Archive for November, 2012

DISCRIMINATING AGAINST VICTIMS OF DOMESTIC VIOLENCE: The EEOC Issues a Q & A.

On October 12, 2012 the EEOC issued a Q & A on how Title VII and the ADA may apply to employees and applicants who are the victims of “domestic or dating violence, sexual assault, or stalking.”  What is interesting about this particular Q & A is that Title VII and the ADA don’t classify as the EEOC states “people who experience domestic or dating violence, sexual assault, or stalking” as members of a protected category.  In fact, in the Q & A the EEOC specifically points this out saying:

“Because these federal EEO laws 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.”

http://www.eeoc.gov/eeoc/publications/qa_domestic_violence.cfm

Despite this the EEOC apparently felt that individuals who are victims of this type of crime have been discriminated against and that this discrimination does implicate people who are protected by Title VII and the ADA.  In the Q & A the EEOC gives several examples of how persons who are victims of domestic violence, sexual assault and stalking might be discriminated against by employers.  For example:

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 e-mails, 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 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.

In this case, the employee is being sexually harassed by a stalker in the workplace.  Of course, the employer would have an obligation to see to it that the harassment ended.  In another 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.

Here the EEOC illustrates how a victim of sexual assault may, as a result of a subsequent disability, be entitled to protection under the ADA.

Employers may of course wonder how to react to this new guidance. You don’t have to add victims of domestic violence to the list of protected categories in your EEOC policy and you don’t need to add a bunch of examples to your handbook as I have seen suggested.  You do need to continue to do what you have always done, enforce your policies fairly and make sure your supervisors and manages are treating everyone, and I mean everyone, fairly.  Make sure you’re your supervisors and managers are fully trained on what is discriminatory.  You see Title VII, unlike say the NLRA, is a pretty common sense statute.  And if you “follow the golden rule” and treat everyone like you want to be treated yourself, and enforce your policy when there is a violation then you should be OK.