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Employers Take Note: EEOC Shows Interest in Workplace Treatment of Victims

Marti Cardi, J.D., Chief Compliance Officer

Megan G. Holstein, J.D., Senior Counsel

Employers’ treatment of employees who are victims of domestic violence, sexual assault, and stalking (“domestic violence”) is an area of concern to the U.S.  Equal Employment Opportunity Commission (EEOC).  Although Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) do not explicitly prohibit discrimination because someone is a victim such crimes, the EEOC has recently provided guidance on how these laws  may apply to situations involving employees who experience domestic violence.  See the EEOC’s Q&A fact sheet entitled The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking.

Employers also need to be aware that many states provide leaves of absences for a variety of reasons to employees who are (or whose family members are) victims of domestic violence.  These can include, but are not limited to obtaining services from doctors, counselors, or victims’ advocates, to attend court or other legal proceedings, or to relocate for safety reasons.

Because of the EEOC’s focus on this topic employers should pause to assess whether their policies and trainings are adequate to protect them from falling into any traps when an employee reports that he or she is a victim.  The EEOC’s guidance illustrates how Title VII and the ADA may apply to these situations.

Here are 2 examples from the EEOC’s guidance concerning domestic violence and Title VII and ADA:

Title VII – disparate treatment based on sex:  An employer allows a male employee/victim 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.”

ADA:  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.”

By taking the following steps, employers can be prepared to act when an employee indicates that he or she is a victim:

  • Update handbooks to address when an employee is a victim of domestic violence;
  • Train employees and managers that they should report any concern, threats, or issues that might arise from being a victim, particularly if the employee has received a restraining order against the perpetrator;
  • Investigate every concern or complaint regarding workplace treatment voiced by an employee who is a victim of domestic violence;
  • Be prepared to engage in the interactive process and offer an accommodation, including time off from work, for victims of domestic violence;
  • Know your state’s laws with regard to employee rights as a victim of domestic violence.

Reed Group’sLeave of Absence Advisor™includes comprehensive reference resources for all state laws that concern leaves of absence for employees who are victims of domestic violence, sexual assault, and stalking.  Leave of Absence Advisor™ helps you minimize risk and reduce the burden of employee leaves by providing simple, accurate and complete information on FMLA and state leave laws, all prepared by our world-class experts.

EEOC strikes again! $4.85 million consent decree punishing inflexible leave policies in violation of ADA

Marti Cardi, J.D., Chief Compliance Officer

Megan G. Holstein, J.D., Senior Counsel

On November 8, 2012, the EEOC achieved yet another multi-million dollar settlement in a lawsuit alleging systematic disability discrimination, specifically targeting an employer’s inflexible leave policy.  Specifically, the employer’s policies required two things: first, any employee who took a leave of absence for a medical reason could not return to work unless the employee was able to perform 100% of his or her job without any medical restrictions; and second, the maximum amount of leave the employer’s policy allowed was 12 weeks (the amount available to eligible employees under the FMLA).  The employer’s rigid policies led to termination of qualified individuals with disabilities without consideration of additional leave as a reasonable accommodation, as required by the Americans with Disabilities Act (“ADA”).   The plaintiff and 8 others filed a complaint with the EEOC.  Through its investigation, the EEOC determined that the employer allegedly discriminated against nearly three hundred employees pursuant to the employer’s unlawful inflexible leave policy. See the consent decree in EEOC v. Interstate Distributor Co. (D.Colo. Nov. 8,  2012).  The EEOC’s press release announcing the can be viewed here.

The employer’s leave of absence dilemma.  In the past several years, the EEOC has targeted employer’s inflexible policies, such as “no-fault” attendance or rigid leave policies as ADA violations and has secured numerous multi-million dollar consent decrees against employers. At the same time, the EEOC has put on hold indefinitely the release of its guidance regarding leave as a reasonable accommodation under the ADA. Employers are stuck between a rock and a hard place when it comes to figuring out how to comply with the ADA when disabled employees require a leave of absence.  Reed Group has created a white paper that is a compilation of EEOC guidance documents, briefs, case law, and practical advice concerning leaves of absence as a reasonable accommodation under the ADA.  The white paper synthesizes all of the information in order for employers to easily understand what is required, what is reasonable, and how to go about handling an employee’s request for a leave of absence under the ADA. Reed Group’s white paper will be released approximately December 1, 2012.  Be sure to visit www.ReedGroup.com to download a copy at that time.  You may also request to receive a copy of the white paper hot off the presses by emailing servicesales@reedgroup.com.