[authors: Neil Goldsmith and Sally Scott]

The EEOC recently weighed in on the possible application of Title VII and the Americans with Disabilities Act (ADA) to employees who are victims of domestic violence, dating violence, sexual assault, or stalking. Set forth in a “Q & A” format, this EEOC fact sheet makes clear that Title VII and the ADA do not specifically prohibit discrimination against applicants or employees who experience domestic violence. However, it warns that “potential employment discrimination and retaliation against these individuals may be overlooked,” and may trigger protection under Title VII or the ADA.

The fact sheet lists a number of hypotheticals that may violate an applicant’s or employee’s rights under Title VII or the ADA. For example, the EEOC warns about making decisions on sex-based stereotypes, such as terminating a victim of domestic violence on the basis that it fears “battered women” bring unnecessary “drama” to the workplace. The fact sheet further states that an employee’s filing of a workplace complaint against her supervisor alleging that she was raped on a business trip may constitute “protected activity” under Title VII, and, therefore, any retaliatory action against the employee would be unlawful.

The EEOC also warns that an employer may violate the ADA if it refuses to stop harassment directed toward an employee as a result of injuries the employee suffered due to domestic violence. It also discusses the “reasonable accommodations” that may be required for victims of domestic violence. For example, in a situation where a victim of domestic violence continues to work in the same building as her attacker, the EEOC states that an employer may be required to reassign the victim to another position at another office location if the victim develops depression that is exacerbated by working in close proximity to her attacker.

Although the EEOC makes it clear that domestic violence victims are not currently a protected class under Title VII or the ADA, it nonetheless finds several instances where those laws could apply to employment situations involving domestic violence victims. The issuance of this fact sheet marks a clear focus of the EEOC to extend protection of employment discrimination laws to victims of domestic violence. Employers should heed this warning by making efforts to review their relevant workplace policies while at the same time becoming more sensitive to workplace issues involving employees who are victims of domestic violence.