Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA) safeguard against discrimination in employment based on various factors, such as race, color, sex, religion, national origin, and disability. However, these laws do not explicitly address discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking. As a result, potential instances of employment discrimination and retaliation towards such individuals may go unnoticed.
However, there are some instances where Title VII and the ADA could be applicable in employment situations involving applicants or employees who face domestic or dating violence, sexual assault, or stalking. It’s essential to conduct a thorough investigation to determine if discrimination has indeed occurred in each specific case. Here are a few examples.
Disparate Treatment Based on Sex. An employer fires a female employee after discovering she is a victim of domestic violence, citing concerns about potential “drama” brought to the workplace by battered women. A hiring manager refuses to select a male applicant who obtained a restraining order against a male domestic partner, believing that only women can be true victims of domestic violence. An employer grants unpaid leave to a male employee for his involvement in a criminal prosecution for assault but denies equivalent leave to a female employee testifying in a domestic violence case, citing that domestic violence is “just a marital problem.”
Sexual or Sex-Based Harassment. An employee’s co-worker engages in suggestive comments, intimidates her outside of work, and consistently subjects her to unwanted advances and stalking behavior. Despite reporting the incidents to management, no effective action is taken. A supervisor targets a seasonal farmworker who recently experienced domestic abuse with sexual advances and terminates her when she rejects them.
Retaliation for Protected Activity. An employee files a complaint alleging rape by a company manager during a business trip. In response, other managers isolate her from work-related activities and instruct co-workers not to communicate with her.
Regarding the Americans with Disabilities Act, employment decisions that may violate the ADA and involve individuals experiencing domestic or dating violence, sexual assault, or stalking include.
Different Treatment or Harassment Based on Impairment. An employer decides not to hire an applicant who was a witness in a rape prosecution and received counseling for depression, fearing potential future time off due to depression-related symptoms. An employee with facial scarring resulting from an attack by a former domestic partner faces abusive comments from co-workers, and the manager fails to address the harassment.
Failure to Provide Reasonable Accommodation. An employee who survived a sexual assault and suffers from depression and anxiety requests schedule changes or unpaid leave for treatment, but the employer denies the request citing uniform leave and attendance policies. An employee, traumatized by stalking from an ex-boyfriend in the same workplace, requests reassignment to another available position at a different location as a reasonable accommodation. The employer denies the request, citing a “no transfer” policy.
Disclosure of Confidential Medical Information. An employee being treated for PTSD requests reasonable accommodation. However, the supervisor divulges her medical condition to co-workers.
Retaliation or Interference with Rights under the ADA. In response to the employee’s intention to report the supervisor’s unlawful disclosure of confidential medical information, the supervisor threatens to withhold the employee’s scheduled pay raise.