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Neither Title VII of the Civil Rights Act ("Title VII") nor the American with Disabilities Act ("ADA") provides explicit protection to job applicants or employees on the basis of domestic or dating violence. However, the EEOC recently issued guidance on employment situations where applicants and employees who have experienced domestic or dating violence may have a claim of illegal employment discrimination and/or retaliation under these federal EEO laws.
The EEOC's guidance on domestic/dating violence includes as examples of illegal violations by employers of Title VII on the basis of sex:
- An employer not hiring/terminating an employee subjected to domestic/dating violence based on a belief that "battered women bring drama to the workplace."
- Finding through an Internet search that a male applicant obtained a restraining order against a domestic partner for domestic violence. The employer doesn't hire the applicant believing that men should be able to protect themselves, and only women can be victims of domestic violence.
- Allowing a male employee unpaid leave to appear in court for criminal prosecution of his claim of assault, but not allowing a female employee leave to appear in court for criminal prosecution of her domestic violence claim, on the basis that assault is a "real crime" but domestic violence is "just a marital problem that women bring to get back at their husbands."
As examples of employment decisions involving applicants or employees who have experienced domestic/dating violence that may violate the ADA the EEOC's guidance includes:
- Not hiring a job applicant that was raped because the employer is concerned that the applicant might require future time off for depression.
- Based on the employer's leave/attendance/transfer policies, refusing to provide an employee who has suffered a physical or mental impairment as a result of domestic/dating violence reasonable accommodations such as time off work for treatment of depression, a modified work schedule, and reassignment to a vacant job position.
- Disclosure of confidential medical information related to domestic/dating violence an applicant/employee has suffered.
In addition to Title VII and the ADA, an employer should also check whether any state laws provide additional protection to victims of domestic/dating violence, such as time off to attend court proceedings. For example, in New Hampshire, the Crime Victim Employment Leave Act (see RSA 275:62) requires employers with twenty-five (25) or more employees to provide unpaid leaves of absence to employees who are victims of crimes or who are the immediate family members of certain crime victims. Contact anyone member of Devine Millimet's Labor, Employment & Employee Benefits Practice Group to assist you with any workplace situations you encounter related to issues concerning domestic/dating violence.
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The Devine, Millimet & Branch Labor, Employment and Employee Benefits Group offers this free Friday E-Mail Alert service to provide information on recent developments in labor, employment and employee benefits law. If you have any questions about this e-mail, or if you know of anyone else who may be interested in receiving these alerts, please send us an email at employment@devinemillimet.com.
This E-Alert is provided for informational purposes only. It is not intended to serve as legal advice or legal opinion. Devine, Millimet & Branch, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Devine Millimet attorney with whom you regularly work.
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