TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 AND DOMESTIC VIOLENCE, SEXUAL ASSAULT AND STALKING

The United States Equal Employment Commission (EEOC) recently issued a “Question and Answer” regarding the application of Title VII of the Civil Rights Act of 1964 (Title VII) to applicants or employees who experience domestic or dating violence, sexual assault, or stalking.

Title VII prohibits discrimination based on race, color, sex, religion, or national origin. Because federal equal employment opportunity (EEO) laws do not prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking as such, potential employment discrimination and retaliation against these individuals may be overlooked.  However, the EEOC has made clear that certain treatment may be seen as being due to sex-based stereotypes, and thus could potentially be a violation of Title VII.

The examples given by the EEOC include the following:

  • An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential “drama battered women bring to the workplace.”
  • A hiring manager, believing that only women can be true victims of domestic violence because men should be able to protect themselves, does not select a male applicant when he learns that the applicant obtained a restraining order against a male domestic partner.
  • An employer allows a male employee to use unpaid leave for a court appearance in the criminal prosecution of an assault, but does not allow a similarly situated female employee to use equivalent leave to testify in the criminal prosecution of domestic violence she experienced. The employer says that the assault by a stranger is a “real crime,” whereas domestic violence is “just a marital problem” and “women think everything is domestic violence.”

Title VII also prohibits sexual or sex-based harassment. Harassment may violate Title VII if it is sufficiently frequent or severe to create a hostile work environment, or if it results in a “tangible employment action,” such as refusal to hire or promote, firing, or demotion.  For example:

  • An employee’s co-worker sits uncomfortably close to her in meetings, and has made suggestive comments. He waits for her in the dark outside the women’s bathroom and in the parking lot outside of work, and blocks her passage in the hallway in a threatening manner. He also repeatedly telephones her after hours, sends personal e-mails, and shows up outside her apartment building at night. She reports these incidents to management and complains that she feels unsafe and afraid working nearby him. In response, management transfers him to another area of the building, but he continues to subject her to sexual advances and stalking. She notifies management but no further action is taken.
  • A seasonal farm worker’s supervisor learns that she has recently been subject to domestic abuse, and is now living in a shelter. Viewing her as vulnerable, he makes sexual advances, and when she refuses he terminates her.

Finally, Title VII also prohibits retaliation for protected activity. Protected activity can include actions such as filing a charge of discrimination, complaining to one’s employer about job discrimination, requesting accommodation under the EEO laws, participating in an EEO investigation, or otherwise opposing discrimination. For example:

  • An employee files a complaint with her employer’s human resources department alleging that she was raped by a prominent company manager while on a business trip. In response, other company managers reassign her to less favorable projects, stop including her in meetings, and tell co-workers not to speak with her.

In issuing this “Q & A”, the EEOC has made it clear that under certain circumstances, victims of domestic or dating violence, sexual assault, or stalking may be protected under Title VII of the Civil Rights Act of 1964, even if the violence or stalking occurred outside the work environment.

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