Neither Title VII of the Civil Rights Act nor the Americans with Disabilities Act (ADA) specifically prohibits discrimination against individuals who may be victims of domestic or dating violence, sexual assault, or stalking. However, a recent fact sheet/guidance issued by the Equal Employment Opportunity Commission (EEOC) has employers scrambling to update anti-discrimination training to reflect the examples listed in that guidance and to make managers aware of circumstances under which such individuals might be the targets of discrimination under those federal statutes. While discrimination in a particular situation must be determined through a case-by-case analysis of the facts, the EEOC sets forth numerous examples involving domestic violence and sexual assault victims, which include disparate treatment, harassment, and retaliation scenarios under both Title VII and the ADA.
The examples of employment scenarios that may violate Title VII include: an employer’s decision to terminate an employee who was subjected to domestic violence because of fears related to the “drama battered women bring to the workplace” (disparate treatment); a supervisor who learns that an employee recently was subjected to domestic abuse and, viewing her as vulnerable, begins to make sexual advances toward her (harassment); and an employee who, subsequent to filing a complaint alleging that she was raped by a manager while on a business trip, is reassigned to less favorable projects (retaliation).
Examples of decisions that may violate the ADA are similarly varied and, in most cases, straightforward. They include: an employer who learns that an applicant was a witness in a rape prosecution and received counseling for depression, and the employer decides not to hire her because she may need time off for further treatment of that depression (perceived disability); a supervisor who tells an employee’s co-workers about the employee’s post-traumatic stress disorder (PTSD) resulting from incest (disclosure of confidential information); and an employee who tells her supervisor that she is going to complain about his dissemination of her medical information and is told that if she does, she will not get a pay raise (retaliation).
However, the examples also include one scenario that may not immediately strike employers as a clear ADA violation: an employee who has no accrued sick leave and is not eligible for FMLA requests a scheduling change or an unpaid leave in order to get treatment for depression following a sexual assault during a home invasion, but she is denied that leave because the company “applies leave and attendance policies the same way to all employees.” Because most employers typically are reminded by both human resources and legal that employees should be treated in a consistent manner, and that individuals in protected categories should not be treated differently than non-protected similarly situated individuals, this scenario may not seem to be an obvious example of an ADA violation. However, a reasonable accommodation is a change in the way that things usually are done and can include modified work schedules, reassignment to a vacant position, or time off for medical treatment. This last scenario clearly indicates that the EEOC has an expectation that employers will change their consistently applied leave and attendance policies, if such change is necessary to accommodate the need for psychological treatment stemming from an incident of sexual assault or domestic violence.
Employers should, in fact, begin to add the issues raised in the EEOC’s recent guidance to the anti-harassment and non-discrimination training that is provided to managers and supervisors, in order to avoid inadvertent violation of Title VII or the ADA. Fortunately, the EEOC’s q&a format provides clear examples that easily can be incorporated in such training.
Maria Greco Danaher is a shareholder in the Pittsburgh office of Ogletree Deakins.