Anyone who picks up a newspaper knows that our world can be very violent, including domestic violence, sexual assault and stalking. Employers often see firsthand the impact of such violence on their employees. Most of the time, employers who learn that an employee is experiencing some form of domestic violence, sexual assault, or stalking will do what they can to help the employee manage the situation. Sometimes, however, employers of victims of violence react in a negative way. The Equal Employment Opportunity Commission (EEOC) has recently issued a guidance describing how the actions or reactions of employers in these situations may be a form of discrimination under federal law. The guidance can be found here.
In the guidance, the EEOC points out that Title VII and the American with Disabilities Act do not directly prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking. So, just how can an employer be liable for discrimination in these instances? Good question.
To illustrate the connection between discrimination and domestic violence, the guidance provides several examples of how an employers actions in response to domestic violence might be based on a sex-based stereotype. For example:
- An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential drama that battered women bring to the workplace.
- A hiring manager believes that only women can be true victims of domestic violence because men should be able to protect themselves, and does not select a male applicant when he learns that the applicant obtained a restraining order against a domestic partner.
- 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.
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