EEOC explains protections for employees who experience domestic or dating violence, sexual assault or stalking

December 1, 2012
By: Charles Lamberton

The Equal Opportunity Employment Commission (EEOC) has released a fact sheet advising how employment practices that discriminate against applicants or employees who have experienced domestic or dating violence, sexual assault, or stalking may violate Title VII. While the EEOC acknowledges that there is no federal statute directed at prohibiting such discrimination, the publication titled “Questions and Answers: The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking,” seeks to advise people how such discrimination may violate provisions of Title VII.

In a series of questions and answers, the EEOC provides examples of situations in which discrimination based on an individual being the victim of domestic or dating violence, sexual assault, or stalking may violate the law. For example, if an employer terminated an employee after learning that she had been subjected to domestic violence based on the belief that battered women bring drama to the workplace, the employer would be violating Title VII’s proscription against disparate treatment based on sex-based stereotypes. Another example offered involves a hiring manager who does not hire a male applicant after learning that he has obtained a restraining order against a male domestic partner, based upon a belief that only women can be “real” victims of domestic violence.

The EEOC also points out that sex-based harassment may violate Title VII if it is sufficiently frequent or severe or if it results in a “tangible employment action.” For example, an employer who learns that an employee was the victim of abuse, viewed him or her as vulnerable and made advances, and then terminates the employee when the advances are rebuffed is in violation of the law.

The Americans with Disabilities Act (ADA) can also be implicated in situations that involve applicants or employees that are the victims of domestic or dating violence, sexual assault, or stalking. The ADA prohibits employers from treating people differently based on actual or perceived impairment. For example, an employer would be in violation of the law if he or she learned that an applicant is a witness for the prosecution in a rape case and is receiving counseling as treatment for depression, and chose not to hire the individual based on the belief that he or she may require time off due to depression.

In the last section, the document describes when an employer may be required to make reasonable accommodations under the ADA for employees or applicants who have been the victims of sexual assault, domestic violence, or stalking. For example, an employer may be required to provide time off for an individual who requires treatment for depression or anxiety following a sexual assault, even if the employee has no sick leave and the employer is not covered by the FMLA.