• Domestic Violence in the Louisiana Workplace, Part 2: Employment Discrimination
  • July 20, 2016 | Author: Rachael M. Coe
  • Law Firm: Breazeale, Sachse & Wilson, L.L.P. - New Orleans Office
  • It is not a matter of if, but when an employer will be confronted with a challenging domestic violence-related issue in the workplace. Domestic violence not only causes lost productivity and increased costs for employers, but also raises a host of potential legal obligations and liabilities that employers cannot afford to overlook. In this monthly series, Labor and Employment attorney Rachael Coe will discuss the various ways that domestic violence impacts the Louisiana workplace and what employers need to know in order to protect their employees, their customers, and themselves.

    Unlike some states, Louisiana does not currently have an employment discrimination law that deems domestic violence victims as a protected class. However, current State and Federal laws that prohibit discrimination based on sex provide a framework for levying an employment discrimination claim against an employer. These scenarios are not far-fetched-in fact, the EEOC specifically warns that the circumstances surrounding domestic violence can give rise to a Title VII or ADA claim against an employer.

    First, an employee’s treatment or an employer’s actions based on the employee’s status as a domestic abuse victim could give rise to a claim of discrimination based on sex. Even though both men and women suffer from domestic violence, most victims are female. As such, the EEOC explains that an employer’s actions toward a victim of domestic violence could arguably constitute discrimination based on sex. For example, the EEOC suggests that refusing to hire a domestic violence victim for “fear of the potential drama battered women bring to the workplace” or permitting male employees to take unpaid leave for criminal court appearances but refusing to give female domestic violence abuse victims unpaid leave for their court appearances could be discriminatory. Offhand comments about domestic violence and treating domestic violence victims differently than co-workers in analogous situations can give rise to an actionable Title VII claim against an employer. Moreover, sex discrimination based on gender stereotyping could be implicated if an employer does not provide equal treatment to a male employee who is a victim of domestic violence.

    Second, disability discrimination can arise in the context of domestic violence. The Americans with Disabilities Act (“ADA”) and Louisiana’s employment discrimination law define a person with a “disability” as one with a “physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such impairment, or a person who is perceived by others as having such impairment.” Employers are obligated to provide reasonable accommodations to disabled employees that would not impose an undue hardship on the employer. Domestic violence can afflict victims with many potentially disabling physical and mental conditions--from bodily injury to post traumatic stress disorder--that can require the employer to engage in the interactive process to determine a reasonable accommodation. Depending on the disability and feasibility of the accommodation, employers may need to provide accommodations to the employees who experience domestic violence, such as transferring the employee to another office, providing leave for treatment, or changing the employee’s work schedule. Reasonable accommodations under the ADA are very fact-specific and will vary greatly depending on the circumstances. Regardless, employers must be aware that domestic violence can result in what relevant laws define as a disability, for which the employer could be legally bound to accommodate.

    Employers operating outside of Louisiana should investigate any legal requirements applicable to employees who are affected by domestic violence, as these laws may differ from Louisiana and impose additional duties.