The EEOC has issued a new guidance on the issues of discrimination and retaliation in the workplace based on employees who experience domestic or dating violence, sexual assault or stalking.
Title VII’s prohibition is discussed in two parts:
- Disparate treatment based on sex, including sexual stereotypes; and
- Sex-based harassment-hostile work environment or tangible employment action
The guidance addresses discrimination in the hiring process based on issues relating to domestic violence, including fear of drama that “battered women” bring to the workplace; not hiring a male applicant because he has an order of protection against a male domestic partner; or not allowing a female employee unpaid leave for a court appearance to testify in prosecution of domestic violence while allowing a male unpaid leave for prosecution of an assault.
The guidance also makes a connection between sexual harassment at work and vulnerability, which draws the harasser to the employee who has been a victim of domestic abuse. Reports of sexual harassment by supervisory employees, who have knowledge of past history of domestic abuse, must be investigated when that employee makes complaints of sexual harassment at work, to prevent a hostile work environment.
Retaliation for complaining about these issues is also a stated concern in the guidance. For example, if an employee complains to Human Resources that her supervisor raped her on a business trip, and then other company managers assign that employee to less favorable assignments and isolate her.
The importance of this guidance is to alert civil rights practitioners to specific allegations relating to domestic violence, and stalking outside of work and its affect on the employee at work. Often, a perpetrator of domestic violence can find a “wife at work” to prey upon. These issues can create liability if not identified or heard. The guidance explains that the ADA requires reasonable accommodations for disability relating to domestic violence such as time off, or modified work schedules or reassignment to a vacant position.
The ADA also prohibits disclosure of confidential medical information, and if an employee tells her supervisor that she suffers from PTSD due to a past rape or incest, and requests an accommodation, that supervisor is prohibited from sharing that information with other employees.
Risk management of best practices dictate that this new guidance is an area for training within a workplace on both the management and non-management level. Making such complaints can be difficult, and creating a hotline outside of work may be needed to allow someone to safely make such a complaint. Human Resource professionals along with in-house counsel may want to draft updates in company handbooks to cover these issues.
For too long we have been dismissive of issues that exist outside of work as having no bearing on the workplace. This simply is not true. This new guidance is important because it validates the behavior of the wife or husband (or domestic partner) at home and the same behavior played out by such employee’s at work.
