In the first part of this two-part post, we discussed the EEOC's new fact sheet for employers on how to avoid discrimination against victims of domestic violence and stalking. Perhaps in response to some highly publicized workplace shootings by perpetrators of domestic violence, the agency fears that people in abusive relationships could find themselves additionally victimized by adverse job actions, sudden termination, or not being hired simply because of a perceived risk that their abusers might pose a risk to others.
While no one wants another act of violence in the workplace, targeting family violence victims is a misguided way to prevent it. According to the EEOC, in certain cases it could also represent illegal gender discrimination or a violation of the Americans with Disabilities Act.
While neither Title VII of the Civil Rights Act of 1964 nor the ADA specifically prohibits discrimination against victims of domestic violence, there are strong legal theories underlying the EEOC's position. In the first post, we discussed gender discrimination, and here are the main arguments that taking negative employment actions against victims of domestic violence could violate the ADA.
Possible Americans with Disabilities Act violations
The ADA prohibits discrimination against workers based on both real and perceived impairments, and this could include perceptions that victims of domestic violence are less able to perform their job duties, the EEOC warns. It could also include an employer's refusal to provide reasonable accommodations for the worker, such as giving leeway on arrival times at work.
Should a victim of domestic violence seek treatment for depression or physical injuries, the Family and Medical Leave Act as well as the ADA could come into play. Not only could the victim be entitled to time off for treatment, but the depression would also qualify as a disability under the ADA.
"The bottom line is that it's an agency pushing the envelope a little where there are societal interests they feel they can and should be addressing," commented an attorney who advises companies on compliance with employment law. "If they can find a way to bring it under their jurisdiction and send a message to the employer community, that is what they are going to do."
Source: InsideCounsel, "EEOC warns employers of discrimination related to domestic violence," Mary Swanton, Dec. 21 2012
Our law firm fights all types of employment discrimination against workers in Minnesota. For more information, please see our website.