To be Americans with Disability Act (ADA) compliant, human resources departments might have to add dating or domestic violence, stalking and sexual assault to the list of discriminatory acts effecting current or prospective employees.
In a fact sheet issued by the EEOC that explains the ADA may relate to human resources situations concerning employees, applicants or prospective employees who experience sexual assault, stalking or dating/domestic violence.
Title VII of the Civil Rights Act of 1964 bans discrimination by race, color, sex, religion, or national origin. The ADA prohibits discrimination due to a disability.
None of these statutes explicitly lists violence/assault/stalking as protected, but now the EEOC says these factors might apply to human resources interactions.
Employers and human resources departments are prohibited from treating employees or job applicants differently based on gender, including sex-based stereotypes.
Employers also cannot create a hostile work environment or use “tangible employment action” based on gender.
The EEOC provides several examples of the times where domestic/dating violence, stalking or sexual assault may be considered action based on gender:
- Employers terminate an employee after learning he or she was subjected to domestic violence, citing fears of “drama” the battered person would create in the workplace.
- Human resources or hiring managers, who think only women are victims of domestic violence. They refuse to hire a male job applicant since he took out a restraining order against a male companion.
- Employers that allow male employees leave for court appearances over an assault, but not allowing female employees the same type of leave to testify in domestic violence trials.
- An employee makes unwanted advances to a female coworker. The coworker reports it to management and protests about feeling unsafe working around him. The company transfers the coworker to a different office or area in the building. No further action is taken when the stalking continues.
The ADA states treatment or harassment based on either actual or perceived impairment, now includes impairments resulting from dating/domestic violence, stalking or sexual assault.
- During an employer’s online search for a candidate’s name, they discover she was a complaining witness in a prosecution for rape and had received counseling for depression. The employer does not hire her, based on concerns she might require time off for persistent symptoms or other treatment for depression.
- An employee has facial scarring from skin grafts after badly burned by a former domestic partner. Returning to the workplace after a lengthy hospitalization, co-workers subject the woman to repeated derogatory comments about the scars. Her supervisor fails to take action to prevent harassment.
Both management and human resources departments must stay vigilant of actions that might not immediately seem to be discrimination, but a wind up with a similar result against employees, especially in regards to domestic/dating violence, stalking or sexual assault.