THE AMERICANS WITH DISABILITIES ACT (ADA) AND DOMESTIC VIOLENCE, SEXUAL ASSAULT AND STALKING

The United States Equal Employment Commission (EEOC) recently issued a “Question and Answer” regarding the application of the Americans with Disabilities Act (ADA) to applicants or employees who experience domestic or dating violence, sexual assault, or stalking.

The ADA prohibits discrimination on the basis of disability.  Specifically, the ADA prohibits different treatment or harassment at work based on an actual or perceived impairment, which could include impairments resulting from domestic or dating violence, sexual assault or stalking.

In its Q & A, the EEOC gave several examples of potential violations of the ADA, as follows:

  • An employer searches an applicant’s name online and learns that she was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire her based on a concern that she may require future time off for continuing symptoms or further treatment of depression.
  • An employee has facial scarring from skin grafts, which were necessary after she was badly burned in an attack by a former domestic partner. When she returns to work after a lengthy hospitalization, co-workers subject her to frequent abusive comments about the skin graft scars, and her manager fails to take any action to stop the harassment.

The ADA may require employers to provide reasonable accommodation requested for an actual disability or a “record of” a disability.  A reasonable accommodation is a change in the workplace or in the way things are usually done that an individual needs because of a disability, and may include time off for treatment, modified work schedules, and reassignment to a vacant position.  For example:

  • An employee who has no accrued sick leave and whose employer is not covered by the FMLA requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by an intruder in her home. The employer denies the request because it “applies leave and attendance policies the same way to all employees.”
  • In the aftermath of stalking by an ex-boyfriend who works in the same building, an employee develops major depression that her doctor states is exacerbated by continuing to work in the same location as the ex-boyfriend. As a reasonable accommodation for her disability, the employee requests reassignment to an available vacant position for which she is qualified at a different location operated by the employer. The employer denies the request, citing its “no transfer” policy.

The ADA also prohibits disclosure of confidential medical information.  This could come into play, for example, if an employee who is being treated for post-traumatic stress disorder (PTSD) resulting from domestic abuse or assault requests a reasonable accommodation. If her supervisor then tells the employee’s co-workers about her medical condition, that could be a violation of the ADA.

Finally, the ADA prohibits retaliation or interference with an employee’s exercise of his or her rights under the statute.  For example, it may be unlawful retaliation if, in the fact pattern set forth above, the employee tells the supervisor she intends to complain to human resources about his unlawful disclosure of her confidential medical information, and, in response, the supervisor warns that if she does so he will deny her the pay raise that she is due to receive later that year.

Thus, as can be seem from the examples set forth above, discrimination against and/or harassment of victims of domestic or dating violence, sexual assault, or stalking may be unlawful under the ADA.

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