The Equal Employment Opportunity Commission recently issued information expanding legal protection under Title VII of the Civil Rights Act and the Americans with Disabilities Act to employees or applicants who have suffered from sexual assault, domestic or dating violence, or stalking outside of work. The EEOC identified several types of management actions or inactions that may violate both laws.
Title VII prohibits discrimination and retaliation due to the protected classes of race, color, religion, sex or national origin.
One type of discrimination is disparate treatment, which is treating one person differently from another based upon his protected class status. The EEOC noted disparate treatment because of sex might encompass actions due to sex-based stereotypes.
For example, a hiring manager may not reject a male applicant with a restraining order against his ex-wife because the supervisor believes a man should be able to protect himself and only a woman may be a victim of domestic violence. A business cannot discharge a female associate experiencing domestic violence due to fear of what her abuser might do in the workplace. A company cannot allow leave for a male worker to testify in court because of an assault but not permit leave for a female to testify about domestic violence, stating assault by a stranger is a real crime and domestic violence is just a marital problem for oversensitive women.
Title VII forbids harassment because of a protected class, including sexual harassment. The fact sheet published by the EEOC offers examples, consistent with existing law, regarding co-worker or manager behavior reaching the level of actionable harassment.
For example, a corporation must take appropriate action against a male laborer when a female reports she feels unsafe due to him sitting close to her, making suggestive comments, blocking her passage in hallways, calling after hours, sending personal emails, waiting for her outside of office rooms and after work, and showing up at her residence.
The EEOC states simply transferring him to another area of the building is unacceptable if he continues to subject her to stalking and sexual advances.
The guidance also re-emphasizes a team member is protected from retaliation if she reports sexual discrimination to her employer, files a charge of discrimination with the EEOC or participates in an EEOC investigation.
For example, in response to an employee reporting she was raped by a prominent company manager while on a business trip, it is illegal for the enterprise to respond by reassigning her to less favorable projects, ceasing to include her in meetings or purposefully decreasing communication with her.
The EEOC identified business actions that also might violate the ADA, which forbids harassment or treating a staff member differently at work based upon an actual or perceived impairment, including impairments resulting from stalking, sexual assault, or domestic or dating violence.
For example, an organization is forbidden to terminate or refuse to hire a rape victim, who received treatment for depression on the grounds that she might need leave of absence time to treat ongoing or future periods of depression.
In addition, the EEOC offered an illustration of ADA harassment due to a perceived impairment. Accordingly, a company is liable for taking steps to end abusive remarks regarding an individual’s scars resulting from domestic violence.
Reasonable accommodation under the ADA might be required for victims. The accommodations might consist of providing leave time that enables the associate to secure treatment for depression or anxiety resulting from an assault, even if the worker does not have any accrued sick leave and the corporation is not mandated to comply with the Family and Medical Leave Act. If the laborer works at the same site as his abuser, the team member may request a transfer to an alternate location as an accommodation, even if the employer maintains a policy forbidding transfers.
As a result of this guidance from the EEOC, organizations should consider updating nondiscrimination and anti-harassment policies, as well as training managers and staff on workplace issues stemming from stalking, sexual assault and domestic violence.
Lynne Haggerman, M.S., is president/owner of Lynne Haggerman & Associates LLC, a Springfield firm specializing in management training, retained search, outplacement and human resource consulting. She can be reached at lynne@lynnehaggerman.com.
