NOHRPS One Cleveland Center 20 th Floor 1375 E. 9 th Street Cleveland, OH Labor & Employment Law Update November 8, 2012

Discrimination Against An Employee Based on Domestic Violence, Sexual Assault or Stalking In October, the EEOC issued a Q&A entitled Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking which addresses discrimination of victims of domestic violence, sexual assault, or stalking. This Q&A provided examples of when actionable discrimination against an employee occurs in these unfortunate circumstances.

Discrimination, cont. There is no federal law that expressly gives workplace rights to employees who find themselves victims of domestic violence, sexual assault, or stalking. However, the EEOC has made clear that other laws will cover employees in these situations. In particular, the EEOC references Title VII and the ADA as sources of discrimination protection. The EEOC also provides multiple examples of discrimination in these circumstances.

Title VII Protections Title VII—Disparate Treatment Based on Sex (including sex-based stereotypes) –EEOC Example: An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential “drama battered women bring to the workplace.”

Title VII, cont. Title VII—Sexual Harassment –EEOC Example: An employee’s co-worker sits uncomfortably close to her in meetings, and has made suggestive comments. He waits for her in the dark outside the women’s bathroom and in the parking lot outside of work, and blocks her passage in the hallway in a threatening manner. He also repeatedly telephones her after hours, sends personal s, and shows up outside her apartment building at night. She reports these incidents to management and complains that she feels unsafe and afraid working nearby him. In response, management transfers him to another area of the building, but he continues to subject her to sexual advances and stalking. She notifies management but no further action is taken

ADA Protections ADA—Disparate Treatment Based on Actual or Perceived Disability –EEOC Example: 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.

ADA, cont. ADA—Denial of Reasonable Accommodation –EEOC Example: An employee who has no accrued sick leave and whose employer is not covered by the FMLA requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by an intruder in her home. The employer denies the request because it “applies leave and attendance policies the same way to all employees.”

Retaliation EEOC Example: An employee files a complaint with her employer’s human resources department alleging that she was raped by a prominent company manager while on a business trip. In response, other company managers reassign her to less favorable projects, stop including her in meetings, and tell co- workers not to speak with her.

Recommendations In light of this clear policy statement by the EEOC, all companies should review the Q&A and make sure they understand their obligations towards employees in these circumstances. Companies should also incorporate these examples into their usual harassment/EEO training to ensure that supervisors are aware of these issues.

Additional Information The EEOC’s Q&A contains multiple other examples of discrimination against employees that are the victims of domestic violence, sexual assault, or stalking. A full copy of the Q&A can be found at: stic_violence.cfm

Robert S. Gilmore Kohrman Jackson & Krantz One Cleveland Center 1375 East Ninth Street, 20 th Fl. Cleveland, OH Phone: (216) Fax: (216)