New EEOC Guidance on Application of Law to Victims of Domestic Violence, Sexual Assault, or Stalking

The Equal Employment Opportunity Commission has released a questions and answers document on how Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA) apply to employees who are victims of domestic violence, sexual assault, or stalking. The guidance is clear that, although these are technically not protected classes under law, disparate treatment and retaliation based on sex-based stereotypes is prohibited.

Regarding Title VII, the guidance states that discrimination based on sex-based stereotypes is prohibited. Examples include an employer terminating a victim of domestic abuse over concerns that she may bring drama into the workplace, as well as an employer, believing that only women can be victims of domestic violence, refusing to hire a male applicant when the employer learns that he obtained a restraining order against a male domestic partner. The guidance further reminds employers that retaliation for an employee’s protected activity, such as filing a sexual harassment complaint with the employer’s Human Resources department, is prohibited.

Regarding the ADA, the guidance outlines how discrimination based on “actual or perceived impairments,” which may be the result of domestic violence or sexual assault, is prohibited.  For example, if an employer learns that an applicant was a victim of sexual assault and received counseling afterwards for depression, refusing to hire that applicant based on a perceived mental health condition would violate the ADA. The ADA may also require employers to provide a reasonable accommodation based on the repercussions of domestic violence, sexual assault, or stalking, such as anxiety or depression stemming from a traumatic incident. Finally, the guidance reminds employers that the ADA prohibits the disclosure of confidential medical information.