Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination based upon race, color, gender, religion or national origin.  The Americans with Disabilities Act (“ADA”) prohibits discrimination on the basis of disability.  However, neither of these statutes—or any other federal statute—specifically prohibits discrimination against individuals who are the victims of domestic violence, sexual assault or stalking.  Nevertheless, a EEOC Guideance Article published by the Equal Employment Opportunity Commission (“EEOC”) has employers in Maryland scrambling to revise their non-discrimination policies and training materials in order to incorporate the examples listed in that publication.  The EEOC article sets forth an assortment of examples involving victims of sexual assault and domestic violence that result in potentially actionable disparate treatment, harassment and retaliation claims under Title VII and the ADA.

An illustration provided by the EEOC of an employment scenario which may violate Title VII includes an employer who fires, or simply decides not to hire, a woman who was the subject of domestic violence out of a concern  for “drama battered women bring to the workplace.”   The EEOC describes this as “disparate treatment.”  Another example provided involves a supervisor who learns that a subordinate has been the subject of domestic abuse and, viewing her as vulnerable, makes sexual advances towards her.  This is prototypical illegal harassment.  And in an example involving unlawful retaliation, the Guidance describes a scenario in which a supervisor threatens not to issue a pay raise to an employee who reported the supervisor for improperly disseminating the employee’s medical information.

Illustrations of circumstances which potentially violate the ADA include an employer who performs an internet search of an applicant and discovers that the applicant previously witnessed a rape and, thereafter, required psychological treatment for depression.  The employer, in turn, decides not to hire the applicant out of a concern that she will “require future time off for continuing symptoms.”  This is an example of discrimination based upon a “perceived disability,” which is in violation of the ADA.  In another example, a manager informs an employee’s colleague that the employee suffers from posttraumatic stress disorder resulting from incest.  This is a straightforward instance of violating the ADA by unlawfully disclosing confidential medical information.  The EEOC also describes a case where an employer threatens to illegally retaliate against an employee who complains about the employer improperly disseminating her medical information.

Finally, in a scenario which most employers would not immediately recognize as a violation of the ADA, the EEOC describes a situation where an employee does not have any accrued sick leave and is not eligible for leave pursuant to the Family Medical Leave Act (“FMLA”), yet proceeds to request leave from work in order to receive professional treatment for depression resulting from sexual assault.  When the employer refuses to grant the leave on the basis that the company “applies leave and attendance policies the same way to all employees,” the EEOC declares that the employer acted in violation of the ADA by failing to provide the employee with a reasonable accommodation.

Here are the takeaways for Maryland businesses from the EEOC’s recent publication: 

  1. Employers should carefully review the issues addressed in the EEOC’s article and consider adding them to their anti-discrimination and non-harassment policies and training seminars.
  2. Employers must recognize that scenarios involving both employees and applicants for employment that involve domestic violence, sexual assault and stalking create unique situations to which the legal protections of various anti-discrimination laws may apply, requiring employers to approach these cases with particular sensitivity to legal compliance.
  3. While EEOC guidance does not constitute legal authority, it nevertheless provides awareness as to how the EEOC interprets applicable statutes, in this case Title VII and the ADA. 
  4. Employers must be aware that other federal laws, such as the FMLA, may also apply to employees and applicants who are the victims of sexual assault, domestic violence or stalking.  Employers should consult with their legal counsel to ensure that they are in compliance with all Federal laws, as well as all applicable State and local laws as well. 

Maryland employers or employees who have any additional questions about Title VII, the ADA, FMLA or any other issues that might arise in the workplace are welcome to contact attorney Judd G. Millman.  Mr. Millman is licensed to practice law in both Maryland and Texas, and his practice focuses exclusively on employment law.  He regularly counsels both employees and employers on the myriad of legal issues which arise in the workplace.  He can be reached directly at (410) 522-1020, or at judd@luchanskylaw.com.