U.S. Equal Employment Opportunity Commission Issues Guidance on the Application of Title VII and the ADA to Employees Who Experience Domestic Violence

By: Rudman Winchell Attorney Matthew M. Cobb

TitleVII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination on the
basis of sex, among other forms of discrimination. The Americans with Disabilities Act (ADA)
prohibits an employer from taking adverse action against an employee on the
basis of a disability, a record of a disability, or because the employer
perceives the employee as being disabled.

In an effort to demonstrate the applicability of these laws to employees who have
been subject to domestic violence, dating violence, sexual assault or stalking,
the U.S. Equal Employment Opportunity Commission (EEOC) recently issued a
series of questions and answers, and examples, on these topics.

See http://www.eeoc.gov/eeoc/publications/qa_domestic_violence.cfm

As the EEOC explained, Title VII prohibits disparate treatment based on a person’s
sex, which can include treatment based on gender-based stereo types. For example, an employer may violate Title
VII if the employer terminates an employee after learning that she has been
subject to domestic violence based on an impermissible stereo-type that the
employee’s situation will create “drama” in the workplace.

Title VII also prohibits sexual or sex-based harassment. Such harassment may create a hostile work
environment in violation Title VII if it is so severe or pervasive that it
alters an employee’s terms and conditions of employment. Thus, it is a potential violation of Title
VII if an employer does not take prompt and sufficient action after an employee
makes her employer aware that she is being stalked and continuously harassed by
her ex-boyfriend who is a coworker.

The ADA in turn prohibits an employer from treating an employee or job applicant
adversely based on an actual or perceived impairment. As an example, it would likely violate the
ADA if an employer learned that a qualified job applicant had recently been the
victim of a domestic violence assault and then refused to hire the applicant
based on a concern that the prospective employee may require future time off
for continuing treatment of depression and/or physical symptoms stemming from
the assault.

The EEOC further observed that the ADA may require employers to provide reasonable
accommodations that have been requested by an employee for an actual disability
or a record of a disability.

For an example in the domestic violence context, if an employee with no accrued sick
time and whose employer is not covered by Federal or State medical leave laws
requests a schedule change or unpaid leave to get treatment for depression and
anxiety following an instance of domestic abuse, it would likely be a violation
of the ADA for the employer to deny the request on the basis that the employer
“applies leave and attendance policies the same way to all employees.”

The examples provided above are illustrative as to how Title VII and the ADA may
hypothetically apply to employees who have experienced domestic violence,
dating violence, stalking, or sexual assault, and are based on examples
recently provided by the EEOC. Application of these laws to real-world facts will vary on a
case-by-case basis, and will depend on the unique circumstances of a particular
situation.