EEOC’s New Focus: Workplace Discrimination Against Domestic Violence Victims

The U.S. Equal Employment Opportunity Commission has released a new Q&A Fact Sheet on domestic/dating violence, sexual assault and stalking.

What’s it all about?

The document starts by recognizing that no federal EEO law specifically prohibits “discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking.” It then provides examples of such situations where Title VII and the ADA “may apply.”

What should employers avoid doing?

The EEOC groups the examples into the following categories.

Sex-based Stereotypes. The EEOC considers it gender discrimination if an employer:

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  • Terminates someone who experiences domestic violence out of fear of the potential “drama battered women bring to the workplace”;
  • Refuses to hire a male applicant after learning that he has a restraining order against a male domestic partner out of a belief that “only women can be true victims of domestic violence because men should be able to protect themselves”; or,
  • Grants a male employee’s request for leave to testify in an assault trial but refuses a female employee’s request for leave to testify at a domestic violence trial out of a belief that assault by a stranger is a “real crime” whereas domestic violence is “just a marital problem.”

Harassment. The EEOC gives these examples of potential Title VII violations:

  • Management transfers a male employee who has subjected a female co-worker to stalking, suggestive comments and other forms of harassment to another department. The harassment continues, the female employee notifies management, but no further action is taken.
  • A supervisor learns that an employee has recently been the victim of domestic abuse and is living in a shelter. Viewing her as vulnerable, the supervisor makes sexual advances and when she refuses, he terminates her.

ADA (Americans With Disabilities Act. Employment decisions that could violate the ADA include:

  • An employer learns online that an applicant was a rape victim and received counseling for depression. The employer decides not to hire her out of concern that she may require time off for symptoms and treatment of depression.
  • An employee has facial scarring as the result of an attack by a domestic partner. When she returns to work, co-workers subject her to abusive comments about the scars and her manager fails to take action.
  • An employee develops depression after stalking by an ex-boyfriend co-worker. The employee requests reassignment to a vacant position for which she is qualified at another location. The employer denies the request, citing its “no transfer” policy.
  • An employee being treated for post-traumatic stress disorder resulting from incest requests a reasonable accommodation. Her supervisor tells the employee’s co-workers about her condition.

For more on this developing area of law, click here.

This was originally published on Manpower Group’s Employment Blawg.

Mark Toth has served as Manpower Group North America's Chief Legal Officer since 2000. He also serves on the company’s Global Leadership Team, Global Legal Lead Team and North American Lead Team. Mark is recognized as an expert on legal issues affecting the U.S. workplace and is frequently quoted in media from The Wall Street Journal to 60 Minutes. He is also a past Chair of the American Staffing Association and is a certified Senior Professional in Human Resources. Contact him at mark.toth@manpowergroup.com.

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