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.
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:
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.