Two weeks ago, a spa in southeastern Wisconsin made national news when the estranged husband of one of the spa’s employees shot and killed his wife and two other employees, and injured several others, before committing suicide. Given the security risks and safety concerns associated with employing victims of domestic violence and stalking, what can an employer do to prevent similar incidents in the workplace? While there are several proactive measures an employer may choose to implement (including training, safety/security planning, and/or EAP or community referrals), firing the victimized employee (or refusing to hire an applicant with a history of domestic violence) should not be one of them. In fact, the EEOC recently published a fact sheet indicating that, although federal discrimination laws do not explicitly protect applicants or employees who have been victims of domestic violence, stalking, or sexual assault, an employer that makes employment decisions based on such considerations may run afoul of Title VII or the ADA. Many states also have laws that protect, and allow leave, for victims of domestic violence or sexual assault.
According to the EEOC, the following types of employment actions may violate Title VII because they involve decisions that appear to be the result of sex-based stereotypes:
- Terminating an employee after learning she has been a victim of domestic violence because of fears about the potential “drama battered women bring to the workplace”
- Refusing to hire a male applicant when the employer learns that the applicant obtained a restraining order against his male domestic partner because of the hiring manager’s belief that only women can be “true” victims of domestic violence
- Allowing a male employee to use unpaid leave for a court appearance related to the criminal prosecution of an assault, but denying such leave for a female employee’s court appearance in a domestic violence matter
- Failing to take adequate action against a male employee who stalks a female employee by sitting close to her, waiting for her outside the bathroom and after work, and calling and emailing her repeatedly
Similarly, the EEOC’s fact sheet contains the following examples of employer actions that may violate the ADA because they involve different treatment for employees with actual or perceived impairments resulting from domestic violence, sexual assault, or stalking:
- Refusing to hire an applicant after learning that she was a complaining witness in a rape prosecution and received counseling for depression
- Failing to take action against employees who make derogatory comments about a coworker’s burn scars, which resulted from an attack by the employee’s former domestic partner
- Denying an employee’s request for a temporary schedule change or unpaid leave in connection with treatment for depression or anxiety following a sexual assault or incident of domestic violence
- Denying an employee’s transfer request in the aftermath of stalking by an ex-boyfriend coworker based on the company’s “no transfer” policy
In light of this guidance regarding victims of domestic violence, sexual assault, and stalking, employers should consider updating their nondiscrimination and no harassment policies and training to educate managers and employees about how to deal with workplace issues that stem from domestic violence, sexual assault, or stalking. As mentioned above, employers should be aware that certain state laws, including state family and medical leave laws, contain specific protections for domestic violence, sexual assault, and/or stalking victims. Finally, employers should be informed about, and take advantage of, any internal or community policies or resources (for example, workplace violence policies, EAP, local organizations) that can provide additional guidance for dealing with domestic violence or stalking in the workplace and should seek legal advice in connection with any specific concerns.