Although the legal system still has a long ways to go in developing better safeguards for victims of domestic violence, sexual assault and stalking, a recent action by the U.S. Equal Employment Opportunity Commission (EEOC) signals that the government is taking steps to ensure that employers protect these victims under Title VII and the Americans with Disabilities Act (ADA).
While many people may take exception with the fact that the government is classifying victims of domestic abuse, sexual assault and stalking as “disabled”, the reality is that these victims could likely be the subject of discrimination—intentional or unintentional–in the workplace because of their circumstances.
Although nothing new is stated in the EEOC’s recent guidance which is in the form of a fact sheet entitled, “Questions and Answers: Application of Title VII and the ADA to Applications or Employees Who Experience Domestic or Dating Violence, Sexual Assault or Stalking”, it signals a clear area of focus for the agency. As such, employers and, more specifically, HR managers, need to reassess their policies and procedures to make certain they are not inadvertently in violation of Title VII or the ADA.
In the new fact sheet, the EEOC provides an extensive list of questions and answers that provide its position with respect to hypotheticals to guide employers and employees alike. As an example, the EEOC explains that the failure to hire an individual because the individual recently received counseling for depression caused by being the victim of domestic abuse could be prohibited conduct. The EEOC also stresses its position that reasonable accommodations must be provided for a disability caused by domestic violence and/or sexual assault—for example, anxiety caused by a sexual assault.
As has been the case with so many EEOC actions over the past year, this latest publication does not explicitly change the law or create new protected characteristics. Rather, it alerts employers that this is an area being scrutinized as the agency continues in its strategic plan of preventing employment discrimination through education and outreach.
So what should employers do to protect themselves in light of this most recent, expanded interpretation?
• Review and update training materials to include examples of domestic violence, sexual assault or stalking.
• Develop or revisit workplace training programs (such as EEO or harassment prevention programs) to ensure that front-line managers and HR professionals are acutely aware of the EEOC’s broad interpretation of who is covered under Title VII and the ADA.
• Understand how the Family Medical Leave Act (FMLA) and state medical leave laws could be implicated by issues arising in the workplace regarding domestic or dating violence, sexual assault of 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.
• Review individual circumstances with legal counsel prior to any employment terminations or disciplinary actions that involve victims of these abuses.
For more information on the EEOC’s latest interpretation of employees who could be protected under Title VII and the ADA, visitwww.eeoc.gov//eeoc/publications/qa_domestic_violence.cfm.