In the wake of the high profile case regarding football player Ray Rice and a recent report from the Centers for Disease Control indicating that 1 in 5 women experience sexual violence sometime in their lives, it is important for victims of domestic abuse and their allies to understand protections which prevent further harm from befalling them in an employment context. This article briefly discusses what local, state, and federal protections may apply to victims of domestic abuse in Wisconsin.
PROHIBITED DISCRIMINATION AGAINST APPLICANTS OR EMPLOYEES WHO EXPERIENCE DOMESTIC OR DATING VIOLENCE, SEXUAL ASSAULT OR STALKING
Federal and Wisconsin Employment Laws Related to Domestic Abuse
Generally speaking, employers are required to adopt an equal opportunity policy which states it does not discriminate on the basis of a number of protected classes, for example, sex, race, disability or age. Although federal anti-discrimination acts, such as Title VII or the Civil Rights Act of 1964 (“Title VII”) or the Americans with Disabilities Act (“ADA”), and state acts like the Wisconsin Fair Employment Act (“WFEA”), do not explicitly prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking, employers must understand those Acts nevertheless prohibit employment discrimination against those individuals in certain circumstances.
For instance, Title VII and the WFEA prohibit disparate treatment based on sex, which may include mistreatment based on sex-based stereotypes.1 These types of stereotypes extend to hiring and firing decisions, such as a case where 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.” Or, for example, a hiring manager, believing 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 the applicant obtained a restraining order against a male domestic partner.
Title VII and the WFEA also prohibit sexual or sex-based harassment if it is sufficiently frequent or severe to create a hostile work environment or if it results in a tangible employment action, such as a refusal to hire or promote an employee. For instance, a seasonal farmworker’s supervisor learns she has recently been subject to domestic abuse, and is not living in a shelter. Viewing her as vulnerable, he makes sexual advances, and when she refuses, he terminates her.
Similarly, the ADA and WFEA prohibit different treatment of harassment based on an actual or perceived impairment, which could include impairments resulting from domestic or dating violence, sexual assault or stalking. For example, an employer searches an applicant’s name online and learns she was the 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 further time-off for continuing symptoms of depression.
The ADA and WFEA also require employers to provide employees and applicants reasonable accommodations for an actual disability or a “record of” a disability. A reasonable accommodation is a change in the workplace or in the way things are usually done that an individual needs because of a disability and may include time-off for treatment, modified work schedules, and reassignment to a vacant position. For example, an employee who has no accrued sick leave and whose employer is not covered by either the federal or state Family Medical Leave Act 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.”
City of Madison Laws Employment Laws Related to Domestic Abuse
The City of Madison has extended its employment laws not only to include protected classes such as sex and disability, but also to victims of domestic abuse, sexual assault, and stalking as well. This means victims of domestic abuse do not have to prove adverse employment action they suffered was taken because of a gender-based stereotype or because of disparate treatment based on gender or disability, but for being a victim, regardless of other categories. The Madison General Ordinances thus seek to extend equal opportunity to gainful employment without regard to an individual’s status as a victim of domestic abuse, sexual assault, or stalking.
The information provided above presents general information on Wisconsin employee rights and is not intended to provide legal advice. If you believe an employer has violated your rights relating to your victimhood or other rights, contact one of the employment attorneys at Hawks Quindel, S.C.
1 The following examples are provided by the Equal Employment Opportunity Commission’s Q&A on this topic.
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- Sexual Harassment at Work – Wisconsin Legal Standards - December 7, 2017