EEOC Issues Guidance on Employer Response to Victims of Domestic Violence, Sexual Assault, or Stalking

Two weeks ago, a spa in southeastern Wisconsin made national news when the estranged husband of one of the spa’s employees shot and killed his wife and two other employees, and injured several others, before committing suicide. Given the security risks and safety concerns associated with employing victims of domestic violence and stalking, what can an employer do to prevent similar incidents in the workplace? While there are several proactive measures an employer may choose to implement (including training, safety/security planning, and/or EAP or community referrals), firing the victimized employee (or refusing to hire an applicant with a history of domestic violence) should not be one of them. In fact, the EEOC recently published a fact sheet indicating that, although federal discrimination laws do not explicitly protect applicants or employees who have been victims of domestic violence, stalking, or sexual assault, an employer that makes employment decisions based on such considerations may run afoul of Title VII or the ADA. Many states also have laws that protect, and allow leave, for victims of domestic violence or sexual assault.

According to the EEOC, the following types of employment actions may violate Title VII because they involve decisions that appear to be the result of sex-based stereotypes:

Similarly, the EEOC’s fact sheet contains the following examples of employer actions that may violate the ADA because they involve different treatment for employees with actual or perceived impairments resulting from domestic violence, sexual assault, or stalking:

In light of this guidance regarding victims of domestic violence, sexual assault, and stalking, employers should consider updating their nondiscrimination and no harassment policies and training to educate managers and employees about how to deal with workplace issues that stem from domestic violence, sexual assault, or stalking. As mentioned above, employers should be aware that certain state laws, including state family and medical leave laws, contain specific protections for domestic violence, sexual assault, and/or stalking victims. Finally, employers should be informed about, and take advantage of, any internal or community policies or resources (for example, workplace violence policies, EAP, local organizations) that can provide additional guidance for dealing with domestic violence or stalking in the workplace and should seek legal advice in connection with any specific concerns.

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