Developments at the EEOC: On October 12, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued a new guidance document, Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking. This guidance document generally discusses a variety of legal issues regarding how the laws concerning sex discrimination and disability discrimination apply to the circumstances of domestic violence, sexual assault and stalking.
Embedded in this EEOC guidance document are a number of examples of application of sex and disability discrimination issues to hypothetical scenarios. Two of these examples are particularly notable, as they potentially signal changes by the EEOC on how it views particular legal issues. The first is the second bulletpointed example on page 3 of the guidance, which discusses an employee with major depression related to stalking by a coworker/ex-boyfriend receiving a reasonable accommodation reassignment to a different building to distance the employee from the stalking ex-boyfriend. If one is entitled to reasonable accommodation reassignment when a mental illness is aggravated by the presence of an ex-boyfriend, the same logic also call for providing reasonable accommodation reassignments to employees whose mental illnesses are exacerbated by the presence of a harassing or discriminating supervisor. This represents a significant change from prior decisions by EEOC’s Office of Federal Operations dating to before the ADA Amendments Act of 2008, which had held that employees were not entitled to reasonable accommodation reassignments away from supervisors whose presence was causing the employees’ mental illnesses to worsen.
The second is the fifth bulletpointed example on page 2 of the guidance, which discusses a disability discrimination claim for an employee who was harassed about her burn-related facial scarring. The facts of this example mirror in some ways a theory of discrimination on the basis of “personal appearance”, which does not presently exist under federal statute but which is included in some state- and local-level discrimination statues such as the D.C. Human Rights Act. The EEOC guidance document would then appear to allow some claims of disability discrimination, where the discrimination hinges on the employee’s appearance due to the physical disfigurement caused by the disability.