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EEO - Discrimination: District of Columbia

EEO - Discrimination requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Leslie Paul Machado and Justin M. Sheldon, LeClairRyan

Summary

Discrimination Under the District of Columbia Human Rights Act

In the District of Columbia, discrimination suits are brought for violations of the District of Columbia Human Rights Act (DCHRA). The DCHRA protects both employees and applicants in hiring, selection for training, apprenticeship, termination, and other terms, conditions, and privileges of employment based upon an individual's membership in a protected class unless an employer can demonstrate a justifiable business need. +D.C. Code §§ 2-1401.02 et seq. The protected classes under the DCHRA are:

  • Race;
  • Color;
  • Religion;
  • National origin;
  • Sex;
  • Age;
  • Marital Status;
  • Personal Appearance;
  • Sexual orientation;
  • Gender Identity or Expression;
  • Family responsibilities;
  • Genetic information;
  • Disability;
  • Educational status;
  • Unemployment status;
  • Place of residence or business;
  • Source of income; and
  • Reproductive health decisionmaking; and
  • Status as a victim or family member of a victim of domestic violence, a sexual offense, or stalking.

+D.C. Code §§ 2-1401.02 et seq.; D.C. Act 22-609 (adding protections related to domestic violence, a sexual offense or stalking).

Employers

Unlike most federal antidiscrimination laws, the DCHRA applies to every employer in the District of Columbia, regardless of the number of individuals it employs. The DCHRA defines employer in three ways:

  • Any person who pays an individual for work performed on his behalf unless that individual is the employer's parent, spouse, child or domestic servant engaged in work in and about the employer's household;
  • Any person acting directly or indirectly in the interest of an employer; and
  • Any professional association.

+D.C. Code § 2-1401.02(10).

Protected Individuals

The only plaintiff that can prevail on a discrimination claim under the DCHRA is an individual who is classified as an employee. The DCHRA defines an employee as "any individual employed by or seeking employment from an employer." +D.C. Code § 2-1401.02(9). Therefore, in order for a plaintiff to file a successful discrimination claim under the DCHRA, he or she must:

  • Be an employee,
  • Be a member of a protected class; and
  • File the complaint against an employer.

The DCHRA also protects interns from discrimination.

Protected Classes

Religion

The District of Columbia Municipal Regulations permit religious institutions, or charitable and educational organizations operated by religious institutions, to make membership in that religion a condition of employment. +CDCR 4-520.3.

A District of Columbia employer must accommodate an employee's religious observances unless it would cause the employer an undue hardship, meaning more than a de minimis cost. The DCHRA lists possible accommodations as permitting the employee to work:

  • During the employee's scheduled lunchtime or other work breaks;
  • Before or after the employee's usual working hours;
  • Outside of the employer's normal business hours;
  • During the employee's paid vacation days;
  • During another employee's working hours as part of a voluntary swap with such other employee; or
  • In any other manner that is mutually agreeable to the employer and employee.

+D.C. Code § 2-1402.11(c)(2)(A)-(F) and +D.C. Code § 2-1401.01

According to the DCHRA, if an employee's request for accommodation would cause the employer undue hardship, the employer is required to offer another means of accommodation that would not cause undue hardship, including allowing the employee to take leave without pay if that would not cause undue hardship. Generally, the employer has the burden to prove undue hardship. If, however, the employer has between 5 and 15 employees, the employee has the burden of proving the requested accommodation would not have caused undue hardship.

An employer with fewer than 5 employees is exempt from the DCHRA religious accommodation requirements. This is the only exemption to the DCHRA provided by the statute. +D.C. Code § 2-1402.11(c)(5)

Sex

The designation of Sex as a protected class covers: gender; sexual harassment; and a woman's right to breastfeed.

Pregnancy and Reasonable Accommodations

Courts interpreting the DCHRA have found that discrimination based on pregnancy is a violation of the DCHRA prohibition against sex discrimination. See East v. Graphic Arts Industry Joint Pension Trust, +107 F.3d 911 (1997). Employers may not discriminate against or harass employees or applicants because of pregnancy, childbirth, or related medical conditions unless justified by business necessity. +D.C. Code §§ 2-1401.01 et seq.; +CDCR §§ 4-517.4 et seq.

The District of Columbia Protecting Pregnant Workers Fairness Act of 2014 (D.C. Act 20-458), requires that an employer engage in the interactive process and provide reasonable accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, a related medical condition or breastfeeding. Reasonable accommodations may include more frequent or longer breaks, time off to recover from childbirth, providing equipment or seating, temporary transfer, job restructuring or modification, relocation of work area, private space for expressing milk or refraining from heavy lifting and time off due to pre-birth complications. See Protecting Pregnant Workers Fairness Emergency Amendment Act of 2016.

The Act includes notice requirements for employers. An employer must post and maintain in a conspicuous place a notice of rights under the Act in both English and Spanish. A District of Columbia government employer must provide an accurate written translation of the notice of rights in any other language as provided by the Language Access Act of 2004. [LexisNexis:"D.C. Code § 2-1933"].

In addition, an employer must provide written notice to:

  • New hires; and
  • An employee who notifies the employer of her pregnancy or other condition covered under the Act within 10 days of the notification.

The Act will be enforced by the Department of Employment Services (DOES). An employer that fails to comply with the Act's notice provisions could be subject to a civil penalty of up to $50 for each day that the employer fails to post the notice, not to exceed $250 - unless the ongoing violation is willful.

Willful violations are subject to a civil penalty of:

  • $1,000 for a first offense;
  • $1,500 for a second offense; and
  • $2,000 for the third and each subsequent offense.

Age

The DCHRA protects persons over age 18 and under age 65 from discrimination based on their age. +D.C. Code § 2-1401.02 (2). This is a dramatic difference from federal age discrimination laws. An individual may be able to support a claim of reverse age discrimination.

It is permissible to make distinctions based on age in a seniority systems or retirement, pension, or insurance plans if it is not in an attempt to discriminate.

Employers are only permitted to ask job-related questions about age and questions for affirmative action purposes. +D.C. Code § 2-1401.02; +D.C. Code § 2-1401.03.

Marital Status

The DCHRA's prohibition on marital status discrimination prevents an employer from discrimination against an individual who is married (same sex or opposite sex), single, in a domestic partnership, divorced separated, widowed, or "the usual conditions associated therewith, including pregnancy or parenthood." +D.C. Code § 2-1401.02 (17).

Personal Appearance

The DCHRA prevents employers from discriminating against employees based on their outward appearance in recruiting, hiring or promotion. Outward appearance refers to an individual's bodily condition or characteristics, manner or style of dress, and manner or style of personal grooming (hair style, beards, etc.). The statute's prohibition against personal appearance discrimination does not apply, however, to an employer's ability to maintain a dress code and require that its employees maintain a certain level of cleanliness, wear uniforms, or other specific standards if the employer's requirements are uniformly applied and are related to a reasonable business purpose. +D.C. Code § 2-1401.02 (22).

Employers must make reasonable accommodations with respect to religion and allow employees to wear clothing or hairstyles in a style symbolic of race, heritage or religion, unless there is reasonable business purpose to prohibit an employee from doing so.

Employers are prohibited from maintaining appearance standards that discriminate or have a discriminatory impact based on sex or gender identity or expression or require employees to dress in a manner that is inconsistent with their sex, gender identity or expression. Gender identity or expression refers to an employee's or applicant's appearance, expression, or behavior, regardless of their assigned sex at birth, or transgender status. Transgender refers to an employee or applicant whose identity or behavior differs from stereotypical or traditional gender expectations. +D.C. Code § 2-1401.02 (22); +D.C. Code § 2-1401.03; +CDCR 4-500.2; +CDCR 4-506.6; +CDCR 4-513.1 et seq.

Sexual Orientation

The DCHRA prohibits employers from discriminating against employees based on male or female homosexuality, heterosexuality, or bisexuality. +D.C. Code § 2-1401.02 (28). As of March 3, 2010, the District of Columbia permits same sex marriage.

On June 26, 2015, the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. . See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Even though gender identity and sexual orientation are not explicitly recognized as protected classes under federal law, in light of this ruling it is best practice for an employer to review and revise its discrimination policies and provide equal treatment to individuals in same-sex marriages with regard to leave, benefits, compensation and other terms of employment.

Gender Identity or Expression

The DCHRA prohibits employers from discriminating against employees based on the employee's gender-related identity, appearance, expression, or behavior regardless of their assigned sex at birth. +D.C. Code § 2-1401.02 (12A).

Family Responsibilities

The DCHRA prohibits employers from discriminating against employees based on the fact that they are parents or guardians with one or more children under 18. +D.C. Code § 2-1401.02 (11A).

Genetic Information

The DCHRA prohibits employers from discriminating against employees based on information received from a genetic test that reveals that the employee, or a member of the employee's family, has a genetic mutation that is scientifically or medically believed to cause a disease, disorder, or syndrome. +D.C. Code § 2-1401.02 (12A-1).

The DCHRA defines a genetic test and specially states that a drug or alcohol test, routine physical measurements, or chemical, blood or urine analysis are not genetic tests unless they are performed for the purpose of obtaining genetic information. +D.C. Code § 2-1401.02 (12B).

Disability

The DCHRA defines disability as "a physical or mental impairment that substantially limits one or more of the major life activities of an individual having a record of such impairment or being regarded as having such an impairment." +D.C. Code § 2-1401.02(5A). Courts interpreting disability discrimination under the DCHRA rely on federal Title VII interpretation because the two laws are so similar. See Carpenter v. Fed. Nat'l Mortgage Ass'n, +165 F.3d 69 (D.C. Cir. 1999).

Employers are required to reasonably accommodate applicants or employees with known disabilities. However, employers are not required to provide accommodations that would create undue hardship such as one that is expensive or requires extensive physical or structural modifications to the workplace or would fundamentally change business operations. If a requested accommodation causes undue hardship, the employer must provide any alternative accommodation that is available and would not create an undue hardship. +D.C. Code §§ 2-1401.01 et seq.; +D.C. Code §§ 7-1005 et seq.; +CDCR 4-200 et seq.; +CDCR 4-205 et seq.; +CDCR 4-500 et seq.; +CDCR 4-514; +CDCR 4- 599.

Educational Status

The DCHRA prohibits employers from discriminating against employees based on their enrollment in degree or non-degree educational programs. +D.C. Code §2-1401.02 (18).

Political Affiliation

The DCHRA prohibits employers from discriminating against employees based on their membership in, or endorsement of, a political party. +D.C. Code §2-1401.02 (25).

The District of Columbia Municipal Regulations permit political institutions, or charitable and educational organizations operated by political institutions, to make membership in that political party a condition of employment. +CDCR 4-520.3.

Unemployment Status

The Washington, DC Council passed the Unemployment Anti-Discrimination Amendment Act of 2011 which makes unemployed status a protected class. The amendment will modify +D.C. Code § 2-1402.11 to prohibit employers from discriminating against individuals based on their status as unemployed. It will also amend +D.C. Code § 2-1401.02 add subsection (32) which defines Status as Unemployed as a person's past or present unemployment regardless of the length of such unemployment. All rights and privileges given to members of other protected classes are enjoyed by this new protected class as well. Similarly, employers are prohibited from discriminating against, harassing or retaliating against members of this protected class to the same extent such prohibitions are applied to other protected classes. It is not, however, a prohibited employment practice for an employer to make employment in a similar or related job for a period of time reasonably proximate to the hiring of an individual part of the employer's hiring criteria if the requirement is a bona fide occupational qualification. The text to the new amendment can be found here.

Reproductive Health

Pursuant to the Reproductive Health Non-Discrimination Amendment Act (RHNAA) an employer is prohibited from discriminating against an individual on the basis of an employee's or dependent's reproductive health decision making, including a decision to use or access a particular drug, device or medical service, because of or on the basis of an employer's personal beliefs about such services.

Domestic Violence Victims

Effective April 11, 2019, an amendment to the DCHRA (D.C. Act 22-609) protects victims and family members of victims of domestic violence, sexual abuse, and stalking from discrimination by employers and may require an employer to provide reasonable accommodations.

+2017 Bill Text DC B. 14.

The following are considered covered family members under the law:

  • A spouse or domestic partner;
  • The parents of a spouse;
  • Children, including foster children and grandchildren;
  • Spouses of children;
  • Parents;
  • Brothers and sisters;
  • The spouses of brothers and sisters;
  • A child who lives with an individual and for whom the individual permanently assumes and discharges parental responsibility; and
  • A person with whom the individual shares or has shared, for not less than the preceding 12 months, a mutual residence and with whom the individual maintains a committed relationship as defined in the Health Care Benefits Expansion Act of 1992.

An employer is prohibited from disclosing any information related to an employee's status as a victim or family member of a victim of domestic violence, a sexual offense, or stalking as provided to the employer by the employee.

However, an employer may make such a disclosure when:

  • Requested or voluntarily authorized by an employee in writing;
  • Ordered by a court or administrative agency or otherwise required by law;
  • Provided to a law enforcement agency;
  • Necessary to protect other employees from imminent harm; and
  • To the extent necessary, to provide a reasonable accommodation for the victim.

The employer must notify an employee in the event of a disclosure.

An employer is specifically prohibited from taking any unlawful discriminatory action against:

  • An employee who attended, participated in, prepared for, or requested leave to attend, participate in, or prepare for a criminal, civil, or administrative proceeding relating to domestic violence, stalking, or a sexual offense of which the employee or employee's family member was a victim, including meeting with an attorney or law enforcement officials;
  • An employee who sought physical or mental health treatment or counseling for domestic violence, a sexual offense, or stalking of which the employee or employee's family member was a victim; and
  • An employee who was subject to disruption of his or her workplace or threat to his or employment related to domestic violence, a sexual offense, or stalking of which the employee or employee's family member was the victim.

An employer is required to provide a reasonable accommodation to an employee who is the victim or family member of a victim of domestic violence, a sexual offense, or stalking when such accommodation is necessary to ensure the person's security and safety, unless providing accommodation would result in undue hardship on the employer.

Examples of reasonable accommodations include:

  • A transfer
  • Reassignment,
  • Modified schedule,
  • Leave,
  • Changed work station,
  • Changed work telephone or email address,
  • Installed lock,
  • Assistance in documenting domestic violence, a sexual offense, or stalking that occurs in the workplace, or
  • The implementation of another safety procedure in response to actual or threatened domestic violence, a sexual offense, or stalking.

An undue hardship is defined as any action that requires significant difficulty or expense when considered in relation to factors such as the size of the employer, its financial resources, and the nature and structure of its operation.

Equal Pay

The District of Columbia does not have an independent equal pay act. Instead, DCHRA specifically states that it shall be an unlawful employment practice to to discriminate against any individual with respect to his or her compensation based upon actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, or political affiliation of any individual. +D.C. Code § 2-1402.11(a)(1).

Wage Disclosure

The District of Columbia's Wage Transparency Act prohibits an employer from:

  • Requiring, as a condition of employment, that an employee refrain from disclosing or discussing his or her wages or the wages of another employee;
  • Discharging, disciplining, interfering with, or otherwise retaliating against an employee who inquire about or discloses or discuses wages or the wages of another or is believed by the employer to have done so; or
  • Prohibiting or attempting to prohibit an employee from making a complaint or participating in an investigation or proceeding related to this law.

+D.C. Code § 32-1452.

Lactation/Breastfeeding Protections and Accommodations

Under the DCHRA, a woman has the right to breastfeed her child in any location, public or private, where she also has the right to be with her child. An employer shall provide reasonable daily unpaid break periods, as required by the employee, so that the employee may express breast milk for her child to maintain milk supply and comfort. If any break period, paid or unpaid, is already provided to the employee by the employer, the break period required shall run concurrently with the break periods already provided. Notwithstanding the foregoing, an employer shall not be required to provide break periods if it would create an undue hardship on the operations of the employer. An employer shall make a reasonable effort to provide a sanitary room or other location in close proximity to the work area, other than a bathroom or toilet stall, where an employee can express her breast milk in privacy and security. The location may include a childcare facility in close proximity to the employee's work location. +D.C. Code § 2-1402.82.

District of Columbia Municipal Regulations provide the following breastfeeding guidelines with respect to the rights of breastfeeding mothers.

An employer employers shall conspicuously post and maintain in the workplace a notice containing information regarding breastfeeding.

Each employer shall create a policy with respect to its employees who are breastfeeding mothers; provided, that such policy shall not contain any rules or guidelines which dictate whether the mother's breast, or any part of it, is uncovered during or incidental to the breastfeeding of her child. The policy shall be posted along with the required notice.

A breastfeeding mother shall have rights to include, but not be limited to, the following:

  • The right to breastfeed her child in any location, public or private, where she has the right to be with her child;
  • The right to breastfeed or express breast milk in accordance with this section, notwithstanding any other provision of District of Columbia law governing indecent exposure or the definition of the private or intimate parts of a female person, including that portion of the breast that is below the top of the areola;
  • The right to be free from any workplace disciplinary action because of the exposure of any part of her breast during breastfeeding or while expressing breast milk;
  • The right to be free from harassment or ridicule in the workplace because of her breastfeeding or expressing breast milk; and
  • The right to workplace accommodations while breastfeeding or expressing breast milk.

Employers shall accommodate breastfeeding employees by taking steps including, but not limited to, the following:

  • Affording reasonable daily break periods, paid or unpaid, so that the employee may breastfeed her child or express breast milk to maintain milk supply or relieve physical discomfort; provided, that an employer may require that such break periods run concurrently with any break periods already afforded; provided further, that an employer shall not be required to provide breastfeeding-related break periods if doing so would create an undue hardship;
  • Affording flexible schedule, job-sharing, or telecommuting arrangements, if none are already afforded, unless doing so would create an undue hardship; and
  • Making reasonable efforts to provide a sanitary room or other location in close proximity to the work area, other than a bathroom or toilet stall, where an employee can breastfeed or express breast milk in privacy and security. The location may include a childcare facility in close proximity to the work area. If at the work area, shall have adequate lighting, ventilation, and an electrical outlet (if necessary for a pumping device), and may, but not be required to have, a lock for privacy, a sink with a safe water source, a comfortable chair, a small table, and a clock and allowing the employee to bring into the workplace a small refrigerator or freezer to store breast milk.

It shall be a discriminatory practice:

  • For an employer, employment agency, or labor organization to refuse to hire or employ, to bar or discharge from employment, to withhold pay, demote, or penalize a breastfeeding employee because the employee breastfeeds or expresses milk in the workplace, or otherwise to deny the employee any right provided under this section.

Reasonable efforts means any effort that would not impose an undue hardship on the operation of an employer's business.

Undue hardship is defined any action that requires significant difficulty or expense when considered in relation to factors such as:

  • The size of an employer's business;
  • Its financial resources; and
  • The nature and structure of its operation.

+CDCR 4-518.

Discrimination Against Smokers

Employers in the District of Columbia may not discriminate against employees or applicants who use tobacco products. However, employers can restrict or prohibit tobacco use if just a policy is justified as a bona fide occupational qualifications. Employers may also establish or enforce any smoking restrictions required or permitted by law. +D.C. Code § 7-1702 et seq.;

Employees Outside the District of Columbia

The DCHRA also applies to all employment decisions made in the District of Columbia that concern employees that work outside of the District of Columbia. See Monteilh v. AFSCME, AFL-CIO, +982 A.2d 301 (D.C. Cir. 2009). This means that if a decision is made at an employer's District of Columbia headquarters and affects an employee in another state, District of Columbia courts have jurisdiction and the DCHRA applies. This can be particularly significant because of the very different list of protected classes provided by the DCHRA.

Disparate Impact

The DCHRA protects individuals from the disparate impact of employment decisions more broadly than does Title VII. Section 2-1402.68 of the DCHRA is known as the Effects Clause and acts to make any action taken by an employer that "has the effect or consequence" of violating the provisions of the DCHRA an unlawful discriminatory practice. Courts interpreting the DCHRA have stated that "despite the absence of any intention to discriminate, practices are unlawful if they bear disproportionately on a protected class and are not independently justified for some nondiscriminatory reason." See Gay Rights Coalition of Georgetown Univ. Law Ctr. v. Georgetown Univ., +536 A.2d 1(D.C. 1987).

The DCHRA's Effects Clause does not have a parallel in Title VII and for that reasons, courts have stated that the District of Columbia's disparate impact law is broader in scope than federal law. See Estenos v. PAHO/WHO Fed. Credit Union, +952 A.2d 878 (2008).

Liability

Under the DCHRA, an individual may be personally liable for discrimination if they meet the definition of employer adopted by courts interpreting the DCHRA. That definition, which includes owners, partners and supervisors, is stated as the employer or anyone acting in the interest of the employer. See MacIntosh v. Bldg. Owners and Managers Ass'n Int'l, +355 F. Supp. 2d 223 (D.C. Cir. 2005).

Employer liability based on employee actions and affirmative defenses available to employers mirror federal law.

Defenses

Just as in federal disparate impact claims, employers facing disparate impact claims under the DCHRA have the business necessity defense available. The defense allows employers to argue that their employment policies or practices, even if they are seemingly discriminatory because of the disparate impact, were essential to the business, motivated by a legitimate business need and cannot be altered. Courts evaluate the business necessity defense asserted in DCHRA suits in the same manner they do federal claims, meaning they use the McDonnell Douglas burden shifting test. See Estenos v. PAHO/WHO Fed. Credit Union, +952 A.2d 878, 887 (2008).

An employer's adherence to the conditions of a bona fide seniority system or employee benefits program is not a discriminatory practice under the DCHRA unless it prevents an employer from hiring an individual for discriminatory reasons. +D.C. Code § 2-1402.12.

Employer Requirements and Practices

The District of Columbia requires employers to display specific employment-related posters, all of which can be obtained at the District of Columbia Office of Human Rights. The posters include: Equal Employment Opportunity; Family Medical Leave Act; Right to Breastfeed; and Parental Leave Act. A document listing all posting requirements can be found at the Office of Human Rights website.

Filing Procedures and Administrative Remedies

Office of Human Rights

The Office of Human Rights (OHR) is where all complaints of DCHRA violations are filed. The OHR is required to establish a mediation program and all complaints are subject to mandatory mediation before the OHR starts a full investigation. The OHR can provide up to 45 days for the adverse parties to mediate. If mediation is unsuccessful, the OHR will investigate the complaint and either dismiss the complaint or determine that there is probable cause to believe an employer engaged in an unlawful discriminatory practice. If there is probable cause OHR and its adjudicative body, the District of Columbia Commission on Human Rights (Commission), will certify the case. After a probable cause finding, the parties are invited to conciliation. If that is unsuccessful, the Commission conducts a hearing and all parties have ability to conduct discovery, motions practice, submit documentary evidence, present testimony, and cross-examine witnesses. All hearings before the Commission are public and transcribed by a court reporter.

Statute of Limitations Issues

Any complaint filed for violations of the DCHRA must be filed with the OHR within one year of the occurrence of the unlawful discriminatory practice, or the discovery of the unlawful discriminatory practice. +D.C. Code § 12-301(8)

Penalties and Remedies

The DCHRA provides a non-exhaustive list of remedies available to successful complainants at +D.C. Code § 2-1403.13. The available remedies include:

  • Hiring, reinstatement, or upgrading employee either with or without back pay;
  • Restoring the individual's membership in a labor organization, admission to or participation in a program, apprenticeship training, on-the-job training program, or other occupational training or retraining program;
  • Extension of full, equal and unsegregated accommodations, advantages, facilities and privileges;
  • Compensatory damages;
  • Attorneys' fees;
  • Civil penalties imposed on the employer payable to the General Fund; and
  • Hearing costs.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

Employee Management > EEO - Discrimination

Washington, D.C. Office of Human Rights