint with her employer’s human resources department alleging that she was raped by a prominent company manager 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.
In our next post, we’ll review the ADA examples provided on the fact sheet, and our recommendations for how you can avoid discriminating against the victims of domestic violence in your workplace.