Marti Cardi, J.D., Chief Compliance Officer

Megan G. Holstein, J.D., Senior Counsel

Employers’ treatment of employees who are victims of domestic violence, sexual assault, and stalking (“domestic violence”) is an area of concern to the U.S.  Equal Employment Opportunity Commission (EEOC).  Although Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) do not explicitly prohibit discrimination because someone is a victim such crimes, the EEOC has recently provided guidance on how these laws  may apply to situations involving employees who experience domestic violence.  See the EEOC’s Q&A fact sheet entitled The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking.

Employers also need to be aware that many states provide leaves of absences for a variety of reasons to employees who are (or whose family members are) victims of domestic violence.  These can include, but are not limited to obtaining services from doctors, counselors, or victims’ advocates, to attend court or other legal proceedings, or to relocate for safety reasons.

Because of the EEOC’s focus on this topic employers should pause to assess whether their policies and trainings are adequate to protect them from falling into any traps when an employee reports that he or she is a victim.  The EEOC’s guidance illustrates how Title VII and the ADA may apply to these situations.

Here are 2 examples from the EEOC’s guidance concerning domestic violence and Title VII and ADA:

Title VII – disparate treatment based on sex:  An employer allows a male employee/victim to use unpaid leave for a court appearance in the criminal prosecution of an assault, but does not allow a similarly situated female employee to use equivalent leave to testify in the criminal prosecution of domestic violence she experienced.  The employer says that the assault by a stranger is a “real crime,” whereas domestic violence is “just a marital problem” and “women think everything is domestic violence.”

ADA:  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.”

By taking the following steps, employers can be prepared to act when an employee indicates that he or she is a victim:

  • Update handbooks to address when an employee is a victim of domestic violence;
  • Train employees and managers that they should report any concern, threats, or issues that might arise from being a victim, particularly if the employee has received a restraining order against the perpetrator;
  • Investigate every concern or complaint regarding workplace treatment voiced by an employee who is a victim of domestic violence;
  • Be prepared to engage in the interactive process and offer an accommodation, including time off from work, for victims of domestic violence;
  • Know your state’s laws with regard to employee rights as a victim of domestic violence.

Reed Group’sLeave of Absence Advisor™includes comprehensive reference resources for all state laws that concern leaves of absence for employees who are victims of domestic violence, sexual assault, and stalking.  Leave of Absence Advisor™ helps you minimize risk and reduce the burden of employee leaves by providing simple, accurate and complete information on FMLA and state leave laws, all prepared by our world-class experts.

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