Employers may have to add domestic/dating violence, sexual assault and stalking to the factors that cannot be considered with respect to an employee or potential employee. The EEOC issued a fact sheet explaining that Title VII of the Civil Rights Act and the Americans with Disability Act may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking.
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, sex, religion, or national origin. The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability. Neither of these statutes specifically identifies violence/assault/stalking as a protected class, but the EEOC thinks that the factors may apply.
Employers are prohibited from treating employees or job applicants differently based on sex, which may include sex-based stereotypes. Employers are also prohibited from creating a hostile work environment or taking a "tangible employment action" based on sex. The EEOC has provided some examples of when domestic/dating violence, sexual assault and stalking may be an action based on sex.
- 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 who believes that only women can be victims of domestic violence does not hire a male job applicant because the person obtained a restraining order against a male domestic partner.
- An employer allows a male employee to take leave for a court appearance in the prosecution of an assault, but does not allow a female employee to use the same type of leave to testify in a domestic violence trial.
- An employee's coworker makes unwanted advances to a female employee. The employee reports the incidents to management and complains that she feels unsafe working near him. The employer transfers the coworker to a different part of the building. When the stalking continues, the employer takes no further action.
The ADA prohibits different treatment or harassment at work based on an actual or perceived impairment, which could include impairments resulting from domestic or dating violence, sexual assault or stalking. Examples include:
- 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.
Employers must be wary of actions that do not directly seem like discrimination, but have the effect of discriminating against employees based on domestic or dating violence, sexual assault, or stalking.
