By Jillian M. Collins
On October 12, the Equal Employment Opportunity Commission issued a new fact sheet titled: Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking. Employers may need to review and revise their anti-harassment, -discrimination, and -retaliation policies in light of this publication, which seems to extend gender and disability protections beyond traditional coverage.
The fact sheet, available here, includes several examples of workplace problems that may arise for victims of domestic or sexual violence or stalking. In one such example, the EEOC states that an employer may violate Title VII by transferring an employee who stalked his co-worker if the transfer does not alleviate the employee’s inappropriate behavior. In another example, the EEOC describes how an employer violates Title VII by reassigning an employee to less desirable projects and boxing her out of meetings after she alleges that a prominent company executive raped her while on a business trip. In the context of the ADA, the EEOC explains that an employer may violate the ADA if the employer chooses not to hire an applicant because she was a witness in a rape prosecution, received counseling for depression, and may require future time off based on her condition.
Many of the situations described by the EEOC, such as those described above, clearly fall under the existing statutory protections of Title VII and the ADA. The publication of this fact sheet seems to signal, however, that the EEOC is poised to extend gender protections to scenarios that may not raise the traditional Title VII or ADA red flags. For example, the EEOC suggests that an employer may violate Title VII by refusing to hire a woman who has been subjected to domestic violence for fear that she would bring “drama” to the workplace, or by refusing to hire a man who has obtained a restraining order against a male domestic partner because “men should be able to protect themselves” from violence. In another example, the EEOC suggests that an employer may violate the ADA by failing to take action to stop employees from harassing and making abusive comments to a co-worker who has facial scarring from skin grafts she received after she was badly burned in an attack by a former domestic partner. By phrasing these examples in the context of protecting victims of gender-based violence, the EEOC may be suggesting that it will extend existing protections to victims of such violence, even where protection may stretch the law.
Some states, such as California and Kansas, already prohibit employers from retaliating against victims of domestic violence, but federal law does not give protected class-status for victims of domestic violence, sexual assault, or stalking. This fact sheet certainly indicates, however, that the EEOC will interpret the scope of the existing protected classes as broadly as possible to protect such victims. Employers should update their policies and train managers to be mindful of the potential liability under Title VII and the ADA for decisions related to victims of domestic violence, sexual assault, or stalking.