EEOC and State Law Protect Domestic Violence, Sexual Assault and Stalking Victims

Authors: Melissa Burdorf and Beth P. Zoller, XpertHR Legal Editors

Employment decisions relating to employees who are victims of domestic violence, sexual violence, or stalking may violate Title VII or the Americans with Disabilities Act (ADA) according to new guidance released by the Equal Employment Opportunity Commission (EEOC). Because Title VII and the ADA do not explicitly prohibit discrimination against employees and applicants who are victims of these crimes, employers may fail to notice that such individuals may experience discrimination, harassment and retaliation in the workplace.

EEOC Guidance

While the EEOC's guidance does not provide employees with any additional protection, the EEOC seeks to provide examples of how certain employment decisions, such as denying a request for leave for a domestic violence hearing or employment decisions based on stereotypes of battered women, can violate Title VII. It demonstrates how employers should handle specific situations in order to avoid claims of discrimination, harassment, and retaliation.

Further, it shows employers how failing to provide a reasonable accommodation for a domestic violence injury, failing to permit an employee to take leave to treat depression, or permitting co-workers to make derogatory and abusive comments about facial scarring due to a domestic attack all can result in ADA liability for the employer. It suggests ways for employers to handle such issues and shows victims of domestic violence and sexual assault how to file claims against employers, arming them with the necessary information.

State Laws

While there is no federal law specifically protecting victims of domestic violence, stalking or sexual assault, many states do have laws providing job protection and leave to employees who have been victims of domestic violence or other crimes, or to employees whose family members have been victimized.

The details of each state law can vary significantly, but often protect the right of a crime victim or family member to leave work:

To participate in any criminal proceeding involving the alleged offender;
To obtain or attempt to obtain an order of protection, an injunction against harassment or any other injunctive relief to help ensure the health, safety or welfare of the employee-victim; and/or
To obtain an order of protection for a relative (e.g., child, spouse, parent, parent-in-law, grandparent) of the employee.

Employers should also review each case under the employer's FMLA policy. If an employee qualifies for leave under the FMLA due to a serious health condition, then such leave can run concurrently with any applicable state leave and reduce the employee's FMLA entitlement.

Advice for Employers

Employers should be cognizant of any applicable state law(s) and the EEOC's guidance and should:

Update training materials and workplace policies and practices to prohibit discrimination and harassment against victims of domestic violence, sexual assault and stalking - such materials should include some of the EEOC's examples;
Understand the potential situations that could arise with applicants or employees who have been subjected to domestic violence, sexual assault and/or staking;
Understand and train its employees that other federal laws (i.e. the FMLA) and state laws may apply to such victims; and
Aim to provide such employees with the necessary support in the form of time off for medical reasons or necessary leave to deal with such issues.