EEOC Issues Guidance on Potential Application of Title VII and ADA to Employees Who Have Experienced Domestic Violence, Sexual Assault, or Stalking

This post was contributed by Tony D. Dick, an Associate in McNees Wallace and Nurick LLC's Labor and Employment Group in Columbus, Ohio.

The Equal Employment Opportunity Commission (EEOC) recently issued a “Questions and Answers” sheet emphasizing that although Title VII and the Americans with Disabilities Act (ADA) do not expressly prohibit employers from discriminating against the victims of domestic violence, sexual assault, or stalking, these laws may create liability for employers in certain circumstances. For instance, employers may be liable under Title VII for treating such victims less favorably based on sex or sex stereotypes or for permitting sexual harassment against these individuals. Likewise, denying a reasonable accommodation to an employee with a violence-related disability or permitting different treatment of an employee with a disability stemming from an incident of domestic violence or sexual assault may violate the ADA. The document provides a number of illustrative examples of these potential pitfalls facing employers:

 

 

Title VII – Disparate Treatment Based on Sex

  • 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.”
  • 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 experiences. The employer says 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 – Sexual Harassment

  • 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.

Title VII - Retaliation

  • 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.


ADA – Disparate Treatment Based on Disability

  • 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.

ADA – Failure to Accommodate Disability

  • 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.

Additional examples are provided in the document. It is worth the read. Employers should make their supervisors and managers aware of these potential issues so that they can identify them and take appropriate action when they arise.
 

OSHA Publishes Game Plan for Workplace Violence-Related Inspections

This post was contributed by Eric N. Athey, Esq., Co-Chair of the McNees Wallace & Nurick LLC Labor and Employment Group. 

Homicide has consistently been one of the top four causes of work-related fatalities over the past decade, with an average of 590 incidents per year. Shockingly, in 2009, homicide was the leading cause of work-related death for women. The Occupational Safety and Health Administration has addressed the hazard of workplace violence from time to time over the past fifteen years in various ways, including publication of specific guidelines for high-risk industries such as late-night retail, health care and social services. However, to date, there is no OSHA general industry standard addressing this serious hazard.

Although there is presently no OSHA general industry standard for preventing workplace violence, OSHA has cited some employers for failing to address serious known risks under Section 5(a)(1) of the Occupational Safety and Health Act - also known as the "general duty clause." Basically, the general duty clause requires employers to provide a workplace free from recognized hazards. Citations under the general duty clause may arise where an OSHA inspector discovers evidence that an employer knew (or should have known) of individual or industry-specific risks of violence and failed to take feasible steps to prevent or minimize them. Given the persistence of the problem, OSHA recently took another step toward developing a standard approach to the issue.

On September 8, 2011, OSHA issued an "Instruction" to its Regional Offices titled "Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents." The Instruction is intended to facilitate a uniform approach to workplace violence inspections that are triggered due to: (1) a complaint, referral, or a fatality or catastrophic event in the workplace; or (2) as part of a programmed inspection where there is recognition of the potential for violence in the industry or where the hazard is identified and existing. The OSHA Instruction makes clear that inspections generally won't be considered in response to a single co-worker threat of violence and that such individualized issues should be referred to the appropriate government agency.

The OSHA Instruction lists three basic criteria that Regional Offices must consider when determining whether a workplace violence inspection is appropriate: (1) whether there are known risk factors in the particular workplace; (2) evidence of employer and/or industry recognition of the potential for workplace violence in OSHA-identified high risk industries, such as late night retail, healthcare and social services; and (3) whether there are feasible abatement methods available to address the risks.

The "known risk factors" listed in the OSHA instruction are:
 

  • Working with unstable or volatile persons in certain healthcare, social service or criminal justice settings.
  • Working alone or in small numbers.
  • Working late at night or during early morning hours.
  • Working in high-crime areas.
  • Guarding valuable property or possessions.
  • Working in community-based settings, such as community mental health clinics, drug abuse treatment clinics, pharmacies, community-care facilities and long- term care facilities.
  • Exchanging money in certain financial institutions.
  • Delivering passengers, goods or services.
  • Having a mobile workplace such as a taxicab.

The OSHA Instruction includes a number of examples to demonstrate how an OSHA Area Director must apply the above factors when determining whether a workplace violence inspection is warranted.

Perhaps of most relevance to employers, the Instruction details the types of information that OSHA inspectors should look for when conducting a workplace violence inspection, including (a) the existence of security personnel; (b) whether there is a workplace violence prevention program that is updated and enforced; (c) whether the employer has conducted hazard assessments; and (d) whether appropriate training has been provided to employees and supervisors. Inspectors may also interview employees and review documentation relating to the employer's handling of aggressive or abusive employees, employee medical records, workers' compensation records and OSHA injury/illness records.

The Instruction reaffirms that the general duty clause is the primary legal basis for citing employers who fail to address serious workplace violence hazards of which they are (or should be) aware. However, the OSHA Instruction makes it clear that there must be a feasible means of abatement in order to support a citation under the general duty clause. Addendum B to the Instruction lists a variety of potential abatement measures, including hazard analyses, structural changes to minimize risks, employee training, engineering controls (e.g. alarms and metal detectors), administrative controls (e.g. closer communication with police) and workplace violence prevention programs. An employer who fails to explore these steps in the face of a known hazard will have a hard time defending a citation on the basis that the hazard cannot be abated. Such abatement efforts should be well documented and available for inspection upon request by an OSHA inspector.

In sum, the new OSHA Instruction regarding workplace violence does not change the law pertaining to workplace violence; however, it provides OSHA inspectors with a framework for analyzing this hazard in the workplace and for issuing citations under the general duty clause. Employers in industries with an inherent risk of violence, particularly those who employ workers that are exposed to the "known risk factors" listed above, are well advised to study the OSHA Instruction and implement appropriate abatement measures.
 

The Supreme Court's D.C. Gun Ban Decision: What It Doesn't Mean

On June 26, 2008, the United States Supreme Court issued a landmark decision confirming that the Second Amendment of the United States Constitution protects an individual's right to keep and bear firearms. In District of Columbia v. Heller, the Supreme Court interpreted the language of the Second Amendment for the first time in nearly 70 years and struck down the District's 32-year-old ban on handguns and trigger-lock requirements for other firearms.

This decision already has generated significant national attention and debate. Although the Court formally recognized the individual right to bear arms in Heller, the majority's decision does not define the scope of that right. Thus, the full meaning and ramifications of this decision will be unclear for many years to come. 

That said, we can state what the Heller decision does not mean. From an employment law perspective, the Heller decision should have no effect on an employer's ability to promulgate weapons or workplace violence policies that ban handguns or other types of weapons from its facilities. Constitutional protections are not applicable to private sector employers, absent some form of state action. For the same reason that an employee may not rely on the free speech protections of the First Amendment as a defense to discipline issued by a private sector employer, an employee cannot rely on Heller and the Second Amendment as a defense to a violation of an employer's weapons or workplace violence policy. As for public sector employers, Justice Scalia, writing for the Court, expressly noted that the right recognized in Heller "is not unlimited" and that the decision should not "cast doubt" on restrictions barring firearms near schools or in government buildings. If the government may lawfully prohibit the carrying of handguns in government buildings, public sector employers also may have reasonable employment policies regarding handguns and other weapons. 

Thus, employers can enjoy the national debate and discussion following the Heller decision while knowing that it should not impact their employment policies.  The "RIght to bear Guns at Work" was the subject of a post on CNN's Small Business noting that some state laws provide for a right of employees to bear arms in workplace settings.  Pennsylvania has no law that creates a right for employees to bring firearms to work.

Violence in the Workplace: A Legal Perspective

HR professionals are reminded of their workplaces’ vulnerabilities every time an episode of workplace violence is reported in the media like this morning’s headline “6 dead in plastics factory shooting rampage.”  The scope of the problem set out in statistics. There were 5734 workplace fatalities reported to OSHA (2005 is the last year statistics are available). Assaults and Violent Acts accounted for 792 workplace fatalities.

Media accounts typically report about the “warning signs” that were missed and speculate on how the incident may have been prevented. There are, of course, psychological tests and assessment tools that are predictive of violent behavior, but there are significant legal restrictions on their use. Assessments that are not "medical tests" may be used on a pre-employment basis, but should not be used as the principal reason for a hiring or promotion decision.

There is no profile of a potential workplace violence perpetrator; however, there are traits when coupled with at risk situations that increase the likelihood of violent behavior. Sheryl and Mark Grimm of the Workplace Violence Headquarters have developed a Formula for Workplace Violence that includes a list of traits as follows:

  • Previous history of violence, toward the vulnerable, e.g., women, children, animals
  • Loner, withdrawn; feels nobody listens to him; views change with fear
  • Emotional problems, e.g., substance abuse, depression, low self-esteem
  • Career Frustration, either significant tenure on the same job of migratory job history
  • Antagonistic relationships with others
  • Some type of obsession, e.g., weapons, other acts of violence, romantic/sexual, zealot (political, religious, racial), the job itself, neatness and order.

There is a major legal distinction made between an employer's treatment of an applicant with a potentially violent personality and addressing employee conduct that expresses violent behavior. The EEOC has stated that its position on the distinction between perception and conduction in its  Enforcement Guidance for Individuals with Psychiatric Disabilities :

34. When can an employer refuse to hire someone based on his/her history of violence or threats of violence?

An employer may refuse to hire someone based on his/her history of violence or threats of violence if it can show that the individual poses a direct threat. A determination of "direct threat" must be based on an individualized assessment of the individual's present ability to safely perform the functions of the job, considering the most current medical knowledge and/or the best available objective evidence. To find that an individual with a psychiatric disability poses a direct threat, the employer must identify the specific behavior on the part of the individual that would pose the direct threat. This includes an assessment of the likelihood and imminence of future violence.

30. May an employer discipline an individual with a disability for violating a workplace conduct standard if the misconduct resulted from a disability?

Yes, provided that the workplace conduct standard is job-related for the position in question and is consistent with business necessity. For example, nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property. Thus, an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability. Other conduct standards, however, may not be job-related for the position in question and consistent with business necessity. If they are not, imposing discipline under them could violate the ADA.

OSHA’s General Duty Clause requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” OSHA provides some resources to help employers meet this requirement.

Given the legal limitations confronting employers in their efforts to provide a safe workplace, the following are some suggestions in development of a Violence Program:

  • Establish and communicate a written violence policy
  • Consider pre-employment assessments and background checks
  • Establish an Employee Assistance Program
  • Train supervisors to recognize warning signs of employee violence
  • Recognize "at risk" situations like employee discipline or discharge and plan accordingly
  • Consider professional evaluations of at-risk employees based on objective signs of workplace problems
  • Assess workplace security measures
  • Develop and Communicate a Disaster Management Plan