[authors: Brian D. Pedrow, Kaitlin E. Picco]

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a fact sheet discussing how Title VII and the Americans with Disabilities Act (ADA) may apply in employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking.

Title VII, which outlaws discrimination based on race, color, sex, religion, or national origin, and the ADA, which bans discrimination against individuals with disabilities, do not explicitly prohibit discrimination against applicants or employees who are victims of domestic or dating violence, sexual assault, or stalking. But, according to the EEOC, these laws do protect such victims from discriminatory employer practices. The EEOC’s fact sheet provides examples, a sampling of which we set out below.

Under Title VII, the following scenarios illustrate prohibited disparate treatment based on sex, sexual or sex-based harassment, and retaliation for protected activity, respectively:

• A manager terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential “drama battered women bring to the workplace.”
• 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, and he 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. She notifies management, but no further action is taken.
• 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.

The ADA prohibits different treatment or harassment at work based on an actual or perceived impairment, including impairments resulting from domestic or dating violence, sexual assault, or stalking. The EEOC fact sheet offers the following examples to illustrate this type of prohibited employer behavior:

• 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 out of concern that she may require future time off for continuing symptoms or further treatment.
• 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 scars, and her manager fails to take any action to stop the harassment.

The EEOC fact sheet also contains examples to illustrate that an employer may violate the ADA if it does not provide reasonable accommodation requested for a disability caused by domestic or dating violence, sexual assault, or stalking:

• An employee who has no accrued sick leave and whose employer is not covered by the Family and Medical Leave Act (FMLA) requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by a home intruder. 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 that location. 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. The employer denies the request, citing its “no transfer” policy.

Employers may wish to consider adding one or more of the examples contained in the EEOC fact sheet to their workplace harassment policies. In addition, when designing anti-harassment training, employers also should consider including examples involving domestic or dating violence, sexual assault, or stalking.

Ballard Spahr’s Labor and Employment Group routinely assists employers with workplace harassment matters, including policy development, training, and investigations. If you have questions about the EEOC fact sheet or would like to discuss this issue further, please contact Brian D. Pedrow at 215.864.8108 or pedrow@ballardspahr.com, Kaitlin E. Picco at 215.864.8343 or piccok@ballardspahr.com, or the member of the Labor and Employment Group with whom you work.