Jonathan Smith Submits Written Testimony in Support of Human Rights Amendment Act of 2017

Testimony of Jonathan M. Smith, Executive Director
Washington Lawyers’ Committee for Civil Rights and Urban Affairs
 
in support of 
Bill 22-0288, the Human Rights Amendment Act of 2017 

The Washington Lawyers’ Committee for Civil Rights and Urban Affairs supports the Human Rights Amendment Act of 2017 (the “Act”). WLC was founded in 1968 to address civil rights violations, racial injustice and poverty-related issues in our D.C. community through litigation and other advocacy.  The Washington Lawyers’ Committee has recently merged with the Employment Justice Center which has worked since its founding in 2000 to help secure, protect, and promote workplace justice in D.C. The Committee has extensive experience protecting the rights of workers and others under the District of Columbia Human Rights Act (DCHRA) and working with the D.C. Office of Human Rights (OHR). As important and effective as DCHRA has been, this proposed legislation is crucial to strengthen the law and help protect D.C. residents from discrimination,

In particular, the DCHRA falls short of similar federal and state laws in one area. After OHR investigates and makes a finding as to whether or not discrimination occurred, victims of discrimination are then prohibited from bringing their DCHRA case before a court.  Instead, after a finding, DCHRA claims may only be decided administratively. If victims want to challenge discriminatory policies in court, they must abandon claims under DCHRA and may proceed under federal anti-discrimination law. 

As a result, discrimination victims face a difficult dilemma. If they choose to go forward under the DCHRA, they must proceed only before an Administrative Law Judge and the Commission on Human Rights within OHR, a process that can be slow and does not provide a right to a jury trial and the same rights to discovery and remedies that are available in court. On the other hand, if they go to federal court, they may lose the right to challenge discrimination on bases protected by this Council under DCHRA but not explicitly protected by federal law, such as sexual orientation.

This problem is even worse for complainants to OHR who are not represented by counsel, which is often the case. These complainants are typically not aware that after OHR investigates and then makes a finding, they are considered to have made an “election” of their available remedies.  They are too often not aware that under current law, if OHR makes a favorable probable cause determination, they will have lost the right to bring their case before a DC jury.  The proposed Human Rights Amendment Act would eliminate this trap for the unwary.

In fact, the “election of remedies” dilemma does not exist in other federal and state anti-discrimination laws.  For instance, under  Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, or the Americans with Disabilities Act (and unlike the DCHRA), an individual experiencing discrimination can bring a claim in court after the EEOC issues a finding.  Under Maryland state law, as well as under the Montgomery, Howard, and Prince Georges County anti-discrimination ordinances, an individual can bring discrimination claims in court, whether or not a finding of discrimination has been made by the relevant human rights agency. The proposed legislation will align the DCHRA with these other important civil rights protections.

As in such other jurisdictions, the Act will also improve the effectiveness of the OHR administrative process. With respect to federal employment discrimination claims, our attorneys and law firm lawyers with whom we work often keep their client’s cases before Equal Employment Opportunity Commission (EEOC) administrative judges rather than immediately going to court, even though their clients have the right to remove their cases from that administrative process at any time to proceed in court. In contrast, however, attorneys representing individuals before OHR are often quick to withdraw claims to prevent a finding of discrimination from being made and thus preventing them from going to court.  As a result, D.C. residents subjected to discrimination are unable to fully benefit from the investigative function performed by OHR, or by the conciliation services it provides.  The current scheme thus undermines the effectiveness of the administrative process and encourages knowledgeable attorneys to withdraw their clients’ claims in order to preserve a right to go to court.

Specifically, the Human Rights Amendment Act of 2017 would remedy these problems by amending the DCHRA to allow an individual to file a case in court if they choose, after the Office of Human Rights makes a finding of whether or not discrimination likely occurred.  This would make the DCHRA operate in much the same way as does federal law for federal employees, who may bring discrimination claims administratively before the EEOC or, if they choose to do so, may bring their claims in court.  If passed, the Act will allow discrimination victims to try to resolve claims administratively by obtaining an investigation and providing a forum to informally settle DCHRA claims.  But to the extent that claims are not resolved administratively, the DCHRA would remain an effective statute to vindicate discrimination claims in court.

Our support for this law is not just academic.  We have seen hundreds of D.C. residents come to our Workers’ Rights Clinics who are confused about the process when they arrive with a probable cause finding and learn of their limited options.  When we litigate cases, we are required to use resources to strategize on when to “pull” a case from OHR to best preserve our clients’ interests in not getting a negative finding instead of letting the process play itself out as it would in other jurisdictions. 

Although the change that the Act would produce is modest, it is extremely important. It would to correct DCHRA so that it would be preserved as one of the strongest protections against discrimination in the country. We urge the Council to promptly enact this proposed legislation.

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