Friday, November 16, 2012

Empire Building: EEOC Pushes Discrimination Law Into New Territory.

The Equal Employment Opportunity Commission recently issued a fact sheet describing how the anti-discrimination provisions of Title VII and the ADA can be contorted to apply to domestic violence or stalking situations. The guidance can be found here.

After reading it, my take is that the Commission is trying really hard to make a political statement here, rather than one that involves true legal analysis and application of the law to a new environment. Some of the situations are simply circumstances where an employer maintains a gender based preconception of domestic violence circumstances and acts accordingly. But the really expansive analysis that the Commission conducts simply doesn’t make a lot of sense, except in very, very narrow circumstances where an employer is either improperly linking gender to a particular, stereotypical personality trait, or in situations where no sane or competent employer would engage in such a nitpicky or extended analysis.

For example, the EEOC suggests that an employer might violate Title VII by not hiring a woman subject to domestic violence for fear that she would bring “drama” to the workplace. This scenario automatically presupposes that such an employer would not reject a man for the same reason, something that in my experience is more common. In an equally unlikely scenario, the Commission argues that an employer might violate the ADA by failing to take action to stop employees from harassing a co-worker who has been facially scarred in an attack by a former domestic partner. Seriously? This is not a domestic violence situation; in fact it has nothing to do with domestic violence, and everything to do with the company's harassment policy.

Given the amount of stretching and contorting that is present in this document, I’m pretty sure that it was really a political statement, designed to allow the president and his supporters to argue that they are really, really, really seriously focused on the needs of women. Most employers will not recognize themselves in these scenarios, and have already undertaken appropriate steps to protect their employees and their business.

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