In 2009, President Barack Obama declared April to be Sexual Assault Awareness Month and requested that federal agencies develop policies to address domestic violence, dating violence, sexual assault and stalking.  Last year, the U.S. Department of Justice (“DOJ”) created a Policy Statement on Federal Workplace Responses to Domestic Violence, Sexual Assault, and Stalking.  The Policy Statement defines “sexual assault” as “a range of behaviors, including but not limited to, a completed nonconsensual sex act (e.g., rape), an attempted nonconsensual sex act, and/or abusive sexual contact (i.e., unwanted touching).  Sexual assault includes any sexual act or behavior that is perpetrated when someone does not or cannot consent.”  Although this Policy Statement only applies to DOJ employees and certain DOJ contractors, it may be used as a model for both federal and non-federal employers to create and implement their own workplace policies.

Incidents of violence occurring at and outside of work, regardless of whether the incidents stem from an employment-related or personal relationship, can impact the workplace by affecting, among other things, employee productivity.  To address this, the DOJ’s Policy Statement recommends the creation of policies regarding offering appropriate and timely support to employees who are victims of violence.  Supportive resources may be made available to victims through supervisors, designated persons in human resources, or other designated persons.  These resources may include assisting the victim to enforce his or her protection order or restraining order in the workplace.  Before providing this assistance, however, we recommend consulting with legal counsel.

If an employer receives information and/or records regarding a sexual assault involving an employee, it should take steps to ensure the confidentiality of that information.  The DOJ’s Policy Statement recommends that written records regarding victims should be maintained only if there is a legal requirement to do so, and, if written records are received or created, steps should be taken to protect them.  This could be accomplished by maintaining the records in a separate confidential file, storing electronic information in password-protected documents and limiting the number of employees who have access to these files. 

Training is a critical component of properly implementing workplace policies.  The training should include guidance on how to communicate with employees about domestic violence, dating violence, sexual assault and stalking.  It should also advise when an employer has an obligation to notify law enforcement about an incident.  Supervisors and human resources personnel should also be trained on how to handle incidents where one employee is the victim and another employee is the perpetrator.

If you would like assistance with creating and/or implementing a workplace policy regarding domestic violence, dating violence, sexual assault and stalking, training your staff and/or addressing a particular incident, please contact us.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW.  IT IS NOT TO BE REGARDED AS LEGAL ADVICE.  THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP 2014