The Equal Employment Opportunity Commission (EEOC) recently published Guidelines for employers to handle issues involving employees or applicants who are victims of sexual assault, domestic or dating violence, or stalking. Sadly, given the prevalence of domestic violence in our country, employers everywhere employ someone who has been or is currently subjected to domestic abuse – often times unknowingly. According to one study by the Bureau of Labor Statistics, 21% of full-time employed adults are victims of domestic violence. One state’s Department of Labor found that 75% of domestic violence perpetrators use workplace resources to express anger or remorse towards, check up on, pressure, or threaten their victim. Human resource managers may not face domestic abuse concerns in the workplace on a daily basis, but they should be aware that domestic violence or assault victims are afforded certain employee protections under federal and often state law. But given trends in workplace violence, the EEOC Guidelines just begin to scratch the surface of the issue.
According to the EEOC, domestic violence issues should be considered in light of two EEO laws enforced by the EEOC — Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. Because Title VII prohibits disparate treatment based on sex, employers can run afoul of it if they treat employees according to sex-based stereotypes in domestic violence situations. For example, the employer who allows a male employee to take unpaid leave to testify in a criminal assault proceeding, but denies a female employee the same type of leave to obtain a restraining order against her batterer may violate Title VII. Likewise, employers who rely on improper stereotypes, such as believing that the domestic violence is a relationship or marital issue undeserving of time off, while allowing an employee to take similar leave for their own court appearance, may face a discrimination complaint.
The EEOC also takes the position that Title VII can be violated if an employer terminates a woman because she was a victim of domestic abuse. But, the EEOC did not address the larger issue when the abusive spouse of a female employee actually threatens the workplace. That larger, much more common issue must be considered with workplace violence specialists and with an eye towards protecting the safety of an employer’s workforce – a goal which surely trumps that of the domestic violence victim.
Sexual or sex-based harassment is also barred by Title VII. It is no surprise that an employee stalking a female employee at work, such as waiting for her in the parking lot, repeated calls to her home, sending personal emails, and other persistent, unwelcome behavior will constitute sexual harassment if it is sufficiently frequent or severe in nature so as to create a hostile work environment. Or, actionable harassment under Title VII may result when a manager learns that his employee has been abused and seeks to take advantage of her vulnerability by making unwanted sexual advances.
Retaliation for complaining about a protected activity violates Title VII. Domestic or dating violence scenarios giving rise to retaliation claims may include an employee who complains about a manager’s sexual abuse and belittling comments, and then suffers a material change in her employment, like a demotion, decreased job responsibilities, or the assignment of less favorable projects.
Some of the above examples may be straightforward and easily perceived as harassment, discrimination, or retaliation under Title VII. However, employers need to consider that domestic violence and abuse may also invoke rights under the Americans with Disabilities Act (ADA) or related state laws. The EEOC gives an example of a female employee who, in suffering from major depression after being stalked by an ex-boyfriend who works in the same office building, seeks a reasonable accommodation in the form of a transfer to a different location. Failure to accommodate the employee may violate the ADA unless the employer can show the transfer creates an undue hardship on its operations, an often difficult argument to prove. Similarly, the EEOC posits that in the unlikely event an employer learns that an applicant received counseling for depression related to a rape attack, and declines to select the candidate on this basis, then the failure to hire would likely constitute disability discrimination even if the candidate is still not clinically depressed. What matters there is that the employer perceived the employee as disabled and neglected to hire the employee based on this perception. In a more vivid example of harassment, the EEOC describes a situation in which an employee has facial scarring after she was badly burned in an attack by her former domestic partner. If coworkers snicker and stare at the employee and make hostile remarks about her appearance, but the employer fails to take action to stop such verbal abuse, this may constitute disability-based harassment prohibited by the ADA.
The EEOC makes no distinction when a domestic violence situation involves someone other than a male abuser and a female victim and, of course, domestic violence can very well occur in same-sex relationships. Although the agency’s recent guidance is not a change in how the EEOC applies discrimination laws, it clearly illustrates how the consequences of domestic abuse and violence enter the workplace and may lead to discrimination. The Guidelines remind employers that they cannot turn a blind eye to domestic abuse and expect that it does not involve employment considerations because it happens during an employee’s personal time outside of work. In determining the correct response and action, employers should not simply ask the narrow question if an adverse decision is improperly based on one’s sex or gender to determine if there is a Title VII violation.
(Finally, California employers with 25 or more employees should note that they are required under the state’s Labor Code to grant time off from work to domestic violence victims to, among other things, testify in court proceedings, seek medical attention, and obtain counseling or services related to the violence.)
For the complete description of the EEOC’s Guidelines and its Questions and Answers, click here.