The Equal Employment Opportunity Commission wants to make sure you don’t violate the law when it comes to employees who become victims of domestic violence, stalking and sexual assault.
That’s the message in the agency’s new fact sheet, released earlier this month.
As usual, the fact sheet doesn’t set up any new employee protections via law or statute. But it does bring to light a number of scenarios where employers may violate Title VII or the Americans with Disabilities Act (ADA) without even knowing it.
The fact sheet is broken down into two sections:
Title VII
As every HR pro knows, Title VII prohibits bias against employees.
In the fact sheet, the EEOC calls attention to six scenarios — based on sex bias, sexual harassment and retaliation — where employers could violate Title VII:
- An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential “drama battered women bring to the workplace.”
- A hiring manager, believing that only women can be true victims of domestic violence because men should be able to protect themselves, does not select a male applicant when he learns that the applicant obtained a restraining order against a male domestic partner.
- An employer allows a male employee to use unpaid leave for a court appearance in the criminal prosecution of an assault, but does not allow a similarly situated female employee to use equivalent leave to testify in the criminal prosecution of domestic violence she experienced. The employer says that the assault by a stranger is a “real crime,” whereas domestic violence is “just a marital problem” and “women think everything is domestic violence.”
- An employee’s co-worker sits uncomfortably close to her in meetings, and has made suggestive comments. He waits for her in the dark outside the women’s bathroom and in the parking lot outside of work, and blocks her passage in the hallway in a threatening manner. He also repeatedly telephones her after hours, sends personal e-mails, and shows up outside her apartment building at night. She reports these incidents to management and complains that she feels unsafe and afraid working nearby him. In response, management transfers him to another area of the building, but he continues to subject her to sexual advances and stalking.[4] She notifies management but no further action is taken.
- A seasonal farmworker’s supervisor learns that she has recently been subject to domestic abuse, and is now living in a shelter. Viewing her as vulnerable, he makes sexual advances, and when she refuses he terminates her.
- An employee files a complaint with her employer’s human resources department alleging that she was raped by a prominent company manager while on a business trip. In response, other company managers reassign her to less favorable projects, stop including her in meetings, and tell co-workers not to speak with her.
Americans with Disabilities Act (ADA)
As we all know by now, the Americans with Disabilities Act prohibits discrimination on the basis of disability.
The fact sheet includes problem areas for employers regarding different treatment or harassment at work based on an actual or perceived disability, failure to provide a reasonable accommodation, the disclosure of confidential medical info and retaliation:
- An employer searches an applicant’s name online and learns that she was a 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.
- 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 states is exacerbated by continuing to work in the same location as the ex-boyfriend. As a reasonable accommodation for her disability, the employee requests reassignment to an available vacant position for which she is qualified at a different location operated by the employer. The employer denies the request, citing its “no transfer” policy.
- An employee who is being treated for post-traumatic stress disorder (PTSD) resulting from incest requests reasonable accommodation. Her supervisor then tells the employee’s co-workers about her medical condition.
- In the prior example, the employee tells the supervisor she intends to complain to human resources about his unlawful disclosure of confidential medical information. The supervisor warns that if she complains, he will deny her the pay raise she is due to receive later that year.
Takeaways
There are a handful of things employers can do to make sure they stay on the right side of the law following the release of this most recent guidance from the EEOC. They include:
- Update policies. These include your anti-harassment and equal employment opportunity policies. You may even want to include some of these examples in your policies.
- Revise training materials. Ensure that managers and other decision makers know what can get get them on the wrong side of the law.
