We previously posted about the United States Equal Employment Opportunity Commission (“EEOC”)’s new fact sheet, entitled “Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking,” and considered the fact sheet’s examples as to how an employer might violate Title VII’s prohibitions in discriminating against applicants or employees who experience domestic or dating violence, sexual assault, or stalking.
In this post we’re going to consider the ADA examples provided on the fact sheet, and our recommendations for how you can avoid discriminating against the victims of domestic violence in your workplace.
With regard to the ADA, the first category considered by the fact sheet was different treatment or harassment based upon an actual or perceived impairment resulting from domestic or dating violence, sexual assault, or stalking. The fact sheet set forth the following examples:
- An employer searches an applicant’s name online and learns that she was 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.
- An employee has facial scarring from skin grafts, which were necessary after she was badly burned in an attack by a former domestic partner. When she returns to work after a lengthy hospitalization, co-workers subject her to frequent abusive comments about the skin graft scars, and her manager fails to take any action to stop the harassment.
The next category considered by the fact sheet is possible ADA violations resulting from an employer’s failure to provide reasonable accommodation to a victim of domestic or dating violence, sexual assault, or stalking. The fact sheet provides the following examples:
- An employee who has no accrued sick leave and whose employer is not covered by the FMLA requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by an intruder in her home. The employer denies the request because it “applies leave and attendance policies the same way to all employees.”
- In the aftermath of stalking by an ex-boyfriend who works in the same building, an employee develops major depression that her doctor says is exacerbated by continuing to work in the same location as her ex-boyfriend. As a reasonable accommodation for her disability, the employee requests reassignment to an available position for which she is qualified at a different location operated by the employer. The employer denies the request, citing its “no transfer” policy.
The third category considered by the fact sheet is possible ADA violation arising from the disclosure of confidential medical information. The fact sheet provides the following example:
- An employee who is being treated for post-traumatic stress disorder resulting from incest requests reasonable accommodation. Her supervisor tells the employee’s co-workers about the employee’s medical condition.
The last category considered by the fact sheet is possible ADA violation resulting from retaliation or interference with the employee’s exercise of his or her rights under the statute. The fact sheet provides the following example”
- In the prior example, the employee tells the supervisor that she intends to complaint to HR about the supervisor’s unlawful disclosure of her confidential medical information. The supervisor then warns her that if she complains, he will deny her the pay raise that she is due to receive later that year.
What Can You Do?
First, your HR training materials should be updated to remind your employees that they cannot discriminate against the victims of domestic or dating violence, sexual assault, or stalking. The training materials should include the examples contained in the fact sheet.
Second, you should audit your HR training materials to ensure that they also address the other federal, state, and local statutes that may protect your employees and applicants who have suffered from domestic violence from discrimination. For example, victims of domestic violence may be able to take leave under the federal Family and Medical Leave Act (“FMLA”) or state equivalents. Moreover, some states and localities have laws that specifically prohibit discrimination and retaliation against the victims of domestic violence. And some states and localities have laws that prohibit employers from punishing employees who are victims of a crime from taking time off to attend court, participate in an investigation, appear for a subpoena, or otherwise.
Third, remember that for victims of domestic violence, their job is vitally important; without it, they may not have the economic resources to break free from their abuser. Victims of domestic violence may also be embarrassed about their condition, and they may be unwilling or reluctant to inform their supervisor or the HR department about their condition. It may not be readily apparent whether an employee is the victim of domestic violence. You should consider intermittently informing your employees that the company supports victims of domestic violence, and let them know that they can come to the HR department for assistance if they are being abused.