Tag: Title VII

EEOC Releases Q&A Fact Sheet On Application of Title VII and ADA to Victims of Domestic Violence, Sexual Assault, and Stalking

Recently, The National Law Review published an article by R. Holtzman Hedrick of Barnes & Thornburg LLP regarding Domestic Violence Victims:

 

The Equal Employment Opportunity Commission’s (EEOC) most recent official guidance involves the application of federal anti-discrimination laws to employees and applicants who have experienced domestic or dating violence, sexual assault, or stalking. The Q&A Sheet can be found here. 

Because victims of these offenses are not explicitly protected under federal law, employers may not realize certain employment decisions can run afoul of Title VII (prohibits discrimination on the basis of sex and sex stereotyping, among other categories) or the Americans with Disabilities Act (ADA).  Examples that might lead to charges of discrimination under Title VII include:

  • Terminating an employee after learning she has been the subject of domestic violence because the employer fears the possible “drama battered women bring to the workplace.”
  • Failing to select a male applicant after learning applicant obtained a restraining order against his male domestic partner because hiring manager believes men can’t be victims of domestic violence and should be able to protect themselves.
  • Allowing males a leave of absence to appear in court for the prosecution of an assault, but denying females leave to testify in domestic violence case.  Employer believes the former to be a “real crime” while the latter is “just a marital problem.”

The ADA prohibits discrimination based on actual or perceived impairments, and one can easily foresee situations when domestic/dating violence or sexual assault can result in such impairments.  Examples where employers may be found liable for unlawful disability discrimination under such circumstances include:

  • Deciding not to hire applicant employer discovers is the complaining witness in a rape prosecution and has seen a therapist for depression because employer believes applicant may need time off in the future to deal with symptoms or for counseling sessions.
  • Failing to address and stop harassment by co-workers regarding employee with facial scars/skin grafts resulting from attack by former domestic partner.
  • Failing to accommodate an employee not eligible for FMLA leave by refusing to give her time off to seek treatment for depression and anxiety following a sexual assault.  The employer tries to justify the refusal by stating that leave and attendance are uniformly applied to all employees.
  • Failing to honor an employee’s request for reassignment to available vacant position at different location for which she is qualified when ex-boyfriend who currently works in the same building is stalking her, causing her major depression.  Employer cites “no transfer” policy as reason for refusal.
  • (Supervisor) disclosing to other co-workers an employee’s post-traumatic stress disorder resulting from incest.

Although these are the examples given by the EEOC, indirect discrimination allegations under Title VII and the ADA can arise in numerous situations that would not necessarily be readily apparent to even well-trained and sophisticated employers. Of course, it is always a good idea to seek guidance from experienced employment counsel when employers are given pause about an employment decision, even when the employer is not entirely sure why they might be hesitating.

© 2012 BARNES & THORNBURG LLP

"The Sins of the Father": Third Party Retaliation Claims Allowed to Proceed

Recently posted in the National Law Review an article written by Ralph A. Morris of Schiff Hardin LLP about third-party retaliation claims :

A recent Texas federal court decision has further expanded the bases for Title VII retaliation claims against employers. In Zamora v. City of Houston, Christopher Zamora, a Houston police officer, alleged that the Houston Police Department demoted him in retaliation for the filing of a charge with the U.S. EqualEmployment Opportunity Commission (“EEOC”). In this case, however, the charge was not filed by Christopher Zamora, but by his father, Manuel Zamora, alleging that he, Manuel Zamora, had been discriminated against by the Department.

Earlier this year, in Thompson v. North American Stainless, LP, the United States Supreme Court permitted an employee’s Title VII retaliation claim to proceed where the employee’s fiancee had earlier filed an EEOC charge. The Court held that a Title VII retaliation claim could stand where the employee is subject to an adverse employment action because a co-worker to whom the employee is “closely related” engaged in protected activity.

The Supreme Court decided Thompson while the Zamora case was pending in the U.S. District Court for the Southern District of Texas. After the Thompson decision was issued, the Zamora court reversed its prior determination that dismissed Christopher Zamora’s claim. The court concluded that under Thompson, Mr. Zamora’s retaliation claim could proceed based on his father’s filing of an EEOC charge. Thus, under Zamora, in addition to a fiancee, a parent-child relationship satisfies the “closely related” test enunciated by the Supreme Court in Thompson.

Retaliation charges and lawsuits typically are more challenging to defend because the employee’s burden of proof is not as difficult to meet, as compared with a charge of discrimination. Thompson and Zamora now place an additional burden on employers by holding that employees themselves do not necessarily need to engage in the protected activity to have standing to sue for retaliation. These decisions may have a greater impact on employers that make it a practice to hire family members and friends of existing employees than on those with anti-nepotism policies.

The Supreme Court refrained from identifying a fixed class of relationships for which third-party retaliation claims are viable. Future cases will have to decide how far retaliation claims will be expanded: whether, for example, partners involved in a romantic relationship but who are not engaged, or familial relationships more distant than parent and child, are sufficiently close so as to fall within the zone of protection. Employers can help reduce the risk for these types of claims by reviewing their EEOC and anti-retaliation policies and ensuring that managers are trained and educated on compliance.

© 2011 Schiff Hardin LLP