Federal and California protections for employees victimized by stalking or domestic violence
 April 29, 2013

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a new Q&A concerning potential violations of Title VII and the Americans with Disabilities Act (ADA) from adverse employment decisions directed at individuals who are victims of relationship violence or stalking (both in and outside the workplace). In addition, the California Fair Employment and Housing Act (FEHA) provides much broader protections so, California employers must be especially mindful of these issues. The EEOC examples include:

    Disparate Treatment Based on Sex:
    A supervisor terminates or transfers an employee after learning she was a victim of domestic violence out of fear of the potential "drama battered women bring to the workplace." A hiring manager, believing that "only women can be true victims of domestic violence because men are able to protect themselves," does not select a male applicant who obtained a restraining order against a male partner.

    Sexual Harassment or Retaliation:
    A supervisor learns that an employee is living in a domestic abuse shelter. Considering her vulnerable, he makes sexual advances and terminates her when she turns him down. A female employee reports that a supervisor sexually assaulted her on a business trip, and in response, other managers reassign her to less favorable projects and otherwise exclude her.

    Disability Harassment:
    The law prohibits disparate treatment or harassment based on an actual or perceived impairment. This could include impairments resulting from domestic or dating violence, sexual assault, or stalking. Example: After searching an applicant's name online, an employer learns she was the victim in a rape prosecution and received counseling for depression. The employer decides not to hire her out of concern that she'll need time off for continuing symptoms or treatment.

    Failure to Reasonably Accommodate:
    An employee whose depression is exacerbated by working in the same location as the stalker requests reassignment to an available vacant position for which she is qualified in a different location. Denying that request based on a no-transfer policy would violate the ADA. Similarly, an employee who has no accrued sick leave or FMLA eligibility requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by a home intruder. Denying the request because the employer "applies leave and attendance policies the same way to all employees" would violate the ADAAA (and in California, it would also violate FEHA).

    Retaliation or Interference with Accommodation Rights:
    An employee who is being treated for post-traumatic stress disorder (PTSD) resulting from incest requests reasonable accommodation. Her supervisor then tells the employee's co-workers about her medical condition. Then, she tells the supervisor she intends to complain to the HR Department about his unlawful disclosure of confidential medical information. The supervisor warns that if she complains, he will deny her the pay raise she is due to receive later that year.

Proposed California Legislation (SB 400) Broadens Protections for Victims of Stalking. Currently, Labor Code §230 and §230.1 protect victims of domestic violence and sexual assault, including prohibiting employers from taking adverse employment action against individuals who take time off to attend to issues arising from domestic violence. SB 400 would extend these protections to victims of stalking. In addition to prohibiting discrimination or retaliation against employees who’ve been abused, it would require employers to provide reasonableaccommodations, which may include implementing safety measures such as a transfer or reassignment or modified schedule, a changed work telephone or workstation, the installation of a lock, or assistance in documenting. It would also create a private right of action for an employee to seek enforcement of victim status protection and reasonable accommodation provisions.

Prevention Strategies: Make sure your policies and procedures are updated to address appropriate hiring, performance management, and reasonable accommodations for employees who are victims of relationship violence. This is another critical topic to include when training front line leaders to identify and prevent all forms of discrimination, harassment or retaliation. Make sure they don’t negatively stereotype.

Patricia S. Eyres (Patti) is Managing Partner of Eyres Law Group, LLP. She is a Phi Beta Kappa graduate of Stanford University and earned her law degree from Loyola Law School, cum laude in 1977. Patti calls herself a "recovering litigator," who knows first-hand the value of paying attention to prevention. After spending 18 years devoted exclusively to defending companies in the courtroom, she resolved to help business leaders recognize potential legal landmines before they explode into lawsuits. She brings a unique and practical perspective to the critical legal issues impacting the workplace. As CEO/Publisher of Proactive Law Press, LLC, Eyres supervises the production and publication of books, training materials and educational products for business owners, public school administrators, front-line leaders, HR and Risk Managers. She can be reached at peyres@eyreslaw.com or 480-607-5847.

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