Questions and Answers: The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination based on race, color, sex (including sexual orientation, gender identity, and pregnancy), religion, or national origin, and the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability.[1] The examples provided in this publication illustrate how Title VII and the ADA may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking—whether the violence occurs within or outside of the workplace.[2] Whether discrimination has actually occurred in a particular instance must be determined through an investigation of the facts alleged. Information on how to file an employment discrimination claim may be found at the end of this document.

Q: What are some examples of employment decisions that may violate Title VII and involve applicants or employees who experience domestic or dating violence, sexual assault, or stalking?

A: Title VII prohibits disparate treatment based on sex, which may include treatment based on sex-based stereotypes. Employees and applicants of any sex, sexual orientation, or gender identity may experience domestic or dating violence, sexual assault, or stalking. For example:

• 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 his husband.
• A supervisor demotes an employee after learning she has been subject to dating violence, saying women can’t be relied on to have good judgment and make good choices because they can’t even manage their personal problems.
• An employer allows a male employee to use unpaid leave for a court appearance to testify 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 prohibits sex-based harassment, including sexual harassment. As explained in the EEOC’s Enforcement Guidance on Harassment in the Workplace, harassment can include verbal or physical conduct based on sex in which coworkers or supervisors engage.  It can also include conduct predicated on sex-based assumptions and stereotypes regarding how survivors of gender-based violence may act or appear.[3] Harassment may violate Title VII if it is sufficiently severe or pervasive to create a hostile work environment, or if it results in an explicit change to the terms or conditions of the person’s employment, such as refusal to hire or promote, firing, or demotion.[4] For example:

• An employee’s co-worker sits uncomfortably close to her in meetings and has made suggestive comments. He waits for her outside the women’s bathroom, blocks her passage in the hallway in a threatening manner, and waits for her in the dark in the parking lot outside of work. He also repeatedly telephones her on her personal phone 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.[5] She notifies management but no further action is taken.
• An employee has recently been subject to dating violence and is now living in a shelter. When a coworker learns about her current living situation, he repeatedly asks the employee out on dates, despite her declining his requests, saying things like, “Is living in a shelter really worse than cuddling me at night?”
• An employee’s supervisor learns that she has recently separated from her husband because of domestic abuse. Viewing her as vulnerable, he requests the employee to perform a sex act on him, and when she refuses, he terminates her.
• During a consensual intimate relationship, an employee sends sexually explicit images of herself to a coworker. When she ends the relationship, the coworker threatens to share the sexually explicit images on social media unless she gives him a second chance. When the employee refuses, the coworker posts the images on a picture-sharing social media application and tags some of their other coworkers. Even though the sexually explicit images were created, obtained, and distributed outside of the workplace, they had an impact on the workplace and therefore could contribute to or constitute a sex-based hostile work environment.

Title VII 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.
• An employee notifies her supervisor that one of the business’s regular guests cornered and sexually assaulted her. In response, the supervisor places her on unpaid leave and ultimately cuts her work hours.

Q: What are some examples of employment decisions that may violate the Americans with Disabilities Act and involve applicants or employees who experience domestic or dating violence, sexual assault, or stalking?

A: The ADA prohibits different treatment or harassment at work based on a disability, including disabilities resulting from domestic or dating violence, sexual assault or stalking.[6] For example:

• 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 by or on behalf of a person who has an actual disability or a record of a disability.[7] An “actual” disability is a physical or mental impairment that substantially limits one or more major life activities (which include major bodily functions). A “record of” a disability is a history of a substantially limiting impairment. An impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting.”[8] A reasonable accommodation is a change in the workplace or in the way things are usually done that enables an individual with a disability to enjoy equal employment opportunities. Reasonable accommodations may include time off for treatment, modified work schedules, and reassignment to a vacant position. For example:

• A qualified employee who has no accrued sick leave and whose employer is not covered by the FMLA requests a schedule change or unpaid leave as a reasonable accommodation to get treatment for disabling depression and anxiety following a sexual assault by an intruder in her home. The employer, which is covered by the ADA, improperly denies her accommodation request on the grounds that it “applies leave and attendance policies the same way to all employees.”
• In the aftermath of stalking by an ex-boyfriend who works for a different employer in the same office building, an employee develops disabling depression that 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 prohibits disclosure of confidential medical information.[9] For example:

• An employee who is being treated for post-traumatic stress disorder (PTSD) resulting from sexual assault requests reasonable accommodation. Her supervisor tells the employee’s co-workers about her medical condition.

The ADA prohibits retaliation or interference with an employee’s exercise of his or her rights under the statute.[10] For example:

• In the prior example, the employee tells the supervisor she intends to complain to human resources about his unlawful disclosure of confidential medical information. The supervisor warns that if she complains, he will deny her the pay raise she is due to receive later that year.

Q: What is the legal process for filing claims of discrimination?

A: The process is different depending on the type of employer:

Private Sector Employers and State and Local Government Employers

A private sector or state or local government applicant or employee who believes that his or her Title VII or ADA employment rights have been violated and wants to make a claim against an employer must file a “charge of discrimination” with the EEOC. For a detailed description of the EEOC charge process, including instructions for filing a charge, refer to https://www.eeoc.gov/how-file-charge-employment-discrimination or call 1-800-669-4000/1-800-669-6820 (TTY).

Federal Government Employers

A federal government applicant or employee who believes that his or her employment rights have been violated under Title VII or the ADA and wants to make a claim against a federal agency must file an “EEO complaint” with that agency. For more information concerning enforcement procedures for federal applicants and employees, visit  https://www.eeoc.gov/federal-sector/overview-federal-sector-eeo-complaint-process.

[1] Title VII and the ADA apply to employers (including employment agencies and unions) with 15 or more employees, and to federal, state, and local governments. An employer may have additional obligations under other federal statutes, such as the Family and Medical Leave Act; state or local anti-discrimination laws that contain broader protections than the federal EEO laws; or guidance for federal agencies. See OPM, Fact Sheet: Time Off for Safe Leave Purposes, https://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-sheets/time-off-for-safe-leave-purposes/. For example, some state and local non-discrimination laws apply to smaller employers, and some states have laws expressly prohibiting discrimination against victims of domestic violence, and requiring employers to provide a certain amount of unpaid leave for related circumstances, including seeking medical care or legal assistance and attending court. See Kate Miceli, 4 Types of Employment Laws That Can Help Domestic Violence Survivors at Work, U.S. Dep’t of Lab. Blog (Oct. 5, 2023), https://blog.dol.gov/2023/10/05/4-types-of-employment-laws-that-can-help-domestic-violence-survivors-at-work (providing links to state laws related to safe leave, anti-discrimination, reasonable accommodations, and unemployment insurance for survivors of partner violence).

[2] The U.S. Department of Justice defines these terms as follows:

Domestic violence: “[A] pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner. Domestic violence can be physical, sexual, emotional, economic, psychological, or technological actions or threats of actions or other patterns of coercive behavior that influence another person within an intimate partner relationship. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.”

Dating violence: “Dating violence is committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim.”

Sexual assault: “Sexual assault is any nonconsensual sexual act proscribed by Federal, tribal, or State law, including when the victim lacks the capacity to consent.”

Stalking: “Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety.”

For more information, see https://www.justice.gov/ovw/our-focus-areas.

[3] EEOC, Enforcement Guidance on Harassment in the Workplace § II.B.3 (2024), https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace#_Toc164808014.

[4] An employer is always responsible for harassment by a proxy or alter ego of the employer (a person that possesses such high rank or authority that his or her actions can be said to speak for the employer). Likewise, an employer is always responsible for harassment by a supervisor that culminates in a tangible employment action, such as discipline or termination. If the supervisor’s unlawful harassment did not lead to a tangible employment action, the employer is liable unless it proves that: (1) it exercised reasonable care to prevent and correct promptly any harassment, and (2) the employee unreasonably failed to complain to the employer or to avoid harm otherwise. An employer is liable for unlawful harassment by a co-worker or by a third party, such as a customer or vendor, if the employer did not take appropriate steps to prevent harassment, for example by not having an effective anti-harassment policy, or did not appropriately respond to harassment about which it knew or should have known. For more information, see Enforcement Guidance on Harassment in the Workplace § IV (2024), https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace#_Toc164808039; Small Business Fact Sheet: Harassment in the Workplace, https://www.eeoc.gov/small-business-fact-sheet-harassment-workplace; Questions and Answers for Employees: Harassment at Work, https://www.eeoc.gov/questions-and-answers-employees-harassment-work.

[5] These facts are based on a Title VII sexual harassment case in which EEOC filed an amicus brief. Crowley v. LL Bean, Inc., No. 01-2732 (1st Cir. June 2, 2002)
(https://www.eeoc.gov/sites/default/files/migrated_files/eeoc/litigation
/briefs/crowle.txt).

[6] The ADA defines disability as (1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such an impairment, or (3) being regarded as having a physical or mental impairment. 42 U.S.C. § 12102(1). The ADA prohibits discrimination based on disability, including disparate treatment or harassment. See 42 U.S.C. § 12112(b).

[7] Qualified individuals with an impairment that substantially limits a major life activity or who have a record of such an impairment may be entitled to reasonable accommodation absent undue hardship on the employer. For more information, see EEOC, Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA (2002), www.eeoc.gov/policy/docs/accommodation.html; Small Employers and Reasonable Accommodation, https://www.eeoc.gov/laws/guidance/small-employers-and-reasonable-accommodation.

[8] Under the ADA, as amended, the term “substantially limits” is to be construed broadly in favor of expansive coverage. For more information, see Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008, https://www.eeoc.gov/laws/guidance/questions-and-answers-final-rule-implementing-ada-amendments-act-2008.

[9] EEOC, Enforcement Guidance on Disability-Related Inquiries & Medical Examinations of Employees Under the ADA (2000), https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees.

[10] The ADA protects all applicants or employees, whether or not they are individuals with a disability, from retaliation for protected activity, interference with the exercise of rights under the ADA, disability-related inquiries and medical examinations that are not job-related and consistent with business necessity, and improper disclosure of confidential medical information. For more information about these and other provisions of the ADA, go to https://www.eeoc.gov/eeoc-disability-related-resources.