Title 4 DCMR — HUMAN RIGHTS AND RELATIONS

4-1 COMPLAINTS OF DISCRIMINATION IN THE DISTRICT OF COLUMBIA GOVERNMENT

4 DCMR § 100 SCOPE

100.1 The provisions of this chapter shall apply to all District government agencies subject to the Act.

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is § 303 of the District of Columbia Human Rights Act of 1977, D.C. Law 2-38, D.C. Official Code § 2- 1403.03 (2001).
SOURCE: Final Rulemaking published at 31 DCR 56 (January 6, 1984); as amended by Final Rulemaking published at 57 DCR 9162, 9163 (October 1, 2010).

4 DCMR § 101 COVERAGE

101.1 The provisions of this chapter shall govern the processing of any complaint involving discrimination on grounds of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, matriculation, political affiliation, genetic information, and disability.

101.2 The procedures set forth in this chapter shall apply to matters presently pending or hereafter filed with a District government agency.

101.3 Nothing in this chapter shall be construed to supersede any federal or District law, nor to invalidate any proceedings commenced under the authority of any prior regulations.

101.4 Sexual harassment shall be deemed to be a form of sex discrimination which is prohibited under District laws and regulations, including this chapter.

101.5 Employees of the District government shall have certain rights to file complaints with the United States Equal Employment Opportunity Commission (EEOC) pursuant to § 706 of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5, and to pursue remedies provided for in the Age Discrimination in Employment Act, as amended, 29 U.S.C. §§ 626 and 633.

History

SOURCE: Final Rulemaking published at 31 DCR 56, 57 (January 6, 1984); as amended by Final Rulemaking published at 57 DCR 9162, 9163 (October 1, 2010).

4 DCMR § 102 POLICY

102.1 It shall be the policy of the Government of the District of Columbia in connection with any aspect of District government employment to do the following:

(a) To prohibit sexual harassment;

(b) To prohibit retaliation for filing Equal Employment Opportunity (EEO) complaints;

(d) To prohibit discrimination in employment because of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, matriculation, political affiliation, genetic information, and disability.

102.2 Sufficient resources shall be provided to administer the District’s EEO program in a positive and effective manner.

102.3 A continuing program shall be conducted to eradicate every form of prejudice or discrimination with respect to any aspect of District government employment based upon race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, matriculation, political affiliation, genetic information, and disability.

The head of each District government agency subject to the Act shall be required to take affirmative action within that agency to assure equal opportunity in every aspect of employment.

History

SOURCE: Final Rulemaking published at 31 DCR 56, 58-59 (January 6, 1984); 57 DCR 9162, 9163-9164 (October 1, 2010).

4 DCMR § 103 RESPONSIBILITIES OF THE DIRECTOR OF THE OFFICE OF HUMAN RIGHTS

103.1 In addition to other duties, for purposes of this chapter, the Director shall advise the Mayor with respect to the preparation of plans, procedures, regulations, reports and other matters pertaining to the provisions of this chapter.

103.2 The Director shall prepare all reports in connection with the EEO program as may be required by the Mayor or the EEOC.

103.3 The Director shall recommend changes in policy, practices, and procedures designed to eliminate discriminatory practices and to improve the Mayor’s program for equal employment opportunity.

103.4 The Director shall establish a system for periodically evaluating the effectiveness of the District government’s overall EEO program, including the rules, and when appropriate report to the Mayor with recommendations for any improvement or correction needed, including remedial or disciplinary action with respect to managerial or supervisory employees who have failed to carry out the provisions of this chapter.

103.5 The Director shall prepare a model agency affirmative action program.

103.6 The Director shall consult with agency heads regarding the suitability of persons appointed or designated, or pending appointment or designation, as departmental EEO Officers and EEO Counselors. If the Director determines that an EEO Counselor or an EEO Officer has not responded to at least three (3) orders of OHR, the Director shall notify the responsible agency head and recommend that the EEO Counselor or EEO Officer be removed from the EEO role.

103.7 The Director shall issue guidelines and procedures for counseling by an EEO Counselor of any aggrieved employee or applicant for employment who contends that he or she has been discriminated against because of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, matriculation, political affiliation, genetic information, and disability, with respect to any aspect of District government employment.

103.8 The Director shall receive and investigate complaints of alleged discrimination in personnel matters, from employees who contend that they have been discriminated against in connection with any aspect of District government employment because of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, matriculation, political affiliation, genetic information, and disability.

103.9 The Director shall publicize to all District government employees the address of the Office of Human Rights (OHR), as well as the names, agency addresses, and phone numbers of all District EEO Counselors and EEO Officers.

103.10 The Director shall submit to the Director of the Department of Human Resources for prior review all recommendations of in-depth investigative or statistical reports when the recommendations or reports relate to or would affect in any manner programs involving the employment, employee relations, or other personnel actions of the District government.

103.11 The Director shall designate, when necessary in the interest of fairness and justice, At-Large EEO Counselors to handle EEO problems on an informal basis. An At-Large EEO Counselor need not be an employee of the agency for which counseling service is provided. The OHR Compliance Officer may also take on this role.

History

SOURCE: Final Rulemaking published at 31 DCR 56, 59-60 (January 6, 1984); as amended by Final Rulemaking published at 57 DCR 9162, 9164-9165 (October 1, 2010).

4 DCMR § 104 RESPONSIBILITIES OF AGENCY HEADS

104.1 Each District agency head shall do the following:

(a) Be personally responsible and accountable for the execution of the EEO program within his or her agency;

(b) Establish procedures, consistent with § 103.7, whereby each complaint is reviewed promptly and processed promptly at every subsequent stage and cause agency records to reflect each date of review and the action taken;

(d) Upon request of the Director, consult with him or her regarding the suitability of persons appointed or designated EEO Officers and EEO Counselors and, upon request, review appointments or designations and advise the Director of the determination. Consultation between agency heads and the Director prior to the appointment or designation of EEO Counselors and EEO Officers is encouraged;

The consultation between the Director and agency head shall also include monitoring the EEO Counselors and the EEO Officers to determine whether or not they are executing their responsibilities, including but not limited to:

Providing the Exit Letter described in § 105.5 to the complainant within thirty (30) days of complainant’s filing date, or within 60 days if both parties determine that the investigation will continue;

Providing a Position Statement or responding to a request for documents in the time allotted by the investigator;

Responding to an Order of OHR within the time allotted by the investigator; and

Informing all employees of their rights and responsibilities under the Act.

(f) Publicize to agency employees by posting on agency bulletin boards, the following:

(1) The name, office address, and telephone number of each agency EEO Counselor and the organizational units served;

(2) Inform employees that they may contact an EEO Counselor outside their organizational unit if desired; and the time limit for contacting an EEO Counselor;

(3) The availability of the EEO Counselor to counsel an employee or qualified applicant for employment who believes he or she has been discriminated against because of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, matriculation, political affiliation, genetic information, and disability in connection with respect to any aspect of District government employment; and

(g) Inform employees and applicants of the requirement of consulting with an EEO Counselor within one hundred eighty (180) days of an alleged unlawful employment practice.

104.2 Each District government agency head shall also publicize to all agency employees, and post permanently on official bulletin boards, the name, address, and telephone number of the Office of Human Rights, each agency EEO Officer, and the agency EEO Counselors.

104.3 Each District government agency head shall make reasonable accommodation for the religious needs of applicants and employees, including the needs of those who observe the Sabbath on a day other than Sunday, when that accommodation can be made without undue disruption to the business of the agency.

History

SOURCE: Final Rulemaking published at 31 DCR 56, 60-62 (January 6, 1984); amended by Final Rulemaking published at 57 DCR 9162, 9165-9167 (October 1, 2010).

4 DCMR § 105 PRE-COMPLAINT PROCESSING

105.1 An employee or applicant who believes that he or she has been discriminated against because of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, matriculation, political affiliation, genetic information, and disability in connection with any aspect of District government employment shall consult an EEO counselor within one hundred-eighty (180) days of the occurrence of the alleged unlawful discriminatory practice, except that a complaint of sexual harassment may be filed directly with OHR.

105.2 After being consulted by a complainant, the EEO Counselor shall do and document the following:

(a) Make a thorough review of the circumstances underlying the complaint, including the treatment of members of the complainant’s group, if any, identified by the complaint, as compared with the treatment of other employees in, or applicants to, the organizational unit in which the alleged discrimination occurred;

(b) Examine all pertinent records;

(c) Review any policies and practices related to the work situation or application process which may constitute, or appear to constitute, discrimination, even though they have not been expressly cited by the complainant; and

(d) Discuss with the complainant all the pertinent employees who need to be interviewed, including supervisors.

105.3 The EEO Counselor shall also do the following:

(a) Advise the applicant or employee of the right to representation of his or her own choosing or through a Collective Bargaining Agreement;

(b) Counsel the complainant or his or her representative concerning the issues of the matter;

(d) Keep a record of counseling activities so as to brief the agency or EEO Officer at least once a month of those activities.

105.4 The EEO Counselor shall, insofar as is practicable, conduct the final interview with the complainant and/or his or her representative not later than thirty (30) days after first being consulted by the complainant.

105.5 During the final interview, the EEO Counselor shall provide to the complainant and/or his or her representative written notice, the Exit Letter, of the complainant’s right to file a formal complaint with the Director within fifteen (15) days of the final interview, if the matter has not been resolved to complainant’s satisfaction.

105.6 A formal complaint to the Director shall be filed by the complainant within fifteen (15) days after the final interview has been conducted by the EEO Counselor.

105.7 Formal complaints filed after the fifteen (15) day period specified in § 105.6 shall be deemed untimely and dismissed as such by the Director.

105.8 If additional time is need to conduct the final interview under § 105.4, the EEO Counselor may extend the thirty (30) day time period established by § 105.4 for an additional thirty (30) days (the “extension period”). During the extension period, the complainant may demand an Exit Letter at any time, and the EEO Counselor shall provide an Exit Letter upon such a demand. In addition, during the extension period, the complainant may file a formal complaint with the Director , notwithstanding whether the Exit Letter has been demanded or issued.

105.9 If there is an extension period, a formal complaint to the Director shall be filed by the complainant during the extension period or within fifteen (15) days after a final interview is conducted, whichever is earlier. Formal complaints filed beyond this time period shall be deemed untimely and dismissed as such by the Director.

105.10 Although the EEO Counselor should attempt to offer consultation on a confidential basis, he or she may disclose to the OHR Director and to the head of the cited agency circumstances surrounding the complaint which include, but are not limited to, safety, criminal actions, or patterns or practices of discriminatory or harassing conduct by the agency or any of its cited employees or managers.

105.11 The EEO Counselor shall be free from restraint, interference, coercion, discrimination, or reprisal and shall be given the assistance and cooperation of the agency in connection with the performance of his or her duties under this chapter.

105.12 The EEO Officer shall have the following responsibilities:

Serve as the chief EEO coordinator within the agency;

Manages the EEO program within the agency;

Develop, implement, monitor, and evaluate the agency’s affirmative action plan;

Advise the agency head and supervisors on EEO matters;

Prepare the quarterly reports, agency EEO-4 reports, and other reports required by OHR;

Assist in the development and coordination of career development and upward mobility programs;

Assist the EEO Counselors in training employees about their rights and ensuring compliance with EEO policies and procedures;

Act as agency liaison with the community and advocacy organizations in matters relating to recruitment, employment, affirmative action, and equal employment;

Ensure that agency announcements, EEO policies and procedures, and the names of agency EEO Counselors are distributed and posted;

Serve as chairperson of an agency EEO Committee, if any;

Provide technical assistance to, and coordinate with, EEO Counselors;

Notify OHR of any and all changes in agency EEO personnel within ten (10) business days after the change; and

Conduct a formal investigation related to an EEO complaint, if appointed to do so, and provide the Position Statement or other records, if the agency so designates.

105.13 At any stage in the proceeding under this chapter, the complainant shall be free from restraint, interference, coercion, discrimination, or reprisal, and shall have the right to be accompanied, represented, and advised by a representative of his or her own choosing or through a Collective Bargaining Agreement.

105.14 If the complainant is an employee of the District government, he or she shall have a reasonable amount of official time for preparation and presentation of his or her complaint.

105.15 If the complainant designates an employee of the District government as his or her representative, the representative shall be free from restraint, interference, coercion, discrimination, or reprisal, and shall have a reasonable amount of official time to prepare and present the matter.

105.16 The Director may request that an adverse action be held in abeyance, unless he or she determines that it is shown that immediate and irrevocable harm to the agency will result or there will be a substantial interference with the efficient operation of the agency.

History

SOURCE: Final Rulemaking published at 31 DCR 56, 62-64 (January 6, 1984); as amended by Final Rulemaking published at 43 DCR 6569, 6569-72 (December 13, 1996); as amended by Final Rulemaking published at 57 DCR 9162, 9167-9170 (October 1, 2010).

4 DCMR § 106 FILING AND PRESENTATION OF COMPLAINTS

106.1 A verified and written complaint of discrimination shall be submitted by the complainant to the Director within fifteen (15) days of the date of the complainant’s final interview with the EEO Counselor.

106.2 The time limit for filing may be extended by the Director for good cause shown.

106.3 Upon filing of a complaint, the Director shall provide a copy to the agency representative of the agency in which the complainant is employed or, in the case of an applicant, to which the complainant applied.

106.4 The Director may dismiss or reject a complaint of discrimination for the following reasons:

The complaint is not timely filed;

The complainant does not state a claim for which relief can be granted under the Act;

(d) OHR does not have jurisdiction over the complainant or the respondent;

(e) The complainant fails to prosecute or respond to inquiries from the investigator or mediator regarding the complaint within a prescribed time limit;

The complaint is subject to dismissal pursuant to § 107 of this chapter.

106.5 In the event of a rejection or dismissal of a complaint, the Director shall transmit the decision by letter to the complainant or his or her representative. The letter shall contain notice of the complainant’s right to request reconsideration or the reopening of the case by the Director pursuant to § 114.4.

106.6 In order to resolve each complaint expeditiously, the complainant and the District government shall proceed with the complaint without undue delay so that the complaint is resolved, insofar as practicable, within two hundred ten (210) days after its receipt by the Director.

106.7 The complainant shall be responsible for prosecuting the complaint without undue delay so as to permit resolution of the complaint within the prescribed time limits.

106.8 The complainant shall provide reasonable assistance and all pertinent information to OHR staff in processing the complaint.

The Director may dismiss a complaint pursuant to § 106.4(d) or, in his or her discretion, adjudicate the complaint on the basis of the existing record, if sufficient information for that purpose is available.

If OHR determines that a complainant is filing what are determined to be frivolous complaints, which may include filing an unreasonable number of complaints during a given time period, it may resolve the complaint in accordance with OHR Intake Guidelines which may include an expedited review of the allegations, review of the previous complaints against the respondent by this complainant, and other investigative techniques to determine the legitimacy of the complaint.

106.11 Officers and employees of District government agencies in which a complaint arises under this chapter shall not cause hardship, delay, or interference with the efforts of the EEO Counselor, the complainant or the complainant’s representative, OHR staff members, or the Hearing Examiner, in their efforts and activities to process the complaint to a resolution.

106.12 All District agencies shall make every effort to make available as witnesses those employees whose testimony is determined to be necessary by the investigator or Hearing Examiner.

106.13 A complaint may be amended by the complainant at any time prior to the issuance of a Letter of Determination (LOD); provided, that if the investigation is completed and it is being reviewed for legal sufficiency, OHR may direct that the Complainant file a new Charge of Discrimination.

106.14 An amendment shall be in writing and verified, and shall be submitted by the complainant or the complainant’s representative to the Director.

106.15 When an amendment is filed, the Director shall serve a copy of the amendment upon the respondent within five (5) work days of the amendment.

106.16 The respondent shall, within five (5) work days after service of the amendment, file an answer to the amendment.

History

SOURCE: Final Rulemaking published at 31 DCR 56, 64-65(January 6, 1984); as amended by Final Rulemaking published at 43 DCR 6569, 6572-73 (December 13,1996); as amended by Final Rulemaking published at 57 DCR 9162, 9170-9172 (October 1, 2010).

4 DCMR § 107 ADMINISTRATIVE DISMISSALS

107.1 A case shall be terminated without prejudice if the complainant submits a written request to withdraw the complaint, or for the following administrative reasons:

(a) The OHR cannot reach the complainant by postal mail, electronic mail, or telephone, using the contact information of record, and the complainant has not contacted OHR. OHR may conclude that the complainant cannot be reached and fails to proceed with the complaint by postal mail if OHR has mailed at least one (1) regularly mailed letter to the complainant and has not received a response from the complainant within thirty (30) days. OHR may conclude that a complainant cannot be reached by electronic mail if OHR has sent at least one (1) electronic mail to the complainant and has not received a response from the complainant within thirty (30) days. OHR may conclude that a complainant cannot be reached by telephone if: (i) OHR has left at least one (1) answering machine or voicemail message at the complainant’s telephone number and has not received a response from the complainant within thirty (30) days; or (ii) OHR has telephoned the complainant at least two (2) times, allowed the phone to ring at least seven (7) times, no person has answered the telephone, and no answering machine or voicemail system was activated. OHR shall only be required to attempt to contact the complainant by one (1) of these methods before administratively dismissing the complaint under this paragraph.

(b) The complainant fails to state a claim for which relief can be granted under the Act;

(d) After investigation, the Director determines that OHR lacks jurisdiction over the respondent.

107.2 An order dismissing a complaint for an administrative reason shall be in writing, shall be served on the parties, and shall state the reasons for the dismissal.

107.3 The Director, after receiving a request to reopen a complaint, may reopen the complaint for good reasons or in the interest of justice, if no determination has previously been made on the merits of the complaint. The decision whether to reopen the complaint shall be within the discretion of the Director.

107.4 The decision of the Director to reopen or deny reopening of a complaint shall be served on all parties.

History

SOURCE: Final Rulemaking at 31 DCR 56, 66 (January 6, 1984); as amended by Final Rulemaking published at 57 DCR 9162, 9172-9173 (October 1, 2010).

4 DCMR § 108 WITHDRAWAL OF COMPLAINTS

108.1 A complaint filed with OHR under the provisions of the Act may be voluntarily withdrawn at the request of the complainant at any time prior to the completion of the Office’s investigation and findings, as specified in section 305 of the Act (D.C. Official Code § 2-1403.05).

108.2 The circumstances of a voluntary withdrawal may be fully investigated by OHR.

108.3 A complainant may request that the Director reopen a complaint that the complainant previously withdrew voluntarily if the complainant submits a written request within thirty (30) days after the voluntary withdrawal. The request shall state specifically the reasons why the complaint should be reopened.

108.4 The Director, after receiving a request to reopen a complaint, may reopen the complaint for good reasons or in the interest of justice, if no determination has previously been made on the merits of the complaint. The decision whether to reopen the complaint shall be within the discretion of the Director.

History

SOURCE: Final Rulemaking published at 57 DCR 9162, 9173 (October 1, 2010).

4 DCMR § 109 MEDIATION

109.1 After a complaint has been properly filed, the complainant and respondent shall attend a mandatory mediation session that shall be held on a mutually agreed upon date or a date specified by the Director.

109.2 A mediator shall be appointed by the Director from a list of individuals qualified in alternative dispute resolution.

109.3 Prior to beginning the mediation session, the mediator shall require both parties and their representatives to sign an agreement that all aspects of the mediation shall be kept confidential. OHR shall maintain exclusive control over the agreement and all other documents directly related to the mediation.

109.4 No aspect of the mediation shall become a part of the investigative record, and the mediator shall not be called as a witness in any later proceeding between the parties.

109.5 During the mediation, the parties shall discuss the issues in the complaint in an effort to reach an agreement that satisfies the interests of all parties.

109.6 The parties shall have forty-five (45) days after the date of the initial mediation session within which to reach an agreement. If an agreement is reached, the terms and conditions of the agreement shall control resolution of the complaint.

109.7 If an agreement is reached by the parties, the case shall be administratively dismissed by OHR with prejudice.

109.8 If an agreement is not reached within the forty-five (45) day period, OHR shall initiate an investigation of the complaint, unless the parties request an extension of the mediation period.

109.9 OHR may initiate an investigation before the conclusion of the mediation proceedings. If the parties are finalizing a settlement agreement, the respondent may request an extension of time in which to file an answer.

History

SOURCE: Regulation No. 73-22, approved November 16, 1973; Mayor’s Order 75-230, dated October 31, 1975, 34 DCRR; as amended by Final Rulemaking published at 31 DCR 56, 67-68 (January 6, 1984); as amended by Final Rulemaking published at 43 DCR 6569, 6573 (December 13, 1996); as amended by Final Rulemaking published at 57 DCR 9162, 9173-9174 (October 1, 2010).

4 DCMR § 110 INVESTIGATION

110.1 Each complaint shall be promptly investigated by OHR.

110.2 The investigator assigned to a case is authorized to administer oaths and require that the statement of a witness shall be under oath or affirmation, without a pledge of confidence.

110.3 A witness shall not be subjected to any form of restraint, interference, coercion, discrimination, or reprisal because of consultation with or information provided to the OHR staff.

110.4 Pursuant to a Freedom of Information Act (FOIA) request, the Director or his designee shall arrange to furnish the complainant, the complainant’s representative, the appropriate agency EEO Officer, or the agency head a copy of the investigative file at the end of the reconsideration period.

110.5 The investigator, upon completion of the investigation, shall submit to the Director, through its Office of General Counsel (OGC), a written statement of proposed findings of fact, conclusions, and recommendations.

110.6 OGC shall send a draft Letter of Determination (LOD) recommending probable cause or no probable cause to the Director. The Director shall review the LOD, make a substitute determination or approve the determination, and issue a final determination to the parties. The LOD shall state whether there is probable cause or no probable cause to credit the complaint, or whether the complaint should be dismissed.

110.7 The activities of the Director under this chapter shall be considered investigations or examinations of municipal matters within the meaning of D.C. Official Code § 1-301.21 (2001) and D.C. Official Code § 5-1021 (2001), and the Director and hearing examiners shall possess the powers vested in the Mayor by those statutes.

History

SOURCE: Regulation No. 73-22, approved November 16, 1973; Mayor’s Order 75-230, dated October 31, 1975, 34 DCRR; as amended by Final Rulemaking published at 31 DCR 56, 68-69 (January 6, 1984); as amended by Final Rulemaking published at 57 DCR 9162, 9174 (October 1, 2010).

4 DCMR § 111 PROBABLE CAUSE DETERMINATION

111.1 A finding of probable cause shall be based upon credible, probative, and substantial evidence which demonstrates a nexus between the harm complained of and the protected characteristic or activity of the complainant.

111.2 If the Director determines there is probable cause to credit the complaint, the LOD shall be served on all parties, advising them of the opportunity to conciliate.

111.3 If probable cause is found, the respondent shall have fifteen (15) calendar days to file for reconsideration based on misapplication of law, material misstatement of fact, or discovery of evidence not available during the investigation.

History

SOURCE: Final Rulemaking published at 31 DCR 56, 69-71 (January 6, 1984); as amended by Final Rulemaking published at 57 DCR 9162, 9175 (October 1, 2010).

4 DCMR § 112 DISMISSAL FOR LACK OF PROBABLE CAUSE

112.1 If, after the investigation and recommendation by OGC, the Director determines that there is no probable cause to credit the complaint, the Director shall issue an order dismissing the complaint.

112.2 The Director shall serve a copy of an order dismissing the complaint for lack of probable cause on all parties and shall advise the complainant of the right to apply to the Director for reconsideration of the dismissal.

History

SOURCE: Regulation No. 73-22, approved November 16, 1973; Mayor’s Order 75-230, dated October 31, 1975, 34 DCRR; Final Rulemaking published at 31 DCR 56, 71- 72 (January 6, 1984); as amended by Final Rulemaking published at 57 DCR 9162, 9175 (October 1, 2010).

4 DCMR § 113 RECONSIDERATION

113.1 A complainant seeking reconsideration of a dismissal under § 110.2, or a respondent seeking reconsideration under § 716.3, shall submit an application for reconsideration to the Director in writing, stating specifically the grounds upon which the request for reconsideration is based. The grounds shall be limited to misapplication of law, material misstatement of fact, or discovery of evidence not available during the investigation.

113.2 If the request is not based on one of the grounds cited in § 720.1, or is not timely filed, the Director shall reject the application for reconsideration. A request for reconsideration shall be filed with the Director’s office, in writing, within fifteen (15) calendar days from the receipt of the Director’s LOD.

113.3 Upon receipt of an application for reconsideration, the Director shall send letters acknowledging receipt of the application to both the complainant and the respondent. The respondent shall also receive a copy of the grounds upon which the complainant bases the request for reconsideration, and shall be given ten (10) calendar days from receipt of the information to file a response.

113.4 If, after review of a timely-filed application for reconsideration and the response thereto, the Director concludes that the complainant has not presented evidence that would warrant change, modification, or reversal of the prior dismissal, the Director shall affirm the original no probable cause finding.

113.5 If the Director concludes that the complainant has provided sufficient evidence to raise a genuine issue of law or fact, the complaint shall be reopened for further investigation.

113.6 If the respondent adequately refutes the allegations presented in the application for reconsideration, the prior dismissal shall be affirmed and the parties notified.

113.7 Where the complainant raises issues of material misstatement of fact or discovery of evidence not available during the investigation, and if the respondent fails to respond within the required time period or fails adequately to refute the allegations in the application for reconsideration, the Director shall reopen the complaint for further investigation.

113.8 If, at the end of further investigation and after considering the record as a whole, the Director concludes that the complainant has not presented sufficient evidence to warrant a change of the prior dismissal, the prior dismissal shall be affirmed, and the parties notified in writing.

113.9 If the Director determines, after further investigation, that a prior dismissal should be reversed, the Director shall find probable cause to credit the complaint, and the parties shall be served with a detailed written basis for the reversal and afforded an opportunity to conciliate.

History

SOURCE: Regulation No. 73-22, approved November 16, 1973; Mayor’s Order 75-230, dated October 31, 1975, 34 DCRR; Final Rulemaking published at 31 DCR 56, 71 (January 6, 1984); as amended by Final Rulemaking published at 57 DCR 9162, 9175-9176 (October 1, 2010).

4 DCMR § 114 CONCILIATION

114.1 An LOD incorporating the probable cause decision and the basis for the finding shall be served on the complainant, his or her representative, and the respondent agency, including the agency head, along with a notice inviting the parties to conciliate.

114.2 The respondent agency shall, within fifteen (15) days of receipt of the LOD, notify the Director in writing of its decision to enter into conciliation.

114.3 If the respondent agency accepts the invitation to conciliate and the complainant agrees, the Director or his or her designee shall set a date for a post-determination conciliation conference to be held within thirty (30) days of the receipt of the agency’s acceptance.

114.4 If the parties cannot agree to a settlement, or if the agency fails to respond within the fifteen (15) days prescribed in § 108.6, or declines the invitation to conciliate, the Director or his or her designee shall notify the complainant in writing of the opportunity for a hearing or the right of the complainant to a summary determination as provided in § 110.

114.5 The complainant shall have fifteen (15) days from the receipt of the notice prescribed in § 108.8 to notify the Director in writing of his or her request for a hearing before an independent hearing examiner or for a summary determination.

History

SOURCE: Final Rulemaking published at 31 DCR 56, 72 (January 6, 1984); as amended by Final Rulemaking at 43 DCR 6569, 6573-75 (December 13, 1996); as amended by Final Rulemaking published at 57 DCR 9162, 9176-9177 (October 1, 2010); as amended by Final Rulemaking published at 57 DCR 9162, 9176-9177 (October 1, 2010).

4 DCMR § 115 SUMMARY DETERMINATIONS

115.1 After the probable cause determination and failure of the conciliation efforts, the Director may make a summary determination on the merits of a complaint based solely upon information in the complaint file.

115.2 A summary determination is a second review and consideration of the facts to determine if the probable cause determination is appropriate. The summary determination does not review any of the no probable cause findings. It may result in an affirmation or reversal of the original probable cause decision.

115.3 The Director may designate an independent reviewer to analyze the facts and make a recommendation as to whether probable cause exists to believe that discrimination has occurred.

115.4 In making a summary determination, the Director may issue an order to the agency head requiring appropriate remedial action, including, but not limited to, hiring, reinstatement, promotion, rescission of adverse action, or award of compensatory credits which are authorized by existing personnel regulations and statutes.

115.5 The Director may issue an order dismissing the complaint for lack of probable cause to credit the allegations.

115.6 Any order issued by the Director shall be in writing and shall advise the complainant and the agency head of their right to request reconsideration or the reopening of the case by the Director pursuant to § 114.

115.7 Within fifteen (15) days after issuance of any order by the Director, either party may request reconsideration or the reopening of the case pursuant to § 114.4.

115.8 If the Director determines that a matter is not appropriate for summary determination, the complainant shall be advised of the right to a formal hearing before an independent hearing examiner, with a subsequent decision by the Director based upon the Hearing Examiner’s report and recommendations.

115.9 The Director may decide that a summary determination, rather than a hearing, is the appropriate action for any complaint. If the Director issues a summary determination order, the parties may request a reconsideration of the order within ten (10) days after the date of the Director’s order. After the ten (10) day period, the parties shall be deemed to have waived the opportunity for reconsideration and no objection to a summary determination shall be considered by the Director except for good cause.

115.10 The complainant shall have fifteen (15) days from receipt of the notice to notify the Director whether or not he or she wishes to have a hearing.

115.11 If the complainant fails to respond to the hearing request within fifteen (15) days in accordance with § 109.9, the Director may make a determination on the merits of the complaint, based solely upon information in the complaint file, and may dismiss the complaint or order remedial action.

History

SOURCE: Final Rulemaking published at 31 DCR 56, 73 (January 6, 1984), as amended by Final Rulemaking published at 43 DCR 6569 (December 13, 1996); as amended by Final Rulemaking published at 57 DCR 9162, 9177-9178 (October 1, 2010); as amended by Final Rulemaking published at 57 DCR 9162, 9177-9178 (October 1, 2010).

4 DCMR § 116 CONDUCT OF HEARINGS BY HEARING EXAMINERS

116.1 The Director or the assigned Hearing Examiner shall notify all necessary parties in writing that a hearing will be held.

116.2 Hearings shall be held by a qualified Hearing Examiner, who shall not be an employee of the agency in which the complaint arose, and who shall not have investigated the complaint or taken or reviewed an action giving rise to the complaint being heard.

116.3 The Director shall select a Hearing Examiner qualified to conduct a hearing on a discrimination complaint either from among impartial employees, including OHR employees, or from outside contractors of the District government.

116.4 In addition to any other power specified in this chapter, a Hearing Examiner shall have the power to do the following:

(a) Hold a hearing on the issue of the probable cause finding;

(b) Hold pre-hearing conferences to narrow the issues of the complaint, provide notice and information of the hearing procedure, and to take other actions deemed necessary to expedite the hearing;

(d) Examine and cross-examine witnesses;

(e) Request the issuance of subpoenas authorized under this chapter;

(f) Rule upon offers of proof and receive evidence;

(g) Regulate the course and conduct of the hearing, including the following:

(1) Continuing the hearings to a later date or different place by announcement at the hearings or other appropriate notice;

(2) Taking official notice of any material fact;

(3) Ruling upon the admissibility of evidence and testimony;

(4) Determining whether the hearing will be open to the public; and

(5) Taking appropriate measures to assure that there shall be no interference with the orderly conduct of the hearing; and

(h) Prepare and deliver to the Director a Hearing Examiner’s report, which shall include a brief and concise statement of the history of the subject matter of the hearing, findings of fact, conclusions of law, analysis, and a recommendation or proposed order.

(i) If either party fails to respond to the Hearing Examiner’s requests for information or hearing, the Hearing Examiner shall request that the Director issue an Order;

(j) If either party fails to respond to the Order of the Director without reasonable excuse, the Director may issue a determination against the non-responsive party.

116.5 The Director shall transmit the complaint file to the Hearing Examiner.

116.6 The Hearing Examiner shall review the complaint file to determine whether further investigation is needed before scheduling the hearing.

116.7 If the Hearing Examiner determines that further investigation is needed, the Hearing Examiner shall either return the complaint file to the Director for further investigation or arrange with the Director for the appearance of witnesses necessary to supply the needed information at the hearing.

116.8 The Hearing Examiner shall schedule the hearing for a convenient time and place.

116.9 The Director shall provide the Hearing Examiner adequate space,

appurtenances, and services necessary for the hearing.

History

SOURCE: Final Rulemaking published at 31 DCR 56, 73 (January 6, 1984); as amended by Final Rulemaking published at 43 DCR 6569, 6575-76 (December 13, 1996); as amended by Final Rulemaking published at 57 DCR 9162, 9178-9179 (October 1, 2010).

4 DCMR § 117 HEARING PROCEDURES

117.1 The Hearing Examiner shall conduct the hearing so as to bring out pertinent facts, including the production of pertinent documents.

117.2 The Hearing Examiner shall permit wide latitude in the introduction of evidence, but shall exclude irrelevant and unduly repetitious evidence.

117.3 The Hearing Examiner shall receive only evidence which may have a bearing upon the complaint or upon any other employment policy or practice related to the complaint.

117.4 District government employees shall be required to serve as witnesses at hearings held under the provisions of this chapter. Absence from regular duty to serve as a witness shall be without charge to leave or loss in pay.

117.5 Witnesses may be requested by either party, subject to the approval of the Hearing Examiner of the reasons given by either party as to the need for the witnesses.

117.6 The Hearing Examiner shall request the Director to make available at the hearing as a witness, through subpoena, any District government employee whose appearance is deemed necessary.

117.7 The Hearing Examiner shall request the Director to make available at the hearing any other person, through subpoena, whose appearance the Hearing Examiner deems necessary.

117.8 The denial of a request for the appearance of a person as a witness by the Hearing Examiner shall include the reasons for denial and shall be entered into the record of the hearing.

117.9 Requests for witnesses may be submitted to the Director in writing by either party not later than three (3) working days in advance of the scheduled hearing date.

117.10 Each agency head shall make employees available to serve as witnesses whenever it is administratively possible and practicable to do so.

117.11 Reasons for denial by an agency head of a request for the service of an employee as a witness shall be sent in writing to the Director, along with a copy to the Hearing Examiner for inclusion in the complaint record and the hearing record.

117.12 If the agency head’s explanation is deemed inadequate, the Hearing Examiner shall so advise the Director and request the Director to order, through subpoena, the employee to be made available as a witness at the hearing.

117.13 An agency head shall be required to make the employee available when directed by notice from the Director.

117.14 If the agency head’s explanation is adequate, the Hearing Examiner shall insert it in the record of the hearing, provide a copy to the requesting party and the agency, and make arrangements to secure testimony from the employee through written interrogatories.

117.15 Witnesses shall not be subjected to restraint, interference, coercion, discrimination, intimidation, or reprisal in connection with their testimony.

History

SOURCE: Final Rulemaking published at 31 DCR 56, 74-75 (January 6, 1984); as amended by Final Rulemaking published at 57 DCR 9162, 9179-9180 (October 1, 2010).

4 DCMR § 118 RECORDS AND TRANSCRIPTS OF HEARINGS

118.1 Each hearing shall be recorded and transcribed verbatim.

118.2 The record shall consist of the complaint file, exhibits, transcripts, and all other documents submitted to and accepted by the Hearing Examiner related to the subject matter of the hearing and made a part of the record.

118.3 The Director shall be responsible for the reproduction of records, at the expense of the respondent agency.

118.4 A copy of the verbatim transcript, along with copies of each document made a part of the record by the Hearing Examiner, shall be furnished to the parties or their representatives, the agency involved, if not a party, the Hearing Examiner, and the Director.

History

SOURCE: Final Rulemaking published at 31 DCR 56, 76 (January 6, 1984); as amended by Final Rulemaking published at 57 DCR 9162, 9181 (October 1, 2010).

4 DCMR § 119 FINDINGS AND RECOMMENDATION OF THE HEARING EXAMINER

119.1 Within thirty (30) days after receipt of the transcript or post hearing submissions, whichever is later, the Hearing Examiner shall transmit to the Director the following:

(a) The complaint file;

(b) The record of the hearing;

(d) Findings of fact;

(e) Conclusions of law; and

(f) Analysis, recommendations, or proposed order.

119.2 A copy of the Hearing Examiner’s report shall be transmitted to the parties or their representatives and, if not a party, to the agency involved, including a notice of the date on which the report was transmitted to the Director.

119.3 Any party who is aggrieved by the adoption of the Hearing Examiner’s report and proposed recommendation or order, may, within twenty (20) days after receipt of the report, submit to the Director of OHR, a proposed substitute order or findings, along with arguments in support of the proposed substitute.

History

SOURCE: Final Rulemaking published at 31 DCR 56, 76-77 (January 6, 1984); as amended by Final Rulemaking published at 57 DCR 9162, 9181 (October 1, 2010).

4 DCMR § 120 FINAL DECISION OF THE DIRECTOR AFTER THE HEARING

120.1 Following receipt of the Hearing Examiner’s recommendations or proposed decision or order, and any argument or proposed substitute order or findings submitted by a party, the Director shall do one of the following:

(a) Render a final decision which may adopt, reject, or modify the decision of the Hearing Examiner; or

(b) Remand the matter for further hearings.

120.2 If the Director rejects or modifies the recommended decision of the Hearing Examiner, the final decision of the Director shall set forth in detail the specific reasons for rejection or modification.

120.3 The final decision of the Director shall be served on the parties or their representatives and, if not a party, the agency involved.

120.4 Either party may file a written request with the Director for reconsideration or to reopen the case within fifteen (15) days from the date of issuance of the final decision.

120.5 A request for reopening will only be considered if the requesting party demonstrates that there is newly discovered evidence that is competent, relevant, and material and was not reasonably discoverable prior to issuance of the final decision by the Director and that such evidence, if credited, would alter the ultimate outcome in the case.

120.6 The final decision of the Director on a complaint for which there has been no hearing shall be transmitted by letter to the parties or their representatives and, if not a party, to the agency involved, stating the basis for the decision, including the findings of fact, analysis, and conclusions of law.

120.7 The letter transmitting the final decision of the Director shall advise the parties of their right to request reconsideration or the reopening of the case pursuant to § 114.4 or to seek judicial review of the decision by a court of competent jurisdiction.

120.8 If either party requests reconsideration or the reopening of the case pursuant to § 114.4, and the Director determines that the case should be reconsidered or reopened, the Director shall inform the parties that the case is being reconsidered or reopened and that the final decision previously issued by the Director is vacated.

120.9 If neither party requests reconsideration or the reopening of the case pursuant to § 114.4, the final decision of the Director shall become the final administrative action of the District government fifteen (15) days after issuance of the decision, and the parties shall be deemed to have exhausted all administrative remedies.

120.10 If the Director decides not to grant a request for reconsideration or to reopen a case, the Director shall so notify the parties in writing, and at the time the notification is issued, the decision previously issued shall become the final administrative action of the District government.

120.11 If no action is taken on a request for reconsideration or to reopen a case within one hundred twenty (120) days, the request shall be deemed disapproved and the decision previously issued shall become the final administrative action of the District government.

120.12 In the interests of justice, the Director may sua sponte reopen or reconsider any case in which the Director has issued a decision at any time prior to the filing of an appeal by either party with a court of competent jurisdiction.

120.13 If the Director decides to reconsider or reopen a case pursuant to § 114.12, the Director shall inform the parties that the case is being reconsidered or reopened and that the decision previously issued by the Director is vacated.

History

SOURCE: Final Rulemaking published at 31 DCR 56, 77-78 (January 6, 1984); as amended by Final Rulemaking published at 43 DCR 6569, 6576 (December 13, 1996); as amended by Final Rulemaking published at 57 DCR 9162, 9181-9183 (October 1, 2010).

4 DCMR § 121 APPEALS

121.1 An appeal from the final decision of OHR may be taken to the Superior Court of the District of Columbia.

121.2 Pursuant to § 109 and § 113, the final decisions of the Director include a summary determination or the final determination after the hearing examiner’s recommendation.

121.3 The party must file a Petition for Review with the Clerk of the Civil Division within thirty (30) days after service of notice of the final decision.

History

SOURCE: Final Rulemaking published at 31 DCR 56, 79 (January 6, 1984); as amended by Final Rulemaking published at 43 DCR 6569, 6576 (December 13, 1996).

4 DCMR § 122 THE COMPLAINT FILE

122.1 The Director shall establish and maintain a complaint file containing all documents pertinent to each complaint.

122.2 The complaint file shall not contain any document that has not been made available to the complainant. The complaint file shall include, as a minimum, copies of the following:

(a) The complaint;

(b) The written report of the EEO Counselor to the agency EEO Officer on all pre-complaint counseling efforts made with regard to the complainant’s case;

(d) A signed written statement of the complainant or the complainant’s representative, if the complaint is withdrawn by the complainant;

(e) The written record of adjustment, if the complaint is adjusted informally under the provisions of this chapter;

(f) A copy of the letter from the Director notifying the complainant of the proposed disposition of the complaint and of the right to a hearing, or a decision by the Director without a hearing if no adjustment of the complaint is reached;

(g) A copy of the letter to the complainant transmitting the decision of the Director when the decision is made without a hearing under the provisions of this chapter;

(h) The record of the hearing, including the Hearing Examiner’s findings, analysis, and recommended decision on the merits of the complaint if a hearing was held; and

A copy of the letter to the complainant transmitting the decision of the Director if the decision is made after a hearing.

History

SOURCE: Final Rulemaking published at 31 DCR 56, 79 (January 6, 1984); as amended by Final Rulemaking published at 57 DCR 9162, 9183-9184 (October 1, 2010).

4 DCMR § 123 COMPLAINTS OF SEXUAL HARASSMENT

123.1 OHR shall receive complaints and allegations involving sexual harassment directed against officers and employees of the District government.

123.2 Allegations of sexual harassment shall be fully investigated, and corrective or disciplinary action taken if warranted.

123.3 Complaining parties shall be required to swear or affirm that the facts stated in the complaint are true to the best of the person’s belief, knowledge, and information.

123.4 The complaint file, including all information and documents pertinent to a complaint, shall be confidential.

123.5 Only complaints of sexual harassment that concern incidents which occurred within a period of one (1) year immediately prior to the date the complaint is filed shall be considered.

123.6 An investigation shall be conducted of those complaints which are filed by a present or former employee within one (1) year of the last alleged occurrence.

123.7 Complaints shall be investigated and processed in accordance with the procedures and authorities set forth in this chapter.

123.8 Each agency shall follow the District government’s sexual harassment policy, reflected in Mayor’s Order 2004-177 (October 20, 2004), and promulgate internal procedures for an employee to follow when filing a complaint with an EEO Counselor.

123.9 Agency heads who have complaints of sexual harassment brought to their attention shall promptly investigate and attempt to resolve the complaints.

123.10 If a resolution cannot be reached within an agency within sixty (60) days, the agency head shall refer the complaint to OHR.

123.11 An employee may file a complaint directly with OHR, even if he or she does not bring an internal complaint to the agency EEO Counselor or an EEO Counselor in another District government agency.

History

Source: Final Rulemaking published at 57 DCR 9162, 9184-9185 (October 1, 2010).

4 DCMR § 124 FREEDOM FROM REPRISAL OR INTERFERENCE

124.1 Witnesses and those who serve in EEO capacities, such as EEO Officers and EEO Counselors, or those who are involved in any other way in the EEO program or complaint process shall be free from restraint, interference, coercion, discrimination and reprisals at any stage in the presentation of a complaint at either the informal or formal phase or in the performance of their EEO-related duties.

124.2 Anyone coming within the scope of § 118.1 who alleges restraint, interference, coercion, discrimination, or reprisal in connection with the presentation of a complaint under this section or in the performance of his or her EEO related duties, may, if an employee or applicant, have the allegation reviewed as an individual complaint of discrimination subject to applicable sections of this chapter.

124.3 In order to avoid any suggestion of restraint, interference, coercion, discrimination, or reprisal, no information of any kind relating to a complaint of discrimination, or the fact than an employee has made an allegation of discrimination, shall be placed in the employee’s personnel records, except any personnel actions taken as a result of final order by the Director which have been upheld on appeal.

History

Source: Final Rulemaking published at 57 DCR 9162, 9185 (October 1, 2010).

4 DCMR § 125 REMEDIAL ACTION: APPLICANTS FOR EMPLOYMENT

125.1 When the Director finds that an applicant for employment has been discriminated against and, except for that discrimination, would have been hired, the agency involved shall offer the applicant employment of the type and grade denied at the first opportunity that the employment becomes available.

125.2 The agency’s offer of employment shall be made in writing.

125.3 The individual shall have fifteen (15) days from receipt of the offer within which to accept or decline the offer.

125.4 Failure to notify the agency of a decision to accept employment within the fifteen (15) day period shall be considered a refusal of the offer, unless the individual can show that circumstances beyond his or her control prevented a timely response.

125.5 If the offer is accepted, the appointment shall be retroactive to the date the applicant would have been hired, and backpay may be awarded for the retroactive period, but not to exceed two (2) years prior to the date the complaint was filed, and subject to any appropriate deductions required by law or regulation. During the period of retroactivity, the complainant shall be deemed to have performed services for all purposes, except for meeting service requirements for completion of a probationary or trial period.

125.6 If the offer is declined, the respondent agency shall award the complainant backpay subject to the limitations of § 119.5 and shall notify the complainant in its offer, of his or her right to this award in the event the offer is declined.

125.7 When the Director finds that discrimination existed at the time the applicant was considered for employment, but does not find that the individual is the one who would have been hired except for discrimination, the agency shall consider the individual for any existing vacancy of the type and grade for which he or she had been considered initially and for which he or she is qualified before consideration is given to other candidates.

125.8 If the individual is not selected, the agency shall record the reasons for non-selection.

125.9 If no vacancy exists, the agency shall give the applicant priority consideration for the next vacancy for which he or she is qualified.

History

Source: Final Rulemaking published at 57 DCR 9162, 9185-9186 (October 1, 2010).

4 DCMR § 126 REMEDIAL ACTIONS: EMPLOYEES

126.1 When the Director finds that an employee of an agency was discriminated against and as a result of that discrimination was denied an employment benefit, or was subjected to an adverse administrative decision, the agency shall take remedial actions which shall include one (1) or more of the following, but need not be limited to, these actions:

(a) Retroactive promotion, when the record clearly shows that but for the discrimination the employee would have been promoted to a higher grade; provided, that the backpay liability may not accrue from a date more than two (2) years prior to the date the discrimination complaint was filed, or the actual date he or she would have been promoted;

(b) If a finding of discrimination was not based on a complaint, the backpay liability may not accrue from a date earlier than two (2) years prior to the date the finding of discrimination was recorded, or the actual date the employee would have been promoted, whichever is the shorter period;

(c) Consideration for promotion to a position for which the employee is qualified before consideration is given to other candidates, when the record shows that discrimination existed at the time selection for promotion was made, but it is clear that except for the discrimination the employee would have been promoted. If the individual is not selected, the agency shall record the reasons for nonselection;

Cancellation of an unwarranted personnel action and restoration of withheld benefits that would have accrued to the employee;

(e) Expungement from the agency’s records of any reference to, or any record of, an unwarranted disciplinary action that is not a personnel action; and

(f) Full opportunity to participate in the employee benefit denied the employee (e.g., training, preferential work assignments, overtime scheduling), or a reasonable substitute.

126.2 Application of the provisions of § 120.1 shall be waived whenever the Director and the agency head concerned agree that sufficient and appropriate opportunities will be available to provide relief to the complainant if his or her complaint is sustained, or whenever the agency head effects the action on a temporary basis and the temporary action is made specifically subject to termination if the complainant’s assertion of discrimination is upheld.

126.3 In cases where an appointment has proceeded to a point that a third party might be aggrieved if no basis is proved for the allegation of discrimination, a temporary appointment or promotion shall be effected.

126.4 When corrective action is ordered by the Director in connection with resolving a complaint, the Director shall transmit a copy of the corrective order to the head of the agency concerned, and the corrective action ordered shall be taken without delay by the agency head.

126.5 If the agency head fails to comply with the corrective order within the stated time frame, the Director shall certify the order to the City Administrator, who shall direct the agency head to comply with the order.

History

Source: Final Rulemaking published at 57 DCR 9162, 9186-9187 (October 1, 2010).

4 DCMR § 127 THIRD PARTY ALLEGATIONS OF DISCRIMINATION

127.1 This section shall apply to general allegations by organizations or other third parties of discrimination in personnel matters within an agency of the District government which are unrelated to an individual complaint of discrimination.

127.2 The organization or other third party shall state the allegation with sufficient specificity so that the agency may investigate the allegations.

127.3 The agency may require additional specificity as necessary to proceed with its investigation.

127.4 The agency shall establish a file on each general allegation, and this file shall contain copies of all material used in making the decision on the allegation.

127.5 The agency shall furnish a copy of this file to the party submitting the allegation and shall make it available to the Director for review on request.

127.6 The agency shall notify the party submitting the allegation of its decision, including any corrective action taken on the general allegations, and shall furnish to the Director or the City Administrator, on request, a copy of its decision.

127.7 If the third party disagrees with the agency decision, it may within thirty (30) days after receipt of the decision, request that the Director review it.

127.8 The request shall be in writing and shall set forth, with particularity, the basis for the request.

127.9 Upon receipt of the request, the Director shall make, or require the agency to make, any additional investigation he or she deems necessary.

127.10 The Director shall issue a decision on the allegation ordering corrective action, as he or she considers appropriate.

127.11 Pursuant to § 114.4, either the third-party complainant or the agency may request that the Director reconsider the decision or to reopen the matter.

History

Source: Final Rulemaking published at 57 DCR 9162, 9187-9188 (October 1, 2010).

4 DCMR § 128 DISCRIMINATION COMPLAINTS IN OTHER PROCEEDINGS

128.1 Whenever an issue of discrimination as specified in § 101.1 is raised by a party in a grievance or adverse action proceeding before any appropriate agency of the District government, the hearing office shall inform the person raising the complaint of discrimination that the complaint will not be admitted as an issue in the grievance or adverse action proceeding and that the complaint should be submitted to the Director.

History

Source: Final Rulemaking published at 57 DCR 9162, 9188 (October 1, 2010).

4 DCMR § 199 DEFINITIONS

199.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Act - the Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Official Code § 2-1401.01 et seq.).

Age - eighteen (18) years of age or older, except that, in a case of employment, age shall be defined as eighteen (18) to sixty-five (65) years of age, unless otherwise defined by law.

Agency - any office, department, division, board, commission or other agency of the government of the District of Columbia with respect to which the Mayor or the Council are authorized by law to establish administrative procedures.

Day - a calendar day, unless otherwise specified.

Director - the Director of OHR, or his or her designee.

Disability - a physical or mental impairment that substantially limits one or more of the major life activities of an individual having a record of such an impairment or being regarded as having such an impairment.

Domestic Partnership - the same meaning as that defined in section 2(4) of the Health Care Benefits Expansion Act of 1992, effective June 11, 1992 (D.C. Law 9-114; D.C. Official Code § 32-701(4)).

EEO Counselor - an individual appointed by the agency head, or his or her designee, to provide informal counseling in response to a complaint of discrimination by an employee or applicant and to conduct an informal inquiry with the affected parties, as directed, with the objective of resolving the complaint at the agency level.

EEO Officer - an individual appointed by the agency head, or his or her designee, to serve as administrator of the agency EEO Program, supervise the EEO Counselors, prepare EEO reports, and conduct discrimination investigations, as directed.

Employee - any individual employed by or seeking employment from an agency of the District of Columbia government.

Familial status - one or more individuals under eighteen (18) years of age being domiciled with: (1) a parent or other person having legal custody of the individual; or (2) the designee, with written authorization of the parent, or other persons having legal custody of individuals under eighteen (18) years of age. The protection afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or in the process of securing legal custody of any individual under eighteen (18) years of age.

Family responsibilities - the state of being, or the potential to become, a contributor to the support of a person or persons in a dependent relationship, irrespective of the number of such persons, including the state of being the subject of an order of withholding or similar proceedings for the purpose of paying child support or a debt related to child support.

Gender identity or expression - a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual’s assigned sex at birth.

Genetic information - information about the presence of any gene, chromosome, protein, or certain metabolites that indicate or confirm that an individual or an individual's family member has a mutation or other genotype that is scientifically or medically believed to cause a disease, disorder, or syndrome, if the information is obtained from a genetic test.

Intrafamily offense - an offense as defined in D.C. Official Code § 16-1001(5).

Marital status - the state of being married, in a domestic partnership, single, divorced, separated, or widowed and the usual conditions associated therewith, including pregnancy or parenthood.

Matriculation - the condition of being enrolled in a college, or university; or in a business, nursing, professional, secretarial, technical or vocational school; or in an adult education program.

OHR - the District of Columbia Office of Human Rights, as established by section 202 of the Act (D.C. Official Code § 2-1411.01).

Personal appearance - the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress, and manner or style of personal grooming, including, but not limited to, hair style and beards. It shall not relate, however, to the requirement of cleanliness, uniforms, or prescribed standards, when uniformly applied for admittance to a public accommodation, or when uniformly applied to a class of employees for a reasonable business purpose; or when such bodily conditions or characteristics, style or manner of dress or personal grooming presents a danger to the health, welfare or safety of any individual.

Position Statement- the initial response by the respondent in the discrimination claim to complainant’s Charge of Discrimination.

Political Affiliation - the state of belonging to or endorsing any political party.

Religion - any institutionalized system or personal set of attitudes, beliefs, and practices which relate to moral or ethical standards.

Sexual harassment - unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when the following occurs:

(a) Submission to such conduct is made either explicitly or implicitly a term or condition of employment;

(b) Submission to or rejection of such conduct by an employee is used as the basis for employment decisions affecting the employee; or

(c) The conduct has the purpose or effect of unreasonably interfering with an employee’s work performance or creating an intimidating, hostile, or offensive working environment.

Sexual harassment may include, but is not limited to, verbal harassment or abuse, subtle pressure for sexual activity, patting or pinching, brushing against another employee’s body, and demands for sexual favors.

Sexual orientation - male or female homosexuality, heterosexuality, and bisexuality, by preference or practice.

Source of income - the point, the cause, or the form of the origination, or transmittal of gains of property accruing to a person in a stated period of time; including, but not limited to, money and property secured from any occupation, profession or activity, from any contract, agreement or settlement, from federal payments, court-ordered payments, from payments received as gifts, bequests, annuities, life insurance policies and compensation for illness or injury, except in a case where conflict of interest may exist.

History

SOURCE: Final Rulemaking published at 31 DCR 56, 57 (January 6, 1984); as amended by Final Rulemaking published at 57 DCR 9162, 9188-9191 (October 1, 2010).

4-2 GUIDELINES FOR PAYMENT OF COMPENSATORY DAMAGES, CIVIL PENALTIES, AND ATTORNEY'S FEES UNDER THE HUMAN RIGHTS ACT OF 1977

4 DCMR § 200 PURPOSE

200.1 This chapter establishes the substantive and procedural requirements for awards of compensatory damages, civil penalties, and attorney’s fees pursuant to D.C. Official Code § 2-1403.13(a) (2001).

200.2 It is the intent of the Commission in promulgating these guidelines to insure payment to persons aggrieved by unlawful discrimination of all expenses and damages fairly and reasonably attributable to unlawful discriminatory acts or practices.

200.3 The damages for which an award may be made shall include all of the damages enumerated herein, if proved, but shall not be limited thereto; it being the Commission’s intent to award damages of any nature whatever which can be fairly proved to have resulted from acts of discrimination.

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is § 313 of the District of Columbia Human Rights Act of 1977, D.C. Law 2-38, D.C. Official Code § 2-1403(a)(2) (2001).
SOURCE: Final Rulemaking published at 31 DCR 6259 (December 14, 1984); as amended by Final Rulemaking published at 46 DCR 2804 (March 19, 1999).

4 DCMR § 201 LOST INCOME AND EMPLOYEE BENEFITS

201.1 Every prevailing complainant shall be entitled to damages equal to all income that would have been received from an employer or any other source of income, whether or not that employer or source of income is a respondent hereunder, absent the unlawful discriminatory acts or practices of the respondent during the period of violation.

201.2 Included therein shall be income for overtime work that would have been available to the complainant under normal work conditions and work routine, on an estimated basis, during the period of violation.

201.3 This category shall also include the monetary equivalent of all sick leave, annual leave, retirement benefits, annuities, health benefits, and every other normal and usual employee benefit lost during the period of violation as a result of the unlawful discriminatory acts or practices of the respondent.

201.4 Any determination of damages for lost income shall be reduced by all other income received by the prevailing complainant from alternative employment during the period of violation.

History

SOURCE: Final Rulemaking published at 31 DCR 6259 (December 14, 1984); as amended by Final Rulemaking published at 46 DCR 2804, 2804-05 (March 19, 1999).

4 DCMR § 202 EXCESS HOUSING AND COMMERCIAL SPACE COSTS

202.1 If, as a result of the unlawful discriminatory acts or practices of the respondent, the prevailing complainant was required, in order to satisfy his or her housing or commercial space needs, to pay rent in excess of that which he or she would have paid but for the unlawful discrimination, and upon proof of being so required, the prevailing complainant shall be entitled to damages equal to the amount actually paid in excess over the rent for a comparable space during the period of violation, or during the period for which the prevailing complainant was obligated by lease to pay rent to a third party, whichever is greater; provided that if the lease period exceeds the period of violation by more than two (2) years, the damages shall be limited to two (2) years from the end of the period of violation.

202.2 If, as a result of the unlawful discriminatory acts or practices of the respondent, the prevailing complainant suffered a demonstrable loss of income as a result of delays occasioned in the obtaining of commercial space in which to conduct his or her business, the prevailing complaint shall be entitled to damages equal to such lost income as can be reasonably proved.

202.3 If, as a result of the unlawful discriminatory acts or practices of the respondent, the prevailing complaint was required to pay a purchase price for housing or commercial property in excess of prices contemporaneously paid for similar housing or commercial property in the same or similar area or neighborhood by persons not unlawfully discriminated against, the prevailing complaint shall be entitled to damages equal to the excess price actually paid.

202.4 If, as a result of the unlawful discriminatory acts or practices of the respondent, the prevailing complainant was prohibited from making an offer to purchase housing or commercial property, or if an offer of the prevailing complainant to purchase housing or commercial property was rejected for an equal or lower offer from another purchaser; the prevailing complainant shall be entitled to damages equal to the difference between his or her actual or intended offer and the actual sales price of the housing or commercial property to the other purchaser.

202.5 If the housing or commercial property for which the prevailing complainant intended to make an offer, or for which his or her offer was unlawfully rejected, is not eventually sold; or if the eventual sales price is equal to or above his or her offer; the complainant shall not be entitled to damages unless he or she was required to pay more than his or her original or intended offer for similar housing or commercial property, in which event he or she shall be entitled to damages equal to the excess of the amount paid for similar housing or commercial property over the original or intended offer.

202.6 If, as a result of the unlawful discriminatory acts or practices of the respondent, the prevailing complainant or his or her family or his or her business were required to move or store all or part of his, her, or its personal property, or to secure temporary quarters for his or her family, the prevailing complainant shall be entitled to reimbursement of such moving or storage expenses or expenses for temporary quarters.

History

SOURCE: Final Rulemaking published at 31 DCR 6259, 6260 (December 14, 1984); as amended by Final Rulemaking published at 46 DCR 2804, 2805-06 (March 19, 1999).

4 DCMR § 203 DENIAL OF FULL ENJOYMENT OF PUBLIC ACCOMMODATIONS

203.1 If the prevailing complainant or his or her family were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation in violation of D.C. Official Code 2-1402.31(2001), he or she shall be entitled to reimbursement of all expenses and compensation for all damages resulting from the unlawful discrimination including, but not limited to, the following provisions:

203.2 If, as a result of the unlawful discriminatory acts or practices of the respondent, the prevailing complainant was required to pay prices or charges for the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation in excess of those prices or charges normally levied by the place of public accommodation, the prevailing complainant shall be entitled to damages equal to the excess prices or charges actually paid.

203.3 If, as a result of the unlawful discriminatory acts or practices of the respondent, the prevailing complainant was denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, and he or she thereby lost an expected financial benefit or was otherwise hindered or damaged in his or her trade or occupation, the prevailing complainant shall be entitled to damages in compensation for such losses.

203.4 If, as a result of the unlawful discriminatory acts or practices of the respondent, the prevailing complainant or his or her family was denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, and he or she or his or her family was inconvenienced thereby, whether through the necessity of seeking other non-discriminating places or public accommodation or otherwise, the prevailing complainant shall be entitled to such damages as are proved by competent evidence as defined in § 213.

History

SOURCE: Final Rulemaking published at 31 DCR 6259, 6261 (December 14, 1984); as amended by Final Rulemaking published at 46 DCR 2804, 2806-07 (March 19, 1999).

4 DCMR § 204 DENIAL OF USE OF EDUCATIONAL INSTITUTIONS

204.1 If the prevailing complainant was denied or restricted in his or her use of or access to the facilities and services of an educational institution in violation of D.C. Official Code § 2-1402.41 (2001), he or she shall be entitled to reimbursement of all expenses and compensation for all damages resulting from the unlawful discrimination, including, but not limited to, the damages specified in §§ 204.2 and 204.3.

204.2 If, as a result of the unlawful discriminatory acts or practices of the respondent, the prevailing complainant was required to pay prices or charges for the use of or access to any facility or service of an educational institution in excess of those prices or charges normally levied by the educational institution, the prevailing complainant shall be entitled to damages equal to the excess prices or charges actually paid.

204.3 If, as a result of the unlawful discriminatory acts or practices of the respondent, the prevailing complainant was denied or restricted in his or her use of or access to any facility or service of an educational institution whether through the necessity of seeking other nondiscriminating educational institutions or otherwise, the prevailing complainant shall be entitled to such damages as are proved by competent evidence as defined in § 213.

History

SOURCE: Final Rulemaking published at 31 DCR 6259, 6262 (December 14, 1984); as amended by Final Rulemaking published at 46 DCR 2804, 2807 (March 19, 1999).

4 DCMR § 205 DAMAGES RESULTING FROM MEDICAL DISABILITY

205.1 If the prevailing complainant suffered any physiological, psychological, or emotional problems as a result of the violation of the Human Rights Act of 1977 and incurred expenses or damages therefrom, he or she shall be entitled to reimbursement of such expenses or compensation for such damages based on competent medical evidence thereof, including, but not limited to, the damages specified in this section.

205.2 If, as a result of the unlawful discriminatory acts or practices of the respondent, the prevailing complainant incurred any medical or hospital expenses, including, but not limited to, hospitalization, examination, or psychiatric services, he or she shall be entitled to reimbursement of such expenses.

205.3 If, as a result of the unlawful discriminatory acts or practices of the respondent, the prevailing complainant suffered any physiological, psychological, or emotional problems, and as a result of such problems, suffered consequential damages such as lost employment, he or she shall be entitled to compensation for such damages.

History

SOURCE: Final Rulemaking published at 31 DCR 6259, 6262 (December 14, 1984); as amended by Final Rulemaking published at 46 DCR 2804, 2807-08 (March 19, 1999).

4 DCMR § 206 TRAVEL EXPENSES

206.1 If, as a result of the unlawful discriminatory acts or practices of the respondent, the prevailing complainant was required to incur travel expenses between his or her residence and his or her place of employment during the period of violation in excess of travel expenses that would have been incurred absent the unlawful discrimination, he or she shall be entitled to reimbursement of the excess expenses.

206.2 If the daily additional travel required was ten (10) miles or more, or if the total additional travel required was one hundred (100) miles or more, the complainant shall be entitled to compensation for the use of his or her automobile at the Government of the District of Columbia prevailing rate for reimbursement or mileage.

206.3 Double recovery of such expenses shall not be allowed.

206.4 If the prevailing complainant has already been reimbursed for excess travel expenses from another source, he or she shall not be entitled to such compensation.

History

SOURCE: Final Rulemaking published at 31 DCR 6259, 6262 (December 14, 1984); as amended by Final Rulemaking published at 46 DCR 2808 (March 19, 1999).

4 DCMR § 207 REASONABLE EXPENSES INCURRED AS A RESULT OF PURSUING REMEDIES UNDER THE HUMAN RIGHTS ACT OF 1977

207.1 If, as a result of the prevailing complainant’s efforts to obtain relief before the Commission, including reimbursement for expenses incurred at the investigative stage prior to the certification of the complaint to the Commission, lost income or other compensation, incurred travel expenses, including parking expenses, or incurred excess expenses for food or lodging, the prevailing complainant shall be entitled to reimbursement of such expenses.

207.2 The prevailing complainant shall be entitled to reimbursement of all reasonable costs of prosecuting his or her claim for relief, including but not limited to, filing fees; witness fees (including expert witness fees); photocopying, transportation of self, witnesses, or representatives to and from hearings; telephone expenses; and postage fees.

History

SOURCE: Final Rulemaking published at 31 DCR 6259, 6263 (December 14, 1984); as amended by Final Rulemaking published at 46 DCR 2804, 2806-07 (March 19, 1999).

4 DCMR § 208 EXCESS EXPENSE RELATING TO EMPLOYMENT

208.1 If, as a result of the unlawful discriminatory acts or practices of the respondent, the prevailing complainant was denied employment and necessarily incurred expenses in order to secure other employment, including, but not limited to employment agency fees, training fees, certification fees, and the cost of uniforms or other equipment necessitated by the other employment, he or she shall be entitled to reimbursement for such expenses.

208.2 If the prevailing complainant was denied employment and thereafter permanently lost the benefit of expenses incurred in anticipation of gaining said employment, he or she shall be entitled to reimbursement for such expenses, including, but not limited to, employment agency fees, training fees, certification fees, and the cost of uniforms or other equipment necessary for the employment.

History

SOURCE: Final Rulemaking published at 31 DCR 6259, 6263 (December 14, 1984); as amended by Final Rulemaking published at 46 DCR 2804, 2808-09 (March 19, 1999).

4 DCMR § 209 PROPERTY DAMAGE

209.1 If, as a result of the unlawful discriminatory acts or practices of the respondent, the prevailing complainant’s property was damaged, or the complainant was forced to take action which resulted in damage to his or her property; he or she shall be entitled to reimbursement for any expenses actually incurred in repairing the damage or in replacing the property, if the replacement is found by the Commission to be necessary.

History

SOURCE: Final Rulemaking published at 31 DCR 6259, 6264 (December 14, 1984); as amended by Final Rulemaking published at 46 DCR 2809 (March 19, 1999).

4 DCMR § 210 MENTAL AND PHYSICAL ANGUISH, PAIN, AND SUFFERING

210.1 If, as a result of the unlawful discriminatory acts or practices of the respondent, the prevailing complainant was required to undergo medical or psychiatric treatment, or where no medical treatment was undergone, there exists evidence of anguish, pain, and suffering (e.g., headache, nausea, nervousness, insomnia, irritability, loss of weight), he or she shall be entitled to damages proved by competent medical evidence, as defined in § 213, in addition to any actual costs for medical attention as defined in § 205.

History

SOURCE: Final Rulemaking published at 31 DCR 6259, 6264 December 14, 1984); as amended by Final Rulemaking published at 46 DCR 2804, 2809 (March 19, 1999).

4 DCMR § 211 EMBARRASSMENT, HUMILIATION, AND INDIGNITY

211.1 The natural and unavoidable consequences of any unlawful discriminatory act or practice are personal embarrassment, humiliation, and indignity, and the prevailing complainant shall be entitled to such damages as are proved by competent evidence as defined in § 213.

211.2 In awarding damages for embarrassment, humiliation, or indignity, the Commission shall consider whether the unlawful discriminatory acts or practices were accompanied by aggravating factors including but not limited to any of the following:

(a) Untrue derogatory statements by the respondent regarding the complainant;

(b) Demotion or termination of the complainant;

(d) Occurrence of the unlawful discriminatory acts or practices of the respondent publicly, or within the knowledge of the awardee’s family, friends, peers, or acquaintances; and

(e) Willfulness, recklessness, or repetition of the unlawful discriminatory acts or practices of the respondent to the extent that they constituted harassment or caused unusual inconvenience.

History

SOURCE: Final Rulemaking published at 31 DCR 6259, 6264 (December 14, 1984); as amended by Final Rulemaking published at 46 DCR 2804, 2809-10 (March 19, 1999).

4 DCMR § 212 CIVIL PENALTIES

212.1 If, as a result of an unlawful discriminatory act or practice of the respondent, the Commission finds that the respondent engaged in outrageous conduct, the respondent shall be assessed with civil penalties.

212.2 In determining whether the respondent engaged in outrageous conduct, the Commission shall consider whether the conduct was the result of:

(a) an evil or intentional act or practice, or

(b) reckless or callous indifference to the rights of the complainant.

212.3 An evil or intentional act or practice is conduct reflecting a malicious, wanton, fraudulent, or willful intent, violence or oppression.

212.4 Reckless or callous indifference is conduct reflecting a conscious indifference to the rights of complainant for which the respondent is or should be aware.

212.5 Absent direct proof, the requisite intent may be inferred from all of the surrounding facts and circumstances.

212.6 Civil penalties shall be assessed in accordance with the following schedule:

(a) An amount not to exceed $10,000 if the respondent has not been adjudged by the Commission to have committed any prior violation of the District of Columbia Human Rights Act of 1977.

(b) An amount not to exceed $25,000 if the respondent has been adjudged by the Commission to have committed during the five (5) year period ending on the date of the filing of the current complaint one (1) other violation of the District of Columbia Human Rights Act of 1977.

(c) An amount not to exceed $50,000 if the respondent has been adjudged to have committed during the seven (7) year period ending on the date of the filing of the current complaint two (2) or more violations of the District of Columbia Human Rights Act of 1977.

212.7 The payment of civil penalties shall be deposited into the District of Columbia General Fund and not be paid to the individual complainant.

History

SOURCE: Final Rulemaking published at 46 DCR 2804, 2809-10 (March 19, 1999).

4 DCMR § 213 ATTORNEY’S FEES

213.1 If the prevailing complainant was represented by a privately retained attorney in any case in which the Commission has found that the respondent engaged in discriminatory acts or practices in violation of the Human Rights Act of 1977, the complainant shall be entitled to a reasonable attorney’s fee for the number of hours reasonably expended by the complainant’s attorney on claims upon which the complainant prevailed.

213.2 The reasonable hourly rate multiplied by the reasonable number of hours expended upon successful claims is presumed to be the reasonable attorney’s fee.

213.3 In determining a reasonable hourly rate, the Commission shall consider the hourly rate charged by the prevailing complainant’s attorney for similar legal work in private representations. Where no hourly rate exists, or where otherwise necessary to arrive at a reasonable hourly-rate, the Commission may also consider rates charged in the community for similar legal work by attorneys of comparable skill, experience, and reputation.

213.4 The prevailing complainant shall bear the burden of demonstrating that an upward adjustment of the presumed reasonable attorney’s fee is necessary to provide fair compensation to the prevailing attorney.

213.5 The unsuccessful respondent shall bear the burden of demonstrating that a downward adjustment of the presumed reasonable attorney’s fee is necessary to avoid a windfall to the prevailing attorney.

213.6 In determining whether an adjustment of the presumed reasonable attorney’s fee is warranted, the Commission shall be guided by Supreme Court decisions interpreting the attorney’s fee provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 e-5(k) (1982); the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. §1988 (1982); and other similar federal fee-shifting laws.

213.7 The complainant’s attorney’s fee petition shall be filed with the Commission no earlier than twenty (20) days after the issuance of the Commission’s Final Decision and Order and no later than thirty (30) days after the issuance of the Commission’s Final Decision and Order. Supplemental petitions may be filed if the Commission’s Final Decision and Order is appealed to the District of Columbia Court of Appeals.

213.8 If a motion for reconsideration is filed, then the complainant shall file his or her attorney’s fee petition no earlier than twenty (20) days after the issuance of the Commission’s Final Decision and Order on Motion for Reconsideration and no later than thirty (30) days after the issuance of the Commission’s Final Decision and Order for Reconsideration. Supplemental petitions may be filed as in accordance with § 213.7.

History

SOURCE: Final Rulemaking published at 31 DCR 6259, 6266 (December 14, 1984); as amended by Final Rulemaking published at 46 DCR 2804, 2810-11 (March 19, 1999).

4 DCMR § 214 MISCELLANEOUS

214.1 An award of compensatory damages, civil penalties or attorney’s fees pursuant to these guidelines shall be made only upon written petition of the prevailing complainant, specifying the type and amount of damages claimed. Such petition may be contained in the complainant’s pre-hearing statement as outlined in the Commission’s Rule of Procedure for Contested Cases, 4 DCMR § 413.3.

214.2 Any award made for expenses compensable under §§ 202, 203, 204, 205, and 206 of these guidelines shall be made only upon the production of documentary evidence of such expenses, including, but not limited to, bills, receipts, cancelled checks, and invoices.

214.3 If such documentation cannot reasonably be produced, an award may be made upon reasonable and credible testimony and evidence.

214.4 Any award of damages or other compensation under §§ 201, 202, 205, 207, 208, 209, 210, 211, 212, and 213 of these guidelines shall be made only upon reliable and probative evidence that will permit the Commission to ascertain a reasonable basis for assessing the amount of the damages or other compensation.

214.5 If an award of damages is made, the respondent shall pay the complainant interest at the rate of eight percent (8%) per annum on out of pocket expenses, from the date incurred to the date of payment, and if the total award is not paid within thirty (30) days from the date of issuance of the Commission’s Final Decision and Order, the respondent shall pay interest at the rate of eight percent (8%) per annum until paid.

History

SOURCE: Final Rulemaking published at 31 DCR 6259, 6265 (December 14, 1984);as amended by Final Rulemaking published at 46 DCR 2804, 2811-12 (March 19, 1999).

4 DCMR § 299 DEFINITIONS

299.1 In addition to the definitions contained in § 499 of the District of Columbia Commission on Human Rights Rules of Procedure for Contested Cases, 4 DCMR, chapter 4, the following terms and phrases shall have the meanings ascribed:

Civil Penalties- A monetary penalty assessed against the respondent which is paid into the District of Columbia General Fund as a result of the Commission’s finding that the respondent’s discriminatory acts or practices violated the Human Rights Act of 1977 and those acts or practices are found to be one of the acts enumerated under § 212 of these guidelines.

Damages - a monetary award made to a prevailing complainant and assessed against a respondent to compensate for injuries sustained as a result of discriminatory acts or practices found by the Commission to be unlawful under the Human Rights Act of 1977.

Period of violation - the period of time between the initial instance of the respondent’s unlawful discrimination against the complainant as determined by the Commission and the date upon which the respondent ceases the discriminatory practice and offers remedy and relief in accordance with this chapter pursuant to an order issued by the Commission under D.C. Official Code § 2014.13(a) (2001).

History

SOURCE: Final Rulemaking published at 31 DCR 6259, 6266 (December 14, 1984); as amended by Final Rulemaking published at 46 DCR 2804, 2812-13 (March 19, 1999).

4-3 DISTRICT OF COLUMBIA COMMISSION ON HUMAN RIGHTS RULES OF ORGANIZATION

4 DCMR § 300 OFFICERS

300.1 The officers of the Commission shall be the Chairperson, the Vice-Chairperson and the Secretary.

300.2 The Chairperson shall perform the following duties:

(a) Preside at regular meetings of the Commission;

(b) Preside at all other meetings called by the Commission, or designate the Vice- Chairperson or any other Commissioner to preside;

(c) Serve as the spokesperson for the Commission on all matters, or designate the Vice-Chairperson or another Commissioner to serve in that capacity;

(d) Issue or sign notices and correspondence in accordance with § 307;

(e) Appoint committees, hearing tribunals, and other panels as required;

(f) Recommend to the Mayor dismissal of any Commissioner who fails to attend three (3) consecutive regularly scheduled meetings, unless in the opinion of the Chairperson there is good cause for the failure to attend; and

(g) Perform other duties of the Commission as the Commission may delegate.

300.3 The Vice-Chairperson shall act as Chairperson when the Chairperson is absent, or when requested by the Chairperson, and shall perform other duties assigned by the Chairperson or the Commission.

300.4 The Secretary shall perform the following duties:

(a) Oversee the recording of the minutes of Commission meetings, and submit the minutes to the Commission for approval;

(b) Call the roll at monthly Commission meetings;

(d) Draft letters to Commissioners who have been absent for more than two (2) consecutive monthly meetings or two (2) consecutive tribunal meetings, regarding their participation in monthly and tribunal meetings; and

(e) Perform such ministerial and other duties assigned by the Commission.

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is § 4 of Commissioner’s Order 71-224 dated July 8, 1971.
SOURCE: Final Rulemaking published at 41 DCR 6720 (October 7, 1994).

4 DCMR § 301 ELECTION OF OFFICERS

301.1 Members of the Commission shall elect officers other than the Chairperson. Officers may be reelected for any number of terms.

301.2 Annual elections of officers shall be conducted at the regular January Commission meeting.

301.3 Officers shall serve one (1) year terms to commence at the conclusion of the meeting at which annual elections are conducted. A special election to fill an unexpired term may be held at any regular monthly meeting; provided, that written notice has been given at least seven (7) calendar days prior to the election.

History

SOURCE: Final Rulemaking published at 41 DCR 6720, 6721 (October 7, 1994).

4 DCMR § 302 MEETINGS

302.1 The Commission shall hold regular open meetings at least once every other month beginning in January of each year, at such times and places as provided in the notice of the meeting.

302.2 The Mayor, the Chairperson, or a majority of the current members of the Commission may call a special meeting of the Commission by sending notice of the special meeting not less than seven (7) days in advance. The notice shall state the matters to be considered. No other matter may be considered at a special meeting except with the consent of all members of the Commission present.

302.3 By affirmative vote of six (6) members, the Commission may schedule or hold a closed executive session to discuss personnel or other matters of a private or confidential nature. No action may be taken in an executive session, and no records shall be kept of the session other than a record of the vote to schedule or hold the session.

History

SOURCE: Final Rulemaking published at 41 DCR 6720, 6721 (October 7, 1994).

4 DCMR § 303 CONDUCT OF MEETINGS

303.1 The Chairperson shall determine the order of business at meetings.

303.2 The Chairperson shall prepare an agenda for each regular Commission meeting. Any member of the Commission or member of the public may transmit material to the Chairperson for inclusion on the agenda. This material shall be included on the agenda if it is received in the Commission’s office not later than fourteen (14) calendar days prior to the meeting.

303.3 The Chairperson shall distribute the proposed agenda to the Commissioners no later than seven (7) calendar days prior to the date of the meeting.

303.4 Additional items may be placed on the agenda of a regular meeting by majority vote of the Commissioners present, and if applicable notice requirements have been met.

303.5 If neither the Chairperson or the Vice-Chairperson is present at the time designated for any Commission meeting, the Secretary or any other Commissioner shall call the roll and, if six (6) or more of the Commissioners are present, shall call the meeting to order, and preside over the election of a Chairperson pro tempore who shall preside until the Chairperson or Vice-Chairperson arrives.

303.6 The Chairperson or Chairperson pro tempore shall decide all questions of order at all meetings, subject to an appeal to the Commission.

303.7 Matters not covered by this chapter or other District of Columbia laws or regulations shall be decided in accordance with Robert’s Rules of Order, Newly Revised.

History

SOURCE: Final Rulemaking published at 41 DCR 6720, 6722 (October 7, 1994).

4 DCMR § 304 QUORUM

304.1 A majority of the authorized membership of Commissioners (eight (8) Commissioners) shall constitute a quorum for the transaction of business at all meetings of the Commission, except that a meeting may commence for the consideration of matters not requiring a vote when six (6) Commissioners are present.

History

SOURCE: Final Rulemaking published at 41 DCR 6720, 6723 (October 7, 1994).

4 DCMR § 305 VOTES

305.1 Action shall be taken by majority vote of the Commissioners present and voting unless provided in this chapter or in other District of Columbia laws or regulations.

305.2 No person may vote on Commission or tribunal matters unless that person is a current member of the Commission.

305.3 A motion to reconsider a vote may be made at the same meeting at which the vote was taken or, if otherwise in order, at the next meeting, by any Commissioner who voted with the prevailing side of a question.

History

SOURCE: Final Rulemaking published at 41 DCR 6720, 6723 (October 7, 1994).

4 DCMR § 306 RECORDS OF MEETINGS

306.1 The Secretary shall cause the proceedings of Commission meetings to be recorded in written minutes.

306.2 The minutes shall record all actions and any statements made for the record. Otherwise there shall be no verbatim written record of discussion and debate unless so ordered by the Commission.

306.3 Copies of the minutes shall be distributed to each Commissioner at the next regular meeting of the Commission.

306.4 Upon approval by the Commission, the minutes shall become the record of the proceedings.

History

SOURCE: Final Rulemaking published at 41 DCR 6720, 6723 (October 7, 1994).

4 DCMR § 307 NOTICES AND CORRESPONDENCE

307.1 The Chairperson shall sign or designate a person to sign the following:

(a) All notices to Commissioners of regular and special meetings, except for special meetings called by a majority of the Commissioners or by the Mayor, as provided in § 302.2;

(b) All notices and correspondence signifying proposed and final actions of the Commission;

(c) All appointments of committees, hearing tribunals, and panels where such appointments are within the powers of the Chairperson; and

(d) All letters drafted by the Secretary in accordance with § 300.4(d).

History

SOURCE: Final Rulemaking published at 41 DCR 6720, 6723 (October 7, 1994).

4 DCMR § 308 POLICY AND PROGRAMS

308.1 The Commission as a whole, when convened in regular or special session, shall consistent with law, consider and adopt Commission policy, programs and objectives.

308.2 Any Commissioner may propose policy, programs, and objectives or consideration and adoption by the Commission.

308.3 The Chairperson may call upon individual Commissioners to fill specific roles in sensitive community situations requiring individuals of high prestige or particular competence or expertise. The activities shall be carried out in cooperation with the Office of Human Rights staff if required in the context of Commission policy and programs.

308.4 Whenever the Commission is requested to take ceremonial action and the Chairperson determines that a regular or special meeting of the Commission is not feasible, the Chairperson shall endeavor to poll all the Commissioners and upon receipt of eight (8) or more assents to his or her proposed course of action, may take the action proposed, in the name of the Commission.

History

SOURCE: Final Rulemaking published at 41 DCR 6720, 6724 (October 7, 1994).

4 DCMR § 309 AMENDMENT

309.1 Amendments to this chapter may be adopted at any duly convened meeting of the Commission by a three-fourths (3/4) majority vote of those present and voting.

309.2 Notice of the proposed amendments shall be provided to all Commissioners at least thirty (30) days in advance of the meeting at which they will be considered unless three-fourths (3/4) of the Commissioners waive the notice.

309.3 Final Rulemaking action to amend this chapter, following publication in the D.C. Register of a thirty (30) day notice of Proposed Rulemaking, may be taken by a majority of the Commissioners present and voting.

History

SOURCE: Final Rulemaking published at 41 DCR 6720, 6724 (October 7, 1994).

4-4 PROCEDURE FOR CONTESTED CASES

4 DCMR § 400 APPLICABILITY

400.1 This chapter shall be applied prospectively to all contested cases before the Commission on Human Rights, including those that are pending, but shall not invalidate any process previously effected.

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is § 303 of the District of Columbia Human Rights Act of 1977, D.C. Law 2-38, D.C. Official Code § 2-1403.03 (2001).
SOURCE: Final Rulemaking published at 42 DCR 1429 (March 24, 1995).

4 DCMR § 401 CERTIFICATION OF COMPLAINT

401.1 Upon the Office’s certification of a complaint for a public hearing, the Office shall transmit a notice of certification to the Commission and shall also cause written notice to be served on all parties that the Office has certified the matter to the Commission for a public hearing. The notice to the parties shall inform the complainant that the complainant has the option to be represented by a private representative or to proceed on their own (pro se) and shall include a copy of the notice of certification to the Commission.

401.2 The Office’s notice of certification to the Commission shall include or be accompanied by:

The names of the parties;

A copy of the complaint, as it may have been amended;

A copy of the Office’s letter of determination finding probable cause to credit the allegations of the complaint; and

A copy of the Office’s memorandum certifying that efforts to resolve the complaint through conciliation have failed and that the matter is ready for public hearing.

401.3 If the documents set forth in § 401.2(b) through (d) have not been previously provided to the parties by the Office of Human Rights, the Office’s notice to the parties either shall include the documents as an attachment or shall include a statement that the Office will provide copies of the documents to a party upon request.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1429-30 (March 24, 1995); as amended by Final Rulemaking published at 69 DCR 011280 (September 16, 2022). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 401

4 DCMR § 402 REMAND TO THE OFFICE OF A CERTIFIED COMPLAINT

402.1 If any of the following deficiencies appear on the face of the letter of determination of probable cause issued by the Office for a certified complaint, the Chairperson may remand the complaint to the Office for further investigation or other appropriate action:

(a) The jurisdiction of the Office and the Commission is in question;

(b) The letter of determination fails to address all of the issues raised in the complaint, as the same may have been amended; or

c) The finding of probable cause is not supported by the factual representations contained in the letter of determination.

402.2 If the Office is unable to produce the investigative file upon the request of any party at any time following the certification of a complaint for public hearing, the Chairperson may remand the complaint to the Office for reinvestigation or other appropriate action.

402.3 The Chairperson may, in his or her discretion, assign a complaint to any Commissioner or hearing examiner for review of the letter of determination and recommendation of action. Based upon the review and recommendation, the Commission may remand the complaint to the Office in the name of the Chairperson. The Commission shall serve written notice of the remand on all parties, specifying the basis for the remand, as well as the action recommended to the Office, if any.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1430-31 (March 24, 1995).

4 DCMR § 403 CONSOLIDATION OF COMPLAINTS

403.1 The Chairperson may consolidate two (2) or more complaints that involve identical or similar issues and that are filed against the same respondent.

403.2 The Chairperson may consolidate two (2) or more complaints filed by one complainant against the same respondent.

403.3 The Chairperson may consolidate complaints on the motion of a party, or sua sponte if consolidation would expedite the processing of the complaints and would not adversely affect the interests of the parties.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1431 (March 24, 1995).

4 DCMR § 404 HEARING TRIBUNAL

404.1 After a complaint has been certified to the Commission for public hearing, the Chairperson shall appoint a Hearing Tribunal consisting of three (3) members of the Commission, sitting as the Commission, to adjudicate the complaint.

404.2 The Chairperson may designate one or more hearing examiners to hear and report back to the Hearing Tribunal on any complaint before the Commission. The hearing examiner(s) may be appointed from a list of qualified examiners approved by the Commission or from among the Commissioners. A Hearing Tribunal may also function in the role of hearing examiner, and shall render a final decision and order in such role.

404.3 Any Commissioner or hearing examiner who has participated in the precertification processing of a complaint or has participated in any decision related to the merits may not sit as a member of the Hearing Tribunal appointed to adjudicate the complaint or as a hearing examiner delegated to hearing the complaint.

404.4 Upon assignment of a complaint, the Hearing Tribunal and the hearing examiner, if one has been designated, shall receive the materials listed in § 401.2, together with any available information as to the addresses and telephone numbers of the parties and their representatives. At no time prior to the commencement of the hearing shall the Hearing Tribunal or the hearing examiner receive any information regarding the merits of the complaint.

404.5 Upon assignment of the complaint, the Chairperson shall notify the parties of the name of the designated hearing examiner. In the absence of a designated hearing examiner, the Chairperson shall notify the parties of the names of the assigned Hearing Tribunal members.

404.6 The hearing examiner, whether selected from a list of qualified examiners, or from among the Commissioners, shall be entitled to an appropriate per diem allowance while conducting the hearing; provided, that prior to the hearing, the Chairperson has certified that funds are available for such purpose.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1431-32 (March 24, 1995).

4 DCMR § 405 DUTIES AND POWERS OF HEARING EXAMINER

405.1 The hearing examiner shall conduct a fair and impartial hearing, and shall take all necessary action to avoid undue delay in the disposition of a complaint before the Commission. The powers of the hearing examiner include, but are not limited to the following:

(a) Scheduling of status conferences, pre-hearing conference, and the hearing;

(b) Certifying the competency of non-attorney representatives pursuant to § 801.1;

(d) Controlling the admission of evidence into the record;

(e) Regulating the presentation of oral and written argument;

(f) Ruling on procedural issues and motions that do not determine the outcome of the hearing process;

(g) Recommending rulings to the Hearing Tribunal on substantive issues and motions that determine the outcome of the hearing process; and

(h) Regulating the conduct of the hearing process, maintaining decorum, and imposing or recommending sanctions in accordance with § 434.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1432 (March 24, 1995).

4 DCMR § 406 DISQUALIFICATION OF HEARING EXAMINERS OR HEARING TRIBUNAL MEMBERS

406.1 If the hearing examiner or any member of a Hearing Tribunal considers himself or herself unqualified to hear or adjudicate a complaint, the hearing examiner shall recuse himself or herself, stating on the record the reasons for recusal, and shall immediately notify the Chairperson in writing.

406.2 Upon any party’s filing in good faith a timely and sufficient affidavit of personal bias or other grounds for disqualification, the hearing examiner or member of the Hearing Tribunal may recuse himself or herself.

406.3 Any party may submit a motion to the Chairperson requesting the disqualification of the hearing examiner of any member of the Hearing Tribunal on the basis of personal bias or other grounds for disqualification, but only after the hearing examiner or member of the Hearing Tribunal has declined to recuse himself or herself pursuant to § 406.2. The motion shall be in writing and shall state facts and reasons for the belief that grounds for disqualification may exist. A verified statement of good faith from the party’s representative shall accompany the motion.

406.4 The Chairperson shall rule on the motion within fifteen (15) calendar days of receipt of the motion.

406.5 If a motion for disqualification is denied, the party requesting disqualification may appeal the decision by filing a written appeal with the Commission within seven (7) calendar days of receipt of the ruling. The Commission shall rule on the written appeal within thirty (30) calendar days.

406.6 If the hearing examiner has recused himself or herself or is disqualified for any reason, a different hearing examiner shall hear the complaint de novo.

406.7 If a member of the Hearing Tribunal has recused himself or herself or is disqualified for any reason, the Chairperson shall cause the Hearing Tribunal member to be replaced or shall assign the complaint to a different Hearing Tribunal, and the hearing process shall resume from a point prior to the Tribunal member’s participation in any decision affecting the disposition of the complaint.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1432-33 (March 24, 1995).

4 DCMR § 407 INTERVENORS

407.1 There shall be no right to intervene in Commission proceedings, but the hearing examiner may permit intervenors to participate in a proceeding; provided, that the intervention will not unduly delay or prejudice the rights of the parties.

407.2 Any prospective intervenor shall request permission from the hearing examiner to intervene. The request shall be in writing, stating with particularity the reasons for the belief that the prospective intervenor’s claim or defense and the main action before the Commission have a question of law or fact in common.

407.3 Any prospective intervenor shall provide notice of the motion to intervene, with supporting documentation to the original parties to the complaint. The parties may respond in writing to the motion within the time set forth in § 410 of this chapter.

407.4 Any party or prospective intervenor may appeal the hearing examiner’s ruling on a motion to intervene by filing a written appeal with the Hearing Tribunal within seven (7) calendar days of receipt of the ruling. Any response to the appeal shall be filed within five (5) calendar days of receipt of the appeal notice. The Hearing Tribunal shall rule on the appeal within fifteen (15) calendar days of receipt of a timely response or within fifteen (15) calendar days of the last day a timely response could have been filed.

407.5 An intervenor shall be considered a party to the hearing process and shall be accorded the same rights as other parties, except that:

(a) An intervenor shall not have an independent right to a hearing; and

(b) An intervenor shall participate only in connection with issues directly affecting him or her as determined by the hearing examiner.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1433-34 (March 24, 1995).

4 DCMR § 408 REPRESENTATION

408.1 In each proceeding before the Commission, the General Counsel for the Office of Human Rights or his or her designee shall present the case in support of the complaint and may pursue public interest relief and appropriate relief for the complainant, to the extent consistent with the public interest, but the Office shall not represent the complainant or the respondent.

408.2 Any complainant or respondent may represent themselves or retain an attorney or non-attorney representative, at their own expense, to proceed before the Commission.

408.3 An attorney representing a complainant or respondent must be:

(a) An active member in good standing of the District of Columbia Bar;

(b) Authorized to practice law in the District of Columbia pursuant to Rules 49(c)(1), (4), (8), or (9) of the District of Columbia Court of Appeals; or

408.4 To represent a complainant or respondent pro hac vice before the Commission, an attorney shall file an application with the Commission in which the attorney declares under the penalty of perjury:

(a) I have not applied for admission pro hac vice in more than five (5) cases at the Commission or in the courts of the District of Columbia during this calendar year. I have applied for admission pro hac vice at the Commission and in the courts of the District of Columbia ______ (list number) times previously in this calendar year;

(b) I am a member in good standing of the bar of the highest court(s) of the State(s) of ______ (list all states);

(d) I am not currently suspended or disbarred from practice in any court;

(e) I do not practice or hold out to practice law in the District of Columbia;

(f) If I am a District of Columbia government employee, I am allowed to appear on behalf of my client because I meet the conditions set forth in 6B DCMR § 1807.6 or 1807.7;

(g) I am familiar with the rules governing proceedings before the

Commission;

(h) I am applying for admission pro hac vice for the following reason(s): ______ (list all reasons);

(i) I acknowledge the jurisdiction of the Commission and the courts of the District of Columbia over my professional conduct and agree to be bound by the District of Columbia Rules of Professional Conduct, in this matter, if I am admitted pro hac vice;

(j) I have informed my client that I am not a member of the District of Columbia Bar, and my client has consented to my representation in this case; and

(k) Either:

(1) If I have an office in the District of Columbia, I will expressly give prominent notice in all business documents related to any Commission proceeding of my bar status and that my practice is limited consistent with Rule 49(c) of the Rules of the D.C. Court of Appeals; or

(2) If I do not have an office in the District of Columbia, I will expressly give written notice to clients and other parties, with respect to any proceeding before the Commission, of my bar status and that my practice is limited consistent with Rule 49(c) of the Rules of the D.C. Court of Appeals.

408.5 To represent a complainant or respondent as a non-attorney representative before the Commission, the representative shall file an application with the Commission in which the representative declares under the penalty of perjury:

(a) I have not applied to be a representative in more than five (5) cases before the Commission during this calendar year. I have applied to be a representative before the Commission ______ (list number) times previously in this calendar year;

(b) I do not practice or hold out to practice law in the District of Columbia;

(c) If I am a District of Columbia government employee, I am allowed to appear on behalf of my client because I meet the conditions set forth in 6B DCMR § 1807.6 or 1807.7;

(d) I am familiar with the rules governing proceedings before the

Commission;

(e) I am applying to be a representative before the Commission for the following reason(s): ______ (list all reasons);

(f) I acknowledge the jurisdiction of the Commission and the courts of the District of Columbia over my professional conduct and agree to be bound by the District of Columbia Rules of Professional Conduct in this matter;

(g) I have informed my client that I am not a member of the District of Columbia Bar, and my client has consented to my representation in this case; and

(h) Either:

(1) If I have an office in the District of Columbia, I will expressly give prominent notice in all business documents related to any Commission proceeding that I am a non-attorney representative, and that my representation is limited consistent with Rule 49(c) of the Rules of the D.C. Court of Appeals; or

(2) If I do not have an office in the District of Columbia, I will expressly give written notice to clients and other parties, with respect to any proceeding before the Commission and any conduct reasonably ancillary to the proceeding, that I am a non-attorney representative and that my representation is limited consistent with Rule 49(c) of the Rules of the D.C. Court of Appeals.

408.6 The administrative law judge to whom a case has been assigned may approve an application submitted pursuant to § 408.4 or 408.5, based on the attorney or representative’s self-certification that all criteria have been satisfied.

408.7 Each representative of the complainant or the respondent, whether an attorney or a non-attorney, must submit a notice of appearance in order to participate in the proceeding. The notice of appearance shall be in writing and shall include the representative’s bar number, if applicable, address, telephone number, and email address. The notice of appearance shall include a statement that the representative possesses:

(a) Working knowledge of the Human Rights Act and any other relevant District law at issue, the applicable District of Columbia Municipal Regulations, the District of Columbia Administrative Procedure Act, District of Columbia Superior Court Rules of Civil Procedure, and this chapter; and

(b) Familiarity with the facts, legal theories, and issues in question.

408.8 Once a representative for the complainant or respondent has entered his or her appearance in a case, the representative may not withdraw from the case without approval of the hearing examiner. The hearing examiner may use his or her discretion in granting a motion to withdraw submitted by a representative of the complainant or respondent, except that no motion to withdraw shall be granted once the hearing has commenced, or within thirty (30) days before the scheduled commencement of the hearing, unless good cause is shown.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1434-35 (March 24, 1995); as amended by Final Rulemaking published at 69 DCR 007170 (June 17, 2022). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 408

4 DCMR § 409 PLEADINGS

409.1 Every written pleading shall be typewritten, signed by the party’s representative of record and served on every other party; and shall contain a statement certifying that a copy was served on every other party.

409.2 Every written pleading, motion, or other submission shall be filed with the Office of the Commission during its regular business hours on or before the date when the submission is due or permitted under this chapter or under the orders of the hearing examiner or Commission. An original and three (3) copies of each submission shall be filed with the Office of the Commission.

409.3 The signature of a party or a party’s representative constitutes a certificate by that individual that, to the best of his or her knowledge, information, and belief, there is a good faith basis in law and fact for such submission, and that it is not interposed for delay or other improper purpose.

409.4 Upon a finding by the hearing examiner that any submission fails to comply with the provisions of § 409.3, the hearing examiner may impose a remedy in the hearing examiner’s discretion, including but not limited to, the following:

(a) Striking the submission from the record;

(b) Awarding fees and costs to an opposing party; or

c) Disqualifying a representative from further participation in the case.

409.5 All motions, except those made in open session during the course of the hearing, shall be made in writing, and shall contain a concise statement of points and authorities and a memorandum of fact and law in support of the motion.

409.6 The hearing examiner shall rule on each motion concerning issues that are committed to the hearing examiner’s discretion. The hearing examiner may render a recommended ruling on any motion concerning issues that are committed to the Hearing Tribunal, pending conclusion of the hearing.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1435-36 (March 24, 1995).

4 DCMR § 410 TIMELINESS OF SUBMISSIONS

410.1 At the commencement of each case, the hearing examiner shall establish a scheduling order for the proceeding, which may not be altered except upon motion and order from the hearing examiner. The scheduling order shall include, but not be limited to, such events as: deadline for discovery requests, deadline for discovery responses, deadline for dispositive motions, and preliminary hearing date.

410.2 Failure by any party to comply with the scheduling order may result in sanction by the hearing examiner, including but not limited to, the following:

(a) Disqualification of a representative;

(b) Striking of any untimely filing; and

410.3 Unless otherwise ordered by the hearing examiner, a party opposing any motion shall file and serve its opposition within fifteen (15) calendar days after service of the motion.

410.4 Unless otherwise ordered by the hearing examiner, a moving party may file a response to the opposition within ten (10) calendar days after service of the opposition.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1436 (March 24, 1995).

4 DCMR § 411 SERVICE OF WRITTEN COMMUNICATIONS

411.1 Parties shall serve copies of any written communication to the Commission or to the hearing examiner on all other parties.

411.2 The Commission and the hearing examiner shall serve copies of all written communications to any party on all other parties.

411.3 Service on any representative whose appearance has been duly noted pursuant to § 408.6 shall be considered to be service on the party represented by that representative.

411.4 Except as otherwise required by statute or this chapter, service shall be effected by first class mail, postage prepaid, or by personal delivery, to one of the following:

(a) The addressee;

(b) Any competent person who resides at the addressee’s abode, if delivery is made at that abode;

(d) Any officer or officer’s secretary, if the addressee is a corporation.

411.5 Whenever a party has the right or duty to act or proceed within a prescribed period after the service of a notice or other paper upon the party and the paper or notice is served upon the party by mail, three (3) days shall be added to the prescribed period.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1437 (March 24, 1995).

4 DCMR § 412 STATUS CONFERENCE

412.1 Within fifteen (15) calendar days of the assignment of the case to a hearing examiner, the hearing examiner shall schedule a status conference designed to accomplish the following objectives:

(a) To determine who is representing the parties in the case;

(b) To establish deadlines for conducting discovery in the case;

(d) To schedule further status conferences as may be required.

412.2 The hearing examiner shall give the parties written notice of the status conference. The notice shall include the following:

(a) Notice of the sanctions applicable in the event of a party’s failure to appear or comply with the instructions of the notice; and

(b) Instructions to the parties regarding the conditions and procedure for requesting continuances.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1437-38 (March 24, 1995).

4 DCMR § 413 PRE-HEARING CONFERENCE

413.1 The hearing examiner shall hold a pre-hearing conference after completion of discovery to accomplish the following objectives:

(a) To effect the exchange between parties of information regarding their respective cases, including;

(1) Identities of prospective witnesses, and proffers of the relevance of their projected testimony; and

(2) Descriptions of prospective exhibits; and proffers of their relevance;

(b) To elicit stipulations on all questions of fact or law where no real controversy exists;

(d) To effect the exchange of all information necessary for a meaningful discussion of the prospects of settlement; and

(e) To discuss the possibility of settlement.

413.2 The hearing examiner shall give the parties written notice of the pre-hearing conference at least fifteen (15) calendar days prior to the date of the conference. The notice shall include the following:

(a) Date, time, and place of the conference;

(b) Instructions to the parties to be prepared to exchange the materials necessary to accomplish the objectives of the conference;

(d) Notice of the sanctions applicable in the event of a party’s failure to appear or comply with the instructions of the notice.

413.3 Each party shall file a pre-hearing statement containing the following:

(a) A concise statement of the factual and legal issues before the Commission;

(b) A list of all witnesses to be called, the approximate length of each witness’ testimony, and proffers of its relevance to the issues before the Commission;

(c) A list of all exhibits to be offered into evidence and proffers of the relevance of each exhibit to the issues before the Commission; and

(d) From the complainant, a detailed statement of the remedy sought.

413.4 The parties shall be prepared to fulfill the following requirements at the pre- hearing conference:

(a) To file the pre-hearing statement referred to in § 413.3 of this chapter;

(b) To file a list of stipulations negotiated between the parties; and

413.5 If the necessity of a subpoena is known, any party may request the issuance at the pre-hearing conference in accordance with §§ 417 and 418 of this chapter. When witnesses are known to be outside the reach of the Commission’s subpoena power, the hearing examiner may admit the substance of the testimony in an alternate form in accordance with § 424.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1438-40 (March 24, 1995).

4 DCMR § 414 CONTINUANCES

414.1 Any party may submit a motion for continuance to the hearing examiner, who shall grant it only for good cause shown.

414.2 The party seeking a continuance shall seek the agreement of all other parties as to an alternate date and time, prior to submission of the motion for continuance, and shall cite the agreement in the motion, or state with particularity the reasons why a continuance should be granted in the absence of the parties’ agreement.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1440 (March 24, 1995).

4 DCMR § 415 CONCILIATION

415.1 At any time prior to the Hearing Tribunal’s rendering of a Final Decision and Order disposing of a complaint, the parties may engage in discussions of terms according to which the matter may be settled finally and to their mutual satisfaction.

415.2 If the original parties agree upon terms of settlement, they shall reduce the terms to writing in an instrument which they shall sign; and subject to the approval of the Chairperson, the matter shall be closed.

415.3 If the complainant’s privately retained representative has been duly designated as the agent or attorney of the Office, that person’s signature shall suffice to signify the Office’s assent to that agreement.

415.4 The duly executed conciliation agreement shall be the final resolution of the matter before the Commission, whereby the complainant waives any further action, administrative or civil, in connection with the charges filed against the respondent. It shall be considered a Final Decision and Order of the Commission, and shall be enforceable as such.

415.5 The Commission shall not make public any admissions or representations regarding the facts at issue made in connection with conciliation discussions without the parties’ written consent. The admissions or representations shall not be admissible as evidence in any proceeding before the Commission.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1440 (March 24, 1995).

4 DCMR § 416 WITHDRAWAL OF COMPLAINT

416.1 At any time prior to the Hearing Tribunal’s rendering of the Final Decision and Order disposing of the complaint, the complainant may request permission to withdraw the complaint from the Commission’s administrative process and may request that the Commission dismiss the matter.

416.2 The complainant shall notify the Commission in writing of his or her desire to withdraw the complaint and request dismissal, and shall state the reasons therefor with particularity. Prior to the dismissal of any complaint on the basis of the complainant’s desire to withdraw it, the complainant shall furnish the Commission with evidence that the withdrawal is not motivated by coercion, misinformation, or bad faith.

416.3 If the complaint has been concurrently filed with the Equal Employment Opportunity Commission (EEOC), and withdrawal is sought in order to proceed in civil court, the complainant shall furnish the Commission with a copy of the “Notice of Right to Sue” issued by the EEOC.

416.4 Upon receipt of the documentation required by this section for a request to withdraw a complaint, the Commission may dismiss the matter in accordance with § 426.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1441 (March 24, 1995).

4 DCMR § 417 DISCOVERY

417.1 Any party may obtain discovery from any other party who is subject to the jurisdiction of the Commission. Discovery may be obtained in regard to any matter not privileged, which is or may be reasonably calculated to lead to admissible evidence.

417.2 Except as otherwise ordered by the hearing examiner, a party shall, without awaiting any discovery request, provide to all parties the following information:

(a) The name, and, if known, the address and telephone number of each individual believed to have discoverable information relevant to the facts alleged in the complaint; and

(b) A copy of, or a description by category any location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to the facts alleged in the complaint.

417.3 Unless otherwise stipulated or ordered by the hearing examiner, these disclosures shall be made at or within thirty (30) days following the status conference provided for in § 412.1.

417.4 Consistent with the scheduling order of each case, parties may obtain discovery by one or more of the following methods:

(a) Deposition upon oral examination or written questions;

(b) Written interrogatories, except that no party shall serve upon another party at one time or cumulatively more than forty (40) written interrogatories, including parts and subparts, unless otherwise ordered by the hearing examiner for good cause shown;

(d) Physical and mental examinations; and

(e) Requests for admission.

417.5 Unless otherwise specified by order of the hearing examiner, responses to any discovery request shall be made within thirty (30) days of the service of that request.

417.6 Upon failure of a party to comply with a discovery request, the requesting party may move for an order of the hearing examiner compelling discovery; provided, that the requesting party shows a substantial need for the requested discovery in preparing its case and is unable to obtain substantially equivalent material by alternate means without undue hardship.

417.7 An evasive or incomplete answer to a request for discovery shall be considered a failure to comply. Upon such finding, the hearing examiner shall issue an order compelling production of the discovery requested. If the compelled party fails to comply with the order, the hearing examiner may order sanctions including, but not limited to, the following:

(a) Award of costs and attorney’s fees to the compelling party;

(b) Limitation as to issues or to the admissibility of certain evidence at the hearing; and

417.7 Upon motion of a party from whom discovery is requested, the hearing examiner may issue any order which justice requires to protect any party or person from unnecessary annoyance, embarrassment, oppression, or undue burden or expense, including but not limited to, the following:

(a) Denial of the requested discovery;

(b) Limitation of the requested discovery as to scope, time, method, or other terms and conditions;

(d) Requirement that the parties simultaneously file specified documents or information in sealed envelopes to be opened at the direction of the hearing examiner.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1441-43 (March 24, 1995).

4 DCMR § 418 SUBPOENAS

418.1 Any party, or the hearing examiner, may apply to the Commission for the issuance of a subpoena in the name of the Chief Judge of the Superior Court of the District of Columbia, requiring the appearance and testimony of a witness, or the production of a document or other evidence. The application for a subpoena shall state with particularity the testimony or evidence being sought, and the time and place of appearance or production; and shall be made on a form obtainable from the Commission. The applicant need not show that the appearance or production of the witness or evidence in question will not be made voluntarily.

418.2 The party seeking a subpoena shall direct the application for subpoena to the Chairperson through the hearing examiner. The hearing examiner shall obtain the signature of the Chairperson on the subpoena form.

418.3 Service shall be effected in accordance with § 411. The party who sought the issuance of the subpoena shall be responsible for service of the subpoena, or may elect to have the subpoena served by the Commission by certified mail. If made by anyone other than the Commission, service shall be attested by the person making service, in an affidavit stating the date, time, place, and method of service.

418.4 Any witness subpoenaed to appear before a hearing examiner shall be entitled to the same fee paid in the same manner as are paid to witnesses appearing before the Superior Court of the District of Columbia in civil cases, except that the party on whose behalf the subpoena is issued need not tender the fees in advance of appearance and testimony of the witness or production of evidence pursuant to the subpoena. A witness who is employed by the District of Columbia shall not be entitled to the fees if that witness remains on active duty status while appearing before the hearing examiner.

418.5 Any person to whom a subpoena is directed may file with the Hearing Tribunal a motion to limit or quash the subpoena, stating the reasons that the subpoena should be limited or quashed. The motion shall be filed in writing on or before the date specified in the subpoena for compliance.

418.6 The Hearing Tribunal may, in its discretion, issue sua sponte an order limiting or quashing a subpoena.

418.7 Any duly subpoenaed person who refuses or neglects to obey a subpoena without filing a motion to limit or quash the subpoena, or after a motion to limit or quash the subpoena has been denied, may be subject to citation for contempt of the Commission or the Superior Court of the District of Columbia. The Chairperson shall report the failure to obey the subpoena to the - Office of Attorney General for enforcement by Chief Judge of the Superior Court of the District of Columbia.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1443-44 (March 24, 1995). Mayor’s Order 2004-92 (5-26-04).

4 DCMR § 419 HEARING: GENERAL REQUIREMENTS

419.1 When the objectives of the pre-hearing conference have been accomplished, the hearing examiner shall serve on the parties written notice of the formal hearing, including the date, time, and place of the hearing, not less than fifteen (15) calendar days nor more than thirty (30) calendar days prior to the designated date of the hearing.

419.2 The formal hearing shall be open to the public.

419.3 The formal hearing shall be conducted in accordance with the Act, and in accordance with the provisions of the D.C. Administrative Procedure Act pertaining to contested cases.

419.4 In the event of any direct, irreconcilable conflict between this chapter and the Administrative Procedure Act, or any other act or title of the District of Columbia Code, or where this chapter is silent, the Administrative Procedure Act or other act or title of the District of Columbia Code shall control.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1444 (March 24, 1995).

4 DCMR § 420 RIGHTS OF PARTIES AT HEARING

420.1 Any party may call, examine, and cross-examine witnesses.

420.2 Any party may offer papers, documents, or other exhibits for inclusion in the official record of the hearing process.

420.3 Any party may file briefs, memoranda of law, or proposed decisions and orders with respect to any questions of fact or issues of law within such time limits as the hearing examiner may establish.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1444 (March 24, 1995).

4 DCMR § 421 ORDER OF PROCEDURE

421.1 At the commencement of every hearing, the hearing examiner shall announce the title of the complaint, explain the nature of the proceedings, and state the issues involved.

421.2 The complainant’s representative(s) shall present the complainant’s case first. The complainant’s case may be preceded by an opening statement and followed by an oral summation and motion for dispositive ruling. The complainant may waive the opening statement, oral summation, and motion for ruling.

421.3 The respondent’s representatives shall present the respondent’s case in chief second, which may be preceded by a motion for dismissal and opening statement, and followed by an oral summation. The respondent’s representative may waive the motion for dismissal, opening statement, and oral summation.

421.4 The complainant’s representative(s) may present a rebuttal case in support of the complaint after the respondent’s case in chief, and the respondent’s representative may present a surrebuttal case.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1445 (March 24, 1995).

4 DCMR § 422 EVIDENCE

422.1 The hearing examiner may exclude evidence from the record if it is incompetent, irrelevant, immaterial, or unduly repetitious.

422.2 Admissions or representations made in connection with prior settlement negotiations shall be excluded from the record.

422.3 Hearsay evidence may be admitted into the record at the discretion of the hearing examiner and accorded such weight as the hearing examiner deems warranted by the circumstances.

422.4 The parties may stipulate as to any matter of fact. A stipulation shall satisfy a party’s burden of proving that fact.

422.5 The hearing examiner may, on the motion of a party or sua sponte, take official notice of matters of common knowledge or of any information contained in the records of the Commission, or of other matters that can be verified. Official notice of any fact shall satisfy a party’s burden of proving that fact.

422.6 Where any decision of the hearing examiner or the Hearing Tribunal rests on official notice of a material fact not appearing in the evidence of the hearing record, any party shall, upon timely request, be given the opportunity to introduce evidence showing to the contrary.

422.7 The hearing examiner and the Hearing Tribunal shall not be bound by any other rules of evidence.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1445-46 (March 24, 1995).

4 DCMR § 423 WITNESSES

423.1 Testimony of all witnesses shall be given under oath or affirmation.

423.2 The order of examination of witnesses shall be direct, cross, redirect, and recross.

423.3 The hearing examiner shall exclude from the hearing room all witnesses who have not yet testified, while any other witness is testifying. Parties who will testify shall not be subject to this requirement. The hearing examiner shall admonish all persons present during the rendering of testimony to refrain from discussing that testimony with any witness yet to testify, and shall admonish witnesses who have yet to testify to refrain from discussing testimony already rendered with any person present during the rendering of that testimony. Any person failing to comply with the hearing examiner’s instructions in this connection shall be subject to the sanctions in § 434.3(d).

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1446 (March 24, 1995).

4 DCMR § 424 ALTERNATE FORMS OF TESTIMONY

424.1 When a witness is unavailable, as defined by the Civil Rules of the Superior Court of the District of Columbia, to testify in person, or upon the agreement of the parties, the hearing examiner may admit the content of the proffered testimony in an alternate form, such as the following:

(a) An affidavit attested by the witness;

(b) A transcript of the deposition of the witness; or

424.2 The hearing examiner shall require the party seeking the admission of the alternate form of testimony to provide notice and evidence of the witness unavailability, as well as a proffer of the relevance of the testimony.

424.3 In the absence of the parties’ agreement as to admissibility of an alternate form of testimony of a witness not subject to the subpoena power of the Commission, the hearing examiner may exclude the testimony if the rights of the opposing party would be substantially prejudiced by its admission into evidence.

424.4 With the exception of non-hearsay deposition testimony, the hearing examiner shall give testimony admitted into evidence under this section the same weight as other hearsay evidence.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1446-47 (March 24, 1995).

4 DCMR § 425 BURDEN OF PROOF

425.1 The initial burden of production of evidence shall rest with the Office and the complainant to establish a prima facie case of an unlawful discriminatory act or practice.

425.2 Upon the satisfaction of the Office’s and the complainant’s burden of production, the burden shall shift to the respondent to articulate a legitimate, nondiscriminatory explanation for the alleged act or practice.

425.3 Upon the satisfaction of the respondent’s burden of production, the complainant shall be afforded an opportunity to demonstrate that the respondent’s explanation is a pretext or is otherwise invalid.

425.4 The ultimate burden of persuasion shall rest with the Office and the complainant to prove by a preponderance of the reliable and probative evidence that the allegations of the complaint credited with probable cause are true.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1447 (March 24, 1995).

4 DCMR § 426 DISMISSAL

426.1 The Hearing Tribunal may order the dismissal of any certified complaint at any time after receipt by the Commission, upon the motion of a party, upon the recommendation of the hearing examiner or the designee of the Chairperson, or sua sponte. The order shall be considered a Final Decision and Order within the meaning of § 430, shall be preceded by a Proposed Decision and Order if the hearing of the complaint was delegated to one or more hearing examiners who do not constitute the Hearing Tribunal, and may be appealed in accordance with § 431.

426.2 The Hearing Tribunal may dismiss the complaint prior to the commencement of the hearing process upon the recommendation of the person designated by the Chairperson to review letters of determination, for any of the following reasons:

(a) Lack of jurisdiction over the subject matter;

(b) Lack of jurisdiction over the respondent;

(d) Prior filing in court; or

(e) Prior settlement of the complaint.

426.3 For failure of the Office and the complainant to appear in person or through a representative, the Hearing Tribunal, when sitting as hearing examiner, may dismiss the complaint at the commencement of the hearing process, or when not sitting as hearing examiner, may dismiss the complaint upon the hearing examiner’s recommendation, following:

(a) Duly served notice to the Office and the complainant of the conference or hearing; or

(b) Failure to locate the complainant after reasonable, recorded efforts to do so.

426.4 The Hearing Tribunal sitting as hearing examiner may dismiss the complaint at the end of the case in chief in support of the complaint, for failure to present a prima facie case of unlawful discriminatory act or practice. When not sitting as hearing examiner, the Hearing Tribunal may dismiss the complaint upon the hearing examiner’s recommendation. The hearing examiner may recess the hearing in order to prepare a Proposed Decision and Order recommending dismissal of the complaint, or may postpone a recommendation of dismissal until all the evidence has been adduced.

426.5 The Hearing Tribunal sitting as hearing examiner may dismiss the complaint after the conclusion of the hearing, based on all of the evidence adduced in the hearing. When not sitting as hearing examiner, the Hearing Tribunal may dismiss the complaint upon the hearing examiner’s recommendation.

426.6 Pursuant to § 416, the Commission may dismiss the complaint at any time prior to the Hearing Tribunal’s rendering of a Final Decision and Order.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1447-48 (March 24, 1995).

4 DCMR § 427 DEFAULT

427.1 The respondent may be held in default when, after being duly served notice of a status conference, the pre-hearing conference, or the hearing, it fails to appear in person or through its representative.

427.2 In the event of the respondent’s default, the hearing process shall proceed with the evidence offered in support of the complaint. The Hearing Tribunal’s Final Decision and Order shall find against the respondent if it finds that the evidence establishes a prima facie case of unlawful discriminatory act or practice.

427.3 A default may be set aside only for good cause shown, and upon equitable terms and conditions.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1448-49 (March 24, 1995).

4 DCMR § 428 OFFICIAL RECORD

428.1 All oral testimony, argument, rulings, and instructions shall be recorded electronically, or transcribed by a court reporter.

428.2 The recording of the proceedings or the transcription by the court reporter, together with all exhibits admitted into evidence, written rulings, and papers issued or accepted by the hearing examiner shall constitute the official and exclusive record of the complaint before the Commission.

428.3 The official record shall remain in the custody and control of the Commission at all times.

428.4 The Commission shall, upon the request of a party, make the official record available for examination without charge.

428.5 Any party may engage the services of a court reporter of its own choosing at its own expense to record the proceedings during the course of the hearing, or the cost may be apportioned according to agreement between the parties.

428.6 Any party may assume the expense of transcription of electronic recording after the close of the hearing by a stenographer selected by the Commission, or the cost may be apportioned according to an agreement between the parties. The resulting transcript shall remain in the custody of the Commission, and copies shall be provided to the party or parties assuming the expense.

428.7 The hearing examiner may adopt the transcript resulting from the services of a stenographer retained by a party or from the Commission’s electronic recording as the official record of the proceedings after all parties have been afforded an opportunity to submit proposed corrections; provided, that the transcript includes the totality of the hearing.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1449 (March 24, 1995).

4 DCMR § 429 BRIEFS

429.1 All parties may submit pre-hearing or post-hearing briefs sua sponte, or may be required to do so by the hearing examiner.

429.2 Post-hearing briefs shall include proposed findings of fact, proposed conclusions of law, points and authorities, and proposed orders.

429.3 The hearing examiner may establish the time within which such briefs shall be submitted.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1450 (March 24, 1995).

4 DCMR § 430 DECISION AND ORDER

430.1 If the hearing was conducted by one or more hearing examiners who do not constitute the Hearing Tribunal:

(a) After consideration of any timely-filed post-hearing briefs, the hearing examiner(s) shall prepare and forward to the Hearing Tribunal a signed Proposed Decision and Order which shall include the following:

(1) A procedural summary;

(2) Proposed Findings of Fact;

(3) Proposed Conclusions of Law, with points and authorities; and

(4) A Proposed Order recommending the sustention or dismissal of any or all of the allegations of the complaint credited with probable cause;

(b) If sustention is recommended, the Proposed Decision and Order shall include a recommended order of remedy for the complainant in accordance with D.C. Official Code § 2-1403.13 (2001), and the Guidelines for Payment of Compensatory Damages and Attorney’s Fees;

(c) The hearing examiner’s Proposed Decision and Order shall be forwarded to the Hearing Tribunal within fifteen (15) calendar days after receipt of the parties’ post- hearing briefs or, if no briefs are filed, upon expiration of the period established by the hearing examiner for the submission of briefs;

(d) The Chief of the Hearing Tribunal shall cause to be served on the parties, in the name of the Hearing Tribunal, the hearing examiner’s Proposed Decision and Order together with notice that any party adversely affected may file written exceptions with the Hearing Tribunal within fifteen (15) calendar days of receipt of the proposed Decision and Order;

(e) The Hearing Tribunal shall prepare a signed Final Decision and Order which shall include the following:

(1) A procedural summary;

(2) Findings of fact;

(3) Conclusions of Law, with points and authorities; and

(4) An order sustaining or dismissing any or all of the allegations of the complaint credited with probable cause or remanding the complaint to the hearing examiner for further processing;

(f) If sustention is ordered, the Final Decision and Order shall include an order of remedy for the complainant in accordance with D.C. Official Code § 2-1403.13 (2001), and the Guidelines for Payment of Compensatory Damages and Attorney’s Fees. The order shall be appealable in accordance with § 431;

(g) The Chairperson shall serve on the parties, in the name of the Commission, the Final Decision and Order of the Hearing Tribunal, together with notice that any party adversely affected may file a written application for reconsideration of the Final Decision and Order within fifteen (15) calendar days of receipt of the Final Decision and Order; and.

(h) The Final Decision and Order shall be served within fifteen (15) calendar days after receipt of the parties’ exceptions to the hearing examiner’s Proposed Decision and Order or, if no exceptions are filed, upon expiration of the period established for filing of exceptions.

430.2 If the hearing was conducted by the Hearing Tribunal sitting as hearing examiner:

(a) The Hearing Tribunal shall prepare a Final Decision and Order consistent with §§ 430.1(e) and (f);

(b) The Chief of the Hearing Tribunal shall cause to be served on the parties the Final Decision and Order pursuant to § 430.1(g); and

(c) The Final Decision and Order shall be served within fifteen (15) calendar days after receipt of the parties’ post-hearing briefs or, if no briefs are filed, upon expiration of the period established by the Hearing Tribunal for the submission of briefs.

430.3 The order of remedy for the complainant may require the respondent to do any of the following:

(a) Cease and desist from unlawful discriminatory practices;

(b) Act affirmatively to correct the effects of practices found to be unlawfully discriminatory;

(d) Pay reasonable attorney’s fees to the complainant; or

(e) Reimburse the complainant for expenses incurred as a result of having resorted to the administrative process under the Act.

430.4 If at any time after the issuance of a Final Decision and Order requiring the payment of reasonable attorney’s fees and expenses, and the parties are unable to stipulate as to the amount, either party may request a hearing as to the amount of the fees and expenses to be paid. The hearing shall be conducted by the hearing examiner who shall issue a Proposed Decision and Order setting out the amount of fees and or expenses to be paid. The Hearing Tribunal assigned to the case shall issue a Final Decision and Order. A request for a hearing under this provision shall not affect the appealability of a Final Decision and Order under § 431 of this chapter.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1450-52 (March 24, 1995).

4 DCMR § 431 APPEAL FROM COMMISSION DECISION

431.1 Any party adversely affected by a Final Decision and Order of the Commission may file a written application for reconsideration with the Chairperson, within fifteen (15) calendar days of receipt of the Final Decision and Order. The grounds for requesting reconsideration shall be stated with particularity and shall include reference to any of the following, if applicable:

(a) Discovery of competent, relevant, and material evidence that was not reasonably discoverable during the course of the hearing process;

(b) Failure of the hearing examiner to admit into the record competent, relevant, and material evidence that was proffered during the hearing process; or

(c) Failure of the Hearing Tribunal to consider particular items of competent, relevant, and material evidence that were admitted into the record of the hearing process.

431.2 Parties seeking reconsideration shall serve a copy of the application for reconsideration on all other parties in accordance with § 411. Parties opposing reconsideration may file replies within seven (7) calendar days of receipt of the application for reconsideration.

431.3 Whenever possible, the matter shall be assigned to the Hearing Tribunal that rendered the Final Decision and Order. The Hearing Tribunal shall review the application, the replies, the Final Decision and Order, and other elements of the official record of the matter as required, and shall enter an order affirming, reversing, or modifying the Final Decision and Order, or remanding the matter to the hearing examiner for further processing. The Hearing Tribunal’s order shall be served on all parties.

431.4 Failure to apply for reconsideration of a Final Decision and Order shall not be considered a failure to exhaust the administrative remedies available under the Act or this chapter.

431.5 Any party adversely affected by a Final Decision and Order may file with the District of Columbia Court of Appeals a petition for review within such time limits as that Court may prescribe.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1452-53 (March 24, 1995).

4 DCMR § 432 ENFORCEMENT

432.1 Whenever the Commission determines that a respondent has not complied with the Commission’s Final Decision and Order, and the Commission has received no notice of a stay of enforcement from the District of Columbia Court of Appeals, the Chairperson shall certify the matter to the Corporation Counsel for institution in the name of the District of Columbia of such civil proceedings as are necessary to obtain compliance with the Commission’s Order.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1453-54 (March 24, 1995).

4 DCMR § 433 REOPENING OF PREVIOUSLY CLOSED PROCEEDING

433.1 In the interests of justice, the Commission may reopen sua sponte any matter previously closed.

433.2 Any party may apply in writing to the Chairperson at any time for reopening of a previously closed proceeding upon discovery of competent, relevant, and material evidence that was not reasonably discoverable during the course of the proceeding.

433.3 The party seeking reopening of a previously closed proceeding shall serve the application for reopening on all parties in accordance with § 411. Parties opposing reopening may file replies within fifteen (15) calendar days of receipt of the application for reopening.

433.4 The Chairperson shall assign the matter to a Hearing Tribunal for review of the application, the replies, and the new evidence. Whenever possible, the matter shall be assigned to the Hearing Tribunal that rendered the challenged Final Decision and Order. The Hearing Tribunal shall enter an order denying the application or prescribing further processing of the matter as justice may require.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1454 (March 24, 1995).

4 DCMR § 434 SANCTIONS

434.1 The hearing examiner may impose or recommend sanctions against any person present at or connected with a hearing proceeding who fails to comply with the hearing examiner’s instructions, engages in willful dilatory conduct, resists the Commission, disrupts the proceeding, or engages in any other form of misconduct.

434.2 The sanctions that are generally applicable to such misconduct shall include, but shall not be limited to, the following:

(a) Exclusion from any part or all of the remainder of the proceedings; and

(b) Recommendation by the hearing examiner that the Office of Attorney General institute, in the name of the District of Columbia, criminal proceedings that may result in fines or imprisonment, pursuant to D.C. Official Code § 1-1402.64 (2001).

434.3 The sanctions that may be specifically applicable to misconduct engaged in by parties or their representative shall include, but shall not be limited to, the following:

(a) Recommendation by the hearing examiner that the Hearing Tribunal dismiss the complaint in accordance with § 426 or institute default proceedings in accordance with § 427 when the complainant or the respondent fails to appear at or be prepared for any scheduled phase of the hearing process preceded by proper notice;

(b) Inference adverse to the interest of any party engaging in ex parte communications, on any issue which is the subject of the communications;

(c) Inference of facts sought to be established through discovery, in favor of the party seeking discovery, when the party from whom discovery is sought fails to comply with an order of the Commission compelling discovery;

(d) Prohibition of a party failing to comply with an order of the Commission compelling discovery, from asserting a claim or defense or introducing evidence regarding matters which are the subject of the order compelling discovery;

(e) Striking of pleadings or parts thereof which relate to matters which are the subject of an order of the Commission compelling discovery with which the pleading party failed to comply;

(f) Invocation of D.C. Official Code § 2-1402.64 (2001), when a party fails or refuses to comply with an Order of the Commission compelling discovery;

(g) Striking of pleadings that have not been signed in good faith;

(h) Inference that evidence is adverse to the interest of any party failing to comply with the hearing examiner’s instructions to produce the evidence; provided, that it is reasonably available and not subject to any privilege;

(i) Inference of admission when a party refused to respond to a request for admission of genuineness of an exhibit or of the truth of a fact;

(j) Exclusion of testimony of witnesses whose appearances are not preceded by reasonable efforts of the calling party to provide other parties with notice of their appearances; and

(k) Recommendation by the hearing examiner that the Commission suspend the privilege of a representative to practice before it when the representative’s misconduct is of an egregious or repeated character. Any party whose representative has been excluded from the proceedings shall be granted a reasonable continuance within which to obtain alternate representation.

434.4 The sanctions that may be specifically applicable to misconduct engaged in by witnesses called before the Commission shall include, but shall not be limited to, the following:

(a) Recommendation by the hearing examiner that the Chairperson report to the Office of Attorney General the failure of any witness to appear pursuant to a duly issued and served subpoena. The Chairperson shall seek enforcement of the subpoena by the Office of Attorney General in the Superior Court of the District of Columbia.

(b) Inference that the answer to a question ruled proper by the hearing examiner, which the witness refuses to answer, is favorable to the interest of the party on whose behalf the question is propounded; or striking of all of the witness’ testimony; provided, that the testimony is not subject to any privilege;

(c) Invocation of D.C. Official Code § 2-1402.64 (2001), when a witness refuses to answer a question ruled proper by the hearing examiner; provided, that the testimony is not subject to any privilege;

(d) Invocation of D.C. Official Code § 2-1402.64 (2001), or exclusion or striking of testimony of any witness failing to comply with § 423.3 of this chapter; and

(e) Recommendation by the hearing examiner that the -Office of Attorney General institute, in the name of the District of Columbia, criminal proceedings that may result in the punishment prescribed by law for perjury when a witness willfully testifies falsely.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1454-56 (March 24, 1995). Mayor’s Order 2004-92 (5-26-04).

4 DCMR § 435 SEVERABILITY OF PROVISIONS

435.1 If any provision, or part of a provision, of this chapter, or application thereof to any person or circumstance is held invalid, the remainder of this chapter, and the application of the provision, or part of a provision, to other persons not similarly situated, or to other circumstances, shall not be affected thereby.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1457 (March 24, 1995).

4 DCMR § 499 DEFINITIONS

499.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Act - the Human Rights Act of 1977, as amended, D.C. Official Code § 1-1401.01 (2001) et seq.

Calendar Days - consecutive days including Saturdays, Sundays, and legal holidays; except that in computing any period of time prescribed or allowed by this chapter, the day of the act, event, or default from which the designated period of time begins to run shall not be included; and the last day of the period so computed shall be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period shall run until the end of the next day which is not a Saturday, Sunday, or a legal holiday.

Chairperson - the duly appointed Chairperson of the Commission on Human Rights, or a member of the Commission specifically designated to act for the Chairperson.

Chief of the Hearing Tribunal - the member of a Hearing Tribunal appointed by the Chairperson as the Head of the Hearing Tribunal.

Commission - the District of Columbia Commission on Human Rights, sitting as a body.

Complainant - any person filing a complaint with the Office of Human Rights, alleging an unlawful discriminatory act or practice.

Complaint - a verified complaint filed with the Office of Human Rights.

D.C. Administrative Procedure Act - the District of Columbia Administrative Procedure Act, as amended, D.C. Official Code § 2-501 (2001) et seq.

Default - the failure of a respondent to answer a complaint after it has been certified to the Commission for public hearing.

Evidence - any piece of information offered in proof of the facts in controversy, including testimony of witnesses and exhibits if records, documents, or objects.

Ex Parte communication - oral or written communication between a party and the hearing examiner, or any member of the Hearing Tribunal, or any Commissioner assigned to consider the merits of a complaint, regarding the merits of the complaint, under circumstances in which any other party is not afforded an opportunity to participate.

Guidelines for Payment of Compensatory Damages and Attorney’s Fees - District of Columbia Commission on Human Rights Guidelines for Payment of Compensatory Damages and Attorney’s Fees Under the Human Rights Act of 1977, adopted pursuant to D.C. Official Code § 2-1403.13(a)(2) (2001), 31 DCR 6259 (December 14, 1984).

Hearing Examiner - an official or officials appointed by the Chairperson to conduct the hearing of a complaint including the Hearing Tribunal when the Hearing Tribunal conducts the hearing of a complaint.

Hearing Tribunal - three (3) members of the Commission appointed by the Chairperson to adjudicate a complaint.

Hearing process - the status conference, the pre-hearing conference, the hearing, and all processes related to the adjudication of a complaint.

Legal Holiday - New Year’s Day, Dr. Martin Luther King’s Birthday, George Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran’s Day, Thanksgiving Day, Christmas Day, and any other day designated as a holiday by the President or the Congress of the United States, or by the Mayor or the Council of the District of Columbia.

Office - the District of Columbia Office of Human Rights.

Party, parties - the complainant, the respondent, the Office, an intervenor, or any combination.

Preponderance of the evidence - evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it.

Probable Cause - an apparent state of facts found to exist upon reasonable inquiry which would induce a reasonably intelligent person to believe that the prima facie elements of the unlawful discriminatory act or practice alleged in the complaint are present, and that a legitimate, nondiscriminatory, nonpretextual explanation for the alleged discriminatory act or practice does not exist.

Respondent - any person or organization specified in the complaint as having engaged in an unlawful discriminatory act or practice.

Unlawful discriminatory act or practice - any discriminatory act or practice specified in the Act as unlawful.

History

SOURCE: Final Rulemaking published at 42 DCR 1429, 1457-59 (March 24, 1995).

4-5 EMPLOYMENT GUIDELINES

4 DCMR § 500 PURPOSE

500.1 In order to meet the obligations set forth in the Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Official Code § 2-1401.01 et seq.) (Act), the District of Columbia Office of Human Rights (Office) and the District of Columbia Commission on Human Rights (Commission) have adopted this chapter for the following purposes:

(a) To resolve a number of issues which have been or may be raised before them;

(b) To provide advice to interested parties as to how they intend to interpret the law in cases which arise before them; and

(c) To assist in the internal processing of cases through Office and Commission procedures with respect to discrimination against any individual in employment because of 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.

500.2 In general, the Office and the Commission adopt and incorporate by reference current regulations of the federal Equal Employment Opportunity Commission (EEOC) and shall follow general principles of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) wherever applicable in interpreting the Act, unless specific regulations in this chapter state the contrary.

500.3 Each employer shall provide an employment atmosphere free from discrimination.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 501 FAIR RECRUITMENT

501.1 Each employer shall conduct recruitment and institute hiring practices in such a way as to assure that members of the protected classes as defined in § 599 are given fair notice of job vacancies, are given opportunities to apply for vacancies, and are given consideration for employment in all vacancies on bases which do not discriminate on grounds prohibited by law.

501.2 Hiring and job assignment practices shall include steps designed to assure that the effects of past exclusion of minorities, women, disabled persons, or other protected classes from all or part of the employer’s work force are not carried forward into the future.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 502 SPECIFICATIONS IN ADVERTISEMENTS

502.1 The prohibition on discriminatory employment advertising pursuant to D.C. Official Code § 2-1402.11(a)(4)(B) shall apply not only to the content of individual advertisements, but also to the placement of advertisements in columns classified according to 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.

502.2 No advertisement, notice, or publication form shall set forth any prima facie discriminatory specification. The general test of whether the advertisement, notice, or publication form is lawful is whether it contains, either explicitly or implicitly, a barrier to applicants of a particular protected class. For example, a help-wanted ad for a “stenographer under 35,” or for a “bellboy,” or for a “young man,” or for a “young woman” is unlawful.

502.3 A newspaper or other advertising medium may rely on an employer’s written certification that the job is not covered by Title I of the Act, or is exempt from D.C. Official Code § 2-1402.11(a)(4)(B), because of business necessity.

502.4 Job titles which indicate a sex preference shall not be used unless based on a business necessity. When a substitute, non-discriminatory job title is not available, the body of the ad, notice, or form, shall specify that both males and females will be considered for employment, for example, Male/Female, M/F, M-F, Man/Woman or M/W.

502.5 An employer may lawfully fail or refuse to hire an individual who does not meet the bona fide physical requirements of a job. However, this action shall be based on the individual’s actual failure to meet the requirement and not on the employer’s assumption that persons of a certain protected class cannot meet the requirements.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 503 PREHIRE INQUIRIES

503.1 All aspects of prehire inquiries shall be free of discrimination on the basis of grounds protected by Title I of the Act. The term “prehire inquiries” includes questions asked on application forms, questions asked in employee interviews, or any other kind of inquiries before selection, including medical examinations.

503.2 The absence of any reasonable explanation for questions that identify an applicant’s membership in a protected class may be viewed as evidence of discrimination since the inquiries have nothing to do with job performance.

503.3 Inquiries necessary for compliance with affirmative action requirements of the federal or District of Columbia governments, or when taking remedial action to correct the effects of past discrimination, or when taking voluntary action to overcome the effects of conditions that resulted in limited employment opportunities for a protected group, are legal, in accordance with D.C. Official Code § 2-1402.53(a).

503.4 Inquiries as to age shall be limited to whether an applicant is between eighteen (18) and sixty-five (65) years of age, unless otherwise provided by law. No applicants shall be required to provide evidence of age or date of birth except in circumstances in which age is a business necessity.

503.5 An employer shall not require information of a member of one class which he or she would not require of a member of another class. For example, an employer shall not ask an older applicant questions regarding health, if the employer does not question younger applicants in the same way.

503.6 Pre-employment medical inquiries, or inquiries as to whether an applicant is disabled or to the severity of the disability, shall not be allowed except as provided in § 513.

503.7 It shall be unlawful to request from an applicant, at his or her expense, his or her record of arrests.

503.8 Processing and retention of applications and the information in the applications shall be done equally without regard to a person’s membership in a protected class. Processing and retention of applications and the information in the applications for other lawful purposes, such as the purposes noted in § 503.3, shall be legal, in accordance with D.C. Official Code § 2-1402.53(a).

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 504 EMPLOYMENT TESTING

504.1 The Office and the Commission adopt and incorporate by reference the Uniform Guidelines on Employee Selection Procedures adopted by the EEOC and published at 29 CFR § 1607.

504.2 Any testing for disability shall be done in accordance with § 513.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 505 COMPENSATION

505.1 It is unlawful to discriminate in compensation on the basis of membership in any class protected by Title I of the Act. This prohibition shall apply to practices supported by a union contract providing for discriminatory compensation.

505.2 For the purposes of this chapter, “compensation” is defined as all types and methods of remuneration paid to or on behalf of an employee for employment, including wages, uniforms, overtime pay, paid vacations and holidays, paid leaves of absence (except as otherwise herein provided under guidelines for specific protected classes), paid lunch periods, and paid rest or coffee breaks. Commissions, draws, advances, and guarantees are also compensation.

505.3 Insurance, retirement, and benefit plans shall be considered a form of compensation if an employer contributes to them. Any differential in these forms of compensation shall be unlawful if the differential determined on the basis of membership in a class protected by Title I of the Act. In order to justify a differential in compensation, an employer shall have a non-discriminatory basis for the differential.

505.4 Differentials in compensation that flow from the effects of unlawful past discrimination and which are based on membership in the classes protected by Title I of the Act, shall be unlawful, including those resulting in some disadvantage in a merit, incentive, or seniority plan.

505.5 The Office and the Commission shall make a determination as to whether discrimination exists in compensation by weighing the following criteria:

(a) The type of job; and

(b) The skill, effort, and responsibility involved in performing the job.

505.6 Insurance, retirement, and welfare plans shall not discriminate on the basis of membership in any class protected by Title I of the Act, except as in the following:

(a) Any bona fide employment benefit plan, such as a retirement pension or insurance plan which is specifically exempt under the provisions of the Age Discrimination in Employment Act of 1967 (29 U.S.C. § 621 et seq.); and

(b) Insurance plans which are otherwise lawful and which are based on actuarial tables that limit or deny coverage to certain types of disability.

505.7 If an employer contributes to an employee benefit plan, the employer shall furnish equal benefits for all protected classes even if the employer’s contribution is greater for one class than for another.

505.8 Employees in protected classes shall not be required to make greater contributions in order to receive equal benefits. If family insurance is provided, that insurance shall provide the coverage for all protected classes and cannot provide only individual coverage for certain protected classes, for example, women or divorced persons.

505.9 Employee benefit plans shall be illegal if they favor survivors of male employees over those of female employees, or vice versa. Nothing in this subsection shall be considered to preclude the operation of a bona fide waiting period clause.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 506 TERMS, CONDITIONS, RIGHTS, AND PRIVILEGES OF EMPLOYMENT

506.1 An employee is entitled to equal treatment in all those aspects of employment protected under Title I of the Act. The following are examples of terms, conditions, rights, and privileges:

(a) Rotation of shifts;

(b) Dress and appearance;

(d) Trial periods on jobs;

(e) Hours of work;

(f) Office sponsored or endorsed social functions;

(g) Rest or lunch periods and other breaks; and

(h) Leaves-of-absence, vacations, other benefits.

506.2 A discriminatory practice shall include, but is not limited to, any practice or policy used by an employer to distinguish, set apart, or show a difference in treatment or which operates to the disadvantage of a protected group without a valid business necessity.

506.3 It shall be a discriminatory practice to require employees to use only the English language while on the employer’s premises.

506.4 It shall be viewed as a discriminatory practice to allow employees of one class to be addressed only by the titles of “Mr.,” “Mrs.,” “Miss,” or “Ms.” while allowing employees of another class to be addressed by their first names.

506.5 An employer shall be responsible for the discriminatory actions of its supervisory personnel. An employer shall also be responsible for the discriminatory actions of its other employees of which it knew or should have known.

506.6 Codes for dress and appearance shall be applied equally to all employees performing the same kind of work. Any restriction or limitation on dress or appearance shall be a result of a reasonable business purpose. In the absence of a reasonable business purpose, an employer shall not refuse to allow an employee to wear a hair or dress style symbolic of national origin, religion, or race.

506.7 All facilities shall be available to all employees on a non-discriminatory basis. This includes lunchrooms, snackbars, recreation areas, and off-site facilities provided by an employer, such as employee social clubs, health clubs, swimming pools, etc. Locker rooms, restrooms, and shower rooms may be lawfully segregated based on sex.

506.8 It shall be a discriminatory practice for an employer to seek to evade responsibility for discrimination by transferring the use or control of facilities to employees or employee groups.

506.9 It shall be the responsibility of the employer to use all reasonable means to assure the full and equal participation of a member of a protected class in a work unit in which members of that protected class were not previously employed.

506.10 Employers shall secure all personnel files and other documents which contain information which is susceptible to use for a discriminatory purpose and shall allow access to the files only on a “need to know” basis.

506.11 Post-hiring inquiries shall not be used for discriminatory purposes.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 507 AGE GUIDELINES

507.1 The Office and the Commission adopt and incorporate by reference the guidelines on age discrimination promulgated by the EEOC and published at 29 CFR § 1625.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 508 FAMILY RESPONSIBILITIES GUIDELINES

508.1 Family responsibilities are not job-related and shall be impermissible considerations for employment decisions. The fact that an employee or applicant has to support a person or persons in a dependent relationship, irrespective of the age of the individual in the dependent relationship or the reasons for the dependency, shall not be used as a reason to fail to hire the applicant or fail to retain or promote the employee, nor shall that fact be otherwise used to discriminate against the employee or applicant with respect to the terms and conditions of employment.

508.2 A dependent relationship includes the relationship of a caregiver who:

(a) Contributes to the ongoing support and care of a child for whom the employee or applicant assumes parental responsibility; or

(b) Contributes to the ongoing support and care of an individual who is related by blood, legal custody, or marriage; or

(c) Contributes to the ongoing support and care of a person with whom the employee or applicant shares a residence and maintains a domestic partnership as defined in D.C. Official Code § 32-701(4).

508.3 An employee or applicant who is a caregiver for a person in a dependent relationship is entitled to equal treatment in the terms, conditions, and privileges of employment, including those benefits listed in § 506.1.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 509 GENETIC INFORMATION

509.1 The Office and Commission adopt and incorporate by reference any guidelines adopted by the EEOC pursuant to the Genetic Information Nondiscrimination Act of 2008 (Pub. L. No. 110-233; 122 Stat. 881).

509.2 The following actions or practices shall be prohibited:

(a) It is a discriminatory practice for an employer, employment agency, or labor organization to do the following:

(1) Requesting or requiring a genetic test of, or administering a genetic test to, an employee or applicant for employment or membership; and

(2) Seeking to obtain, obtaining, or using genetic information of an employee or applicant for employment.

(b) It is a discriminatory practice for an employment agency to fail or refuse to refer any individual for employment or otherwise discriminate against any individual because of genetic information of the individual.

(c) It is a discriminatory practice for a labor organization to exclude or to expel from the membership of the organization, or otherwise to discriminate against, any member because of genetic information with respect to the member.

(d) It is a discriminatory practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs, including on-the-job training programs, to discriminate against any individual because of the individual’s genetic information in admission to, or employment in, any program established to provide apprenticeship or other training or retraining.

(e) It is a discriminatory practice for an employer to use family medical history in making employment decisions.

(f) It is a discriminatory practice for an employer to request information about family medical history pre-employment or post-employment, including through any type of medical examination required of employees for the purpose of determining continuing fitness for duty.

509.3 An employer, employment agency, or labor organization may use genetic testing or information for the following reasons:

(a) With the written and informed consent of the employee or applicant for employment, to determine the existence of a bona fide occupational qualification; or

(b) To investigate a workers’ compensation or disability compensation claim, or determine an employee’s susceptibility or exposure to potentially toxic substances in the workplace.

509.4 If determining an employee’s susceptibility or level of exposure to potentially toxic substances in the workplace, the employee shall provide, in writing, his or her informed consent. The genetic information shall be provided to the employee in writing as soon as it is available, and the genetic information shall not be disclosed to any other person.

509.5 A group health plan, or a health insurance issuer offering health insurance coverage in connection with a group health plan, may request, but not require, that a participant or beneficiary undergo a genetic test if each of the following requirements is met:

(a) The request is made in writing, and complies with local or federal law with respect to the protection of human subjects;

(b) The plan or issuer clearly indicates to each participant or beneficiary, or in the case of a minor child, to the parent or legal guardian of such beneficiary, to whom the request is made that:

1 Compliance is voluntary; and

2 Non-compliance will have no effect on enrollment status or premium or contribution amounts; and

509.6 The following are not considered genetic information for purposes of this chapter:

(a) Information about an applicant’s or employee’s current health status, which includes information about sex, age, physical exams, and chemical, blood, or urine analyses;

(b) Genetic services or health services provided by the employer, including genetic tests, provided to obtain or interpret genetic information for diagnostic or therapeutic purposes, or for purposes of genetic education or counseling; and

509.7 If an employer, employment agency, or labor organization obtains protected genetic information when seeking current health status information, the genetic information will be subject to the same restrictions that apply to genetic information generally.

509.8 If genetic information is obtained for any lawful reason, it shall be stored in a separate confidential file, not in the employee’s general personnel file.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 510 MARITAL STATUS GUIDELINES

510.1 Recruiting methods for all job classifications shall not include a preference for a specific marital status. For example, an employer shall not advertise, “Excellent opportunity for a single person who enjoys travel” or “Stable, married person preferred.”

510.2 Questions pertaining solely to marital status shall be eliminated from applications for employment, unless the employer can show a business necessity for the inquiry.

510.3 Decisions on hiring, promotion, compensation, lay-off, and other terms and conditions of employment shall not be related to marital status.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 511 MATRICULATION GUIDELINES

511.1 An employer shall not use different pay scales for students performing the same work duties as other employees with the same experience, skills, work schedule, hours, and the like, unless those differences are made pursuant to either of the following:

(a) A federal government or District government approved summer job program; or

(b) “Student certificate” programs issued by the U.S. Department of Labor under the Fair Labor Standards Act (29 U.S.C. § 201 et seq.).

511.2 An employer shall not set aside specific job classifications for students in order to give low compensation to all persons in such job classification; provided, that an employer shall not be prohibited from creating jobs for the purpose of providing financial assistance to students. For example, a school may provide research or teaching assistantships to students while compensating researchers or instructors, hired solely for the purpose of their contribution to the school, at a higher scale.

511.3 An employer shall not refuse to hire or discharge a person because he or she is a part-time student if the matriculation status does not interfere with that person’s ability to efficiently and effectively perform the duties of the job. An employer shall not assume that an applicant will be unable to work full-time and be a matriculant in a school or college.

511.4 An employer shall grant reasonable periods of leave to an employee for the purpose of registration in a school or college when reasonable accommodation can be made.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 512 NATIONAL ORIGIN GUIDELINES

512.1 The Office and Commission adopt and incorporate by reference the guidelines on National Origin Discrimination promulgated by the EEOC and published at 29 CFR § 1606.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 513 PERSONAL APPEARANCE GUIDELINES

513.1 It shall be considered a violation of Title I of the Act to discriminate against any individual on the basis of outward appearance for purposes of recruitment, hiring, or promotion. However, an employer may prescribe standards of appearance or dress for personnel which serve a reasonable business purpose; for example, to identify its employees to the public by means of a distinctive uniform, or to maintain a neat and clean appearance.

2 An employer may also prescribe standards of appearance or dress for personnel in order to prevent a danger to the health, welfare, or safety of employees or customers; for example, requiring head or hand coverings in food service jobs, or prohibiting loose items of clothing in jobs where the items become caught in machinery.

513.3 Characteristics such as hair or dress style may be symbolic of race, national origin, or religion, and action to limit or prevent their use shall constitute a form of discrimination, unless the employer can show a reasonable business purpose.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 514 DISABLITY

514.1 Except as otherwise provided in this chapter, the Office and the Commission adopt and incorporate by reference the provisions promulgated by the EEOC and published at 29 CFR § 1613.701 et seq.

514.2 Employment agencies which fail to accept applications, refer equally, or provide placement services for persons with disabilities shall be engaging in a discriminatory practice.

514.3 Pre-employment inquiries may allow inquiry into the physical condition or past medical history of an individual for purposes allowed by § 503.3 or based on a business necessity. Where general characteristics of a physical condition would disqualify an applicant for a job, for example, where a person with a minor visual impairment or history of seizures applies for a driver position, the employer shall ascertain whether the individual’s specific condition prohibits him or her from meeting a necessary standard for safety or job performance.

514.4 No employer shall refuse to hire a person with a disability when lack of such disability is required for a secondary portion of the job and when reasonable accommodation can be made through minor job restructuring.

514.5 Tests offered applicants and employees shall be related to the job. For example, it shall be a discriminatory practice to give a blind person a vision test when sight is not required for the job.

514.6 If health and insurance benefits are provided to employees for some disabilities, they shall be provided for all disabilities having a similar anticipated cost. This shall not prevent exclusions based on the cost of service to the individual, but it does prevent exclusions based on the number of individuals to be serviced.

514.7 Excessive absenteeism, even if caused by injury or illness, may be grounds for termination if it interferes significantly with or causes an undue hardship upon the performance of duty.

514.8 The use of non-discriminatory selection procedures shall not relieve employers, unions, or employment agencies of other legal obligations to take positive action in affording employment and training to persons with disabilities.

514.9 Before a business necessity may excuse discrimination against a person with a disability, it shall be found that there is no alternative to the particular practice, or that a reasonable accommodation cannot be made.

514.10 Where an employee’s specific physical or mental disability precludes the normal operation of a business or particular activity in existing structures, reasonable accommodation shall be made, where possible, through modifications in job description, workplace design, or physical renovation. In determining whether a modification is a reasonable accommodation, the Office and Commission shall consider factors such as the following:

(a) The nature and cost of the modification;

(b) The number of people, both those with and without disabilities, who would benefit by the modification;

(c) The benefits or detriments resulting from the modification with regard to the type and composition of the business and the physical structure and layout of the workplace; and

(d) When new construction, substantial redesign or remodeling, etc., occurs, whether the modification should provide for increased physical accessibility.

514.11 Preferences of employees, tenants, patrons, clients, or other individuals that exclude persons with disabilities shall not be considered within the purview of business necessity.

514.12 Employers shall retain employees who have become disabled while on the job so long as reasonable accommodation can be made.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 515 POLITICAL AFFILIATION GUIDELINES

515.1 An employer, other than a political organization, shall not discharge, refuse to hire, or otherwise discriminate against an employee with respect to employment because of the employee’s present or past political affiliation or lack of political affiliation.

515.2 Mere membership in a political party having unlawful goals shall not suffice to justify discrimination in employment unless that prohibition is required by federal or District law.

515.3 An employer shall not retaliate against an employee for failure to vote for a designated candidate. This shall not prevent an employer or employee from expressing support for any candidate unless prohibited under federal or District civil service laws.

515.4 An employer shall not require employees to contribute to fundraising campaigns of any political party or candidate or to provide any type of support for any political party or candidate.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 516 RELIGION GUIDELINES

516.1 The Office and Commission adopt and incorporate by reference the guidelines on religious discrimination promulgated by the EEOC and published at 29 CFR § 1605.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 517 SEX GUIDELINES

517.1 The Office and Commission adopt and incorporate by reference the guidelines on sex discrimination promulgated by the EEOC and published at 29 CFR § 1604.

517.2 Recruiting methods for all job classifications shall be without regard to sex, except where sex is a business necessity.

517.3 Hiring, assignment, promotion, compensation, lay-off, and all terms, conditions, and privileges of employment shall not be based on the sex of an individual, unless sex is a business necessity. Employers shall not permit creation of a working environment which is hostile, intimidating, or offensive, or otherwise allows harassment related to sex.

517.4 Women shall not be rejected for employment, suspended or discharged from employment, or required to take leave involuntarily solely on account of pregnancy.

517.5 Medically verifiable disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth, and recovery from those disabilities are, for all job-related purposes, to be treated as temporary disabilities under any health or temporary disability insurance policies or sick leave plans available in connection with employment.

517.6 Written and unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or temporary disability insurance policies or sick leave plans, formal or informal, shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.

517.7 Sick leave plans shall not exclude illness connected with pregnancy.

517.8 It shall be considered a discriminatory practice for a person in an employment relationship to overtly threaten or adversely affect another person’s employment status for failure to engage in sexually-related activity on or off the job.

517.9 It shall be a discriminatory practice for an employer to discriminate between men and women with regard to fringe benefits.

517.10 Fringe benefits for the purpose of this section, shall include, but not be limited to, such items as medical, hospital, accident, and life insurance, retirement benefits, profit-sharing and bonus plans, and leave.

517.11 No employer shall condition fringe benefits to employees and their spouses and families on whether the employee is the “head of the household” or “principal wage earner” in the family unit, since such a practice discriminatorily affects the rights of women employees, and “head of household” or “principal wage earner” status bears no relationship to job performance. Any such practice shall be viewed as a prima facie violation of the prohibitions against sex discrimination contained in Title I of the Act.

517.12 It shall be a discriminatory practice for an employer to make available fringe benefits for the spouses and families of employees of one sex, where the same benefits are not made available for the spouses and families of another sex. An example of such an employment practice is a situation in which the spouses of female employees receive benefits for all temporary disabilities, but the spouses of male employees receive benefits for all disabilities but pregnancy.

517.13 It shall not be a defense under Title I of the Act to a charge of sex discrimination in fringe benefits that the cost of the benefits is greater with respect to one sex than the other.

517.14 It shall be a discriminatory practice for an employer to have a pension or retirement plan which establishes different optional or compulsory retirement ages based on sex, or which differentiates in benefits on the basis of sex.

517.15 Insurance plans, including, but not limited to, endowment policies and annuity contracts, shall provide for equal benefits for members of both sexes, even if the employer’s contribution is greater for one sex than it is for another. Employees in protected classes shall not be required to make greater contributions in order to receive equal benefits.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 518 BREASTFEEDING GUIDELINES

518.1 The Office and the Commission adopt this section for the following purposes:

(a) To implement the provisions of the Act regarding discrimination based on breastfeeding in employment, housing, public accommodations, or educational institutions, including all agencies of the District of Columbia government and its contractors or grantees;

(b) To provide guidance with regard to the requirements of the law to all employers, housing providers, businesses, organizations, educational institutions, and District government agencies and contractors seeking compliance with the law;

(c) To educate the public on the behaviors, conduct, and actions that constitute unlawful discrimination based on breastfeeding;

(d) To ensure that breastfeeding mothers and their children are treated with dignity and respect; and

(e) To guide the internal processing of complaints filed with the Office.

518.2 The Office shall provide information to employers and employees regarding their rights and obligations under this section. Employers shall conspicuously post and maintain in the workplace a notice containing this information.

518.3 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 notice required by § 518.2.

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

(a) The right to breastfeed her child in any location, public or private, where she has the right to be with her child;

(b) 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;

(c) 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;

(d) The right to be free from harassment or ridicule in the workplace because of her breastfeeding or expressing breast milk; and

(e) The right to workplace accommodations while breastfeeding or expressing breast milk.

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

(a) 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;

(b) Affording flexible schedule, job-sharing, or telecommuting arrangements, if none are already afforded, unless doing so would create an undue hardship; and

(c) 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:

(1) May include a childcare facility in close proximity to the work area; or

(2) 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

(d) Allowing the employee to bring into the workplace a small refrigerator or freezer to store breast milk.

518.6 It shall be a discriminatory practice:

(a) For a childcare facility to discriminate based on whether a child is on breast milk or formula; and

(b) 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.

518.7 The procedure for resolving cases involving breastfeeding shall include the following:

(a) An aggrieved person shall file a written complaint with the Office alleging a violation of this section within one (1) year of the occurrence or the discovery of the occurrence;

(b) The Office shall docket the complaint within five (5) days of its receipt of the complaint and shall complete the investigation within thirty (30) days of its commencement or as soon as practicable thereafter;

(c) The complaint shall be considered dismissed if no probable cause is found, and the complainant may seek judicial review in the Superior Court for the District of Columbia;

(d) If the Office determines that probable cause exists that discrimination based on a breastfeeding, the matter shall be sent to conciliation to determine if the parties wish to conciliate; and

(e) If the parties do not conciliate, or do not reach an agreement within thirty (30) days of the commencement of conciliation, the case will be sent to the Commission for adjudication under its policies and procedures. The Commission will seek to expedite the proceedings, when practicable.

518.8 When used in this section, the following terms shall the following meaning:

(a) Reasonable efforts - any effort that would not impose an undue hardship on the operation of an employer’s business.

(b) Undue hardship - 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.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 519 SEXUAL ORIENTATION GUIDELINES

519.1 No employer shall discharge, suspend, refuse to hire or promote an individual, or subject an individual to different terms, conditions, and privileges of employment because of his or her sexual orientation.

519.2 Employers shall not dismiss, suspend, refuse to hire or promote any person on the basis of an employee’s open or suspected sexual orientation and nonconformity to the stereotyped characterization of masculine or feminine behavior.

519.3 Employers shall apply the same standards of acceptable on-the-job conduct to all employees regardless of sexual orientation, and the same procedures and standards for discipline and dismissal employed shall be applied equally to all, regardless of sexual orientation.

519.4 Questions by an employer which compel answers concerning the sexual orientation of an employee shall be considered prima facie evidence of discrimination.

519.5 Employers or employment agencies shall not collect or disseminate information about the sexual orientation or practices of employees.

519.6 The use of derogatory or insulting language about or directed at an employee on the premises by the employer and other employees because of an employee’s open or suspected sexual orientation shall be considered prima facie evidence of discrimination.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 520 EXCEPTIONS

520.1 An employer may observe the conditions of a bona fide seniority system or a bona fide employee benefit system such as a retirement, pension, or insurance plan which is not a subterfuge to evade the purposes of Title I of the Act; provided, that no employee seniority system or benefit plan shall excuse the failure to hire any individual.

520.2 An employer may hire and employ employees on the basis of their membership in a class protected by Title I of the Act in special instances where sex, national origin, religion, disability, or other protected status is a business necessity for the normal operation of the particular business or enterprise.

520.3 Any religious or political organization, or any organization for charitable or educational purposes which is operated, supervised, or controlled by, or is operated in connection with, a religious or political organization may limit employment or give preferences to persons of the same religion or political persuasion as is calculated by such organization to promote the religious or political principles for which it is established or maintained.

520.4 Any practice which has a discriminatory effect and which would otherwise be prohibited by Title I of the Act shall not be deemed unlawful if it can be established that:

(a) The practice is not intentionally devised or operated to contravene the prohibitions of Title I of the Act; and

(b) The practice can be justified as a business necessity.

520.5 For purposes of this chapter, a “business necessity” exception shall be applicable only in the individual case where it can be proved that, without such exception, the business cannot be conducted. A “business necessity” exception shall not be justified by the factors of increased cost to business, business efficiency, the comparative characteristics of one group as opposed to another, the stereotyped characterization of one group as opposed to another, and the preferences of co-workers, customers, or any other persons.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4 DCMR § 599 DEFINITIONS

599.1 When used in this chapter, the following terms and phrases shall have the meaning ascribed:

Act - the Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Official Code § 2-1401.01 et seq.).

Age - between the ages of eighteen (18) and sixty-five (65), unless otherwise prohibited by law.

Breastfeed - to provide breast milk from a mother’s breast or to express breast milk into a container or bottle.

Child care facility - any establishment or business providing supervision and care of minors during the day or evening, with the exception of public or privately regulated schools. The term child care facility also includes child develop centers as defined in D.C. Official Code § 4-401(2).

Color - skin pigmentation, including variations in skin pigmentation.

Disability - as defined in section 3 of the Americans with Disabilities Act of 1990, approved July 26, 1990 (104 Stat. 329; 42 U.S.C. § 12102).

Discrimination - the act of distinguishing, or setting apart, or showing a difference in treatment which operates to the disadvantage of a protected group without a valid business necessity.

Discriminatory practice - any direct or indirect exclusion, segregation, limitation, refusal, denial, or any other distinction or preference in the treatment of a person or persons because of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, disability , matriculation, or political affiliation.

Employee - any individual employed by, in the past or present, or seeking employment from, an employer, including, but not limited to, an individual seeking membership in any professional association and a person seeking employment through an employment agency or labor organization.

Employer - any person who, for compensation, employs an individual, except for the employer’s parents, spouse, children or domestic servants engaged in work in and about the employer’s household; any person acting in the interest of such employer, directly or indirectly; and any professional association. The term employer also includes the District of Columbia government and its boards, commissions, departments, agencies, including the public school system.

Employment agency - any person regularly undertaking or attempting, with or without compensation, to procure employees for an employer or to procure for employees, opportunities to work for an employer, and includes an agent of such a person.

Family responsibilities - the state of being, or the potential to become, a contributor to the support of a person or persons in a dependent relationship, irrespective of their number or age.

Gender identity or expression - a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual’s assigned sex at birth.

Genetic information- information about the presence of any gene, chromosome, protein, or certain metabolites that indicate or confirm that an individual or an individual’s family member has a mutation or other genotype that is scientifically or medically believed to cause a disease, disorder, or syndrome, if the information is obtained from a genetic test.

Genetic test - an analysis of human chromosomes, genes, gene products, or genetic information that is used to identify the presence or absence of inherited or congenital alterations in genetic material that are associated with disease or illness. A genetic test shall not include a test for the presence of illegal drugs, routine physical measurements, or chemical, blood or urine analysis, unless conducted purposefully to obtain genetic information. A genetic test also does not include an analysis of proteins or metabolites that does not detect genotypes, mutations, or chromosomal changes, or an analysis of proteins or metabolites that is directly related to a manifested disease, disorder, or pathological condition that could be reasonably detected by a heath care professional with appropriate training and expertise in the field of medicine involved.

Health benefit plan - any accident and health insurance policy or certificate, hospital and medical services corporation contract, health maintenance organization subscriber contract, plan provided by a multiple employer welfare arrangement, or plan provided by another benefit arrangement. The term health care benefit plan does not mean accident only, credit, or disability insurance; coverage of Medicare services or federal employee benefit plans, pursuant to contracts with the United States government; Medicare supplemental or long-term care insurance; dental only or vision only insurance; specified disease insurance; hospital confinement indemnity coverage; limited benefit health coverage; coverage issued as supplemental to liability insurance; insurance arising out of workers compensation or similar law; automobile medical payment insurance; medical expense and loss of income benefits; insurance under which benefits are payable with or without regard to fault and that is statutorily required to be contained in any liability insurance policy or equivalent self-insurance; or life insurance.

Health insurer - any person that provides one or more health benefit plans or insurance in the District of Columbia, including an insurer, a hospital, a medical services corporation, a fraternal benefits society, a health maintenance organization, a multiple employer welfare arrangement, or any other person providing a plan of health insurance subject to the authority of the Commissioner of the Department of Insurance, Securities, and Banking.

Labor organization - any organization, agency, employee representation committee, group, association, or plan in which employees participate directly or indirectly; and which exists for the purpose, in whole or in part, of dealing with employers or any agent thereof, concerning grievances, labor disputes, wages, rates of pay, hours, or other terms, conditions, or privileges of employment; any conference, general committee, joint or system board, or joint council that is subordinate to a national or international organization.

Marital status - the state of being married, in a domestic partnership, single, divorced, separated or widowed, and the usual conditions associated therewith, including pregnancy or parenthood.

Matriculation - the condition of being in a college or university; in a business, nursing, professional, secretarial, technical or vocational school; or in an adult educational program on a full- or part-time basis.

National origin - the state, country, or nation in which a person or his or her ancestors were born.

Person - any individual, firm, partnership, mutual company, joint stock company, corporation, association, organization, unincorporated organization, labor union, government agency, incorporated society, statutory or common law trust, estate, executor, administrator, receiver, trustee, conservator, liquidator, trustee in bankruptcy, committee, assignee, officer, employee, principal or agent, legal or personal representative, real estate broker or salesman, or any agent or representative of any of the foregoing.

Personal appearance - the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress, and manner or style of personal grooming, including, but not limited to, hair style and beards. Personal appearance shall not relate, however, to the requirement of cleanliness, uniforms, or prescribed standards, when uniformly applied to a class of employees for a reasonable business purpose; or when such bodily conditions or characteristics, or style or manner of dress or personal grooming presents a danger to the health, welfare, or safety of any individual.

Political affiliation - the state of belonging to, or endorsing, any political party.

Protected classes - bases of unlawful discrimination prohibited by Title I of the Act.

Race - for the purpose of Title I of the Act, race is not limited to the state of being a member of a particular race, but also includes relationships with members of a different race, such as the race of a spouse or associate, where such relationship is the basis for discrimination.

Religion - a personal set or institutionalized system of attitudes, beliefs, and practices relating to a supernatural force or being, or its equivalent in secular faiths, including the presence or absence of commitment or devotion to any faith. Religion includes moral or ethical beliefs as to what is right and wrong, which beliefs are sincerely held with the strength of traditional religious views.

Sex - the state of being male or female and conditions associated therewith. Sex includes the state of being a member of a sub-group of one sex, such as a pregnant female.

Sexual orientation - male or female homosexuality, heterosexuality, and bisexuality, by preference or practice.

Underwriting - with respect to a group health plan or health insurance coverage offered in connection with a group health plan, rules for, or determination of, eligibility (including enrollment and continued eligibility) for the benefits under the plan or coverage; the computation of premium or contribution amounts under the plan or coverage; the application of any pre-existing condition exclusion under the plan or coverage; and other activities related to the creation, renewal, or replacement of a contract of health insurance or health benefits.

History

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).

4-6 GUIDELINES FOR THE CABLE TELEVISION INDUSTRY

4 DCMR § 600 PURPOSE

600.1 The District of Columbia Office of Human Rights and the Commission on Human Rights adopt this chapter for the following purposes:

(a) To provide equal employment opportunity for all persons in the District of Columbia cable television industry;

(b) To promote full realization of equal employment through cable franchisee(s) affirmative action programs; and

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is § 41 of the Cable Television Communications Act of 1981, D.C. Official Code § 34-1240 (2001) and § 301 of the D.C. Human Rights Act of 1977, D.C. Official Code § 2-1403.01 (2001).
SOURCE: Final Rulemaking published at 35 DCR 7187 (September 30, 1988).

4 DCMR § 601 EQUAL OPPORTUNITY

601.1 It is the policy of the District of Columbia Office of Human Rights and the Commission on Human Rights that all cable franchisees shall do the following:

(a) Seek and employ qualified minority personnel in all of its facilities and at all of its locations;

(b) Provide equal opportunity for employee advancement, including upward mobility; promotion; elective, mandatory, and on-the-job training, and apprenticeship programs in accordance with the Cable Television Act of 1981, Title 34, Chapter 12, D.C. Official Code (2001); and

(c) Administer these activities in a manner which will not discriminate against any person because of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliations, and physical handicap.

601.2 The Office of Human Rights and the Commission on Human Rights Employment Guidelines, Chapter 5, 33 DCR 3114 (May 23, 1986) are incorporated by reference into this chapter and shall apply to the cable television industry in the District of Columbia.

History

SOURCE: Final Rulemaking published at 35 DCR 7187 (September 30, 1988).

4 DCMR § 602 AFFIRMATIVE ACTION

602.1 Each franchisee granted a franchise to operate a cable television system in the District of Columbia shall submit to the Office of Human Rights, for approval, a written affirmative action plan with goals and timetables to meet the requirements of the Cable Television Act of 1981, Title 34, Chapter12 of the D.C. Official Code (2001).

602.2 Each affirmative action plan shall include as a minimum the following:

(a) An affirmative action statement which includes a clear and unambiguous declaration of commitment to the principles of equal opportunity. The statement shall include a provision stating that the franchisee prohibits discrimination in its employment, in its policies, and in its practices in accordance with the District of Columbia Human Rights Act of 1977, Title 2, Chapter 14 of the D.C. Official Code (2001), and shall specify its protected classes; and

(b) An administrative statement which includes how the franchisee’s affirmative action plan is to be implemented and which key officials are responsible for its implementation. The administrative statement shall contain the name, job title, and work location of the affirmative action officer. The statement shall be signed by the top official of the franchisee.

602.3 Each franchisee shall annually provide in its affirmative action plan a workforce analysis which provides a numerical and percentile breakdown of its full-time and part-time employees, separately by racial or ethnic minorities, sex, age, and disability. In addition, all employees shall be arrayed by their occupational categories and income brackets.

602.4 The job and occupational categories shall include as a minimum the following categories:

(a) Officials and managers;

(b) Professionals;

(d) Sales persons;

(e) Office and clerical personnel;

(f) Skilled craft personnel;

(g) Semi-skilled personnel;

(h) Unskilled laborers; and

(i) Service workers.

602.5 Each franchisee shall annually provide in its affirmative action plan an availability analysis. The availability analysis shall show the percentile breakdown by racial or ethnic minorities and sex of the relevant labor force arrayed according to the occupational categories listed in § 602.4.

602.6 The franchisee shall assess the relevant labor force by determining the geographical area from which recruitment for the franchisee workforce can reasonably occur. The percentile breakdown by race or ethnicity and sex shall be determined by the analysis method promulgated by the Office of Federal Contract Compliance Programs, 41 Code of Federal Regulations, Chapter 60-2, Revised Order, No.4.

602.7 Each franchisee shall conduct a quantitative utilization analysis for its affirmative action plan. The quantitative utilization analysis shall compare work force analysis with availability analysis to show the numerical and percentile underrepresentation, if any, in the franchisee’s workforce by racial or ethnic minorities and sex.

602.8 Each franchisee shall conduct a qualitative utilization analysis for its affirmative action plan. An analysis shall show whether and where a franchisee’s employment policies and practices do or tend to exclude, disadvantage, restrict or adversely impact on the basis of race, ethnicity, age, sex, and disability. It shall also show whether and where effects of prior illegal discrimination are left uncorrected. The analysis may include the following areas:

(a) Recruitment efforts and methods;

(b) Applicant flow characteristics study;

(d) Policies and practices affecting transfers, promotions and reallocations;

(e) Selection of employees for training; and

(f) Policies and practice in demotion, discipline, termination and reduction in force.

602.9 The franchisee’s affirmative action goals and timetable shall specify the appropriate actions and timeframes in which problems identified under §§ 602.7 and 602.8 are targeted to be remedied. These actions may include, but not be limited to, the following:

(a) Devise a recruitment program in conjunction with the District of Columbia Department of Employment Services;

(b) Devise a recruitment program in conjunction with professional minority and women organizations, and cable or communication organizations;

(c) Validate the selection instrument in conjunction with the Uniform Guidelines on Employee Selection Procedures issued by the United States Equal Opportunity Commission, as amended, which appear in 29 CFR § 1607;

(d) Devise apprenticeship programs and other on-the-job training programs; or

(e) Revise and improve other personnel policies and practices in order to best accomplish full equal employment opportunity in the franchisee workforce.

602.10 The franchisee shall determine the timetable within which it expects to meet its established goals and the goals specified in the Cable Television Act of 1981. In setting the timetable, the franchisee may consider the following:

(a) Anticipated vacancies and positions; and

(b) Workforce turnover rate.

602.11 The franchisee shall prepare goals and timetables for each organizational unit at all locations of its operations.

602.12 The Office of Human Rights and the Commission on Human Rights shall submit an annual report to the Council of the District of Columbia, stating whether the franchisee is in compliance with the affirmative action requirements of the Cable Television Act of 1981 and recommend suspension or termination of the franchise, if necessary.

History

SOURCE: Final Rulemaking published at 35 DCR 7187, 7188-90 (September 30, 1988).

4 DCMR § 603 RESIDENCY HIRING

603.1 Each franchisee shall make a good faith effort to have its workforce consist of fifty-one percent (51%) District residents.

603.2 For the purpose of this chapter, a person is a “resident” when he or she establishes and maintains a physical presence in the jurisdiction and intends to remain in that jurisdiction for an indefinite period of time.

603.3 In order to determine the residency of its employees, the franchisee may consider, but not be limited to, documents reflecting the following information:

(a) Home address of an employee and his or her immediate family members;

(b) Mailing address of the employee;

(d) Motor vehicle registration;

(e) Motor vehicle driver permit;

(f) Withholding and payment of individual income taxes;

(g) Certified deed or lease or rental agreement for real property;

(h) Cancelled checks or receipts for mortgage or rental payments; and

(i) Utility bills and payment receipts.

603.4 Each franchisee shall annually submit to the Office of Human Rights and the Commission on Human Rights a numerical and percentile breakdown of its full-time and part-time employees separately by residency. Each franchisee shall provide written verification of all employee tax withholdings which correspond with the employee’s residency.

603.5 The Office of Human Rights and the Commission on Human Rights shall report annually to the Council of the District of Columbia whether all the franchisee’s have reached the goal of hiring fifty-one percent (51%) District residents or are making good faith efforts to do so.

History

SOURCE: Final Rulemaking published at 35 DCR 7187, 7190-91 (September 30, 1988).

4 DCMR § 604 [RESERVED]

4 DCMR § 605 [RESERVED]

4 DCMR § 606 PENALTIES

606.1 Failure to comply with the affirmative action requirements stated in D.C. Official Code § 34-1241 (2001) shall constitute an unlawful discriminatory practice and subject the franchisee to fines imposed by the Commission on Human Rights of not less than one thousand ($1,000) dollars per day that violations persist and any other penalties that may be imposed pursuant to District of Columbia Television Communications Act of 1981 or any other law.

History

SOURCE: Final Rulemaking published at 35 DCR 7187, 7191 (September 30, 1988).

4-7 PRIVATE COMPLAINTS ALLEGING UNLAWFUL DISCRIMINATORY PRACTICES

4 DCMR § 700 SCOPE

700.1 The provisions of this chapter shall apply to all employers, places of public accommodation, educational institutions, and housing and commercial space subject to the D.C. Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Official Code § 2-1401.01 et seq.).

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 701 COVERAGE

701.1 The provisions of this chapter shall govern the processing of any matters involving discrimination on the grounds of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, status as a victim of an intrafamily offense, and place of residence or business.

701.2 Nothing in this chapter shall be construed to supersede any federal or District of Columbia law, or to invalidate any proceedings commenced under the authority of any prior regulations.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 702 JURISDICTION

702.1 The Office has the statutory authority to receive, investigate, and seek an appropriate remedy for allegations of conduct prohibited by the Act and which has caused harm to a person or persons protected by the Act; provided, that the following requirements are met:

(a) The complaint is filed with the Office within one year of the occurrence of the unlawful discriminatory practice, or the discovery thereof, except as may be modified in accordance with procedures established pursuant to section 303 of the Act (D.C. Official Code § 2-1403.03);

(b) The alleged unlawful discriminatory practice occurred within the District of Columbia; and

(1) Maintaining a presence within the District of Columbia, including that of a registered agent;

(2) Substantially engaged in doing business within the District of Columbia; or

(3) Operating an enterprise which is subject to licensing by the District of

(4) Columbia government.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 703 CONTINUING VIOLATION

703.1 The complainant may allege that his or her claim is a continuing violation if the claim involves a hostile work environment and at least one of the discriminatory acts occurred within the statutory period of one (1) year or three hundred sixty-five (365) days of the date of filing.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 704 SUBMISSION OF INFORMATION REGARDING ALLEGED DISCRIMINATION

704.1 The Office shall accept information concerning alleged violations of the Act, Title VII of the federal Civil Rights Act of 1964, Title VIII of the Federal Civil Rights Act of 1968, and other applicable statutes from any person.

704.2 Where the information discloses that a person is entitled to file a charge with the Office, the matter will be investigated.

704.3 Any person or organization may request the issuance of a Director’s order for an inquiry into individual or systematic discrimination prohibited by any of the laws referred to in § 704.l.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 705 FILING OF COMPLAINTS

705.1 Any person or organization may file with the Office a complaint of a violation of the provisions of the Act, including a complaint of general discrimination, unrelated to a specific person or instance. If a complainant lacks capacity, the complaint may be filed on their behalf by a person with an interest in the welfare of the complainant.

705.2 The initial complaint shall be in writing on a form obtained from the Office, and can be filed online through the Office’s website (http://www.ohr.dc.gov), via email to ohr.intake@dc.gov, mail or fax. The date of the online, email or fax filing will constitute the filing date for the complaint. The date of OHR’s receipt of mailed complaints will constitute the filing date. If during a declared emergency, the Office is closed, the date of mail filings will be calculated as follows: the date of the postal stamp, or the date complainant signed the complaint plus five (5) business days. The Director may extend this deadline for good cause during a declared emergency. The finalized complaint, known as the Charge of Discrimination, shall be signed and verified by the complainant under penalty of perjury.

705.3 The Director may initiate a complaint whenever the Director has reason to believe that any person has committed an unlawful discriminatory practice. A complaint initiated by the Director shall be signed by the Director.

705.4 A complaint alleging a discriminatory practice shall contain the following information:

(a) The full name and address of the complainant(s);

(b) The full name and address of the respondent(s);

(d) The date(s) of the alleged unlawful discriminatory practice, and if the alleged unlawful discriminatory practice is of a continuing nature, the dates between which the continuing acts of discrimination are alleged to have occurred; and

(e) A statement describing any other action, civil, criminal, or administrative in nature, instituted in any other forum or agency based on the same unlawful discriminatory practice as is alleged in the complaint.

705.5 Notwithstanding the provisions of § 705.4, a complaint shall be deemed sufficient when the Office receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practice complained of.

705.6 The Office shall reasonably accommodate a disabled person who wishes to file a complaint or who wishes to make a personal appearance at the Office when filing a complaint. Accommodations may include, but shall not be limited to, a personal representative making an appearance on behalf of a disabled complainant, or an Office representative delivering a complaint to a complainant for signature. During a declared emergency, or when in-person service is not available, the Office shall find alternative ways to assist the person requiring reasonable accommodation.

705.7 The Director shall establish and maintain a complaint file containing all documents pertinent to each case. The complaint file shall contain, at a minimum, the following documents as appropriate to the individual case:

(a) The complaint;

(b) The reply to data request;

(d) The respondent’s reply to the complaint and any amendments;

(e) The complainant’s statement of withdrawal;

(f) The investigator’s summary or findings of fact and recommendations;

(g) The extended processing summary and recommendations;

(h) The Director’s Letter of Determination (LOD);

(i) The conciliation agreement;

(j) Letter of certification to the Commission; and

(k) Letter of dismissal.

705.8 If the Office determines that a complainant is filing what are determined to be frivolous complaints, which may include filing an unreasonable number of complaints during a given time, it may resolve the complaint in accordance with OHR Intake Guidelines.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009); as amended by Final Rulemaking published at 67 DCR 10399 (August 28, 2020). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 705

4 DCMR § 706 AMENDMENT OF COMPLAINTS

706.1 A complainant may request that the complaint be amended at any time prior to a hearing.

706.2 If the complainant requests an amendment prior to the issuance of the LOD, the Director shall remand the matter to the investigator for further investigation.

706.3 If the complainant requests an amendment after certification to the Commission, the matter shall be remanded back to the Office for further investigation.

When an amendment is filed, the Office shall serve a copy of the amendment upon the respondent within two (2) calendar days of the amendment. The respondent shall, within five (5) calendar days after service, file an answer to the amendment. If more time is needed for answering an amendment, the Office shall grant an extension for a reasonable period of time upon the respondent’s written request. Any request for an extension must be filed within the five (5) calendar days after service of the amendment.

If the investigation is completely or nearly complete, a new docket number may be assigned.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 707 DISMISSAL FOR LACK OF JURISDICTION

707.1 If the Director determines, on the face of a complaint, that the Office lacks jurisdiction, an order dismissing the complaint shall be issued without an investigation being made. The Respondent may file a motion at the Office for dismissal for lack of jurisdiction or may request dismissal for other legally supported issues.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 708 ADMINISTRATIVE DISMISSALS

708.1 A case shall be terminated without prejudice if the complainant submits a written request to withdraw the complaint, or for the following administrative reasons:

(a) The complainant is absent and has failed to contact the Office or cannot be contacted by the Office. The Office shall attempt to contact the complainant either by telephone, e-mail, or mail addressed to the complainant’s address of record. Inability to contact by mail shall consist of mailing at least one (1) regularly mailed letter or e-mail;

(b) The complainant fails to proceed and the Office has unsuccessfully attempted to contact the complainant by telephone, e-mail, or mail, and the complainant has failed to contact the Office within thirty (30) days of the date the first letter was mailed;

(d) The respondent no longer exists as a result of a court action (bankruptcy or dissolution); and

(e) After preliminary investigation, the Director determines that the Office lacks jurisdiction over the respondent.

708.2 An order dismissing a complaint for administrative reasons shall be in writing and served on the parties, stating the reasons for the dismissal.

708.3 A complainant may request that a complaint previously closed for administrative reasons or voluntarily withdrawn be reopened; provided, that the complainant submits a written request within thirty (30) days of receipt of the order dismissing the complaint, stating specifically the reasons why the complaint should be reopened.

708.4 The Director, upon receipt of a request to reopen a complaint, may, within his or her discretion, reopen the case for good reasons or in the interest of justice provided that no determination has previously been made on the merits of the case.

708.5 The decision of the Director to reopen a complaint shall be served on all parties.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 709 WITHDRAWAL OF COMPLAINTS

709.1 Complaints filed with the Office under the provisions of the Act may be voluntarily withdrawn at the request of the complainant at any time prior to the completion of the Office’s investigation and findings, as specified in section 305 of the Act (D.C. Official Code § 2-1403.05), except that the circumstances accompanying a withdrawal may be fully investigated by the Office.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 710 MEDIATION

710.1 The complainant and respondent must attend a mandatory mediation session to be held on a mutually agreed upon date.

710.2 A Mediator shall be appointed by the Director, or his designee, from a list of individuals qualified in alternative dispute resolution.

710.3 Prior to beginning the mediation session, the Mediator shall require both parties and their representatives to sign an agreement that all aspects of the mediation are to be kept confidential.

710.4 No aspect of the mediation shall become a part of the investigative record, and the Mediator shall not be called as a witness in any later proceeding between the parties.

710.5 During the mediation, the parties shall discuss the issues in the complaint in an effort to reach an agreement that satisfies the interest of all concerned parties.

710.6 The parties shall have forty-five (45) days from the date of the initial mediation session within which to mediate a settlement. If an agreement is reached during the mediation process, the terms of the agreement shall control resolution of the complaint.

710.7 The Office may initiate a preliminary investigation before the conclusion of the mediation proceedings. If the parties are finalizing a settlement agreement, the respondent may request an extension of time in which to file an answer.

710.8 If an agreement is not reached, the Office shall proceed with an investigation of the complaint.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 711 INVESTIGATION

711.1 The investigation file shall include the respondent’s Statement of Position, responses to the Office’s Request for Information and Documents, the complainant’s Rebuttal, affidavits of the parties and witnesses, and notes of interviews and fact-finding conferences, if appropriate.

711.2 The investigation may be made by field visits, written or verbal inquiry, conference, or any other method or combination of methods suitable in the discretion of the Director or staff personnel assigned responsibility for the investigation, subject to appropriate guidelines.

711.3 As part of the Office’s investigation, the Office may require the person claiming to be aggrieved to provide a statement which includes the following:

(a) A statement of each specific harm that the aggrieved party has allegedly suffered and the date on which each harm occurred;

(b) For each harm, a statement specifying the act, policy, or practice which is alleged to be unlawful; and

(c) For each act, policy, or practice alleged to have harmed the aggrieved party, a statement of the facts which led the party to believe that the act, policy, or practice is discriminatory.

711.4 If the investigator concludes that no additional information is necessary or that the investigation is complete, the investigator shall submit his or her findings of fact or investigative report to the Office of General Counsel (OGC) of the Office for legal sufficiency. OGC shall then submit a draft LOD to the Director for review, approval, and issuance.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 712 REQUESTS

712.1 Within five (5) calendar days of the service of a complaint on the respondent, the complaint shall be assigned to an investigator who shall, within eight (8) calendar days thereafter, prepare and serve upon the respondent, via certified mail, a data request. The data request shall include a request for an answer to the complaint, generally in the form of a Position Statement.

712.2 The respondent shall have twenty (20) calendar days after receipt of the data request to summit the requested information. However, in all instances, the requested information shall be submitted five (5) calendar days before the scheduled fact-finding conference.

712.3 If the respondent requests additional time to respond to the data request, a reasonable time shall be allowed, as agreed upon by the respondent and the investigator.

712.4 If the respondent fails to comply within the agreed upon extended time, the Office may amend the complaint to include violation of section 264(b) of the Act (D.C. Official Code § 2-1402.64(b)), which will invoke the subpoena power, as provided in § 720.

712.5 When a request is made to the respondent for additional data not covered in the original data request, the respondent shall be given a reasonable time to submit the additional information, as determined by the investigator in light of the circumstances of the case, but not fewer than four (4) calendar days.

712.6 The parties may only request case information at the close of the investigation, pursuant to the Freedom of Information Act of 2000, effective April 27, 2001 (D.C. Law 13-283; D.C. Official Code § 2-531 et seq.).

712.7 The complainant shall have an opportunity to rebut evidence submitted by or obtained from the respondent, at any time before the issuance of the LOD.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 713 FACT-FINDING CONFERENCE

713.1 Within fifteen (15) calendar days of the filing of a complaint, the Office shall serve a notice of the complaint and a copy of the complaint on the respondent.

713.2 If considered appropriate, the Director or the Director’s designee shall schedule a fact-finding conference within twenty (20) calendar days of the date that a complaint is filed.

713.3 The Director or the Director’s designee shall, at least seven (7) calendar days prior to the fact-finding conference, do the following:

(a) Inform the parties of the date of the fact-finding conference; and

(b) Inform the parties of their responsibility to provide the Director or the Director’s designee with names of witnesses who will provide information at the fact-finding conference.

713.4 If a witness for a party is unable to attend the fact-finding conference, that party may request the witness to submit a notarized statement. The party shall deliver the statement to the Office no later than two (2) calendar days before the scheduled date of the fact-finding conference.

713.5 The purpose of the fact-finding conference shall be to provide for the rapid processing of charges that are narrowly defined and limited to allegations of direct harm to the charging party.

713.6 A record of the fact-finding conference shall be made by a recording device. If a settlement negotiation is initiated during the conference, the settlement discussions shall be confidential and off the record.

713.7 For purposes of this section, a “fact-finding conference” is an informal, investigative technique, not an adversary proceeding.

713.8 Each allegation of the charge shall be closely examined and fully discussed. Each party shall be allowed ample time to present and defend his or her position.

713.9 If counsel for the respondent or the complainant is present, counsel shall be limited to an advisory role and will not be permitted to speak for their clients. For cross-examination purposes, counsel may ask questions through the conference leader.

713.10 The fact-finding conference may be waived or suspended when it becomes apparent to the Director or the Director’s designee that the remedy sought by the complainant may be achieved through a negotiated settlement.

713.11 A request for rescheduling a fact-finding conference shall be granted at the discretion of the Director or the Director’s designee. A scheduled court appearance of counsel for either party, illness of either party, or other extenuating circumstances are factors that shall be considered in rescheduling a fact-finding conference.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 714 FINAL INVESTIGATIVE REPORT

714.1 When an investigation and fact-finding conference have been completed, the investigator shall, within thirty (30) days of the conference, write a final report of all fact-findings to date and recommend a final determination of probable cause or no probable cause. OGC will review the case file and report for legal sufficiency to determine if further investigation is necessary.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 715 DIRECTOR’S DETERMINATION

715.1 OGC shall send a draft LOD recommending probable cause or no probable cause to the Director. The Director shall review the LOD, make a substitute determination or approve the determination, and issue a final determination to the parties. The LOD shall state whether there is probable cause or no probable cause to credit the complaint, or whether the complaint should be dismissed.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 716 PROBABLE CAUSE DETERMINATION

716.1 A finding of probable cause shall be based upon credible, probative, and substantial evidence which demonstrates a nexus between the harm complained of and the protected characteristic or activity of the complainant.

716.2 If the Director determines there is probable cause to credit the complaint, the LOD shall be served on all parties, advising them of the opportunity to conciliate.

716.3 If probable cause is found, the respondent shall have fifteen (15) calendar days to file for reconsideration based on misapplication of law, material misstatement of fact, or discovery of evidence not available during the investigation.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 717 CONCILIATION

717.1 After the Director has issued the probable cause LOD, the parties shall be given notice of an opportunity to settle the complaint through conciliation.

717.2 If a conciliation conference is scheduled, it shall be for the purpose of discussing all relief appropriate under the Act. The relief shall be in the form of compensatory relief and/or other remedies deemed appropriate, but shall not include punitive damages.

717.3 At the conciliation conference and during the entire period of conciliation, discussions on the merits of the complaint shall not be entertained.

717.4 If the endeavors to conciliate succeed, a written conciliation agreement shall be prepared by and executed between the parties, subject to the approval of the Director.

717.5 The conciliation agreement shall not constitute an admission by the respondent of any violation of the law, federal or local.

717.6 The terms of a conciliation agreement may require a respondent to refrain from committing specified discriminatory practices in the future, and, within the judgment of the Office, to take such affirmative action as will effectuate the purpose of the Act.

717.7 The terms of a conciliation agreement may also include consent by the respondent to the entry of a consent decree in a court of competent jurisdiction, embodying the terms of the conciliation agreement.

717.8 When a conciliation agreement has been fully executed, it shall be binding on all parties. The parties shall waive all rights to file a subsequent complaint based on issues which could have been included in the conciliation charge or based on issues arising out of the same facts addressed in the complaint.

717.9 If during conciliation efforts, the respondent offers a remedy that would place the complainant in the same position that the complainant would have been in had the alleged discriminatory practice not occurred, and the complainant refuses to accept the offer, and if the Director determines that the offered remedy would make the complainant whole, the Director may order the complaint dismissed.

717.10 The period for conciliation shall extend for thirty (30) days from receipt of the notice inviting the parties to conciliate the complaint.

717.11 Conciliation shall be considered to have failed if, during the thirty (30) day conciliation period, the respondent refuses to participate in conciliation, or if the respondent’s offer of a remedy is such that it will not make the complainant whole and the complainant refuses to accept the offer.

717.12 A complaint by either party alleging that the terms of a conciliation agreement are not being complied with shall be submitted to the Director for review.

717.13 Upon receipt of a charge of noncompliance with a conciliation agreement, the Director shall notify the party being charged with the noncompliance, and permit the party an opportunity to respond to the charge.

717.14 The Director shall review the charge of noncompliance, the conciliation agreement, and the response to determine whether the terms are being complied with.

717.15 If it is determined that the terms of a conciliation agreement are being complied with, the parties shall be notified and the complaint of noncompliance shall be dismissed.

717.16 If it is determined that the terms of a conciliation agreement are not being complied with, the party guilty of noncompliance shall be notified and given five (5) calendar days, after receipt of the notice, to comply. If the party fails to comply within the given time, the agreement shall be referred to the Office of the Attorney General (OAG) for enforcement.

717.7 Pursuant to the Age Discrimination in Employment Act of 1967, approved December 15, 1967 (81 Stat. 602; 29 U.S.C. § 621 et seq.), the complainant may withdraw his or her agreement to settle within seven (7) calendar days of signing the agreement.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 718 FAILURE OF CONCILIATION AND CERTIFICATION TO COMMISSION

718.1 If conciliation efforts fail, the Director shall certify the complaint to the Commission and shall serve written notice on the parties that conciliation efforts were not successful.

718.2 The notice required by § 718.1 shall be served in the name of the Commission, together with a copy of the complaint or amended complaint, and require the respondent to answer the charges at a public hearing before one or more members of the Commission or before an Administrative Law Judge. The notice shall be served by registered or certified mail, return receipt requested, or by personal service.

718.3 The hearing before the Commission or an Administrative Law Judge shall be scheduled not less than ten (10) days or not more than thirty (30) days after service of notice and at a place to be specified in the notice.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 719 DISMISSAL FOR LACK OF PROBABLE CAUSE

719.1 If, after the investigation and recommendation by OGC, the Director determines that there is no probable cause to credit the complaint, the Director shall issue an order dismissing the complaint.

719.2 The Director shall serve a copy of an order dismissing the complaint for lack of probable cause on all parties and shall advise the complainant of the right to apply to the Director for reconsideration of the dismissal.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 720 RECONSIDERATION

720.1 A complainant seeking reconsideration of a dismissal under § 719.1, or a respondent seeking reconsideration under § 716.3, shall submit an application for reconsideration to the Director in writing, stating specifically the grounds upon which the request for reconsideration is based. The grounds shall be limited to misapplication of law, material misstatement of fact, or discovery of evidence not available during the investigation.

720.2 If the request is not based on one of the grounds cited in § 720.1, or is not timely filed, the Director shall reject the application for reconsideration. A request for reconsideration shall be filed with the Director’s office, in writing, within fifteen (15) calendar days from the receipt of the Director’s LOD.

720.3 Upon receipt of an application for reconsideration, the Director shall send letters acknowledging receipt of the application to both the complainant and the respondent. The respondent shall also receive a copy of the grounds upon which the complainant bases the request for reconsideration, and shall be given ten (10) calendar days from receipt of the information to file a response.

720.4 If, after review of a timely-filed application for reconsideration and the response thereto, the Director concludes that the complainant has not presented evidence that would warrant change, modification, or reversal of the prior dismissal, the Director shall affirm the original no probable cause finding.

720.5 If the Director concludes that the complainant has provided sufficient evidence to raise a genuine issue of law or fact, the complaint shall be reopened for further investigation.

720.6 If the respondent adequately refutes the allegations presented in the application for reconsideration, the prior dismissal shall be affirmed and the parties notified.

720.7 Where the complainant raises issues of material misstatement of fact or discovery of evidence not available during the investigation, and if the respondent fails to respond within the required time period or fails adequately to refute the allegations in the application for reconsideration, the Director shall reopen the complaint for further investigation.

720.8 If, at the end of further investigation and after considering the record as a whole, the Director concludes that the complainant has not presented sufficient evidence to warrant a change of the prior dismissal, the prior dismissal shall be affirmed, and the parties notified in writing.

720.9 If the Director determines, after further investigation, that a prior dismissal should be reversed, the Director shall find probable cause to credit the complaint, and the parties shall be served with a detailed written basis for the reversal and afforded an opportunity to conciliate.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 721 SUBPOENAS

721.1 Subpoenas issued by the Director may require the following:

(a) The attendance and testimony of witnesses;

(b) The production of evidence, including, but not limited to, books, records, correspondence, or documents in the possession or under the control of the person subpoenaed; and

721.2 The form, issuance, and manner of service of subpoenas shall be as prescribed by the Rules of Civil Procedure of the D.C. Superior Court.

721.3 A subpoena shall do the following:

(a) State the name and address of its issuer;

(b) Identify the evidence or person to be subpoenaed;

(d) Identify the nature of the evidence which is to be examined or copied; and

(e) State the date and time when access is requested.

721.4 A subpoena shall be returnable to a duly authorized investigator or other representative of the Director.

721.5 Upon failure of any person to comply with a subpoena issued under this section, the Office shall request that the OAG undertake appropriate action to compel compliance with the subpoena.

721.6 Witnesses who are subpoenaed shall be entitled to the same fees and mileage that are paid to witnesses under the schedule used by the D.C. Superior Court.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 722 CLASS ACTIONS

722.1 A complaint containing a request for class certification may be filed either by an individual complainant or by an organization. Upon receipt of a notarized class action complaint, the Office shall within fifteen (15) days serve on the respondent a notice of the complaint and a copy of the complaint. The respondent shall, within ten (10) days of the receipt of the notice, file a written answer to the request for class certification.

722.2 Within thirty (30) calendar days of receipt of a notarized class action complaint, the Director shall certify the class only if all of the following are satisfied:

(a) The class is so numerous that joinder of all injured persons is impracticable;

(b) Common questions of law and fact exist as to the injured persons;

(d) The named complainant(s) will fairly and adequately represent and protect the interests of the class; and

(e) The party opposing the class acted on grounds applicable to the class.

722.3 The decision of the Director to certify a class shall be served on the complainant and the respondent in writing. When the Director denies certification of a class, the complaint shall be considered as an individual action. The time limitations in § 712 shall begin on the date that the parties receive notification of the Director’s decision to certify or to deny certification of a class.

722.4 The time limits in § 712 may be adjusted at the discretion of the Director for a complaint certified as a class action.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 723 DISCLOSURES

723.1 Documents in the complaint file shall be made available to the parties through a FOIA request after an administrative dismissal, withdrawal of the complaint, or after the issuance of an LOD.

723.2 If an LOD has been issued, only the parties can request the documents after a reconsideration. The complaint file is considered confidential and only the parties may request documents in the official complaint file.

723.3 Internal agency communications, mediation documents, investigator’s notes, supervisory memoranda of instructions, and recommendations shall not be made available to the parties.

723.4 The request for documents shall be made pursuant to FOIA.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 724 REPORTING REQUIREMENT

724.1 An employer, employment agency, or labor organization subject to the Act and Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) shall be considered to be in compliance with the reporting requirements of section 213 of the Act (D.C. Official Code § 2-1402.13) if it has duly filed the EEO-1, EEO-2, or EEO-3 report with the U.S. Equal Employment Opportunity Commission, and the report is made available to the Office.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 725 INTERNAL OPERATING GUIDELINES

725.1 The Office shall compile, publish, and maintain a standard operations procedural manual (SOP) which will include, among other things, guidelines for each of the steps required to discharge the primary responsibility of processing complaints of discriminatory practices or policies. Upon request, the Office shall make a copy of the SOP available to any person wishing to examine it.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4 DCMR § 799 DEFINITIONS

799.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Aggrieved Party - any person claiming to be aggrieved by an unlawful discriminatory practice.

Act - the District of Columbia Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Official Code § 2-1401.01 et seq.).

Commission - the Commission on Human Rights, as established by section 401 of the Act (D.C. Official Code § 2-1404.01).

Complainant - any person or organization filing a complaint with the Office.

Complaint - a notarized statement filed with the Office that sets forth a claim of discrimination.

Day - a calendar day, unless otherwise specified.

Director - the Director of the Office, or a member of the Office staff specifically delegated the authority to act for the Director.

Office - the District of Columbia Office of Human Rights, as established by section 202 of the Act (D.C. Official Code § 2-1411.01).

Party or Parties - the complainant or the respondent.

Position Statement - the respondent’s official response to the allegations in the Charge of Discrimination.

Respondent - any person specified in the complaint as having engaged in an unlawful discriminatory practice.

History

SOURCE: Final Rulemaking published at 56 DCR 007324 (September 4, 2009).

4-8 COMPLIANCE RULES AND REGULATIONS REGARDING GENDER IDENTITY OR EXPRESSION

4 DCMR § 800 Purpose

800.1 In order to meet the obligations to prohibit discrimination based on gender identity or expression as set forth in the Act, the Office and the Commission adopt this chapter for the following purposes:

(a) To implement the provisions of the Act regarding discrimination based on gender identity or expression in employment, housing, public accommodations, or educational institutions, including all agencies of the District of Columbia government and its contractors;

(c) To educate the public on the behaviors, conduct, and actions that constitute unlawful discrimination based on gender identity or expression;

(d) To ensure that transgender people are treated in a manner that is consistent with their identity or expression, rather than according to their presumed or assigned sex or gender; and

(e) To guide the internal processing of complaints filed with the Office or cases heard by the Commission.

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is section 301(c) of the Human Rights Act of 1977 (Act), effective December 13, 1977 (D.C. Law 2-38; D.C. Official Code § 2-1403.01(c)).
SOURCE: Final Rulemaking published at 53 DCR 8751, 8751-52 (October 27, 2006).

4 DCMR § 801 GENERAL PROHIBITIQNS OF GENDER IDENTITY OR EXPRESSION DISCRIMINATION

801.1 It shall be unlawful for any person or entity, including agencies of the District of Columbia government and its contractors, to discriminate against a person in employment, housing, public accommodations, or educational institutions on the basis of that person's actual or perceived gender identity or expression. Such unlawful discriminatory practices shall include but not be limited to the following in:

(a) EMPLOYMENT: failing to hire or promote; engaging in disparate treatment; engaging in unlawful termination and transfers; engaging in verbal or physical harassment; creation of a hostile environment; failing to make a reasonable accommodation when requested by the employee in accordance with 4 DCMR § 804 (1995); and denying access to restrooms and other gender specific facilities that are consistent with the employee's gender identity or expression.

(b) HOUSING AND COMMERCIAL SPACE: refusing to show, rent, or sell real property that is available for lease or sale; discriminating in financial transactions related to real property; engaging in disparate treatment by adding or using different terms or conditions in a lease; refusing to make or provide services, repairs, or improvements for any tenant or lessee; denying access to restrooms or gender specific facilities in common areas that are consistent with an individual's gender identity or expression; creating a hostile environment; and failing to stop or prevent harassment by co-tenants, landlords, or property managers.

(c) PUBLIC ACCOMMODATIONS: refusing to provide goods or services of any kind; engaging in disparate treatment in the provision of goods and services; engaging in verbal or physical harassment; creating a hostile environment; and denying access to restrooms and other gender specific facilities that are consistent with a customer's or client's gender identity or expression.

(d) EDUCATIONAL INSTITUTIONS: refusing or limiting educational opportunities in admission, matriculation, or access to extracurricular activities; engaging in disparate treatment of a student; engaging in or failing to prevent verbal or physical harassment; creating a hostile environment; and denying access to restrooms and other gender specific facilities that are consistent with a student's gender identity or expression.

(e) DISTRICT OF COLUMBIA GOVERNMENT: refusing to provide any facility, service, program, or benefit of the District of Columbia government; engaging in verbal or physical harassment; creating a hostile environment; and denying access to restroom facilities and other gender specific facilities that are consistent with a person's gender identity or expression.

801.2 All entities covered under the Act shall clearly and explicitly communicate the District of Columbia's laws regarding gender identity or expression and other protected categories to all management, employees, and volunteers as required by D.C. Official Code § 2- 1402.51.

History

SOURCE: Final Rulemaking published at 53 DCR 8751, 8752-53 (October 27, 2006).

4 DCMR § 802 RESTROOMS AND OTHER GENDER SPECIFIC FACILITIES

802.1 All entities covered under the Act, as amended, shall allow individuals the right to use gender-specific restrooms and other gender-specific facilities such as dressing rooms, homeless shelters, and group homes that are consistent with their gender identity or expression.

802.2 All entities covered under the Act with single-occupancy restroom facilities shall use gender-neutral signage for those facilities (for example, by replacing signs that indicate "Men" and "Women" with signs that say "Restroom").

History

SOURCE: Final Rulemaking published at 53 DCR 8751, 8753 (October 27, 2006).

4 DCMR § 803 ACCOMMODATIONS FOR HEALTH CARE NEEDS

803.1 When requested by the employee, an employer shall make reasonable accommodations (including medical leave) for transgender-related health care needs that are consistent with such accommodations that are provided for other medical needs. Such needs include but are not limited to medical or counseling appointments, surgery, recovery from surgery, and any other transgender-related procedures.

History

SOURCE: Final Rulemaking published at 53 DCR 8751, 8753 (October 27, 2006).

4 DCMR § 804 DRESS AND GROOMING STANDARDS

804.1 No employer, housing provider, public accommodation, educational institution, or any agency of the District of Columbia government or its contractors shall require individuals to dress or groom themselves in a manner inconsistent with their sex or their gender identity or expression.

804.2 Employers, housing providers, public accommodations, educational institutions, and agencies of the District of Columbia government and its contractors may prescribe standards of dress which shall serve a reasonable business purpose, as long as such standards do not discriminate or have a discriminatory impact on the basis of an individual's sex or the individual's gender identity or expression.

804.3 Except as otherwise provided in this chapter, the Office and Commission adopt and incorporate by reference the provisions of 4 DCMR § 512(1995).

History

SOURCE: Final Rulemaking published at 53 DCR 8751, 8753-54 (October 27, 2006).

4 DCMR § 805 GENDER-SPECIFIC FACILITIES WHERE NUDITY IN THE PRESENCE OF OTHERS IS CUSTOMARY

805.1 All entities covered under the Act shall provide access to and the safe use of facilities that are segregated by gender.

805.2 In gender-specific facilities where nudity in the presence of other people is customary, entities covered by the Act shall make reasonable accommodations to allow an individual access to and the use of the facility that is consistent with that individual's gender identity or expression, regardless of whether the individual has provided identification or other documentation of their gender identity or expression.

805.3 Requiring documentation or other proof of an individual's gender is prohibited, except in situations where all persons are asked to provide documentation or other proof of their gender for a reasonable business or medical purpose.

History

SOURCE: Final Rulemaking published at 53 DCR 8751, 8754 (October 27, 2006).

4 DCMR § 806 RECORDING OF GENDER AND NAME

806.1 An entity covered under the Act shall not require an applicant to state whether the individual is transgender.

806.2 If an application form asks for the applicant to identify as male or female, designation by the applicant of a sex that is inconsistent with the applicant's assigned or presumed gender shall not be considered, without more, to be fraudulent or to be a misrepresentation for the purpose of adverse action on the application.

806.3 An applicant's giving of a name publicly and consistently used by the applicant, even when the name given is not the applicant's legal name, shall not be grounds for adverse action, if the name given is consistent with the applicant's gender identity or expression. However, where use of a person's legal name is required by law or for a reasonable business purpose, the applicant may be required to disclose it.

806.4 An applicant's failure to disclose a change of gender or name (unless specifically required as part of an application process for a reasonable business purpose) shall not be considered grounds for an adverse action.

History

SOURCE: Final Rulemaking published at 53 DCR 8751, 8754-55 (October 27, 2006).

4 DCMR § 807 BACKGROUND CHECKS

807.1 If an entity covered under the Act learns through a background check or other means that a person is transgender, the entity shall not, without more, take an adverse action against the individual on the basis of the learned information and shall take reasonable measures to preserve the confidentiality of that information.

History

SOURCE: Final Rulemaking published at 53 DCR 8751, 8755 (October 27, 2006).

4 DCMR § 808 HARASSMENT AND HOSTILE ENVIRONMENT

808.1 All harassment and actions that create a hostile environment based on gender identity or expression shall be prohibited.

808.2 The following behaviors may constitute evidence of unlawful harassment and hostile environment:

(a) Deliberately misusing an individual's preferred name form of address or gender-related pronoun;

(b) Asking personal questions about an individual's body, gender identity or expression, or gender transition;

(d) Posting offensive pictures, or sending offensive electronic or other communications.

In determining whether there is unlawful harassment or a hostile environment, the totality of the circumstances surrounding the alleged violation of the Act must be considered, including the nature, frequency, and severity of the behavior, whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the alleged victim. Ultimately the standard is an objective one, focusing on whether the behavior was sufficiently severe or pervasive to alter the conditions of the victim's employment, housing, education, or access to or use of public accommodations, or relations with a District of Columbia agency or contractor, and to create an abusive environment.

History

SOURCE: Final Rulemaking published at 53 DCR 8751, 8755 (October 27, 2006).

4 DCMR § 899 DEFINITIONS

899.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

"Act" - the Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Official code § 2-1401.01 et seq.).

"Commission" - the Commission on Human Rights, established by section 401 of the Act (D.C. Official Code § 2-1404.01).

"Entities" - include all employers, housing providers, public accommodations, educational institutions, and government agencies and their contractors that come within the jurisdictional reach of the Act.

"Gender identity or expression" - a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual's assigned sex at birth.

"Office" - the Office of Human Rights, established by section 202 of the Fiscal Year 2000 Service Improvement and Budget Support Act of 1999, effective October 20, 1999 (D.C. Law 13-38; D.C. Official Code § 2-1411.01).

"Transgender" - an adjective that refers to any individual whose identity or behavior differs from stereotypical or traditional gender expectations, including transsexual individuals, cross-dressers, androgynous individuals, and others whose appearance or characteristic are perceived to be gender-atypical.

History

SOURCE: Final Rulemaking published at 53 DCR 8751, 8756 (October 27, 2006).

4-9 PRECOMPLAINT INVESTIGATION AND RESOLUTION OF ALLEGATIONS

4 DCMR § 900 APPLICABILITY

900.1 The provisions of this chapter shall apply to all employers, places of public accommodation, educational institutions, and housing and commercial space subject to the D. C. Human Rights Act of 1977 (Act), as amended, D.C. Law 2-38, D.C. Official Code §§ 2-1401.01 through 2-1403.07 (2001).

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is § 301(c) of the D.C. Human Rights Act of 1977, D.C. Law 2-38, D.C. Official Code § 2-1403.01(c) (2001).
SOURCE: Final Rulemaking published at 34 DCR 4791 (July 24, 1987).

4 DCMR § 901 SCOPE

901.1 The provisions of this chapter shall govern pre-complaint investigation and resolution of allegations of instances or patterns of discrimination, based on race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, physical handicap, political affiliation, source of income, or place of residence or business.

History

SOURCE: Final Rulemaking published at 34 DCR 4791 (July 24, 1987).

4 DCMR § 902 INFORMATION LEADING TO INVESTIGATION

902.1 All individuals, groups of individuals, or organizations becoming aware of employers, or persons in places of public accommodation, educational institutions, or in residential or commercial space located in the District of Columbia who are engaging in conduct believed to be prohibited by the provisions of the Act are encouraged to bring that conduct to the attention of the D.C. Office of Human Rights, by written allegations to the Director of the Office of Human Rights (Director) on behalf of themselves or other individuals claiming or suffering adverse effects from instances or patterns of conduct believed to be prohibited.

902.2 When the Director has reason to believe that conduct prohibited by the Act is occurring, the Director, sua sponte, may investigate individual instances or patterns of the conduct, and may initiate complaints in connection with the investigation.

History

SOURCE: Final Rulemaking published at 34 DCR 4791, 4791-92 (July 24, 1987).

4 DCMR § 903 INVESTIGATION

903.1 When allegations of prohibited conduct are brought to the attention of the Director, the Director shall review the allegations and any information pertaining to the allegations, and determine whether the alleged conduct is prohibited by the Act.

903.2 If, after review of the allegations and information, the Director determines that the alleged conduct is not prohibited by the Act, the Director shall terminate the investigation.

903.3 If, after review of the allegations and information, the Director determines that the alleged conduct is prohibited by the Act, the Director shall, pursuant to § 304(a) of the Act (D.C. Official Code § 2-1403.04(a) (2001)), investigate the matter.

History

SOURCE: Final Rulemaking published at 34 DCR 4791, 4792 (July 24, 1987).

4 DCMR § 904 NOTICE

904.1 After determining that the alleged conduct is prohibited by the Act, the Director shall serve a written notice upon the person or organization against whom the allegations have been made.

904.2 The Director shall specify in the notice the nature of the allegations, but shall not reveal the identity of the source of the allegations unless it is determined by the Director that the person or organization against whom the allegations have been made would be denied statutory or constitutional rights.

History

SOURCE: Final Rulemaking published at 34 DCR 4791, 4792 (July 24, 1987).

4 DCMR § 905 DATA REQUEST

905.1 The Director shall serve upon a person or organization against whom allegations have been made a data request for information that shall include, but need not be limited to, a request for answers to the specific allegations.

905.2 The person or organization shall have thirty (30) work days after receipt of the data request to submit the requested information.

905.3 If the person or organization seeks additional time to submit the requested information, the Director may grant up to ten (10) additional work days.

905.4 The failure of a person or organization to comply with the data request within the time allowed shall render the person or organization subject to sanctions under § 264 of the Act (D.C. Official Code § 2-1402.64 (2001)).

History

SOURCE: Final Rulemaking published at 34 DCR 4791, 4792-93 (July 24, 1987).

4 DCMR § 906 DIRECTOR’S DETERMINATION

906.1 The Director shall make a thorough review of all information and documents submitted in response to a data request and shall determine whether there is probable cause to believe that the person or organization against whom allegations have been made has engaged or is engaging in conduct prohibited by the Act.

906.2 If the Director determines that the conduct is not prohibited under the Act, the Director shall inform in writing the person or organization against whom the allegations have been made and the Director shall terminate the investigation.

History

SOURCE: Final Rulemaking published at 34 DCR 4791, 4792-93 (July 24, 1987).

4 DCMR § 907 Advisory Determination

907.1 If the Director determines that the alleged conduct is prohibited by the Act and that there is probable cause to believe that the person or organization has engaged or is engaging in prohibited conduct, the Director shall issue a written advisory determination informing the person or organization that the conduct is prohibited by the Act.

907.2 In the advisory determination, the Director shall state the actual circumstances and applicable law which form the basis for the advisory determination.

907.3 If the prohibited conduct is continuing or is likely to continue, the Director shall advise the person or organization of the opportunity for voluntary compliance by correcting or submitting, within thirty (30) work days, a plan to correct the prohibited conduct.

History

SOURCE: Final Rulemaking published at 34 DCR 4791, 4793 (July 24, 1987).

4 DCMR § 908 RESOLUTION THROUGH VOLUNTARY COMPLIANCE

908.1 If the person or organization consents to voluntary compliance, the Director may require the person or organization to enter a written compliance agreement. The Director may then terminate the investigation or may monitor the person or organization to ensure observance of the terms of a compliance agreement.

History

SOURCE: Final Rulemaking published at 34 DCR 4791, 4793 (July 24, 1987).

4 DCMR § 909 REFUSAL TO CONSENT TO COMPLIANCE

909.1 If the person or organization refuses voluntary compliance or violates the terms of a compliance agreement, the Director may pursuant to § 304(a) of the Act (D.C. Official Code § 2-1403.04(a) (2001)), initiate a complaint against the person or organization based on the investigation.

909.2 If the Director initiates a complaint, the Director shall serve upon the person or organization a copy of the complaint and a written determination that there is probable cause to believe that the person or organization has engaged or is engaging in conduct prohibited by the Act.

909.3 The Director shall give the person or organization fifteen (15) work days after receiving the copy of the complaint and the written determination of probable cause to submit a plan to correct the prohibited conduct, pursuant to § 306 of the Act (D.C. Official Code § 2-1403.06 (2001)).

909.4 If the person or organization refuses to participate in conciliation efforts or if conciliation efforts fail, the Director shall certify the matter to the D.C. Commission on Human Rights and shall refer the matter to the proper District government agency or authority, pursuant to §§ 310 and 317 of the Act (D.C. Official Code §§ 2-1403.10 and 2-1403.17 (2001)).

History

SOURCE: Final Rulemaking published at 34 DCR 4791, 4793-94 (July 24, 1987).

4-10 HOUSING AND COMMERCIAL

4 DCMR § 1000 GENERAL PROVISIONS: SCOPE AND PURPOSES

1000.1 This chapter shall apply, with specifically defined exceptions, to all transactions in real estate pertaining to dwelling and commercial space accommodations within the District of Columbia.

1000.2 The D.C. Office of Human Rights (“OHR”) shall adopt this chapter for the following purposes:

(a) To provide for fair housing throughout the District of Columbia to all its residents regardless of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, familial status, matriculation, disability, source of income, and place of residence or business; and to that end to prohibit discriminatory practices with respect to residential housing or commercial space accommodations by any person or group of persons, in order that the peace, health, safety, prosperity, and general welfare of all the residents of the District of Columbia may be protected and ensured;

(b) To facilitate the Office of Human Rights in carrying out its mandate under the District of Columbia Human Rights Act of 1977, as amended (hereinafter referred to as “the Act”), and specifically §§ 221 through 224 of the Act (D.C. Official Code §§ 2-1402.21 through 2-1402.24 (2001));

(c) To notify interested and affected persons as to the Office of Human Rights’ interpretation of the housing and commercial space provisions of the Act as pertaining to the implementation of its mandate under the Act; to specify the application of the housing and commercial space provisions to specific circumstances; and to establish principles of interpretation for guidance in other circumstances; and

(d) To facilitate the Office of Human Rights’ internal processing of cases relating to discrimination in housing and commercial space accommodations.

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is §§ 221 to 224 and 301(c) of the District of Columbia Human Rights Act of 1977, effective December 13, 1977, D.C. Law 2-38, D.C. Official Code §§ 2-1402.21 to -1402.24, -1403.01(c)(2001) and Mayor's Order 89-247 (November 1, 1989).
SOURCE: Final Rulemaking published at 35 DCR 5464 (July 15, 1988); as amended by Final Rulemaking published at 46 DCR 4339 (May 14, 1999), incorporating by reference the text of Final Rulemaking published at 46 DCR 2817 (March 19, 1999).

4 DCMR § 1001 PROHIBITED PRACTICES

1001.1 It shall be an unlawful discriminatory practice for any person, on the basis of the race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, familial status, matriculation, disability, source of income, or place of residence or business of any individual, to do the following:

(a) Refuse to sell or rent or to negotiate for the sale or rental of a dwelling or commercial space or otherwise to make a dwelling or commercial space unavailable;

(b) Discriminate in the terms or conditions of a transaction in real property, including but not limited to a transaction involving the buying or renting of a dwelling or commercial space;

(c) Make, print, publish, or cause to be made, printed, or published any statement or advertisement with respect to the sale or rental of a dwelling indicating a limitation on, or a preference for, or an intention to make any such preference, limitation, or discrimination against persons on the basis of race, color, sex, religion, national origin, marital status, personal appearance, sexual orientation, family responsibilities, familial status, disability, place of residence or business, or source of income. Prohibited discrimination may take the form of:

(1) A word, phrase, photograph, illustration, symbol or form indicating availability or unavailability;

(2) An expression to an agent, broker, employee, prospective seller or renter, or any other person of a preference for or limitation on any purchaser or renter for a prohibited reason;

(3) Selecting a medium or location for advertising the sale or rental of a dwelling that denies information about housing opportunities to a particular segment of the housing market; or

(4) Refusing to publish advertising for the sale or rental of a dwelling or requiring different charges or terms for such advertising.

(d) Represent that a dwelling is unavailable for inspection, sale, or rental when, in fact, it is available, or similarly to fail to disclose or offer to show all properties listed or held for sale or rent within a requested price or rental range, regardless of location. Prohibited practices include, but are not limited to:

(1) Providing inaccurate or untrue information about the availability of a dwelling for sale or rental to any person, including a tester, based on one of the proscribed criteria;

(2) Enforcing a covenant or other deed, trust, or lease provision that precludes the sale or rental of a dwelling on such basis; and

(3) Limiting information, by word or conduct, regarding suitably priced dwellings available based on one of the proscribed criteria.

(e) Include in any document related to a transaction in real property any restrictive covenant purporting to restrict occupancy or ownership of real property;

(f) Designate any block, neighborhood, or area of the District of Columbia as unsuitable for the making of mortgage loans, or reject applications for mortgage loans, or vary the terms of a mortgage loan upon property within that block, neighborhood, or area;

(g) Deny a loan or other financial assistance; refuse to guarantee, extend, or renew a loan; refuse to accept a deed of trust or mortgage; or otherwise refuse to make funds available for the purchase, acquisition, construction, alteration, rehabilitation, repair, maintenance of real property; to impose different terms or conditions on the financing or failing or refusing to provide information regarding the availability of loans or other financial assistance, application requirements, procedures or standards for review and approval of loans or other financial assistance or providing inaccurate information;

(h) Refuse to provide title insurance or other insurance relating to the ownership or use of any interest in real property, or to vary the terms or premiums of the insurance;

(i) Discriminate in appraising the value of real estate or in the fixing of any appraisal fee;

(j) Act as real estate broker, salesperson, or agent, including a rental agent, with respect to any transaction in real estate, which requires the broker, salesperson, or agent to discriminate on a prohibited basis. This shall include entering into a listing agreement which has the effect or purpose of discriminating on a prohibited basis;

(k) Deny any person access to or membership or participation in any multiple- listing service, real estate broker’s organization, or other service, organization, or facility relating to the business of selling or renting real property, or to discriminate against any person in the terms and conditions of such access, membership, or participation. Prohibited actions include:

(1) Setting different fees for access to or membership in a multiple listing service;

(2) Denying or limiting benefits accruing to members in a real estate brokers’ organization;

(3) Imposing different standards or criteria for membership in a real estate sales or rental organization; or

(4) Establishing geographic boundaries or office location or residence requirements for access to or membership or participation in a multiple listing service, real estate brokers’ organization or other service, organization or facility relating or the business of selling or renting dwellings.

(l) Discriminate in furnishing repairs, improvements, or any related services to a tenant or lessee in connection with real property;

(m) Solicit or to cause to be made, in connection with any transaction in real property, any written or oral inquiry or record concerning a prohibited basis, except inquiries or records made or kept in connection with a legitimate business purpose. Inquiries regarding source of income shall be made only to verify an applicant’s total lawful income;

(n) Employ a prohibited basis in determining whether a person satisfies any occupancy, admission, enrollment, eligibility, membership, or other requirement or condition which applicants must satisfy respecting any transaction in real property;

(o) Engage in any of the following credit practices in connection with a transaction in real property:

(1) Deny credit to an applicant or class of applicants where other applicants of like overall credit worthiness are granted credit;

(2) Impose special requirements or conditions upon an applicant or class of applicants, such as requiring co-obligors or larger than usual down-payments, where similar requirements or conditions are not imposed upon applicants of like overall credit worthiness;

(3) Impose credit terms or conditions which unintentionally have a discriminatory effect, and which cannot be justified by business necessity;

(4) Refuse to consider all lawful sources of an applicant’s income in evaluating an applicant’s credit worthiness and income eligibility; or

(5) Employ a prohibited basis in a decision to grant, withhold, extend, or renew credit, or in the fixing of credit lines or rates, or of the terms or conditions of credit;

(p) Restrict or limit the number of occupants using any real property, except in accordance with health, safety, and other regulations promulgated by an authorized agency of the District of Columbia government; or

(q) Coerce, intimidate, threaten, interfere with, or otherwise harass anyone exercising or encouraging others to exercise their rights granted under the Act or this chapter in the ownership, occupancy, or leasing of any real property; or to retaliate or discriminate against any person because he or she has opposed any practice forbidden under this chapter or the Act, or because he or she has filed a complaint, testified, or assisted in any proceeding under the Act.

(r) For profit, induce or attempt to induce a person to sell or rent a dwelling by representations regarding the entry or prospective entry into a neighborhood. It is not necessary that there was in fact profit as long as profit was a motivating factor. Prohibited actions include:

(1) Engaging in conduct that conveys the impression that a neighborhood is undergoing or is about to undergo a change in order to encourage the person to offer a dwelling for sale or rental; or

(2) Encouraging any person to sell or rent a dwelling through assertions that the entry or prospective entry of person can or will result in the undesirable consequences for the project, neighborhood, or community such as the following:

(i) A lowering of property values in an area;

(ii) An increase in criminal or antisocial behavior in an area;

(iii) A decline in the quality of schools and other public services in an area;

(iv) A material change in the racial or ethnic composition of an area;

(v) A decrease in the desirability of occupying property in an area.

(s) To make, print or publish, or cause to be made, printed or published, a discriminatory notice, statement or advertisement, which includes, but is not limited to:

(1) using words, phrases, photographs, illustrations, symbols or forms which convey that dwellings are available or not available to a particular group of persons;

(2) expressing to agents, brokers, employees, prospective sellers or renters or any other persons a preference for or limitation of any purchaser or renter;

(3) selecting media or locations for advertising the sale or rental of dwellings which deny particular segments of the housing market information about housing opportunities;

(4) refusing to publish advertising for the sale or rental of dwellings requiring different charges or terms for such advertising.

(t) Discriminate in the purchasing of loans. Unlawful conduct includes but is not limited to:

(1) Purchasing loans or other debts or securities which relate to, or which are secured by dwellings in certain communities or neighborhoods but not in others because of race, color, religion, sex, age, national origin, marital status, disability, family responsibilities, familial status, personal appearance, sexual orientation, matriculation, source of income, and place of residence or business;

(2) Pooling or packaging loans or other debts or securities which relate to or which are secured by, dwellings differently because of race, color, religion, sex, age, national origin, marital status, disability, family responsibilities, familial status, personal appearance, sexual orientation, matriculation, source of income, and place of residence or business;

(3) Imposing or using different terms or conditions on the marketing or sale of securities issued on the basis of loans or other debts or securities which relate to, or which are secured by dwellings because of race, color, religion, sex, age, national origin, marital status, disability, family responsibilities, familial status, personal appearance, sexual orientation, matriculation, source of income, and place of residence or business;

1001.2 It shall be an unlawful discriminatory practice to engage in any act prohibited in the Act or this chapter wholly or partially based on the fact that a person has one or more children who reside with that person.

1001.3 There shall be a rebuttable presumption that an unlawful discriminatory practice has occurred if the person alleging discrimination has one or more children who reside with that person and any of the acts prohibited in the Act or this chapter are done to maintain residential occupancies more restrictive than the following:

(a) In an efficiency apartment, two persons; or

(b) In an apartment with one or more bedrooms, two times the number of bedrooms plus one.

1001.4 When occupancy limitations are imposed, the presumption of discrimination referred to in § 221 of the Act (D.C. Official Code § 2-1402.22(c)(2) (2001)) may be overcome by demonstrating that occupancy limitations are in accord with District of Columbia regulations or law in effect at the time the occupancy limitations were imposed.

1001.5 It shall be an unlawful discriminatory practice to make any representation, whether explicit or implicit, with the intent or effect of restricting or limiting the housing choice of any person, in connection with seeking, negotiating for, buying, or renting a dwelling, that, on account of a prohibited basis, discourages any person from inspecting, purchasing, or renting a dwelling by, but is not limited to, conduct:

(a) exaggerating drawbacks or not informing any person of desirable features of a community, neighborhood, or development;

(b) communicating that any prospective purchaser would not be comfortable or compatible with existing residents of a community, neighborhood, or development; or

1001.6 It shall be unlawful to make an inquiry to determine whether an applicant for a dwelling, a person intending to reside in that dwelling after it is so sold, rented or made available, or any person associated with that person, has a disability or to determine the nature or severity of any disability, except that the following inquiries are not prohibited if these inquiries are made of all applicants, regardless of disability:

(a) Inquiry into an applicant’s ability to meet the requirements of ownership or tenancy;

(b) Inquiry to determine whether an applicant is qualified for a dwelling available only to persons with disabilities or the persons with a particular type of disability;

(c) Inquiry to determine whether an applicant for a dwelling is qualified for a priority available to persons with disabilities or to persons with a particular type of disability;

(d) Inquiry whether an applicant for a dwelling is a current alleged abuser or addict of a controlled substance; or

(e) Inquiry whether an applicant has been convicted of the illegal manufacture or distribution of a controlled substance.

1001.7 It shall be an unlawful discriminatory practice for any person to refuse to permit, at the expense of a disabled person, reasonable modifications of existing premises, occupied by or to be occupied by a disabled person, if the proposed modifications may be necessary to afford the disabled person full enjoyment of the premises of a dwelling. The following provisions apply with respect to rental property:

(a) A landlord may, where it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the premises to the condition that existed prior to the modification;

(b) A landlord may not increase for disabled persons any required security deposits; and

(c) A landlord may condition permission for modification on the renter providing a reasonable description of the proposed modifications as well as assurances that the work will be completed in a workmanlike manner.

1001.8 It shall be an unlawful discriminatory practice to engage in conduct relating to the provision of housing or of services related to the provision of housing that, on account of a prohibited basis, results in the following:

(a) Discharging or taking other adverse action against an employee because he or she refused to participate in discriminatory housing practice;

(b) Employing codes or other devices to segregate or reject applicants, purchasers, or renters, refusing to take or to show listings of dwellings , or refusing to deal with certain brokers or agents because they or their clients are of a particular race, color, religion, national origin, sex, age, marital status, disability, or familial status or because of family responsibilities, personal appearance, sexual orientation, matriculation, source of income, or place of residence or business;

(c) Denying or delaying the processing of an application made by a purchaser or renter or refusing to approve such a person for occupancy in a cooperative or condominium on a prohibited basis.

History

SOURCE: Final Rulemaking published at 35 DCR 5464, 5465 (July 15, 1988); as amended by Final Rulemaking published at 46 DCR 4339 (May 14, 1999), incorporating by reference the text of Proposed Rulemaking published at 46 DCR 2817, 2817-23 (March 19, 1999).

4 DCMR § 1002 EXCEPTIONS

1002.1 The provisions of this chapter shall not apply to rental or leasing of real property used for a dwelling, if the following conditions exists:

(a) The owner or a member of the owner’s family resides on the property in question; and

(b) No more than one family resides independently on the property with the owner but in a separate living unit; or

(c) The owner or a member of the owner’s family resides on the property with five (5) or fewer families and the owner or the owner’s family member shares a kitchen or bathroom with a residing family.

1002.2 The provision regarding familial status in this chapter shall not apply to housing intended for and solely occupied by persons 62 years of age or older. Further, the prohibition regarding housing for older persons does not apply to the following:

(a) Housing intended and operated for occupancy by at least one person 55 years of age or older per unit.

(b) In order to qualify as housing for older persons under this subsection, at least 80% of the units in the housing facility must be occupies by at least one person 55 years of age or older.

1002.3 Nothing in this chapter shall be construed to prohibit any private or government supported educational institution, hospital, nursing home, homeless shelter, youth correctional institution, or other organization, with a bona fide business necessity to so do, from limiting occupancy or use of a dwelling on the basis of sex or age.

1002.4 Nothing in this chapter shall be considered to repeal any regulations previously enacted.

1002.5 Nothing in this chapter shall prohibit a religious, or any organization operated for charitable or educational purposes, which is operated, supervised, or controlled by or in connection with a religious organization, from limiting the sale or rental of housing accommodations to persons of the same religion, or from giving preference to persons of the same religion.

1002.6 Nothing in this chapter shall prohibit a person engaged in the business of furnishing appraisals or residential real property from taking into consideration factors other than race, color, religion, sex, age, marital status, national origin, disability, family responsibilities, familial status, personal appearance, sexual orientation, matriculation, source of income, and place of residence or business.

1002.7 Nothing in this chapter shall prohibit discrimination against a person because the person has been convicted under federal law or the law of any other state of the illegal manufacture or distribution of a controlled substance as defined in § 102 of the Control Substance Act (21 U.S.C. § 802).

History

SOURCE: Final Rulemaking published at 35 DCR 5464, 5468 (July 15, 1988); as amended by Final Rulemaking published at 46 DCR 4339 (May 14, 1999), incorporating by reference the text of Proposed Rulemaking published at 46 DCR 2817, 2823-24 (March 19, 1999).

4 DCMR § 1099 DEFINITIONS

1099.1 When used in this chapter, the following terms and phrases shall have the meaning ascribed:

Commercial space - any building, structure, or designated portion thereof which is occupied as, or designed or intended for, occupancy as an accommodation for business activity, and any vacant land which is offered for sale or lease for the construction or location thereon of any building, structure, or portion of the building or structure.

Dwelling - any building, structure, or portion of the building or structure, including a house or apartment, which is occupied as, or designed or intended for occupancy as, a residence by one or more families or business entities, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.

Familial status - has the same meaning found in § 102 of the Act (D.C. Code § 1-2502).

Family - a single individual or two or more related or unrelated persons who share a dwelling.

Owner - has the same meaning as found in § 102 of the Act (D.C. Official Code § 2-1401.02 (2001)).

Owner’s family - the owner’s spouse, the owner’s children, and the parents of the owner and the owner’s spouse.

Person - has the same meaning as found in § 102 of the Act (D.C. Official Code § 2-1401.02(21) (2001)).

Prohibited basis - any one or a combination of the following: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, physical handicap, source of income, and place of residence or business of any individual.

Real Property - land and generally whatever is erected or affixed to the land, including condominiums and cooperatives.

Restrictive covenant - any written statement in a deed or other document related to the transfer of an interest in real property purporting to limit transfer, sale, or rental on the basis of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, physical handicap, source of income, and place of residence or business of any individual.

Sale - a transaction in real property where there is a transfer of ownership of and title to real property from one person to another for consideration.

Source of income - has the same meaning as found in § 102 of the Act (D.C. Official Code § 2-1401.02(29) (2001)).

To rent - leasing, subleasing, to let, or otherwise to grant for a consideration the right to occupy premises not owned by the occupant.

Transaction in real property - has the same meaning as found in § 102 of the Act (D.C. Official Code § 2-1401.02(30) (2001)).

History

SOURCE: Final Rulemaking published at 35 DCR 5464, 5469 (July 15, 1988); as amended by Final Rulemaking published at 46 DCR 4339 (May 14, 1999), incorporating by reference the text of Proposed Rulemaking published at 46 DCR 2817, 2824 (March 19, 1999).

4-11 EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS IN CONTRACTS

4 DCMR § 1100 PURPOSE

1100.1 This chapter shall govern standards and procedures to be followed by contractors and subcontractors performing under District of Columbia government contracts for goods and services, including construction contracts, for the purpose of assuring equal employment opportunity for minorities and women.

1100.2 This chapter shall establish requirements for contractors and subcontractors regarding their commitment to observe specific standards for the employment of minorities and women and to achieve affirmative action obligations under District of Columbia contracts. This chapter is not intended nor shall be used to discriminate against any qualified applicant for employment or employee.

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is the D.C. Human Rights Act of 1977, D.C. Law 2-38, D.C. Official Code 2-1401.01 (2001) et seq.
SOURCE: Final Rulemaking published at 33 DCR 4952 (August 15, 1986).

4 DCMR § 1101 SCOPE

1101.1 Except as hereinafter exempted, the provisions of this chapter shall apply to all District of Columbia government contracts subject to Mayor’s Order No. 85-85, and any rules, regulations, and procedures promulgated pursuant to that Mayor’s Order.

History

SOURCE: Final Rulemaking published at 33 DCR 4952 (August 15, 1986).

4 DCMR § 1102 COVERAGE

1102.1 The provisions of this chapter shall govern the processing of any matter before the Office of Human Rights involving the following:

(a) Discrimination in employment on grounds of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, or physical handicap by any District of Columbia government contractor; and

(b) Achievement of affirmative action obligations under District of Columbia contracts.

History

SOURCE: Final Rulemaking published at 33 DCR 4952-53 (August 15, 1986).

4 DCMR § 1103 CONTRACT PROVISIONS

1103.1 Each contract for goods and services, including construction contracts, except construction subcontracts for standard commercial supplies or raw materials, shall include as express contractual provisions the language contained in §§ 1103.2 through 1103.10.

1103.2 The contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, or physical handicap.

1103.3 The contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, or physical handicap. The affirmative action shall include, but not be limited to, the following:

(a) Employment, upgrading, or transfer;

(b) Recruitment or recruitment advertising;

(d) Rates of pay, or other forms of compensation; and

(e) Selection for training and apprenticeship.

1103.4 The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the Contracting Agency, setting forth the provisions in §§ 1103.2 and 1103.3 concerning non-discrimination and affirmative action.

1103.5 The contractor shall, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment pursuant to the non-discrimination requirements set forth in § 1103.2.

1103.6 The contractor agrees to send to each labor union or representative of workers with which it has a collective bargaining agreement, or other contract or understanding, a notice to be provided by the Contracting Agency, advising each labor union or workers’ representative of the contractor’s commitments under this chapter, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

1103.7 The contractor agrees to permit access to all books, records, and accounts, pertaining to its employment practices, by the Director and the Contracting Agency for purposes of investigation to ascertain compliance with this chapter, and to require under terms of any subcontractor agreement each subcontractor to permit access of the subcontractors, books, records, and accounts for such purposes.

1103.8 The contractor agrees to comply with the provisions of this chapter and with all guidelines for equal employment opportunity applicable in the District of Columbia adopted by the Director, or any authorized official.

1103.9 The prime contractor shall include in every subcontract the equal opportunity clauses, §§ 1103.2 through 1103.10 of this section, so that these provisions shall be binding upon each subcontractor or vendor.

1103.10 The prime contractor shall take action with respect to any subcontract as the Contracting Officer may direct as a means of enforcing these provisions, including sanctions for non-compliance; provided, that in the event the prime contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the contracting agency, the prime contractor may request the District to enter into such litigation to protect the interest of the District.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4953-54 (August 15, 1986).

4 DCMR § 1104 AFFIRMATIVE ACTION PROGRAM

1104.1 Each apparent low bidder for a construction contract shall complete and submit to the Contracting Agency, prior to the execution of any contract in the amount of twenty-five thousand dollars ($25,000) or more, and each contractor covered under § 1105.1, an Affirmative Action Program to ensure equal opportunity which shall include specific standards for the utilization of minorities and women in the trades, crafts and skills to be used by the contractor in the performance of the contract.

1104.2 Each apparent low bidder or offeror for a non-construction contract shall complete and submit to the Contracting Agency, prior to the execution of any contract in the amount of ten thousand dollars ($10,000) or more, and each contractor covered under § 1105.2, an Affirmative Action Program to ensure equal opportunity which shall include specific standards for the utilization of minorities in the job categories specified in § 1108.4.

1104.3 To ensure equal opportunity each Affirmative Action Program shall include the following commitments:

(a) With respect to construction contracts, each contractor shall certify that it will comply with the provisions of this chapter, and submit a personnel utilization schedule for all the trades the contractor is to utilize, indicating the actual numbers of minority and female workers that are expected to be a part of the workforce performing under the contract; and

(b) With respect to non-construction contracts, each contractor shall certify that it will comply with the provisions of this chapter, and shall submit a personnel utilization schedule indicating by craft and skill, the minority composition of the workforce related to the performance of the work under the contract. The schedule shall include all workers located in the facility from which the goods and services are produced and shall include the same information for other facilities which have a significant relationship to the performance work under the contract.

1104.4 If the experience of the contractor with any local union from which it will secure employees indicates that the union will not refer sufficient minorities or women to meet minority or female employment commitments, the contractor shall, not less than ten (10) days prior to the employment of any person on the project subject to the jurisdiction of that local union, do the following:

(a) Notify the District of Columbia Department of Employment Services and at least two (2) minority and two (2) female referral organizations of the contractor’s personnel needs, and request referral of minority, and female workers; and

(b) Notify any minority and female workers who have been listed with the contractors as awaiting vacancies.

1104.5 If, within five (5) working days prior to commencement of work, the contractor determines that the Department of Employment Services or the minority or female referral organizations are unable to refer sufficient minorities or women to meet its commitments, the contractor may take steps to hire, by referral or otherwise, from the local union membership, to fill the remaining job openings, provided that it notifies the local union of its personnel needs and of its employment commitments. Evidence of the notification shall be provided to the Contracting Agency.

1104.6 The contractor shall have standing requests for additional referrals of minority and female workers with the local union, the Department of Employment Services, and the other referral sources, until such time as the contractor has met its minority and female employment commitments.

1104.7 If the contractor desires to lay off some of its employees in a given trade on a construction site, it shall ensure that the required number of minority and female employees remain on the site to meet the minority and female commitments.

1104.8 No contractor shall refuse employment to any individual who has a minimum facility to speak English except where the contractor can demonstrate that the facility to speak English is necessary for the performance of the job.

1104.9 No union with which the contractor has a collective bargaining agreement shall refuse to refer minority and female employees to the contractor.

1104.10 To the extent that contractors have delegated the responsibility for some of their employment practices to some other organization or agency which prevents them from meeting their equal opportunity obligations, those contractors shall not be considered to be in compliance with this chapter.

1104.11 The obligations of the contractor shall not be reduced, modified, or subject to any provision in any collective bargaining agreement with a labor organization which provides that the labor organization shall have the exclusive or primary opportunity to refer employees.

1104.12 When any contractor employs a minority person or woman in order to comply with this chapter, those persons shall be advised of their right to seek union membership, the contractor shall provide whatever assistance may be appropriate to enable that person to obtain membership, and the contractor shall notify the appropriate union of that person’s employment.

1104.13 The contractor shall not discharge, refuse to employ, or otherwise adversely affect any minority person or woman because of any provision in any collective bargaining agreement, or any understanding, written or oral that the contractor may have with any labor organization.

1104.14 If at any time, because of lack of cooperation or overt conduct, a labor organization impedes or interferes with the contractor’s Affirmative Action Program, the contractor shall notify the Contracting Agency and the Director immediately, setting forth the relevant circumstances.

1104.15 In any proceeding involving a disagreement between a labor organization and the contractor over the implementation of the contractor’s Affirmative Action Program, the Contracting Agency and the Office of Human Rights may become a party to the proceeding.

1104.16 In determining whether or not a contractor is utilizing minorities and females pursuant to § 1108, consideration shall be given to the following factors:

(a) The proportion of minorities and women employed in the trades and as laborers in the construction industry within the District of Columbia;

(b) The proportion of minorities and women employed in the crafts or as operatives in non-construction industries within the District of Columbia;

(d) The availability of qualified and qualifiable minorities and women for employment in any comparable line of work, including where they are now working and how they may be brought into the contractor’s workforce;

(e) The effectiveness of existing training programs in the area, including the number who complete training, the length and extent of training, employer experience with trainees, and the need for additional or expanded training programs; and

(f) The number of additional workers that could be absorbed into each trade or line of work without displacing present employees, including consideration of present employee shortages, projected growth of the trade or line of work, and projected employee turnover.

1104.17 The contractor’s commitment to specific standards for the utilization of minorities and females as required under this chapter shall include a commitment to make every good faith effort to meet those standards. If the contractor has failed to meet the standards, a determination of good “faith” shall be based upon the contractor’s documented equal opportunity efforts to broaden its equal employment program which shall include, but may not necessarily be limited to, the following requirements:

(a) The contractor shall notify the community organizations that the contractor has employment opportunities available and shall maintain records of the organizations’ responses;

(b) The contractor shall maintain a file of the names and addresses of each minority and female worker referred to it and what action was taken with respect to each referred worker. If that worker was not sent to the union hiring hall for referral or if the worker was not employed by the contractor, the contractor’s file shall so be documented and the reasons therefor;

(c) The contractor shall notify the Contracting Agency and the Director when the union or unions with which the contractor has a collective bargaining agreement has not referred to the contractor a minority or female worker originally sent to the union by the contractor for union registration, or the contractor has other information that the union referral process has impeded the contractor’s efforts to meet its goals;

(d) The contractor shall participate in training programs related to its personnel needs;

(e) The contractor shall disseminate its EEO policy internally by doing the following:

(1) Including it in any organizational manual;

(2) Publicizing it in company newspapers, annual report, etc.;

(3) Conducting staff, employee, and union representatives meetings to explain and discuss the policy;

(4) Posting; and

(5) Reviewing the policy with minority and female employees.

(f) The contractor shall disseminate its EEO policy externally by doing the following:

(1) Informing and discussing it with all recruitment sources;

(2) Advertising in newsmedia, specifically including newsmedia directed to minorities and women;

(3) Notifying and discussing it with all known minority and women’s organizations; and

(4) Notifying and discussing it with all subcontractors and suppliers.

1104.18 The contractor shall make specific recruitment efforts, both written and oral, directed at all minority and women’s training organizations within the contractor’s recruitment area.

1104.19 The contractor shall encourage present employees to assist in the recruitment of minorities and women for employment.

1104.20 The contractor shall validate all qualifications, selection requirements, and tests in accordance with the guidelines of the Equal Employment Opportunity Commission.

1104.21 The contractor shall make good faith efforts to provide afterschool, summer and vacation employment to minority youths and young women.

1104.22 The contractor shall develop on-the-job training opportunities, and participate and assist in any association or employer group training programs relevant to the contractor’s employee needs.

1104.23 The contractor shall continually inventory and evaluate all minority and female personnel for promotion opportunities.

1104.24 The contractor shall make sure that seniority practices, job classifications, qualifications, and the like, do not have a discriminatory effect on minorities and women.

1104.25 The contractor shall make certain that all facilities and company activities are nonsegregated.

1104.26 The contractor shall continually monitor all personnel activities to ensure that its EEO policy is being carried out.

1104.27 The contractor may utilize minority banking facilities as depositories for funds which may be involved, directly or indirectly, in the performance of the contract.

1104.28 The contractor shall employ minority and female workers without respect to union membership in sufficient numbers to meet the minority and female employment standards, if the experience of the contractor with any labor union from which it will secure employees does not indicate that it will refer sufficient minorities and females to meet its minority and female employment standards.

1104.29 The contractor shall ensure that all of its employees, as well as those of its subcontractors, are made knowledgeable about the contractor’s equal opportunity policy.

1104.30 [Reserved]

1104.31 Each contractor shall include in all bid invitations or other pre-bid communications, written or otherwise, with respect to prospective subcontractors, the standards, as applicable, which are required under this chapter.

1104.32 Whenever a contractor subcontracts a portion of the work in any trade, craft or skill, it shall include in the subcontract, its commitment made under this chapter, as applicable, which shall be adopted by its subcontractors who shall be bound thereby and by the regulations of this chapter to the full extent as if it were the prime contractor.

1104.33 The prime contractor shall give notice to the Director and the Contracting Agency of any refusal or failure of any subcontractor to fulfill its obligations under this chapter.

1104.34 Failure of compliance by any subcontractor shall be treated in the same manner as a failure by the prime contractor.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4954-59 (August 15, 1986).

4 DCMR § 1105 EXEMPTIONS

1105.1 Prospective construction contractors shall be exempt from submitting Affirmative Action Programs for contracts amounting to less than twenty-five thousand dollars ($25,000); provided, that when a construction contractor accumulates contracts amounting to twenty-five thousand dollars ($25,000) or more within a period of twelve (12) months that contractor shall be required to submit an Affirmative Action Program for each contract executed thereafter.

1105.2 Prospective non-construction contractors shall be exempt from submitting Affirmative Action Programs for contracts amounting to less than ten thousand dollars ($10,000); provided, that when a non-construction contractor accumulates contracts amounting to ten thousand dollars ($10,000) or more during a period of twelve (12) months that contractor shall be required to submit an Affirmative Action Program for each contract executed thereafter.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4959 (August 15, 1986).

4 DCMR § 1106 NONRESPONSIBLE CONTRACTORS

1106.1 If a bidder or offeror fails either to submit a complete and satisfactory Affirmative Action Program or to submit a revised Affirmative Action Program that meets the approval of the Director, as required pursuant to this chapter, the Director may direct the Contracting Officer to declare the bidder or offeror to be nonresponsible and ineligible for award of the contract.

1106.2 Any untimely submission of an Affirmative Action Program may, upon order of the Director, be rejected by the Contracting Officer.

1106.3 In no case shall there be any negotiation over the provisions of specific utilization standards submitted by the bidder or offeror after the opening of bids or receipt of offer and prior to award.

1106.4 If any directive or order relating to nonresponsibility is issued under this section, the Director shall afford the bidder or offeror a reasonable opportunity to be heard in opposition to the action in accordance with § 118.1, or in support of a request for waiver under § 109.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4959-60 (August 15, 1986).

4 DCMR § 1107 NOTICE OF COMPLIANCE

1107.1 Each Contracting Agency shall include, or require the contract bidder or offeror to include, in the invitation for bids or other solicitation used for a D.C. Government-involved contract, a notice stating that to be eligible for consideration, each bidder or offeror shall be required to comply with the provisions of this chapter for the trades, crafts and skills to be used during the term of the performance of the contract whether or not the work is subcontracted.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4960 (August 15, 1986).

4 DCMR § 1108 MINIMUM STANDARDS FOR MINORITY AND FEMALE EMPLOYMENT

1108.1 The minimum standards for the utilization of minorities in the District of Columbia government construction contracts shall be forty-two percent (42%) in each trade for each project, and an aggregate workforce standard of six and nine-tenths percent (6.9%) for females in each project. Any changes in federal standards pertaining to minority group and female employment in federally involved construction contracts shall be taken into consideration in any review of these requirements.

1108.2 The construction contractor’s standards established in accordance with §1108.1 shall express the contractor’s commitment of the forty-two percent (42%) of minority personnel who will be working in each specified trade on each of the contractor’s District of Columbia government projects, and the aggregate standard of six and nine-tenths percent (6.9%) for the employment of females in each District of Columbia government contract.

1108.3 The hours for minority and female workers shall be substantially uniform throughout the entire length of the construction contract for each trade used, to the effect that the same percentage of minority workers in the trades used shall be working throughout the length of work in each trade on each project, and the aggregate percentage in each project for females.

1108.4 The minimum standard for the utilization of minorities in non-construction contracts shall be twenty-five percent (25%) in each of the following nine (9) job categories:

(a) Officials and managers;

(b) Professionals;

(d) Sales workers;

(e) Office and clerical workers;

(f) Craftpersons (Skilled);

(g) Operative (Semi-skilled);

(h) Laborers (Unskilled); and

(i) Service workers.

1108.5 With respect to non-construction contracts the contractor’s standards established in accordance with § 1108.4 shall express the contractor’s commitment of the twenty-five percent (25%) of minority personnel who will be working in each specified craft or skill in each contract.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4960-61 (August 15, 1986).

4 DCMR § 1109 WAIVERS

1109.1 The Director may grant a waiver to a prospective contractor from the requirement to submit a set of minimum standards for the employment of minorities and women in a particular contract, if before the execution the contract and approval of the Affirmative Action Program, the contractor can document and otherwise prove it is unable to meet the standards in the performance of the contract.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4961 (August 15, 1986).

4 DCMR § 1110 SOLICITATION OF CONTRACT

1110.1 Each solicitation for contract covered by § 1104 shall contain a statement that contractors shall comply with the minimum standards established pursuant to this chapter for ensuring equal opportunity.

1110.2 The contract solicitation shall require that each bidder or offeror certify that it intends to meet the applicable minimum standards in § 1108 in order to be considered for the contract.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4961 (August 15, 1986).

4 DCMR § 1111 PRIOR TO EXECUTION OF CONTRACT

1111.1 Upon being designated the apparent low bidder or offeror, that contractor shall submit a detailed Affirmative Action Program that sets forth the following:

(1) The composition of its current total workforce; and

(2) The composition of the workforce by race, color, national origin, and sex to be used in the performance of the contract and that of all known subcontractors that will be utilized to perform the contract.

1111.2 The apparent low bidder or offeror shall submit an Affirmative Action Program in accordance with § 1104 describing the actions it will take to ensure compliance with this chapter which shall be subject, prior to the execution of any contract, to the approval of the Director.

1111.3 If the Office of Human Rights does not act within ten (10) working days after the receipt of the Affirmative Action Program sent for approval, the Contracting Agency may proceed on its own determination to execute the contract.

1111.4 The apparent low bidder or offeror shall submit an Affirmative Action Program within a period of time to be specified by each Contracting Agency, but which shall not exceed ten (10) working days after becoming the apparent contractor.

1111.5 The apparent low bidder or offeror shall furnish all information and reports to the Contracting Agency as required by this chapter, and shall permit access to all books or records pertaining to its employment practices or worksites.

1111.6 No contract subject to § 1104 shall be executed by the Contracting Agency, if the apparent low bidder or offeror does not submit an Affirmative Action Program, or if the Program has been disapproved in writing by the Director.

1111.7 If there is disagreement between the contractor and the Contracting Officer as to the adequacy of the Affirmative Action Program, the matter shall be referred to the Director for a decision.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4961-62 (August 15, 1986).

4 DCMR § 1112 AFTER EXECUTION OF CONTRACT

1112.1 Each contractor shall maintain throughout the term of the contract the minimum standards for the employment of minorities and women, as set forth in the approved Affirmative Action Program.

1112.2 Each contractor shall require that each subcontractor, or vendor under the contract comply with the provisions of the contract and the Affirmative Action Program.

1112.3 Each contractor shall furnish all information as required by this chapter, and permit access to all books and records pertaining to the contractor’s employment practices and worksites by the Director and the Contracting Agency for purposes of investigation to ascertain compliance with this chapter.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4962-64 (August 15, 1986).

4 DCMR § 1113 MONITORING AND EVALUATION

1113.1 The Director shall, from time to time, monitor and evaluate all District of Columbia government agencies, including those independent agencies and commissions not required to submit the Affirmative Action Program of their contractors, to ensure compliance with the equal opportunity obligations in contracts, as provided for in this chapter.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4962 (August 15, 1986).

4 DCMR § 1114 AFFIRMATIVE ACTION TRAINING PROGRAM

1114.1 Each contractor, in fulfilling its affirmative action responsibilities under a contract with the District of Columbia government, shall be required to have, as part of its Affirmative Action Program, an existing training program for the purpose of training, upgrading, and promotion of minority and female employees or to utilize existing programs. Those programs shall include, but not be limited to, the following:

(a) To be consistent with its personnel requirements, the contractor shall make full use of the applicable training programs, including apprenticeship, on-the-job training, and skill refinement training for journeymen. Recruitment for the program shall be designed to provide for appropriate participation by minority group members and women;

(b) The contractor may utilize a company-operated skill refinement training program. This program shall be formal and shall be responsive to the work to be performed under the contract;

(c) The contractor may utilize formal private training institutions that have as their objective training and skill refinement appropriate to the classification of the workers employed. When training is provided by a private organization the following information shall be supplied:

(1) The name of the organization;

(2) The name, address, social security number, and classification of the initial employees and any subsequent employees chosen during the course of the contract; and

(3) The identity of the trades, and crafts or skills involved in the training.

1114.2 If the contractor relies, in whole or in part, upon unions as a source of its workforce, the contractor shall use its best efforts, in cooperation with the unions, to develop joint training programs aimed toward qualifying more minorities and females for membership in the union, and increasing the skills of minority and female employees so that they may qualify for higher paying employment.

1114.3 Approval of training programs by the Contracting Agency shall be predicated, among other things, upon the quality of training, numbers of trainees and trades, crafts or skills involved, and whether the training is responsive to the policies of the District of Columbia and the needs of the minority and female community. Minority and female applicants for apprenticeship or training should be selected in sufficient numbers as to ensure an acceptable level of participation sufficient to overcome the effects of past discrimination.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4962 (August 15, 1986).

4 DCMR § 1115 COMPLIANCE REVIEW

1115.1 The Director and the Contracting Agency shall review the contractor’s employment practices during the performance of the Contract. Routine or special reviews of contractors shall be conducted by the Contracting Agency or the Director in order to ascertain the extent to which the policy of Mayor’s Order No. 85-85, and the requirements in this chapter are being implemented and to furnish information that may be useful to the Director and the Contracting Agency in carrying out their functions under this chapter.

1115.2 A routine compliance review shall consist of a general review of the practices of the contractor to ascertain compliance with the requirements of this chapter, and shall be considered a normal part of contract administration.

1115.3 A special compliance review shall consist of a comprehensive review of the employment practices of the contractor with respect to the requirements of this chapter, and shall be conducted when warranted.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4963 (August 15, 1986).

4 DCMR § 1116 ENFORCEMENT

1116.1 If the contractor does not comply with the equal opportunity clauses in a particular contract, including §§ 1103.2 through 1103.10 of this chapter, that contract may be cancelled in whole or in part, and the contractor may be declared by the Director or the Contracting Officer to be ineligible for further District of Columbia government contracts subject to applicable laws and regulations governing debarment.

1116.2 If the contractor meets its goals or if the contractor can demonstrate that it has made every good faith effort to meet those goals, the contractor will be presumed to be in compliance with this chapter, and no formal sanctions shall be instituted unless the Director otherwise determines that the contractor is not providing equal employment opportunity.

1116.3 When the Director proceeds with a formal hearing, he or she has the burden of proving that the contractor has not met the requirements of this chapter, but the contractor’s failure to meet its goals shall shift to it the requirement to come forward with evidence to show that it has met the good faith requirements of this chapter.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4964 (August 15, 1986).

4 DCMR § 1117 COMPLAINTS

1117.1 The Director may initiate investigations of individual instances and patterns of discriminatory conduct, initiate complaints thereupon and keep the Contracting Agency informed of those actions.

1117.2 If the investigation indicates the existence of an apparent violation of the non- discrimination provisions of the contract required under § 1103, of this chapter the matter may be resolved by the methods of conference, conciliation, mediation, or persuasion.

1117.3 If an apparent violation of the non-discrimination provisions of the contract required under § 1103 of this chapter is not resolved by methods of conference, conciliation, mediation, or persuasion, the Director or the Contracting Officer may issue a notice requiring the contractor in question to show cause, within thirty (30) days, why enforcement proceedings or other appropriate action should not be initiated.

1117.4 Any employee of any District of Columbia government contractor or applicant for employment who believes himself or herself to be aggrieved may, in person or by an authorized representative, file in writing, a complaint of alleged discrimination with the Director.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4964 (August 15, 1986).

4 DCMR § 1118 HEARINGS

1118.1 In the event that a dispute arises between a bidder, offeror or prospective contractor and the Director or the Contracting Officer as to whether the proposed program of affirmative action for providing equal employment opportunity submitted by the bidder, offeror or prospective contractor complies with the requirements of this chapter and cannot be resolved by the methods of conference, conciliation, mediation, or persuasion, the bidder, offeror or prospective contractor in question shall be afforded the opportunity for a hearing before the Director.

1118.2 If a case in which an investigation by the Director or the Contracting Agency has shown the existence of an apparent violation of the non-discrimination provisions of the contract required under § 1103 is not resolved by the methods specified in § 1117.2, the Director may issue a notice requiring the contractor in question to show cause, within thirty (30) days, why enforcement proceedings or other appropriate action should not be initiated. The contractor in question shall also be afforded the opportunity for a hearing before the Director.

1118.3 The Director may hold a hearing on any complaint or violation under this chapter, and make determinations based on the facts brought before the hearing.

1118.4 Whenever the Director holds a hearing, it is to be held pursuant to the Human Rights Act of 1977.

1118.5 A notice of thirty (30) working days for the hearing shall be given by registered mail, return receipt requested, to the contractor in question. The notice shall include the following:

(a) A convenient time and place of hearing;

(b) A statement of the provisions in this chapter or any other laws or regulations pursuant to which the hearing is to be held; and

1118.6 All hearings shall be open to the public and shall be conducted in accordance with rules, regulations, and procedures promulgated pursuant to the Human Rights Act of 1977.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4964-65 (August 15, 1986).

4 DCMR § 1119 SANCTIONS

1119.1 The Director, upon finding that a contractor has failed to comply with the non-discrimination provisions of the contract required under § 1103, or has failed to make a good faith effort to achieve the utilization standards under an approved Affirmative Action Program, may impose sanctions contained in this section in addition to any sanctions or remedies as may be imposed or invoked under the Human Rights Act of 1977.

1119.2 Sanctions imposed by the Director may include the following:

(a) Order that the contractor be declared ineligible from consideration for award of District of Columbia government contracts or subcontracts until such time as the Director may be satisfied that the contractor has established and will maintain equal opportunity policies in compliance with this chapter; and

(b) Direct each Contracting Officer administering any existing contract to cancel, terminate, or suspend the contract or any portion thereof, and to deny any extension, modification, or change, unless the contractor provides a program of future compliance satisfactory to the Director.

1119.3 Any sanction imposed under this chapter may be rescinded or modified upon reconsideration by the Director.

1119.4 An appeal of any sanction imposed by order of the Director under this chapter may be taken pursuant to applicable clauses of the affected contract or provisions of law and regulations governing District of Columbia government contracts.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4965-66 (August 15, 1986).

4 DCMR § 1120 NOTIFICATIONS

1120.1 The Director shall forward in writing notice of his or her findings of any violations of this chapter to the Contracting Officer for appropriate action under the contract.

1120.2 Whenever it appears that the holder of or an applicant for a permit, license or franchise issued by any agency or authority of the District of Columbia government is a person determined to be in violation of this chapter, the Director may, at any time he or she deems that action is advisable or desirable, notwithstanding any other action the Director may take or may have taken under the authority of this chapter, refer to the proper licensing agency or authority the facts and identities of all persons involved in the violation for such action as the agency or authority, in its judgment, considers appropriate based upon the facts thus disclosed to it.

1120.3 The Director may publish, or cause to be published, the names of contractors or unions which have been determined to have complied or have failed to comply with the provisions of the rules in this chapter.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4966 (August 15, 1986).

4 DCMR § 1121 DISTRICT ASSISTED PROGRAMS

1121.1 Each agency which administers a program involving leasing of District of Columbia government owned or controlled real property, or the financing of construction under industrial revenue bonds or urban development action grants, shall require as a condition for the approval of any agreement for leasing, bond issuance, or development action grant, that the applicant undertake and agree to incorporate, or cause to be incorporated into all construction contracts relating to or assisted by the agreements, the contract provisions prescribed for District of Columbia government contracts by § 1103, preserving in substance the contractor’s obligation under those provisions.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4966 (August 15, 1986).

4 DCMR § 1199 DEFINITIONS

1199.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Contract - any binding legal relationship between the District of Columbia and a contractor for supplies or services, including but not limited to, any District of Columbia government or District of Columbia government assisted construction or project, lease agreements, Industrial Revenue Bond financing, and Urban Development Action grants, or for the lease of District of Columbia property in which the parties, respectively, do not stand in the relationship of employer and employee.

Contracting Agency - any department, agency, or establishment of the District of Columbia which is authorized to enter into contracts.

Contracting Officer - any official of a contracting agency who is vested with the authority to execute contracts on behalf of an agency.

Contractor - any prime contractor holding a contract with the District of Columbia Government. The term shall also refer to subcontractors when the context so indicates.

Director - the Director of the Office of Human Rights, or his or her designee.

Dispute - any protest received from a bidder or prospective contractor relating to the effectiveness of his or her proposed program of affirmative action for providing equal opportunity.

Minority - Black Americans, Native Americans, Asian Americans, Pacific Islander Americans, and Hispanic Americans, in accordance with D.C. Official Code § 2-215.02(l) (2001).

Subcontract - any agreement made or executed by a prime contractor or a subcontractor where a material part of the supplies or services, including construction, covered by an agreement is being obtained for use in the performance of a contract subject to Mayor’s Order No. 85-85, and any rules, regulations, and procedures issued pursuant thereto.

Subcontractor - any contractor holding a contract with a District prime contractor calling for supplies or services, including construction, required for the performance of a contract subject to Mayor’s Order No. 85-85, and any rules, regulations, and procedures promulgated pursuant thereto.

History

SOURCE: Final Rulemaking published at 33 DCR 4952, 4966 (August 15, 1986).

4-12 LANGUAGE ACCESS ACT

4 DCMR § 1200 SCOPE

1200.1 The provisions of this chapter shall apply to all District government agencies that constitute “covered entities” and “covered entities with major public contact” as defined in Sections 2(2) and 2(3) of the Language Access Act of 2004 (D.C. Official Code § 2-1931(2) and § 2-1931(3)) (“the Act”).

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1200

4 DCMR § 1201 PURPOSE

1201.1 In order for covered entities to meet their obligations under the Act and to provide enforcement of the Act, the Office of Human Rights adopts this chapter to:

Define the roles and responsibilities of parties assigned to oversee and implement the Act;

Provide assistance with data collection on the languages spoken by limited-English proficient or non-English proficient (“LEP/NEP”) populations as required under the Act;

Provide assistance and guidance to covered entities regarding reporting requirements, and to covered entities with major public contact in implementing Biennial Language Access Plans (“BLAPs”) pursuant to § 1212; and

Set forth guidelines for the investigation of complaints filed under the Act and for enforcement of the Act.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1201

4 DCMR § 1202 ROLE OF THE OFFICE OF HUMAN RIGHTS

The Office of Human Rights (“OHR”) shall provide covered entities with oversight, central coordination, and technical assistance in their implementation of the provisions of the Act.

1202.2 OHR shall ensure that the delivery of services by covered entities meets acceptable standards of translation and interpretation by providing information to the Office of Contracting and Procurement (“OCP”) to assist in the development of a quality procurement process.

1202.3 OHR shall ensure that staff members of covered entities in public contact positions are trained regarding their legal obligations to serve limited-English proficient or non-English proficient (“LEP/NEP”) customers under the Act. These trainings shall include information on how to improve accessibility for LEP/NEP customers, including, but not limited to, the use of professional and qualified multilingual telephonic interpretation services and how to appropriately direct LEP/NEP customers to such services.

1202.4 OHR shall collect and publish statistical information regarding language access public complaints received by OHR, including those not assigned to an investigator. The statistical information shall be included in the Language Access Report required by § 1203.2.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1202

4 DCMR § 1203 ROLE OF THE DIRECTOR OF THE OFFICE OF HUMAN RIGHTS

1203.1 The Director of the Office of Human Rights (“OHR Director”) shall designate an employee of OHR as the Language Access Director (“LA Director”) to coordinate activities under the Act. The LA Director shall carry out all job functions under the direction and supervision of the OHR Director. The OHR Director may also designate additional staff to assist the Language Access Director.

1203.2 The OHR Director shall prepare an annual Language Access Report and deliver it to the Mayor, the Office of the City Administrator (“OCA”), the Language Access Coalition, and the Consultative Agencies on the deficiencies found, progress made, and overall compliance with the Act for each covered entity. The report shall be delivered no later than ninety (90) days after the end of the fiscal year, and shall include:

Results of the annual implementation reports required by § 1205.3;

A summary of language-access-related data reported throughout the fiscal year to OHR by covered entities with major public contact; and

A summary of the results of audits and field tests conducted by OHR pursuant to § 1227.

1203.3 The OHR Director’s annual Language Access Report shall be made available to the public within thirty (30) days of a request.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1203

4 DCMR § 1204 ROLE OF THE LANGUAGE ACCESS DIRECTOR

1204.1 The Language Access Director (“LA Director”) shall be responsible for coordinating activities of covered entities under the Act and for carrying out the language access responsibilities of the Office of Human Rights (“OHR”), as described in § 1202.1.

1204.2 The LA Director shall oversee the language access complaint procedures for the OHR.

1204.3 The LA Director shall conduct education and outreach regarding the Act to covered entities and community-based organizations directly serving limited-English proficient or non-English proficient (“LEP/NEP”) residents.

1204.5 The LA Director shall provide training resources to personnel in public contact positions for covered entities regarding compliance with the Act. The LA Director will deliver this training and/or ensure that Language Access Coordinators deliver this training to personnel either in person or via web-based resources. In addition, all District personnel shall have access to in-person or web-based training regarding compliance with the Act.

1204.6 The LA Director shall provide all covered entities with a policy manual that contains baseline policies and procedures that ensure agency-wide compliance with the Act.

1204.7 The LA Director shall issue an annual survey to all covered entities that are not designated as covered entities with major public contact. The survey shall request implementation reports addressing agency encounters with LEP/NEP constituents and available resources and/or systems in place to serve LEP/NEP customers, as required by § 1205.3.

1204.8 The LA Director shall review and monitor each Biennial Language Access Plan (“BLAP”) required by § 1212 for compliance with the Act. If a BLAP fails to comply with the Act, the LA Director shall assist the agency in revising the BLAP and shall set a deadline for submission of the revised BLAP.

1204.9 The LA Director shall review covered entities’ implementation reports and provide an annual synopsis to the OHR Director on the deficiencies found and progress made in implementing the Act. The synopsis shall be included in the annual Language Access Report required by § 1203.2.

1204.10 The LA Director shall monitor the performance and responsibilities of the Language Access Coordinators as described in § 1207, and of the Language Access Points of Contact as described in § 1205.17.

1204.11 The LA Director shall consult with the D.C. Language Access Coalition as specified in § 1208 and the Consultative Agencies listed in § 1209 regarding the implementation of the Language Access Act.

1204.12 The LA Director shall advise the District’s Department of Human Resources and the personnel authorities of covered entities who have independent hiring authority on issues related to the recruitment and hiring of bilingual public contact personnel.

1204.13 The LA Director shall serve as the Language Access Coordinator for OHR and shall fulfill the responsibilities listed in § 1207 for that agency.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1204

4 DCMR § 1205 ROLES OF COVERED ENTITIES

1205.1 Pursuant to Section 2(2) of the Act, all District government agencies, departments, or programs that furnish information or render services, programs, or activities directly to the public or that contract with other entities, either directly or indirectly, to conduct programs, services or activities to the public are covered entities.

1205.2 Each covered entity shall provide written translation of vital documents into any non-English language spoken by a limited-English proficient or non-English proficient (“LEP/NEP”) population that constitutes 3% or 500 individuals, whichever is less, of the population served or encountered, or likely to be encountered, by the covered entity.

1205.3 At the end of each fiscal year, each covered entity shall submit an implementation report reflecting its assessment of non-English languages spoken by LEP/NEP populations constituting three percent (3%) or five hundred (500) individuals, whichever is less, of the population served or encountered, or likely to be served or encountered, by the covered entity, as well as resources available to these LEP/NEP populations.

(a) Each covered entity shall also submit the data it relied on to make the determination of each non-English language spoken by an LEP/NEP population constituting three percent (3%) or five hundred (500) individuals, whichever is less, of the population served or encountered, or likely to be served or encountered, by the covered entity. This data shall include, but not be limited to, resources cited in Section 3(c)(1) of the Act (D.C. Official Code § 2-1932(c)(1)).

(b) The covered entity shall provide the determination to the Language Access Director (LA Director) no later than thirty (30) days after the end of the fiscal year.

(c) The LA Director shall evaluate whether the data submitted by the covered entity supports the covered entity’s determination, and whether the data relied upon by the covered entity is sufficient and appropriate. If the LA Director concludes that a covered entity’s determination is not supported by sufficient and appropriate data, the LA Director shall make a revised determination of any non-English language spoken by a LEP/NEP population that constitutes three percent (3%) or five hundred (500) individuals, whichever is less, of the population served or encountered, or likely to be served or encountered, by the covered entity. In making this determination the LA Director shall rely upon resources cited in Section 3(c)(1) of the Act (D.C. Official Code § 2-1932(c)(1)).

(d) The covered entity may appeal a determination of the Language Access Director to the Director of the Office of Human Rights (“OHR Director”).

1205.4 The covered entity shall ensure that all vital documents that are translated into a non-English language spoken by a LEP/NEP population are widely distributed within the agency, accessible at points of entry, and available online, to the extent that the same vital documents in the English language are widely distributed within the agency, accessible at points of entry, or available online.

1205.5 Each covered entity shall provide oral language services to LEP/NEP individuals who seek to access or participate in the services, programs, or activities offered by the covered entity, as further described in this chapter.

1205.6 The covered entity shall determine the type of oral language services it must provide in order for the LEP/NEP customers it serves to access or participate in the services, programs, or activities offered by the covered entity, based on the following factors, as set forth in Section 3(b) of the Act (D.C. Official Code § 2-1932(b)):

The number or proportion of LEP/NEP persons of the population served or encountered, or likely to be serve or encountered, by the covered entity;

The frequency with which LEP/NEP individuals come into contact with the covered entity;

The importance of the service provided by the covered entity; and

(d) The resources available to the covered entity.

1205.7 Each covered entity shall provide oral language services to LEP/NEP customers who seek to access or participate in public meetings conducted by the covered entity, if the request is made at least five (5) business days in advance of the public meeting. Requests for oral language services in advance of public meetings shall be made to the covered entity’s Language Access Coordinator (“LAC”) or Language Access Point of Contact (“LAPOC”) in person, by telephone, or by electronic mail.

1205.8 To the extent that a covered entity requires additional personnel to provide the type of oral language services needed, it shall, in consultation with its personnel authority, give preference to hiring qualified bilingual personnel into existing budgeted vacant public contact positions.

1205.9 In order to assist in providing oral language services to LEP/NEP customers, each covered entity shall maintain a current account (either directly or through a District-wide or multi-agency contract) with a professional and qualified multilingual telephonic interpretation service that provides immediate oral language services to LEP/NEP customers.

1205.10 When the services described in § 1205.9 are not reasonably sufficient to ensure access to the services provided by the covered entity, the covered entity shall provide qualified and experienced in-person interpretation services to LEP/NEP customers.

1205.11 Each covered entity shall update databases, applications, and tracking systems to contain fields that will capture and/or produce data about the specific languages spoken and the number of LEP/NEP customers speaking a given language in the population(s) served.

1205.12 Each covered entity shall work closely with OHR and the LA Director to ensure that all staff members of covered entities in public contact positions are trained regarding their legal obligations for serving LEP/NEP customers under the Act.

1205.13 Each covered entity shall place appropriate signs or posters communicating the availability of language accessible services at a conspicuous location within customer service locations (including mobile locations) operated by the covered entity. The signs or posters shall be in the language(s) identified as those spoken by three percent (3%) or five hundred (500) individuals, whichever is less, of the population served or encountered, or likely to be served or encountered, by the covered entity.

1205.14 Each covered entity shall provide oral language services to LEP/NEP customers who participate directly in administrative hearings conducted by the covered entity, whether or not the customer is accompanied by an advocate or attorney.

1205.15 If the covered entity offers oral interpretation and/or written translation to a LEP/NEP customer and the customer refuses the interpretation or translation services, then the covered entity shall provide an OHR-promulgated waiver form to the customer. The customer must sign this form in order to waive his/her rights under the Act. The form shall be in the language of the customer and shall confirm that the LEP/NEP customer is voluntarily waiving his or her right to free interpretation and/or translation services provided by the covered entity. The covered entity may provide an oral translation of the written text of the waiver form if a written translation is not available in the customer’s language or if the customer is unable to read his or her native language.

1205.16 Each covered entity shall:

(a) Ensure that contractors hired by the covered entity to carry out services, programs, or activities directly to the public collect data required by this section regarding contact with LEP/NEP customers and report this data to the covered entity on a quarterly basis, provide oral interpretation services and translate vital documents according to the same standards required of the covered entity, and train personnel on all compliance requirements;

(b) Ensure that any grantee that provides services under a covered entity’s mandate complies with the requirements of the Act;

(c) Require that contractors and grantees certify in writing that the compliance requirements required by paragraphs (a) and (b) of this subsection will be satisfied by their subcontractors and sub-grantees; and

(d) Ensure that contractors and grantees receive language access compliance training or guidance in accordance with standards set forth by OHR. Any required training shall be provided by OHR, unless the agency agrees to provide the training and OHR approves the provision of training by the agency.

1205.17 Each covered entity that is not designated as a covered entity with major public contact shall designate a Language Access Point of Contact (“LAPOC”). The LAPOC shall serve as a language access information coordinator and assist in implementing all of the covered entity’s requirements under the Act and these regulations. The LAPOC shall also:

Receive, maintain, update, and disseminate information regarding language access resources for the covered entity, including, but not limited to, annual distribution of the covered entity’s language access policy;

Complete the annual implementation report for the covered entity consistent with the requirements in § 1205.3;

Attend an annual training on Language Access Act obligations and resources made available by OHR; and

Receive reports of alleged violations of the Language Access Act from individuals, Consultative Agencies, or other organizations, and shall provide the reports to the LA Director as they are received.

1205.18 Each covered entity that is not designated as a covered entity with major public contact shall respond to the annual survey issued by the LA Director pursuant to § 1204.7.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1205

4 DCMR § 1206 ROLES OF COVERED ENTITIES WITH MAJOR PUBLIC CONTACT

1206.1 Pursuant to Section 2(3)(A) of the Act, covered entities with major public contact are covered entities whose primary responsibility consists of meeting, contracting, and dealing with the public. “Dealing” with the public refers to providing direct services to and interacting with the public.

1206.2 Covered entities with major public contact are:

The agencies listed in Section 2(3)(B) of the Act, which are as follows:

Alcoholic Beverage Regulation Administration;

Child and Family Services Agency

Department of Behavioral Health;

Department of Consumer and Regulatory Affairs

Department of Corrections

Department of Employment Services

Department of Health;

Department of Housing and Community Development;

Department of Human Resources;

Department of Human Services;

Department of Motor Vehicles;

Department of Parks and Recreation;

Department of Public Works;

District of Columbia general ambulatory and emergency care centers;

District of Columbia Housing Authority;

District of Columbia Public Library;

District of Columbia Public Schools;

Fire and Emergency Medical Services Department;

Homeland Security and Emergency Management Agency;

Metropolitan Police Department;

Office on Aging;

Office of Contracting and Procurement;

Office of Human Rights;

Office of Planning;

Office of Tax and Revenue; and

Office of the People’s Counsel.

(b) Pursuant to Section 2(3)(B) of the Act, agencies designated by the Language Access Director (“LA Director”) under the direction of the Director of the Office of Human Rights (“OHR Director”), which are as follows:

Department of General Services;

Department of Health Care Finance;

Department of Small and Local Business Development;

Department of the Environment;

Department of Transportation;

Department of Youth Rehabilitation Services;

Department on Disability Services;

District of Columbia Lottery and Charitable Games Control

Board;

District of Columbia Public Charter Schools;

Office of Administrative Hearings;

Office of the Attorney General-Child Support Services

Division;

Office of the State Superintendent of Education;

Office of the Tenant Advocate;

Office of Unified Communications; and

Office of Zoning.

1206.3 In addition to the requirements contained in this section, each covered entity with major public contact must meet all of the responsibilities for covered entities under the Act and § 1205 (other than those responsibilities that are specifically limited to covered entities without major public contact).

1206.4 Each covered entity with major public contact shall establish and implement a complete Biennial Language Access Plan (“BLAP”) required by § 1212 that is approved by the LA Director and published in the D.C. Register every two (2) years.

1206.5 Each covered entity with major public contact shall designate a Language Access Coordinator (LAC) who shall carry out the responsibilities described in § 1207. Each covered entity with major public contact may also work with the LA Director to establish a language access team. The functions of a language access team may include, but are not limited to, designating the covered entity’s LAC, providing translated vital documents, ascertaining served and likely to be served populations, providing for the training needs of the covered entity, and investigating complaints of non-compliance with the Act.

1206.6 Each covered entity with major public contact shall have all staff members in public contact positions attend either web-based or in-person training, provided by OHR, on the requirements for serving limited-English proficient or non-English proficient (“LEP/NEP”) customers under the Act and on the use of professional and qualified multilingual telephonic interpretation services and how to appropriately direct LEP/NEP customers to such services.

1206.7 Each covered entity with major public contact shall develop a plan to conduct outreach to LEP/NEP communities to disseminate information about the language access benefits and services offered by the covered entity as well as LEP/NEP goals stated in the covered entity’s BLAP. Outreach activities may include, but are not limited to, the following:

(a) Conducting public meetings with reasonable advance notice to the public in locations where LEP/NEP populations are known to congregate, such as schools, community centers, or places of worship;

(b) Organizing events (such as fairs, community meetings, forums, and educational workshops) in LEP/NEP communities;

(d) Disseminating information through in-language or ethnic media outlets (including local television, newspapers, and radio);

(e) Deploying outreach personnel to perform regular walk-throughs in LEP/NEP communities;

(f) Partnering with community-based organizations for the implementation of projects and/or delivery of services;

(g) Distributing flyers, brochures, and other printed material in diverse languages and at diverse locations;

(h) Disseminating information through covered entities’ websites;

(i) Issuing press releases in diverse languages and directing those press releases to media outlets serving LEP/NEP communities;

(j) Implementing a topic-specific campaign to raise awareness of a particular service or project in an LEP/NEP community;

(k) Sponsoring educational, informational, cultural, and/or social events in LEP/NEP communities;

(l) Participating in LEP/NEP community events and/or meetings;

(m) Inviting LEP/NEP community members to visit agency service site(s) and government facilities;

(n) Cosponsoring community events with community-based organizations that serve LEP/NEP communities;

(o) Participating in and/or cosponsoring events that target the District’s LEP/NEP communities with other District government agencies; and

(p) Organizing regular needs assessment meetings with LEP/NEP community-based organizations.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1206

4 DCMR § 1207 ROLE OF LANGUAGE ACCESS COORDINATORS

1207.1 Each Language Access Coordinator (“LAC”) shall coordinate and assist in implementing the requirements of the Act and these regulations that apply to covered entities with major public contact.

1207.2 Each LAC shall report directly to his or her agency director, or the director’s designee, on issues related to compliance with the Act and implementation of the Act, including budget issues related to the delivery of language access services required by the Act.

1207.3 Each LAC shall establish and be responsible for ensuring implementation of the agency’s Biennial Language Access Plan (“BLAP”).

1207.4 The LAC shall submit a quarterly report, as described in § 1214, to the LA Director regarding the agency’s implementation of its BLAP.

1207.5 Each LAC shall receive reports of alleged violations of the Language Access Act from individuals, Consultative Agencies, or other organizations, and shall provide the reports to the LA Director as they are received.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1207

4 DCMR § 1208 ROLE OF D.C. LANGUAGE ACCESS COALITION

1208.1 The D.C. Language Access Coalition (“LA Coalition”) shall serve in an external non-governmental role consulting on the implementation of the Act.

1208.2 The Language Access Director (“LA Director”) shall consult with the LA Coalition on the following:

Data collection;

Development and modification of BLAPs;

Identification of additional covered entities to be designated under the Act as covered entities with major public contact; and

(d) Overall implementation of the Language Access Act.

1208.3 Consultation pursuant to § 1208.2 requires that the LA Director:

(a) Notify the LA Coalition of activities that would significantly impact the implementation of the Act with sufficient notice so as to allow the LA Coalition to provide meaningful input; and

(b) Give reasonable consideration to the LA Coalition’s input, which may, where appropriate, lead to changes to decisions.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1208

4 DCMR § 1209 ROLE OF THE CONSULTATIVE AGENCIES

1209.1 The following agencies shall serve as consultative bodies to the Language Access Director (“LA Director”) and the Director of the Office of Human Rights (“OHR Director”) to develop and update covered entities’ Biennial Language Access Plans (BLAPs) and assist in the implementation of the Act: the Office on African Affairs, Office of Asian and Pacific Islander Affairs, and the Office on Latino Affairs (collectively, the “Consultative Agencies”).

1209.2 The Consultative Agencies shall furnish demographic data on their respective communities to the LA Director, who shall provide the data to Language Access Coordinators (“LACs”) and Language Access Point of Contacts (“LAPOCs”).

1209.3 The Consultative Agencies shall provide outreach to limited-English proficient or non-English proficient (“LEP/NEP”) communities in the District on the Act and assist the LACs to develop and implement outreach efforts.

1209.4 The Consultative Agencies shall assist OHR in the development of quality control instruments in their respective languages.

1209.5 The Consultative Agencies shall provide technical assistance to the Department of Human Resources and the personnel authorities of covered entities with independent hiring authority (collectively, “personnel authorities”) regarding issues related to the recruitment and hiring of bilingual public contact personnel.

1209.6 The Consultative Agencies shall assist their constituents with language access concerns by first referring the concern to the LAC or LAPOC of the covered entity in question. If the concern is not addressed by the covered entity, the consultative agency shall refer the concern to the LA Director.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1209

4 DCMR § 1210 ROLE OF PERSONNEL AUTHORITIES FOR COVERED ENTITIES

1210.1 The personnel authority for each covered entity shall develop strategies for recruiting and maintaining bilingual personnel, including assessing the non-English language abilities of all future and current District personnel who both self-identify as bilingual and apply for or currently fill an employment position designated as “bilingual” or “bilingual preferred.”

1210.2 Pursuant to § 1205.8, the personnel authority shall assist the staff of covered entities in assessing the covered entity’s budgeted vacant public contact positions and classifying identified positions as “bilingual” or “bilingual preferred.”

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1210

4 DCMR § 1211 BASELINE ASSESSMENTS

1211.1 Prior to implementing its first Biennial Language Access Plan (“BLAP”), each covered entity with major public contact shall complete a baseline assessment of its compliance with the Act. The baseline assessment shall include a description of current service interaction with limited-English proficient or non-English proficient (“LEP/NEP”) communities, current outreach activities to LEP/NEP communities, resources available to personnel serving LEP/NEP customers (such as translation and interpretation services and translated documents), and the number and position titles of current staff that self-identify as bilingual. The baseline assessment information shall be provided to the Language Access Director (“LA Director”) and included in the covered entity’s initial BLAP.

1211.2 Upon the completion of each two (2)-year BLAP cycle, each covered entity with major public contact shall update the information in the prior assessment with current information. The updated information shall be included in the covered entity’s BLAP.

1211.3 The Language Access Coordinator (LAC) for each covered entity with major public contact shall facilitate the work required for completing the baseline assessments within the agency, as well as complete and submit the assessments to the LA Director.

1211.4 The LA Director shall meet with each LAC and respective agency director or designee to review the agency’s baseline assessment.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1211

4 DCMR § 1212 BIENNIAL LANGUAGE ACCESS PLAN

1212.1 A covered entity with major public contact shall establish a Biennial Language Access Plan (“BLAP”). Each BLAP shall be established in consultation with:

The Language Access Director (“LA Director”);

The D.C. Language Access Coalition;

The covered entity’s Language Access Coordinator (“LAC”);

The covered entity’s Director; and

(e) The Consultative Agencies.

1212.2 Each BLAP shall set forth, at a minimum, the following:

The types of oral language services that the covered entity will provide and a description of how the covered entity made this determination;

Which languages are spoken by a limited-English proficient or non-English proficient (“LEP/NEP”) population that constitutes three percent (3%) or five hundred (500) individuals, whichever is less, of the population served or encountered or likely to be served or encountered by the covered entity, and how the covered entity made this determination;

The titles and types of each document that the covered entity will provide in translation and a description of how the covered entity made this determination;

The total number of public contact positions in the covered entity, the number of bilingual employees in public contact positions, and the languages spoken by the bilingual employees identified on the list;

(e) The number, position, and location of bilingual employees the covered entity plans to hire in public contact positions;

(f) The names, titles and contact information of members of the covered entity’s language access team, if one has been established pursuant to § 1206.5;

(g) An evaluation of the language access services provided, the language access data collection systems in place, and whether the goals stated in the previous BLAP were met;

A policy, administrative issuance, or procedures and guidelines that inform personnel of the protocols to follow when an LEP/NEP customer requests language assistance, and provide direction regarding other language access compliance requirements.

A plan to conduct outreach to the District’s LEP/NEP communities served or likely to be served by the covered entity;

(j) A plan to provide training to employees in public contact positions about the covered entity’s legal obligations under the Act, and to develop cultural competency skills to support them in providing quality customer service to LEP/NEP customers; and

(k) A description of the budgetary resources with which the covered entity will implement the BLAP.

1212.3 Each BLAP shall be subject to approval by the LA Director. The LA Director shall meet with each LAC and respective agency director to review draft agency BLAPs prior to approval of the BLAP. The LA Director shall consult resources including but not limited to those listed in Section 3(c)(1) of the Act (D.C. Official Code § 2-1932(c)(1) (2012 Repl.)) to verify the identification of the languages which are spoken by a LEP/NEP population that constitutes three percent (3%) or five hundred (500) individuals, whichever is less, of the population served or encountered, or likely to be served or encountered by the covered entity.

1212.4 A covered entity with major public contact shall complete its initial BLAP after completion of the baseline assessments, within a time period designated by the LA Director.

1212.5 Each BLAP shall be updated every two (2) fiscal years.

1212.6 The LA Director shall report to the Director of the Office of Human Rights (“OHR Director”) the failure by any covered entity with major public contact to submit a BLAP in a timely manner. The OHR Director shall include a list of these failures in the OHR Director’s annual Language Access Report to the Office of the City Administrator.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1212

4 DCMR § 1213 QUARTERLY REPORTS

1213.1 Each covered entity with major public contact shall submit to the Language Access Director (“LA Director”) a quarterly report describing its progress in implementing the covered entity’s Biennial Language Access Plan (“BLAP”) within thirty (30) days after the end of each quarter of the fiscal year.

1213.2 Each quarterly report shall:

(a) Provide the status of all tasks required of the covered entity with major public contact in accordance with its BLAP and requirements of the Act; and

(b) Report the number of complaints received during the quarter in question and the steps taken to resolve each complaint.

1213.3 Failure to submit quarterly reports in a timely manner shall be reported to the

Director of the Office of Human Rights (“OHR Director”), and such failure shall be included in the OHR Director’s annual Language Access Report to the Office of the City Administrator (“OCA”), required by § 1203.2.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1213

4 DCMR § 1214 ANNUAL REPORT OF COVERED ENTITIES WITH MAJOR PUBLIC CONTACT

1214.1 Each covered entity with major public contact shall submit to the Language Access Director (“LA Director”) an annual language compliance and progress report. The report shall be submitted within sixty (60) days after the end of each fiscal year.

1214.2 The annual report shall be submitted in such a form as may be designated by the LA Director and shall contain the following information regarding entities with major public contact:

(a) The total number of limited-English proficient or non-English proficient (“LEP/NEP”) individuals served or encountered by the entity during the fiscal year (delineated by language);

(b) The total number of all individuals served or encountered by the entity during the fiscal year;

(c) A list of vital documents that have been translated into non-English languages by the entity and the specific non-English languages into which they have been translated;

(d) A description of oral language services offered by or through the entity;

(e) An itemized list of funds expended by the entity for language access purposes;

(f) A list of the bilingual staff employed in public contact positions by the entity;

(g) A list of the covered entity with major public contact’s contractors and grantees, as described in § 1205.16, and the status of their compliance with the Act;

(h) The number of waiver forms signed in accordance with the provisions in § 1205.15;

(i) The number of language access complaints received during the course of the fiscal year and the steps taken to resolve those complaints; and

(j) A description of actions taken by the entity to improve the delivery of services to LEP/NEP customers and a description of any remaining challenges in providing services to LEP/NEP customers.

1214.3 The LA Director shall report failures to fulfill the criteria set forth in § 1214.2 to the Director of the Office of Human Rights (“OHR Director”), and the OHR Director shall include a list of these failures in the OHR Director’s annual Language Access Report to the OCA required by § 1203.2

1214.4 The LA Director shall provide copies of the annual reports of the covered entities with major public contact to the D.C. Language Access Coalition and the Consultative Agencies.

1214.5 Annual reports of the covered entities with major public contact shall be made available to the public within thirty (30) days of a request.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1214

4 DCMR § 1215 INQUIRIES, REQUESTS FOR ASSISTANCE, AND PUBLIC COMPLAINTS OF NONCOMPLIANCE WITH THE LANGUAGE ACCESS ACT

1215.1 The Office of Human Rights (“OHR”) shall receive and track all inquiries and requests for assistance or information concerning language access. Inquiries and requests for assistance may be submitted in writing or verbally by a limited-English proficient or non-English proficient (“LEP/NEP”) customer or an individual or third party acting on the customer’s behalf. Each inquiry or request shall be addressed and resolved by the Language Access Director (“LA Director”) and documented in accordance with the OHR Standard Operating Procedures Manual.

1215.2 OHR shall post on its website the process for submitting an inquiry, request, or complaint, and shall also post an overview of its investigative process. OHR shall also provide this information to each individual who files a complaint with OHR.

1215.3 The filing of a public complaint alleging noncompliance with the Act does not supersede or preclude the filing of a complaint alleging intentional illegal discrimination under the D.C. Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Official Code §§ 2-1401.01 et seq.). Discrimination complaints shall be filed in accordance with the procedures in Chapters 1 and 7 of Title 4 of the District of Columbia Municipal Regulations.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1215

4 DCMR § 1216 FILING OF PUBLIC COMPLAINTS

1216.1 The procedures in this section apply to the filing of a public complaint alleging a violation of the Act.

1216.2 Any person or organization may file with the Office of Human Rights (“OHR”) a public complaint alleging a violation of the Act. The public complaint may be filed on behalf of a complainant by a person or organization with an interest in the welfare of the complainant.

1216.3 The public complaint may be submitted in writing on a complaint form promulgated by OHR, online via the OHR’s website, verbally to an OHR staff member by telephone or in person, or through a covered entity.

1216.4 If a covered entity receives a public complaint, the covered entity shall forward the complaint to the Language Access Director (“LA Director”).

1216.5 A public complaint may request an investigation into individual or systemic noncompliance with the Act.

1216.6 A public complaint shall be deemed filed when OHR receives a statement sufficiently precise to identify the parties and to describe generally the action or practice complained of.

1216.7 In addition to commencing the investigative process when requested by a complainant, the LA Director shall commence the investigative process on his or her own initiative whenever he or she has reason to believe that an agency covered under the Act, or an employee of such an agency, has failed to comply with the Act.

1216.8 A public complaint shall be processed by OHR in accordance with OHR’s Standard Operating Procedures Manual. The LA Director shall administer or supervise the investigation and resolution of the complaint.

1216.9 If the alleged act(s) of noncompliance was committed by OHR, the complaint shall be brought before the Office of the City Administrator (“OCA”), or an agency or person designated by OCA, for review and investigation.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1216

4 DCMR § 1217 DISMISSAL FOR LACK OF JURISDICTION

1217.1 Prior to investigating a complaint, the Language Access Director (“LA Director”) shall determine, based on the face of the complaint, whether the following jurisdictional requirements have been met:

The public complaint has been filed with the Office of Human Rights (“OHR”) within one (1) year of the occurrence of the alleged act of noncompliance or the discovery of the alleged act of noncompliance, whichever occurs later;

The respondent is identified as a covered entity, a covered entity with major public contact, or a grantee or contractor of a covered entity or a covered entity with major public contact; and

The complaint alleges a violation of the Act.

1217.2 The LA Director shall perform the jurisdictional review required by this section within two (2) business days after he or she receives the complaint.

1217.3 If the LA Director determines that the jurisdictional requirements of Subsection 1217.1 have not been met, the LA Director shall issue an order dismissing the complaint without an investigation. The order shall be issued promptly after the jurisdictional review has been completed.

1217.4 No complaint shall be assigned to an investigator until the jurisdictional review required by this section has been completed.

1217.5 If at any time after an informal resolution process or investigation has begun the LA Director determines that the jurisdictional requirements of this section have not been met, the LA Director shall promptly issue an order dismissing the complaint on jurisdictional grounds.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1217

4 DCMR § 1218 ADMINISTRATIVE DISMISSALS

1218.1 The Language Access Director (“LA Director”) shall dismiss a public complaint without prejudice for the following administrative reasons:

The complainant has failed to respond to the Office of Human Rights (“OHR”) or cannot be reached by OHR, and OHR does not have sufficient information from the complainant to pursue an investigation; or

The complaint fails to state a claim of noncompliance with the Act.

1218.2 An Order dismissing a complaint for an administrative reason shall state the reason for the dismissal in writing, and shall be served on the parties.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1218

4 DCMR § 1219 WITHDRAWAL OF COMPLAINTS

1219.1 A public complaint may be voluntarily withdrawn at the request of the complainant at any time before a final decision and order is issued pursuant to § 1223. The request to withdraw a complaint must be made in writing. The circumstances of a withdrawal may be investigated by the Language Access Director (“LA Director”).

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1219

4 DCMR § 1220 REOPENING OF WITHDRAWN OR ADMINISTRATIVELY DISMISSED COMPLAINTS

1220.1 A complainant may request that a complaint previously dismissed for an administrative reason or voluntarily withdrawn be reopened, provided that the complainant submits a written request within thirty (30) days after receiving the order dismissing the complaint and states specifically the reasons why the complaint should be reopened.

1220.2 The Language Access Director (“LA Director”), upon receipt of a request to reopen a complaint, may, within his or her discretion, reopen the case for good reason or in the interest of justice.

1220.3 The decision of the LA Director to reopen a complaint shall be served on all parties to the complaint.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1220

4 DCMR § 1221 RESOLUTION OF COMPLAINTS PRIOR TO INVESTIGATION

1221.1 The Language Access Director (“LA Director”) shall attempt to resolve a public complaint with the covered entity against which the complaint was filed before assigning the complaint for investigation by:

Working with the covered entity to ensure the complainant, within a reasonable period of time, receives the information and language access services they are seeking from the covered entity or, alternatively, working to develop a solution that is acceptable to the complainant, the covered entity, and the LA Director; and

Allowing the covered entity to acknowledge its non-compliance with the Act rather than be subject to an investigation. In such cases, the LA Director shall find the covered entity in noncompliance, and shall use the information acquired during the Office of Human Rights (OHR) intake procedure to fashion and issue an order as described in Section 1223.

1221.2 If a complaint is not resolved pursuant to § 1221.1(a) or (b) within forty-five (45) days after the complaint was filed, the complaint shall be assigned to an OHR investigator.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1221

4 DCMR § 1222 INVESTIGATION

1222.1 Upon assignment of the case to an investigator, the investigator shall serve a copy of the public complaint by electronic mail to the director and Language Access Point of Contact (“LAPOC”) or Language Access Coordinator (“LAC”) of the covered entity that is the subject of the complaint (the “Respondent”).

1222.2 The investigation may include site visits, interviews of witnesses, and inspection of Respondent’s records.

1222.3 After receiving all requested documents from the Respondent, the investigator shall provide the Complainant with copies of all documents and information submitted by Respondent, except for documents that the investigator deems to be privileged or confidential. The investigator shall provide Complainant with an opportunity to rebut information submitted by the Respondent.

1222.4 At the completion of the investigation, the investigator shall prepare a report setting forth his or her findings. The report shall include any supporting documents.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1222

4 DCMR § 1223 DETERMINATION AND ORDER

1223.1 After receiving the investigator’s report, the Language Access Director (“LA Director”) shall review and analyze the case and prepare a preliminary decision and order. The preliminary decision and order shall include findings of fact and conclusions of law. If there is a finding of noncompliance with the Act, the preliminary decision and order shall also include requirements for appropriate remedial actions, if any, to be taken by the Respondent, including, where appropriate, providing language access services to the Complainant and/or other limited-English proficient or non-English proficient (“LEP/NEP”) individuals within a reasonable timeframe. The LA Director shall submit the preliminary decision and order to the General Counsel of the Office of Human Rights (“OHR”) for review.

1223.2 After consultation with the LA Director, the Office of Human Rights Director (“OHR Director”) shall issue a final decision and order that includes findings of fact and conclusions of law. In the event the final decision and order includes a finding of noncompliance with the Act, the LA Director shall:

(a) Within sixty (60) days, schedule a meeting with Respondent to discuss the final decision and order and appropriate corrective actions; and

(b) Within sixty (60) days of the meeting with Respondent, issue an order enumerating required corrective actions.

1223.3 The final decision and order shall be issued within six (6) months of the date the complaint is filed.

1223.4 If Respondent does not take action required by the final decision and order within the timeframe designated in the final decision and order, Respondent’s failure to act will be reported to the Office of the City Administrator (“OCA”) or Office of the Mayor for further action.

1223.5 Each final decision and order shall state the parties’ right to reconsideration and specify any relevant filing deadlines.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1223

4 DCMR § 1224 RIGHTS AND RESPONSIBILITIES OF PARTIES

1224.1 All parties are entitled to, and shall receive, a fair and impartial investigation by the Language Access Director (“LA Director”).

1224.2 All parties shall:

(a) Cooperate with, and comply with all requests of, the LA Director or the Office of Human Rights (“OHR) during the investigation of the complaint; and

(b) Furnish OHR with the following:

(1) All documents, records, names of witnesses, and any other necessary information needed to investigate the complaint; and

(2) Current contact information.

1224.3 Noncompliance by the covered entity against which the complaint is filed shall be reported to the OCA for further action.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1224

4 DCMR § 1225 RECONSIDERATION

1225.1 A Complainant may request reconsideration of a determination of compliance, or a respondent may request reconsideration of a determination of non-compliance, by submitting a written application for reconsideration to the Director of the Office of Human Rights (“OHR Director”). The application shall state specifically the grounds upon which the request for reconsideration is based.

1225.2 An application for reconsideration shall be filed with the Language Access Director (“LA Director”) within fifteen (15) calendar days after the party filing the application (the “moving party”) receives the LA Director’s final decision and order.

1225.3 After receiving an application for reconsideration, the LA Director shall send letters acknowledging receipt of the application to both the moving party and the non-moving party. The LA Director shall send with the letter to the non-moving party a copy of the application for reconsideration, and the non-moving party shall be given fifteen (15) calendar days after receipt of the LA Director’s letter to file a response.

1225.4 In considering whether to grant a motion for reconsideration, the OHR Director, in consultation with the LA Director, shall determine:

(a) Whether the moving party has:

Presented newly discovered, material facts that were not reasonably available during the OHR investigation; or

Identified a material error in the decision and order; or

(3) Identified statements in the application which, if deemed true and accurate, would warrant modification of the final decision and order; or

(b) Whether the moving party has demonstrated that reconsideration is necessary in order to avoid an injustice.

1225.5 If, after review of a timely-filed application for reconsideration and the response to the application for reconsideration, the OHR Director, in consultation with the LA Director, concludes that the moving party has not satisfied the standards for reconsideration set forth in § 1225.4, the OHR Director shall deny the application for reconsideration.

1225.6 If the OHR Director, in consultation with the LA Director, concludes that the application for reconsideration has satisfied the standards for reconsideration set forth in § 1225.4, the complaint shall be reopened for further investigation.

1225.7 If, at the end of further investigation and after considering the record as a whole, the OHR Director, in consultation with the LA Director, concludes that the moving party has not presented sufficient evidence to warrant a modification to the final decision and order, the final decision and order shall be affirmed by a final decision and order on reconsideration, and the parties shall be notified in writing.

1225.8 If the OHR Director, in consultation with the LA Director, determines, after further investigation, that the final decision and order should be modified, the LA Director shall issue a final decision and order on reconsideration, which shall include a detailed written basis for the modification of the final decision and order. The final decision and order on reconsideration shall be transmitted to both parties within sixty (60) days of the date the application for reconsideration was filed.

1225.9 In the event the final decision and order on reconsideration includes a finding of noncompliance with the Act, it shall specify all required corrective actions.

1225.10 Each final decision and order on reconsideration shall state the parties’ right to appeal the order and specify any relevant filing deadlines.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1225

4 DCMR § 1226 APPEALS

1226.1 An appeal from a final decision and order or a final decision and order on reconsideration may be filed with the District of Columbia Office of Administrative Hearings (OAH).

1226.2 The moving party shall file an appeal with the OAH within thirty (30) calendar days after the date the Office of Human Rights’ final decision and order or final decision and order on reconsideration is issued.

1226.3 OAH shall adjudicate the appeal consistent with its own policies, procedures, and standards of review.

History

SOURCE: Final Rulemaking published at 55 DCR 6348 (June 6, 2008); as amended by Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1226

4 DCMR § 1227 AUDITS AND FIELD TESTS

1227.1 The Office of Human Rights (“OHR”) shall conduct audits and field tests of covered entities, as deemed necessary, to ascertain the agency’s level of compliance with the Act.

1227.2 After OHR completes each audit or field test, it shall issue a report describing the results of the audit or field test to the covered entity being audited and the Language Access Director (“LA Director”). The report shall also include a list of corrective actions that the agency should take to correct any violations or potential violations of the Act.

1227.3 The OHR Director shall include a list of negative audit findings in the OHR Director’s annual report to the OCA required by § 1203.2.

1227.4 The LA Director may investigate any specific instance of noncompliance cited in an audit or field test and may issue a decision and order pursuant to §§ 1221, 1222, and 1223.

1227.5 Audits and field tests of OHR may be conducted by an agency designated by the OCA.

History

SOURCE: Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1227

4 DCMR § 1299 DEFINITIONS

1299.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Act – the Language Access Act of 2004, effective June 19, 2004 (D.C. Law 15-167; D.C. Official Code §§ 2-1931 et seq. (2012 Repl.)).

Administrative hearing – a hearing before a government agency or before an administrative law judge.

Biennial Language Access Plan (“BLAP”) – a two (2)-year mandatory compliance plan for each covered entity with major public contact that is to be revised and published in the D.C. Register biennially by the covered entity.

Bilingual employee – an employee who is certified as proficient in both the English language and a language other than English by the personnel authority of the covered entity in which the employee is employed.

Complainant – an individual, group of individuals, or organization(s) who files a public complaint alleging a violation of the Language Access Act against an agency.

Consultative Agencies – a collective term used to refer to the Office on African Affairs, Office on Asian and Pacific Islander Affairs, and Office of Latino Affairs. These agencies are referred to in Section 5(a)(2) of the Act (D.C. Official Code § 2-1934(a)(2)) as government offices that conduct outreach to communities with LEP/NEP populations.

Covered entity – a District government agency, department, or program that furnishes information or renders services, programs, or activities directly to the public or contracts with other entities, either directly or indirectly, to conduct such programs, services, or activities. The term “covered entity” does not include Advisory Neighborhood Commissions.

D.C. Language Access Coalition – the established alliance of diverse community-based organizations in the District that work with the District government to foster and promote the civil rights of immigrant and LEP/NEP communities by advocating for meaningful language access within the District.

Interpretation – oral/verbal conversion of the meaning of a dialogue from one language to another language and vice versa. There are three (3) types of interpretation:

Sight translation, in which an interpreter reads a document written in one language and translates it orally into another language;

Consecutive interpretation, in which an interpreter translates a speaker’s words orally after the speaker has stopped speaking; and

Simultaneous interpretation, in which an interpreter speaks simultaneously with the source language speaker.

Limited English Proficient (LEP) individual – an individual who does not speak English as his or her primary language and who has a limited ability to read, speak, write, or understand English.

Linguistic and cultural competency training – training that educates, informs, instructs, or provides guidance on how to provide readily available, culturally appropriate oral and written language services to LEP/NEP individuals through such means as bilingual/bicultural staff, trained interpreters, and qualified translators.

Non-English Proficient (NEP) individual – an individual who cannot speak or understand the English language at any meaningful level.

Oral language services – language translation or assistance services provided to enable LEP/NEP individuals to access or participate in programs or services offered by a covered entity. Oral language services include:

Commercial interpretation services, which are oral interpretation services provided by professional businesses;

Interpreters made available through community service organizations that are publicly funded for that purpose;

Multilingual telephonic interpretation services, which are over-the-phone oral interpretation services that provide professionally trained and qualified interpreters in various languages;

Staff interpreter services, in which an employee who has been proven competent in oral interpretation through certification, training, or assessments offers oral interpretation; and

Employment of bilingual or multi-lingual employees.

Personnel authority – the District of Columbia Department of Human Resources or, for covered entities with independent hiring authority, the individual or department responsible for hiring by the covered entity.

Public complaint – an administrative complaint filed with OHR or a covered entity alleging violation of the Act by a covered entity.

Public contact position – an employment position in a covered entity for which the primary responsibilities include greeting, meeting, serving, or providing information or services to the public. Public contact positions are positions that require personal contacts with the public.

Respondent – the agency against which a public complaint has been filed.

Translation – the written conversion of texts in the source language into texts written in another language, retaining the meaning and intent of the original source text and producing a culturally competent product.

Vital documents – applications and their instructions, notices, complaint forms, legal contracts, correspondence, and outreach materials published by a covered entity in a paper or electronic format including but not limited to those which inform individuals about their rights and responsibilities or eligibility requirements for benefits and participation, as well as documents that pertain to the health and safety of the public. The term “vital documents” shall include tax-related educational and outreach materials produced by the Office of Tax and Revenue, but shall not include tax forms and instructions.

History

SOURCE: Final Rulemaking published at 61 DCR 9836 (September 26, 2014). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1299

4-15 YOUTH BULLYING PREVENTION

4 DCMR § 1500 PURPOSE

1500.1 The purpose of this chapter is to provide guidance, procedures and standards for the implementation of the Youth Bullying Prevention Act of 2012, effective September 14, 2012 (D. C. Law 19-167; D.C. Official Code §§ 2-1535.01 et seq.).

History

SOURCE: Final Rulemaking published at 63 DCR 9390 (July 8, 2016). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1500

4 DCMR § 1501 COVERED ENTITIES

1501.1 The requirements of this chapter apply in whole or in part to the following entities, which are referred to collectively in this chapter as “covered entities:”

(a) Covered agencies, as defined in § 1501.2(a);

(b) Educational institutions, as described in § 1501.2(b); and

1501.2 For the purposes of this chapter, the terms “covered agency,” “educational institution,” and “covered grantee” are defined as follows:

(a) A “covered agency” means a District government agency that provides services, activities, or privileges directly or indirectly to youth, and includes the following:

Child and Family Services Agency;

Department of Behavioral Health;

Department of Employment Services, including, but not limited to, the following activities and programs:

In-School Program;

(B) Mayor’s Youth Leadership Institute;

One City High School Internship Program;

Out-of-School Internship Program;

Out-of-School Program;

Pathways for Young Adults;

Summer Youth Employment Program; and

(H) Youth Connection Center;

Department of Health, including, but not limited to, the following activities and programs:

School-based health centers;

Violence prevention programs in public schools and public charter schools; and

College Student Internship Program;

(5) Department of Parks and Recreation;

Department of Youth Rehabilitation Services;

District of Columbia Public Library;

Metropolitan Police Department, including, but not limited to the following activities and programs:

Summer with the Metropolitan Police Department;

Youth Advisory Council;

Junior Police Academy; and

Fun and Safe Kids;

(9) Office of the State Superintendent of Education; and

(10) University of the District of Columbia;

(b) An “educational institution” means:

(1) The District of Columbia Public Schools (DCPS); and

(2) Each local education agency, as defined in section 101 of the Testing Integrity Act of 2013, effective October 17, 2013 (D.C. Law 20-27; D.C. Official Code §§ 38-771.01 et seq.), that receives funds from the District, including charter schools and non-public schools that provide education for students with disabilities with District funds; and

(c) A “covered grantee” means an entity or contractor of an entity that provides services, activities, or privileges to youth on behalf of the District government or through District funding.

1501.3 Each covered entity and educational institution shall ensure that when hiring or contracting with a contractor or vendor to provide services, activities, or privileges to youth that the contractor or vendor will comply with the requirements of this chapter and the Act.

1501.4 Each covered entity and educational institution shall ensure that when it issues a grant to a grantee to provide services, activities, or privileges to youth on behalf of the District or through District funding that the grantee will comply with the requirements of this chapter and the Act.

History

SOURCE: Final Rulemaking published at 63 DCR 9390 (July 8, 2016). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1501

4 DCMR § 1502 ADOPTION OF A BULLYING PREVENTION POLICY

1502.1 Bullying means any severe, pervasive, or persistent act or conduct, whether physical, electronic, written or verbal that:

(a) May be based on a youth’s actual or perceived race, color, ethnicity, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, intellectual ability, familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, status as a victim of an intra-family offense, place of residence or business, or any other distinguishing characteristic, or on a youth’s association with a person or group with any person, with one or more of the actual or perceived foregoing characteristics; and

(b) Can reasonably be predicted to:

(1) Place the youth in reasonable fear of physical harm to his or her person or property;

(2) Cause a substantial detrimental effect on the youth’s physical or mental health;

(3) Substantially interfere with the youth's academic performance or attendance; or

(4) Substantially interfere with the youth’s ability to participate in or benefit from the services, activities, or privileges provided by a covered entity.

1502.2

(a) If a covered entity wishes to update its bullying prevention policy, it shall do so before the beginning of a school year, and provide a copy of the updated policy to OHR by August 15.

(b) Each covered entity shall review its list of Point of Contacts annually and provide an updated list of Point of Contacts to OHR by August 15 of each year.

(c) Newly authorized charter schools or newly established youth organizations that receive funding from the District must adopt a bullying prevention policy (including a Point of Contact) within three months of their opening and provide the policy to the BPP Director.

1502.3 A covered entity’s bullying prevention policy shall at a minimum include the following elements:

(a) The legal definition of bullying set forth above;

(b) A statement prohibiting bullying, including cyberbullying;

(d) A statement that the policy applies at all of the locations listed in § 1501;

(e) A code of conduct;

(f) A list of consequences that can result from an identified incident of bullying that are designed to:

(1) Appropriately correct the behavior deemed to be bullying;

(2) Prevent future occurrences of bullying or retaliation;

(3) Ensure the safety and well-being of the person who has reportedly experienced or is reportedly at risk for future acts of bullying or retaliation; and

(4) Be flexible in application, appropriate to the individual incident, and varied in method and severity based on the:

(A) Nature of the incident;

(B) Developmental age of the person exhibiting bullying behaviors; and

(C) Any history of problem behavior of all students involved in the incident(s) and where available, history of behavioral concerns documented in an Individualized Education Program (IEP) or 504 plan as a result of a disability under the Individuals with Disabilities Education Act (IDEA), approved Dec. 3, 2004 (118 Stat. 2647; 20 U.S.C. §§ 1400 et seq.) or Section 504 of the 1973 Rehabilitation Act, approved Sept. 26, 1973 (87 Stat. 394; 29 U.S.C. § 794).

(g) A mechanism and procedures for staff, students, parents/guardians, and others to report bullying, retaliation for reporting bullying, or other violations of the bullying prevention policy that permits anonymous reporting, provided however, that no formal response shall be taken solely on the basis of anonymous reporting;

(h) A procedure for prompt investigation of reports of bullying, retaliation, or other violations of the bullying prevention policy that identifies the name and contact information for the person(s) responsible for investigating bullying and retaliation;

(i) A secondary investigation appeal process, consistent with § 1506, for a person accused of bullying or a person who is the target of bullying or retaliation who is not satisfied with the outcome of an initial investigation under § 1505; and

(j) A statement that retaliation against any person for reporting an incident of bullying is prohibited and a description of the possible consequences for a person who engages in retaliatory behavior.

1502.4 Each covered entity’s bullying prevention policy shall apply at the following locations:

(a) On the covered entity’s property, including buildings, fields, parking lots, and walkways;

(b) At events sponsored by the covered entity, including sponsored events held off the property of the covered entity;

(c) On any vehicle used for transportation by or on behalf of the covered entity, including transportation for sponsored events of youth; and

(d) At any transit stop at which youth wait to be transported to the covered entity or an event sponsored by the covered entity.

1502.5 Each covered entity’s bullying prevention policy shall apply to cyberbullying sent from or to someone at a location listed in § 1502.4, whether or not the communications device is owned or leased by the covered entity. Cyberbullying is defined as any bullying done through electronic means which meets the definition in § 1502.1, including, but not limited to, social media, electronic mail (email), texting or tweeting.

1502.6 Bullying which occurs on-site, but involves off-site activities, is prohibited if it creates a hostile environment at the covered entity for the target or witnesses of bullying, or impedes or interferes with a youth’s ability to participate at the covered entity.

History

SOURCE: Final Rulemaking published at 63 DCR 9390 (July 8, 2016). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1502

4 DCMR § 1503 CODE OF CONDUCT

1503.1 The code of conduct required in the bullying prevention policy (referenced in § 1502.3(e)) should provide that:

(a) The covered entity expects youth to behave in a way that supports the covered entity’s objective to provide a safe and welcoming environment for other youth; and

(b) The covered entity expects youth who are part of the covered entity community to:

(1) Treat all other youth at the covered entity with respect;

(2) Respect the property of other youth at the covered entity; and

(3) Respond appropriately to instructions from covered entity staff regarding behavior toward other youth.

History

SOURCE: Final Rulemaking published at 63 DCR 9390 (July 8, 2016). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1503

4 DCMR § 1504 REPORTING BULLYING OR RETALIATION COMPLAINTS

1504.1 Each covered entity shall encourage youth, parents, guardians, employees, volunteers and community members to report any incidents of bullying or retaliation that they are witness to, or of which they are aware.

1504.2 Reports of bullying, retaliation, and other violations of the bullying prevention policy should be made to the Point of Contact at the covered entity, either by mail, telephone, facsimile, electronically, or through an anonymous drop box at the covered entity’s site.

1504.3 If an individual is unable to report the complaint to the Point of Contact, the complaint may also be made to a member of the covered entity’s management or leadership team, and those individuals shall refer the complaint to the Point of Contact for investigation. If there is some reason why the Point of Contact should not be the investigator on a particular matter, for example if there are any known or raised conflict of interests, the covered entity’s management may assign another investigator.

1504.4 Employees and volunteers of covered entities shall promptly report incidents of bullying or retaliation to the entity’s named Point of Contact identified in the policy when they witness incidents of bullying or retaliation, or for incidents about which they have reliable information.

1504.5 Information about reporting bullying and retaliation shall be communicated to all youth associated with the covered entity in an age-appropriate manner.

6 Each covered entity shall ensure that there are reporting materials available in a wide variety of languages as required by the Language Access Act of 2004, effective June 19, 2004 (D.C. Law 15-167; D.C. Official Code §§ 2-1931 et seq.) and 4 DCMR § 1205.4.

1504.7 The person designated by a covered entity to investigate bullying, retaliation, and other violations of the bullying prevention policy (the covered entity’s Point of Contact) shall create a written description of each incident of bullying, retaliation, or other violation of the bullying prevention policy that was reported to him or her and where applicable, shall include the description in the annual report that is required by § 1511.

History

SOURCE: Final Rulemaking published at 63 DCR 9390 (July 8, 2016). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1504

4 DCMR § 1505 INVESTIGATIONS

1505.1 Each covered entity shall promptly initiate an investigation into each report of bullying, retaliation, or other violation of the bullying prevention policy within two (2) business days of receiving the complaint and complete the investigation within thirty (30) days of receiving the complaint, as outlined below. If the bullying, retaliation, or other acts in violation of the bullying prevention policy involve multiple covered entities, the entities shall coordinate their investigation and response activities.

1505.2 Within two (2) business days of receiving a report of bullying, retaliation, or other violation of the bullying prevention policy, the Point of Contact shall:

Draft a written record of the complaint, which must be included in the final report outlined in § 1505.5;

Take appropriate action to protect, to the extent possible, the safety of the alleged target referenced in the report, which may include contacting relevant parties, intercepting the target or alleged perpetrator if information is received regarding a pending act of bullying or retaliation, and ascertaining the presence of teachers or other employees at a location that has been identified as the site of a pending act of bullying or retaliation;

Inform the target, alleged perpetrator, and if applicable, witnesses, of the alleged incident and of the initiation of the investigation;

Make a good-faith attempt to inform the parents or guardians of the target about the alleged incident and any planned investigation, if the target is less than eighteen (18) years of age and if the contact information for the parents or guardians is available or can be requested. If the Point of Contact determines that informing the parents or guardians may cause harm to, or endanger the health or well-being of the target, the Point of Contact shall document facts giving rise to such determination, and document the decision not to inform in writing; and

Make a good-faith attempt to inform the parents or guardians of the alleged perpetrator about the alleged incident and any planned investigation, if the alleged perpetrator is less than eighteen (18) years of age. If the Point of Contact determines that informing the parents or guardians may cause harm to, or endanger the health or well-being of, alleged perpetrator, as the case may be, the Point of Contact shall document facts giving rise to such determination, and document the decision not to inform in writing; and

Take into account whether the individuals involved have disabilities and whether the behavior is a manifestation of the disability. Where available, consider whether the individuals have legally mandated protections including an Individualized Education Programs (IEP). The United States Department of Education through its Office for Civil Rights (OCR) has provided helpful information that covered entities are to follow concerning students with disabilities and bullying. One such resource is available through OCR’s 2014 Dear Colleague Letter at

http://www.ed.gov/ocr/docs/disabharassltr.html.

1505.3 The covered entity shall provide confidentiality if possible to individuals interviewed as part of the investigation, including the victim, and inform them that retaliation for reporting acts of bullying is prohibited. However, if the Point of Contact learns during the course of the investigation that the reported incident involves criminal activity, the Point of Contact shall communicate such information to the Principal or the equivalent. If the reported incident or statements during the investigation indicate credible and imminent threat of harm or criminal activity, the Point of Contact shall immediately report such information to the appropriate law enforcement authorities and to the Principal or the equivalent.

1505.4 The investigation shall be completed within thirty (30) days after receipt of a report of bullying, retaliation, or other violation of the bullying prevention policy.

1505.5 The investigator or a designee of the covered entity shall issue a written report setting forth his or her findings and recommendations within thirty (30) days after receiving a report of bullying, retaliation, or other violation of the bullying prevention policy which includes the following:

A description of the incident(s) including the names of individuals involved and behaviors alleged, location of occurrence(s) and whether or not bullying occurred under the definitions set forth in the Act as outlined in § 1502.1;

Whether the incident was based on a trait that is covered in the Human Rights Act (as listed in the definition of bullying in § 1502.1(a)); and

1505.6 The written report shall be provided to the:

Target, the parents or guardians of the target if the target is under eighteen (18) years of age, the alleged perpetrator, and the parents or guardians of the alleged perpetrator if the alleged perpetrator is under eighteen (18) years of age.

The requirement in paragraph (a) of this subsection to send the written report to the parents or guardians shall not apply if the contact information for parents or guardians is not available after making good-faith attempt to obtain such information, or if the Point of Contact determines that sending the report may cause harm to, or endanger the health or well-being of, the target or alleged perpetrator, as the case may be, but the reasons for the determination not to send the report must be documented in writing.

History

SOURCE: Final Rulemaking published at 63 DCR 9390 (July 8, 2016). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1505

4 DCMR § 1506 SECONDARY INVESTIGATION APPEALS

1506.1 Each covered entity shall have an appeals process in place for conducting a secondary investigation where a written request for a secondary investigation is submitted within thirty (30) days after the conclusion of the initial investigation.

1506.2 The secondary investigation shall be conducted by an employee who has a higher level of authority at the covered entity than the one who conducted the investigation and who was not involved in the initial investigation.

1506.3 The secondary investigation shall be completed within thirty (30) days after receipt of the request for a secondary investigation unless the higher-level authority requires additional time to complete a thorough investigation and the higher-level authority sets forth those circumstances in writing. Under those circumstances, the deadline may be extended past the thirty (30) day period by fifteen (15) days.

1506.4 After completing the secondary investigation, the higher-level authority shall notify the parties in writing of the results of the investigation and of the party’s ability to seek additional redress under the DCHRA under D.C. Official Code § 2-1402.41. Such notification must be in writing and include:

The name of the BPP Director;

The address and telephone number of the OHR;

The text contained in § 1513 of these regulations outlining the parties’ options for appeal through OHR; and

Notification that complaints of violations under DCHRA and the Act must be filed within one (1) year of the incident.

History

SOURCE: Final Rulemaking published at 63 DCR 9390 (July 8, 2016). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1506

4 DCMR § 1507 DISSEMINATION OF BULLYING PREVENTION POLICY

1507.1 Each covered entity shall develop and implement a plan to publicize its Bullying Prevention Policy that shall include actions to:

(a) Discuss its bullying prevention policy with youth;

(b) Publicize the fact that the policy also applies to functions sponsored by the covered entity; and

(c) Publish the written Bullying Prevention Policy and make copies of the Bullying Prevention Policy available to all youth, families and staff by including it in the entity’s handbook and on its website.

History

SOURCE: Final Rulemaking published at 63 DCR 9390 (July 8, 2016). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1507

4 DCMR § 1508 ANNUAL REVIEW AND UPDATING OF BULLYING PREVENTION POLICY

1508.1 Each covered entity shall submit an update confirming the identity of its Point of Contact and any substantial revisions in its bullying prevention policy, to the BPP Director by August 15 of each year.

1508.2 The BPP Director will review any new policies or policies with substantial edits within thirty (30) days and provide feedback to ensure full compliance including any recommendations for improvement of the policy.

History

SOURCE: Final Rulemaking published at 63 DCR 9390 (July 8, 2016). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1508

4 DCMR § 1509 BULLYING PREVENTION PROGRAMS

1509.1 Each covered entity is encouraged to:

(a) Establish an ongoing bullying prevention program for youth such that the program is aligned with established health-education standards;

(b) Inform youth about their right to be free from discrimination in public accommodations and education and of the redress available for a violation of their rights under the Human Rights Act; and

History

SOURCE: Final Rulemaking published at 63 DCR 9390 (July 8, 2016). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1509

4 DCMR § 1510 TRAINING REQUIREMENTS

1510.1 Except as provided in § 1510.2, each covered entity shall provide bullying prevention training to all of its employees on an annual basis using the following:

(a) OHR training material for a three (3) hour session provided by the BPP Director; or

(b) Alternative training that is comparable in scope and content.

1510.2 Each covered entity need only provide a thirty (30) minute general bullying prevention training to employees with no direct contact with youth. This training shall cover the general procedures for responding to a report of bullying and contact information for the designated Point of Contact, or similar personnel. Upon request, OHR will provide content guidance for such training.

1510.3 Each covered entity shall incorporate information on its bullying prevention policy into new employee training.

1510.4 Each covered entity shall provide written documentation of the training provided, to the BPP Director, including the date, time and summary of the content of annual training, along with the names and biographical information of the trainer by August 15 of each year.

History

SOURCE: Final Rulemaking published at 63 DCR 9390 (July 8, 2016). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1510

4 DCMR § 1511 EDUCATIONAL INSTITUTIONS REPORTING REQUIREMENTS

1511.1 Each educational institution shall report to OHR by August 15 of each year the following information:

(a) The aggregate number of incidents of bullying, retaliation, and other violations of the bullying prevention policy at the educational institution during the prior school year (including the prior summer term);

(b) A brief description of each such incident (as required by § 1505.5); and

1511.2 The annual report of each educational institution shall also include any other information that OHR deems necessary or appropriate and requests from the educational institution.

History

SOURCE: Final Rulemaking published at 63 DCR 9390 (July 8, 2016). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1511

4 DCMR § 1512 OFFICE OF HUMAN RIGHTS ROLES AND RESPONSIBILITIES

1512.1 The BPP Director shall assist covered entities with developing bullying prevention policies and programs.

1512.2 The BPP Director shall compile and make available to each covered entity a list of free or low-cost methods for establishing the bullying prevention programs.

1512.3 The BPP Director shall conduct training for covered entities on bullying and techniques for investigating allegations of bullying on a periodic basis when requested.

1512.4 When contacted by parents or guardians of youth in covered entities, the BPP Director will contact the school, agency, or grantee to ensure that the bullying prevention policy is compliant and has been fully implemented with regard to reporting, investigating, and addressing alleged incidents. This approach will provide an immediate response to parents and guardians as well as provide support and guidance for all parties (families and school or agencies) to ensure that appropriates steps are taken to address the situation.

History

SOURCE: Final Rulemaking published at 63 DCR 9390 (July 8, 2016). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1512

4 DCMR § 1513 COMPLAINT PROCEDURES AT THE OFFICE OF HUMAN RIGHTS UNDER THE YOUTH BULLYING PREVENTION ACT AND THE D.C. HUMAN RIGHTS ACT

1513.1 There are both formal and informal ways to initiate actions with OHR and individuals are encouraged to first use the informal option of working with the BPP Director as outlined in § 1513.2(a) before bringing formal complaints as outlined in § 1513.2 and § 1513.10. OHR will make efforts to investigate related matters jointly as to avoid duplication of efforts for the parties and the agency.

1513.2 Complaints under the Act may be pursued as follows:

(a) Youth or other individuals may call or contact the BPP Director with informal complaints under the Act, which may result in incident specific or broader program changes at covered entities; and

(b) An individual, who is eighteen (18) years or older, or who is younger but acting through a parent or advocate, may file a formal complaint with OHR alleging a violation of the Act within one (1) year after the alleged violation occurred.

1513.3 A complaint to OHR under the Act may include, but is not limited to, allegations regarding:

(a) The adequacy of an investigation of bullying, retaliation, or another violation of a bullying prevention policy;

(b) The failure to initiate an investigation or an unreasonable delay in the processing of a report of bullying, retaliation, or another violation of a bullying prevention policy; or

(c) Any other failures by the covered entity to follow the requirements of the Act such as an entity maintaining a policy that is not in compliance with this Act.

1513.4 The complaint shall state the name and address of the covered entity (called the Respondent), the name and title (if known) of the person alleged to have committed the violation, a detailed description of the incident(s) or substance of the complaint and alleged violation, and such other information as may be required by OHR.

1513.5 OHR shall conduct an investigation of the complaint to determine if there was a violation of the Act with a target completion date for the Determination within ninety (90) days after a complaint is filed with OHR.

1513.6 OHR shall report the results of its investigation to the complainant and covered entity and if necessary, provide recommendations to the covered entities.

1513.7 Within sixty (60) days of the issuance date of the Determination, the Respondent must meet with the BPP Director and where appropriate, OHR General Counsel, to discuss the findings and corrective actions, if needed.

1513.8 A full set of corrective actions must be agreed upon by all parties within ninety (90) days of the Determination.

1513.9 If Respondent fails to comply with these timelines or corrective actions within the agreed upon timeframe, OHR shall inform the Deputy Mayor for Education or an appropriate official in the Mayor’s Office in writing by submitting a copy of the Determination and a summary of Respondent’s failure to resolve the matter.

1513.10 Complaints filed under the DCHRA, D.C. Official Code §§ 2-1401.01 et seq., may be filed as follows:

(a) If the facts include allegations of discrimination at an educational institution or public accommodation as covered by the DCHRA, an individual, who is eighteen (18) years or older, the parent, or an advocate of youth, may file a complaint with OHR within one (1) year of the alleged discriminatory acts; and

(b) A complaint under the DCHRA could result in a probable cause finding, conciliation efforts and a Commission hearing.

(c) Pursuant to D.C. Official Code § 2-1403.16, an individual may also file DCHRA claims in D.C. Superior Court instead of at the OHR.

History

SOURCE: Final Rulemaking published at 63 DCR 9390 (July 8, 2016). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1513

4 DCMR § 1599 DEFINITIONS

1599.1 As used in this chapter, the follow words and phrase shall have the following meanings:

Employee – an individual who receives compensation for performing a function for a covered entity;

Point of Contact – the designated individual at each entity responsible for receiving reports of bullying incidents, investigating complaints of bullying, and attempting to resolve matters. Each entity must list a Point of Contact in the Bullying Prevention Policy and update the contact information annually with the BPP Director;

Retaliation – to coerce a person, or attempt to coerce a person, to not report an act of bullying; to threaten to harm a person or otherwise subject the person to an adverse action because the person has reported or may report bullying; or to interfere with a person’s right or obligation to report an act of bullying under the Act;

Youth – (a) an individual of twenty-one (21) years of age or less who is enrolled in an educational institution or who uses the services or programs provided by an agency or grantee, or an individual of twenty-two (22) years of age or less who is receiving special education services from an educational institution; or (b) individuals as described in paragraph (a) of this definition considered as a group.

History

SOURCE: Final Rulemaking published at 63 DCR 9390 (July 8, 2016). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1599

4-16 DISTRICT OF COLUMBIA FAMILY AND MEDICAL LEAVE ACT

4 DCMR § 1600 AUTHORITY AND PURPOSE

1600.1 The provisions of this chapter are promulgated to implement the District of Columbia Family and Medical Leave Act of 1990, effective October 3, 1990 (D.C. Law 8-181; D.C. Official Code §§ 32-501 et seq.) (Act or DCFMLA).

1600.2 The Director of the Office of Human Rights (OHR), under Mayor’s Order 2009-45, dated March 31, 2009, is delegated the authority to issue rules to implement the Act.

1600.3 The purpose of these regulations is to provide guidance on, and procedures and standards for, the implementation of the DCFMLA and to notify the District government as an employer, other covered employers within the District, and eligible employees of their rights and responsibilities under the Act.

1600.4 An employer cannot create a rule or policy which diminishes the rights of employees or the obligations of employers.

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is § 18(a) of the Family and Medical Leave Act of 1990, D.C. Law 8-181, D.C. Official Code 32-501 (2001) et seq.
SOURCE: Final Rulemaking published at 38 DCR 4350 (July 12, 1991); as amended by Notice of Final Rulemaking published at 57 DCR 10789 (November 19, 2010).

4 DCMR § 1601 APPLICABILITY—COVERED EMPLOYERS — IN GENERAL

1601.1 This chapter shall apply to all employers that employ twenty (20) or more persons in the District of Columbia on or after April 1, 1991; provided that this chapter shall not apply to the United States government.

1601.2 A private employer shall be covered if it maintains twenty (20) or more employees on the payroll during twenty (20) or more calendar workweeks (whether consecutive or not) in either the current or the preceding calendar year.

1601.3 Once a private employer meets the threshold of twenty (20) employees

during twenty (20) workweeks as specified in § 1601.2, the employer shall remain covered until it no longer employs twenty (20) employees for twenty (20) workweeks (whether consecutive or not) in the current or preceding year.

1601.4 For example, if an employer employed twenty (20) employees during twenty (20) workweeks in the calendar year as of September 1, 2008, then subsequently dropped below twenty (20) employees before the end of calendar year 2008 and continued to employ fewer than twenty (20) employees during that year, the employer would continue to be covered throughout calendar year 2009 because it met the coverage criteria for twenty (20) workweeks of the preceding calendar year 2008.

1601.5 If the employer employs at least twenty (20) employees in the District, its eligible employees shall include those employees who work within the District. The definition of employee, and the standard to determine whether an employee is employed in the District, is set forth in section 1603.6.

1601.6 The District of Columbia government shall be considered as a single employer under the DCFMLA, and the DCFMLA is applicable to every District government agency, office, and other subdivision, without regard to its individual size.

History

SOURCE: Final Rulemaking published at 38 DCR 4350, 4351 (July 12, 1991). Oct. 3, 1990, D.C. Law 8-181, § 17, 37 DCR 5043; as amended by Notice of Final Rulemaking published at 57 DCR 10788, 10789 (November 19, 2010).

4 DCMR § 1602 APPLICABILITY—COVERED EMPLOYERS — JOINT EMPLOYMENT

1602.1 Where two (2) or more businesses exercise some control over the work or working conditions of the employee, the businesses may be considered joint employers under the DCFMLA. Joint employers may be separate and distinct entities with separate owners, managers, and facilities.

1602.2 Where the employee performs work which simultaneously benefits two (2) or more employers, or works for two (2) or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as:

Where there is an arrangement between employers to share an

employee’s services or to interchange employees;

Where one (1) employer acts directly or indirectly in the interest of

the other employer in relation to the employee; or

Where the employers are not completely disassociated with respect

to the employee’s employment and may be deemed to share control of the employee, directly or indirectly, because one (1) employer controls, is controlled by, or is under the common control of the other employer (for example, a temporary agency employer).

Joint employment will ordinarily be found to exist when a temporary placement agency supplies employees to a second employer.

1602.3 A determination of whether or not a joint employment relationship exists is not determined by the application of any single criterion, but rather the entire relationship viewed in the totality.

1602.4 In joint employment relationships, only the primary employer is responsible for giving the required notices to its employees, providing DCFMLA leave, and maintenance of health benefits.

1602.5 Factors considered in determining which is the primary employer include authority or responsibility to hire and fire, assign, or place the employee, make payroll, and provide employment benefits. For employees of temporary placement agencies, for example, the placement agency most commonly would be the primary employer.

1602.6 Employees jointly employed by two (2) employers shall be counted by both employers, whether or not the employee is maintained on only one (1) of the employers’ payrolls, in determining coverage and employee eligibility.

1602.7 Job restoration is the primary responsibility of the primary employer.

1602.8 The secondary employer is responsible for accepting the employee returning from DCFMLA leave in place of the replacement employee if the secondary employer continues to utilize an employee from the primary employer, and the primary employer chooses to place the employee with the secondary employer.

1602.9 The secondary employer is also subject to § 1621 with respect to its joint employees, whether or not the secondary employer is covered by DCFMLA.

History

SOURCE: Final Rulemaking published at 38 DCR 4350, 4351 (July 12, 1991); as amended by Notice of Final Rulemaking published at 57 DCR 10788, 10790 (November 19, 2010).

4 DCMR § 1603 APPLICABILITY – ELIGIBLE EMPLOYEES

1603.1 An eligible employee is an individual who works within the District, as described in subsection 1603.5, and has been employed by the same employer for one (1) year without a break in service except for regular holiday, sick, or personal leave granted by the employer and has worked at least one thousand (1,000) hours during the twelve (12)-month period immediately preceding the request for family or medical leave. Hours paid for holiday, sick, and vacation time consistent with the employer’s regular policies shall be included in the calculation of the one thousand (1,000) hour threshold.

1603.2 The one (1) year of employment without a break in service need not be immediately preceding the DCFMLA request, but if the break in service between the request for FMLA leave and the last date of service is greater than seven (7) years, the time need not be included in determining eligibility.

1603.3 Except as provided in § 1603.1, whether an employee has worked the minimum one thousand (1,000) hours of service shall be determined according to the principles established under the Fair Labor Standards Act (FLSA) for determining compensable hours of work. (See 29 CFR part 785.)

1603.4 The primary factor in determining whether the employee has worked the one thousand (1,000) hours shall be the number of hours an employee has worked for the employer within the meaning of the FLSA. The determination is not limited by methods of recordkeeping, or by compensation agreements that do not accurately reflect all of the hours an employee has worked for or been in service to the employer. Any accurate accounting of actual hours worked under FLSA principles may be used.

1603.5 An employee is an individual who has been employed by the same employer for one (1) year without a break in service except for regular holiday, sick, or personal leave granted by the employer and has worked at least one thousand (1,000) hours during the twelve (12)-month period immediately preceding the request for family or medical leave. Hours paid for holiday, sick, and vacation time consistent with the employer’s regular policies are included in the calculation of the one thousand (1, 000) hour threshold. An employee shall be deemed to work within the District if the person spends more than fifty percent (50%) of his or her work-time working for the employer in the District, if the person is employed by the employer in more than one (1) location, or the employee is based in the District of Columbia and regularly spends a substantial part of his or her time working for the employer in the District of Columbia and does not spend more than fifty percent (50%) of his or her work-time working for the employer in any particular state.

1603.6 Pursuant to the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301 et seq. (2006) (USERRA), an employee returning from fulfilling his or her National Guard or Reserve military obligation shall be credited with the hours of service that would have been performed but for the period of military service in determining whether the employee worked the one thousand (1,000) hours of service. Accordingly, a person reemployed following military service shall be credited with the hours that would have been worked for the employer added to any hours actually worked during the previous twelve (12)-month period in calculating whether the one thousand (1,000) hour requirement is met.

1603.7 In order to determine the hours that would have been worked during the period of military service, the employee’s pre-service work schedule may be used for calculations.

1603.8 If an employer does not maintain an accurate record of hours worked by an employee, including for employees who are exempt from FLSA’s requirement that a record be kept of their hours worked (for example, bona fide executive, administrative, and professional employees, as defined in 29 CFR part 541), the employer has the burden of showing that the employee has not worked the requisite hours.

1603.9 The determination of whether an employee has worked for the employer for at least one thousand (1,000) hours in the past twelve (12) months and has been employed by the employer for a total of at least twelve (12) months must be made as of the date the FMLA leave is to start. An employee may be on “non-FMLA leave” at the time he or she meets the eligibility requirements, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be “FMLA leave.”

1603.10 In determining DCFMLA eligibility for a District of Columbia government employee, the one thousand (1,000) hour requirement need not have been met with work in one (1) agency; rather, the employee may have worked at least one thousand (1,000) hours in total for the District government at large, in any agency or combination of agencies.

1603.11 Whether twenty (20) employees are employed by an employer in the District shall be determined when the employee gives notice of the need for leave. Once an employee is determined eligible in response to a notice of the need for leave, the employee’s eligibility shall not be affected by any subsequent change in the number of employees employed by that employer, even if the leave is taken on an intermittent or reduced leave schedule, if the leave is taken based on the same notice of the need for leave. An employer may not end employee leave that has already started if its number of employees drops below twenty (20).

1603.12 If an employer undergoes a business change, such as a merger, acquisition, or name change, the employer’s successor-in-interest shall be considered the same as the original employer for purposes of determining whether an employee has worked for the employer for the requisite number of months and hours to be eligible for DCFMLA leave.

History

SOURCE: Final Rulemaking published at 38 DCR 4350, 4351-52 (July 12, 1991); as amended by Notice of Final Rulemaking published at 57 DCR 10788, 10791 (November 19, 2010).

4 DCMR § 1604 ENTITLEMENTS—GENERALLY

1604.1 In any twenty-four (24)-month employment period, an eligible employee of a covered employer may take job-protected, unpaid leave, or paid leave if the employee has earned or accrued the paid leave, for sixteen (16) workweeks for medical leave purposes and sixteen (16) workweeks for family leave purposes. The medical leave and family leave taken by the employee must meet the standards set forth in §§ 1605 and 1606, respectively, and any other applicable provisions in this chapter.

1604.2 Nothing in this chapter shall prohibit an employer and an employee with a serious health condition from mutually agreeing to alternative employment for the employee throughout the duration of the serious health condition of the employee. A period of alternative employment shall not be considered use of medical leave under the DCFMLA and shall not cause a reduction in the amount of family or medical leave to which the employee is entitled under this chapter.

History

SOURCE: Final Rulemaking published at 38 DCR 4350, 4352-53 (July 12, 1991); as amended by Notice of Final Rulemaking published at 57 DCR 10788, 10793 (November 19, 2010).

4 DCMR § 1605 ENTITLEMENTS— MEDICAL LEAVE

1605.1 An employee who becomes unable to perform the functions of his or her position because of a serious health condition shall be entitled to medical leave for the period during which the employee is unable to perform the functions, except that the medical leave shall not exceed sixteen (16) workweeks during any twenty-four (24)-month period. The medical leave may be taken intermittently or on a reduced schedule basis for planned and/or unanticipated medical treatment or recovery when medically necessary.

1605.2 For purposes of this chapter, “serious health condition” means a physical or mental illness, injury, or impairment that involves inpatient care in a hospital, hospice, or residential health care facility, or continuing treatment or supervision at home by a health care provider or other competent individual. For the purposes of this definition:

The term “treatment” includes, but is not limited to, examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. A regimen of continuing treatment such as the taking of over-the-counter medications, bed rest, or similar activities that can be initiated without a visit to a health care provider is not, by itself, sufficient to constitute continuing treatment for purposes of DCFMLA leave.

The term “inpatient care” is the care of a patient in a hospital, hospice, or residential medical care facility for the duration of one (1) overnight or longer, or any subsequent treatment in connection with such inpatient care.

The term “incapacity” means inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment of the serious health condition, or recovery from the serious health condition.

Conditions for which cosmetic treatments are administered, such as most treatments for acne or plastic surgery, are not “serious health conditions” within this definition unless they render the recipient of such treatment incapacitated or unless complications develop.

1605.3 A serious health condition involving continuing treatment by a health care provider includes any one (1) or more of the following:

(a) A period of incapacity of more than three (3) consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves:

(1) Treatment two (2) or more times within thirty (30) days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (for example, physical therapist) under orders of, or on referral by, a health care provider. Whether additional treatment visits or a regimen of continuing treatment is necessary within the thirty (30) day period shall be determined by the health care provider;

(2) The term “extenuating circumstances” in subparagraph (a)(1) of this paragraph means circumstances beyond the employee’s control that prevent the follow-up visit from occurring as planned by the health care provider. Whether a given set of circumstances are extenuating depends on the facts. For example, extenuating circumstances exist if a health care provider determines that a second in-person visit is needed within the thirty (30)-day period, but the health care provider does not have any available appointments during that time period. The requirement for treatment by a health care provider means an in-person visit to a health care provider. The first (or only) in-person treatment visit must take place within ten (10) days after the first day of incapacity; or

(3) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider. The requirement for treatment by a health care provider means an in-person visit to a health care provider. The first (or only) in-person treatment visit shall take place within ten (10) days after the first day of incapacity.

(b) Any period of incapacity due to pregnancy, or for prenatal care. See also 29 CFR § 825.120;

(c) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:

(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider or by a nurse under direct supervision of a health care provider;

(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and

(3) May cause episodic rather than a continuing period of incapacity (such as asthma, diabetes, and epilepsy);

(d) A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease; or

(e) Any period of absence to receive multiple treatments (including any period of recovery from the treatments) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, for:

(1) Restorative surgery after an accident or other injury; or

(2) A condition that would likely result in a period of incapacity of more than three (3) consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (such as chemotherapy and radiation), severe arthritis (physical therapy), or kidney disease (dialysis).

1605.4 Absences attributable to incapacity under § 1605.3(b) or (c) shall qualify for DCFMLA leave even if the employee does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three (3) consecutive, full calendar days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. As a further example, an employee who is pregnant may be unable to report to work because of severe morning sickness.

1605.5 Nothing in this section shall require an employer to provide paid medical leave. Should an employee wish to use paid medical, sick, vacation, personal, or compensatory leave which the employee has accrued, the employee may use such paid leave, provided that it otherwise meets the employer’s requirements for the taking of such paid leave. Any paid medical, sick, vacation, personal, or compensatory leave provided by an employer that the employee elects to use for medical leave under this chapter shall count against the sixteen (16) workweeks of allowable medical leave provided by the DCFMLA.

1605.6 If an employer has a program that allows an employee to use the paid leave of another employee under certain conditions (commonly referred to as a leave bank), and the conditions for the employee’s use of the leave bank have been met, the employee may use the paid leave as medical leave, and the leave shall count against the sixteen (16) workweeks of medical leave provided by the DCFMLA.

History

SOURCE: Final Rulemaking published at 38 DCR 4350, 4353-56 (July 12, 1991); as amended by Notice of Final Rulemaking published at 57 DCR 10788, 10794 (November 19, 2010).

4 DCMR § 1606 ENTITLEMENTS – FAMILY LEAVE

1606.1 An employee shall be entitled to a total of sixteen (16) workweeks of family leave

during any twenty-four (24)-month period for:

(a) The birth of a child of the employee;

The placement of a child with the employee for adoption or foster

care;

The placement of a child with the employee, if the employee permanently

assumes and discharges parental responsibility for the child; or

The care of a family member of the employee who has a serious

health condition.

1606.2 The entitlement to family leave shall expire twelve (12) months after the birth of the child or placement of the child with the employee.

1606.3 In the case of care for a family member who has a serious health condition, the family leave may be taken intermittently or on a reduced schedule basis when medically necessary.

1606.4 Upon agreement between the employer and the employee, family leave for the birth, adoption, or foster care or other placement of a child may be taken on a reduced leave schedule, during which the sixteen (16) workweeks of family leave may be taken over a period not to exceed twenty-four (24) consecutive workweeks.

1606.5 With respect to joint employers, both employers must agree to the reduced schedule in order for the employee to be eligible for the reduced leave schedule.

1606.6 Nothing in this section shall require an employer to provide paid medical leave.

1606.7 Should an employee wish to use paid medical, sick, vacation, personal, or compensatory leave which the employee has accrued, the employee may use such paid leave, provided that it otherwise meets the employer’s requirements for the taking of such paid leave. Any paid medical, sick, vacation, personal, or compensatory leave provided by an employer that the employee elects to use for family leave under this chapter shall count against the sixteen (16) workweeks of allowable family leave provided pursuant to the DCFMLA.

1606.8 If an employer has a program that allows an employee to use the paid leave of another employee under certain conditions (commonly referred to as a leave bank), and the conditions for the employee’s use of the leave bank have been met, the employee may use the paid leave as family leave and the leave shall count against the sixteen (16) workweeks of family leave provided in this chapter.

1606.9 If two (2) family members are employees of the same employer:

(a) The employer may limit to sixteen (16) workweeks during a twenty-four (24)-month period the aggregate number of family leave workweeks to which the family members are entitled; and

(b) The employer may limit to four (4) workweeks during a twenty- four (24)-month period the aggregate number of family leave workweeks to which the family members are entitled to take simultaneously.

1606.10 For the purposes of § 1606.9, the term “same employer” includes an office,

division, subdivision, agency, or other organizational section of an

employer in which both employees have the same or interrelated duties

and the absence of both employees would unduly disrupt the conduct of the employer's business.

1606.11 The limitation on the aggregate number of family leave workweeks to

which the family members are entitled shall apply only if the family

members seek to take leave for the same underlying reason, for example,

care for the same family member or due to the birth of the same child.

1606.12 Information that an employee gives to an employer regarding a family relationship, pursuant to which the employee seeks to take family leave under this section, shall be used only to make a decision in regard to the provisions of this chapter. An employer shall keep any information regarding the family relationship confidential.

History

SOURCE: Final Rulemaking published at 38 DCR 4350, 4356-57 (July 12, 1991); as amended by Notice of Final Rulemaking published at 57 DCR 10788, 10797 (November 19, 2010). 2

4 DCMR § 1607 CUMULATIVE NATURE OF FAMILY AND MEDICAL LEAVE

1607.1 The entitlement to sixteen (16) weeks of family leave during any twenty- four (24)-month period shall be separate from and in addition to the entitlement to sixteen (16) weeks of medical leave during any twenty-four (24)-month period. This means that an eligible employee may take both up to sixteen (16) weeks of medical leave and up to sixteen (16) weeks of family leave during the same twenty-four (24)-month period, notwithstanding 29 CFR § 825.701(a)(1).

History

SOURCE: Final Rulemaking published at 38 DCR 4350, 4357-58 (July 12, 1991); as amended by Notice of Final Rulemaking published at 57 DCR 10788, 10798 (November 19, 2010).

4 DCMR § 1608 INTERACTION WITH THE FAIR LABOR STANDARDS ACT

1608.1 The provision by an employer of unpaid DCFMLA leave to an employee who is exempt from minimum wage and overtime requirements of FLSA based on his or her status as a salaried executive, administrative, professional, or computer employee (see 29 CFR part 541) shall not cause the employee to lose the FLSA exemption.

1608.2 If an employer provides unpaid DCFMLA leave to an employee who is considered an exempt employee under 29 CFR part 541, the employer may deduct pay from the employee’s salary for any hours taken as DCFMLA leave within a workweek without affecting the exempt status of the employee.

1608.3 When an exempt employee takes unpaid DCFMLA leave, an employer may deduct a proportionate part of the full salary for the time for which DCFMLA leave is taken. For example, if an exempt employee who normally works forty (40) hours per week uses four (4) hours of DCFMLA leave, the employer could deduct ten percent (10%) of the employee’s normal salary that week.

1608.4 When calculating the amount of pay allowed to be deducted under

§ 1608.2, the employer may use the hourly or daily equivalent of the employee’s full weekly salary or any other amount proportional to the time actually missed by the employee.

1608.5 For an employee paid in accordance with the fluctuating workweek method of payment for overtime (see 29 CFR § 778.114), the employer, during the period in which intermittent or reduced schedule DCFMLA leave is taken, may compensate an employee on an hourly basis and pay only for the hours the employee works, including time and one-half the employee’s regular rate for overtime hours.

1608.6 The change to payment on an hourly basis shall include the entire period during which the employee is taking intermittent leave, including weeks in which no leave is taken.

1608.7 The hourly rate shall be determined by dividing the employee’s weekly salary by the employee’s normal or average schedule of hours worked during weeks in which DCFMLA leave is not being taken.

1608.8 If an employer chooses to follow this exception from the fluctuating workweek method of payment, the employer must do so uniformly with respect to all employees paid on a fluctuating workweek basis who take DCFMLA leave.

1608.9 If an employer does not elect to convert the employee’s compensation to hourly pay, no deduction may be taken for DCFMLA leave absences.

1608.10 Once the need for intermittent or reduced scheduled leave is over, the employee may be restored to payment on a fluctuating workweek basis.

History

SOURCE: Final Rulemaking published at 38 DCR 4350, 4358 (July 12, 1991); as amended by Notice of Final Rulemaking published at 10788, 10798 (November 19, 2010).

4 DCMR § 1609 EMPLOYMENT AND BENEFITS PROTECTION

1609.1 An employee who takes family or medical leave under this chapter shall not lose any employment benefit or seniority accrued before the date on which the family or medical leave commenced.

1609.2 During any period in which an employee takes family or medical leave,

the employer shall maintain coverage for the employee under any group health plan, as defined in § 5000(b) of the Internal Revenue Code of 1986 (approved October 21, 1986 (100 Stat. 2012; 26 U.S.C. 5000(b)). For the purposes of this subsection, the term “group health plan” shall also include a group health plan provided by the District of Columbia government.

1609.3 The employer shall maintain coverage for the duration of the family or medical leave at the same level and under the same conditions that coverage would have been provided if the employee had not taken the family or medical leave.

1609.4 An employer may require the employee to continue to make any

contribution to a group health plan that the employee would have made if the employee had not taken family or medical leave. If an employee is unable or refuses to make the contribution to the group health plan, the employee shall forfeit the health plan benefit until the employee is restored to employment pursuant to § 1609.6 and resumes payment to the plan.

1609.5 When the employee who agreed to alternative employment is able to

perform the functions of the employee’s original position, the employee shall be restored to the employee’s original position.

1609.6 Except as provided in § 1609.8 and applicable provisions of a negotiated collective bargaining agreement, upon return from family or medical leave:

(a) The employee shall be restored by the employer to the position of

employment held by the employee when the family or medical leave commenced; or

(b) If the position held by the employee when the family or medical

leave commenced is no longer available, the employee shall be restored to a position of employment equivalent to the position held by the employee when the family or medical leave commenced. The position shall include equivalent employment benefits, pay, seniority, and other terms and conditions of employment.

1609.7 Except as provided in § 1609.2, nothing in this section shall entitle an employee restored by an employer to a position of employment to:

(a) The accrual of any seniority or employment benefit during any

period of family or medical leave; or

(b) Any rights, employment benefit, or position of employment other

than any right, employment benefit, or position of employment to which the employee would have been entitled had the employee not taken the family or medical leave.

1609.8 Except as provided in § 1609.6, an employer in the District may deny restoration of employment to a salaried employee if the employee is among the five (5) highest paid employees of an employer of fewer than fifty (50) persons or among the highest paid ten percent (10%) of employees of an employer of fifty (50) or more persons and the following conditions are met:

The employer demonstrates that denial of restoration of employment is necessary to prevent substantial and grievous economic injury to the employer’s operations and the injury is not directly related to the leave that the employee took pursuant to this chapter; and

The employer notifies the employee of the intent to deny restoration of employment and the basis for the decision at the time it provides the eligibility letter to the employee following the employee’s request for leave as described in § 1613.

1609.9 Section 1609.8 shall not apply if:

(a) The employer is under a contract to provide work or services and the absence of the employee prohibits them from completing the contract in accordance with the terms of the contract;

(b) Failure to complete the contract will cause substantial and grievous economic injury to the employer; and

History

Source: Notice of Final Rulemaking published at 57 DCR 10788, 10799 (November 19, 2010).

4 DCMR § 1610 COMPLAINT PROCEDURE

1610.1 Any person or organization, whether or not an aggrieved party, may file with OHR a complaint of a violation of the provisions of the DCFMLA. The complaint shall state the name and address of the person alleged to have committed the violation, hereinafter called the respondent, and shall set forth the substance thereof, and such other information as may be required by OHR.

1610.2 The Director on his or her own initiative may investigate individual instances and patterns of conduct prohibited by the provisions of this chapter and may initiate complaints in connection with such individual instances or patterns of conduct.

1610.3 A complaint under this chapter shall be filed with OHR within one (1) year after the occurrence of the unlawful practice, or the discovery of the unlawful practice. The filing of a timely complaint with OHR shall toll the deadline by which an employee may file a civil action as specified in section 11(b) of the DCFMLA (D.C. Official Code § 32-510(b)) during all times that the employee has a complaint pending with OHR.

1610.4 Complaints filed with OHR under the provisions of this chapter may be voluntarily withdrawn at the request of the complainant at any time prior to the completion of OHR’s investigation and findings as specified in D.C. Official Code § 2-1403.05. The circumstances accompanying a withdrawal may be investigated by OHR.

1610.5 All complaints shall be mediated before OHR commences a full investigation. During the mediation, the parties shall discuss the issues of the complaint in an effort to reach an agreement that satisfies the interests of all concerned parties. OHR shall grant the parties up to forty-five (45) days within which to mediate a complaint. If an agreement is reached during the mediation process, the terms of the agreement shall control resolution of the complaint. If an agreement is not reached, OHR shall proceed with an investigation of the complaint.

1610.6 With the exception of a private cause of action in a competent court of jurisdiction, the enforcement procedure contained in this chapter is the only administrative procedure that may be utilized to resolve an alleged violation of the DCFMLA.

History

Source: Notice of Final Rulemaking published at 57 DCR 10788, 10801 (November 19, 2010).

4 DCMR § 1611 THE ROLE OF THE OFFICE OF HUMAN RIGHTS-DISTRICT GOVERNMENT ONLY

THE ROLE OF THE OFFICE OF HUMAN RIGHTS-DISTRICT GOVERNMENT ONLY

1611.1 OHR shall periodically examine DCFMLA use by employees of District agencies by assessing the following factors:

Whether the agencies have appointed an FMLA Coordinator;

How many DCFMLA requests were made during the previous

fiscal year;

How many DCFMLA requests were granted during the previous fiscal year;

How many DCFMLA requests were denied during the previous fiscal year and the reason given for each denial;

How long each employee was out during his or her DCFMLA leave; and

Whether each request was for intermittent leave or for an extended period of time.

1611.2 After an initial compliance review in FY 2010, OHR shall determine each agency’s compliance with the DCFMLA on a quarterly basis. Beginning with the first quarter in FY 2011, a quarterly assessment of the factors contained in § 1611.1 shall be conducted by each agency’s director or his or her designee, and a report thereof shall be sent to OHR. OHR shall make an end of the fiscal year assessment of the quarterly reports and submit the results to the City Administrator.

1611.3 With respect to District of Columbia government, each agency shall be responsible for its own compliance with DCFMLA. The Department of Human Resources may play a consultative role and may issue administrative issuances, but it shall not be responsible for DCFMLA compliance of other agencies.

History

Source: Notice of Final Rulemaking published at 57 DCR 10788, 10802 (November 19, 2010).

4 DCMR § 1612 NOTICE TO BE PROVIDED BY OHR TO EMPLOYERS AND EMPLOYEES

1612.1 OHR shall provide to employers and employees information regarding their rights and obligations under the DCFMLA.

History

Source: Notice of Final Rulemaking published at 57 DCR 10788, 10803 (November 19, 2010).

4 DCMR § 1613 NOTICE TO BE PROVIDED BY EMPLOYERS

1613.1 Each employer and each District of Columbia government agency, through its FMLA Coordinator or designee, shall provide written and verbal notice to employers of their DCFMLA rights and responsibilities and shall also answer questions from employees concerning their rights and responsibilities under the DCFMLA.

1613.2 An employer shall make DCFMLA information available to employees by posting it and including it in its employee handbook or manual. Posting includes displaying a hard copy in a conspicuous place frequented by employees or an electronic copy on the employer’s website. If an employer does not maintain an employee handbook or manual, it shall distribute DCFMLA information to new employees in another form (such as through a handout or electronic (e-mail) distribution.

1613.3 When an employee requests DCFMLA leave, or when an employer acquires knowledge that an employee’s leave may be for a DCFMLA-qualifying reason, the employer shall notify the employee of his or her eligibility under the Act in accordance with § 1613.4.

1613.4 Within five (5) days after an employee’s request for leave under the DCFMLA, an employer shall provide written notice to the employee in the form of an eligibility letter. The eligibility letter shall notify the employee of the following:

Whether the employee is an “eligible employee” for the purposes of the DCFMLA, as described in § 1603.1;

If the employer determines that the employee is not an “eligible employee” for the purposes of the DCFMLA, as described in § 1602.1, the reasons for the employee’s ineligibility;

The specific expectations and obligations of the employee under the DCFMLA and, if applicable, federal FMLA (29 U.S.C. §§ 2601 et seq.);

The employee’s rights under the DCFMLA and, if applicable, federal FMLA;

The number of hours of leave which are available to the employee under the DCFMLA and, if applicable, federal FMLA; and

If applicable, a notice that the employee must submit a certification as referenced in § 1615, if such certification is required by the employer.

1613.5 As described in § 1615, an employer may require that an employee submit a medical certification to the employer’s FMLA Coordinator or designee within fifteen (15) days after the issuance of the eligibility letter, if the employee seeks to take medical leave. In addition, an employer may require the employee to submit a medical certification for leave related to a family member’s serious health condition.

1613.6 After an employer receives a medical certification from an employee, as provided in § 1615, the employer, through its FMLA Coordinator or designee, shall be responsible for designating leave as DCFMLA or federal FMLA-qualifying, and for giving notice in writing of the designation to the employee within five (5) business days after receiving the medical certification, unless there are extenuating circumstances.

1613.7 If family or medical leave taken by an employee qualifies as DCFMLA and/or federal FMLA leave, the employer may designate the leave as DCFMLA and/or federal FMLA leave, regardless of whether the employee requested to have the leave designated.

1613.8 Notices provided to employees with limited English proficiency must comply with the Language Access Act of 2004 (D.C. Official Code §§ 2-1931 et seq.).

1613.9 Failure to follow the notice requirements set forth in this section may constitute an interference with, restraint, or denial of the exercise of an employee’s DCFMLA rights. An employer may be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered.

History

Source: Notice of Final Rulemaking published at 57 DCR 10788, 10803 (November 19, 2010).

4 DCMR § 1614 REASONABLE NOTICE BY EMPLOYEE TO BE PROVIDED TO EMPLOYER

1614.1 If an employee has, or reasonably should have, at least thirty (30) days notice of the need for family or medical leave, the employee shall notify the employer of his or her intention to take family or medical leave at least thirty (30) days before the employee wishes the leave to begin. When the need for family or medical leave is known at least thirty (30) days in advance and an employee fails to give timely notice to the employer with no reasonable excuse, the employer may delay FMLA coverage until thirty (30) days after the date the employee provides notice.

1614.2 If an employee could not reasonably have foreseen the need for family or medical leave at least thirty (30) days in advance, the employee shall notify the employer of the need for leave as soon as practicable prior to the date on which the employee wishes the leave to begin.

1614.3 If the approximate timing of the need for leave is not foreseeable, the employee shall request family or medical leave from the employer no later than five (5) business days after the absence begins, or as soon as practicable thereafter. Notice may be given by the employee’s spokesperson (for example, the employee’s spouse, an adult family member, a health care provider, or another responsible party) if the employee is unable to do so personally.

1614.4 Notwithstanding § 1614.3, if the necessity for leave is foreseeable based on an expected birth or placement of a child with an employee, the employee shall provide the employer with at least thirty (30) days advance notice of the expected birth or placement of a child with the employee. If the exact date of birth or placement of a child is unknown, the employee may fulfill this advance notice requirement by communicating to the employer with sufficient notice the expected approximate birth or placement date.

1614.5 Notwithstanding § 1614.3, if the necessity for family or medical leave under this section is foreseeable based on planned medical treatment or supervision, an employee shall:

(a) Provide the employer with at least thirty (30) days advance notice of the medical treatment or supervision; and

(b) Make a reasonable effort to schedule the medical treatment or

supervision, subject to the approval of the health care provider, in a manner that does not unduly disrupt the operations of the employer.

1614.6 For purposes of the District of Columbia government, each employee must provide notice to their FMLA Coordinator or designee. An employee’s contact with the District of Columbia Department of Human Resources, if that agency is not the employer agency, shall not constitute the required notice under this section.

1614.7 When an employee or an employee’s spokesperson gives notice of the employee’s need for leave under this chapter, the employee or employee’s spokesperson does not need to expressly assert the employee’s rights under this chapter, nor does the employee or employee’s spokesperson need to mention the DCFMLA or FMLA in order to meet the employee’s obligation to provide notice. Rather, an employee giving notice of the need for DCFMLA leave need only explain the reason for the needed leave so as to allow the employer to determine whether the leave qualifies under this chapter. If an employer is unable to tell based on the notice given by an employee whether the leave requested by the employee might qualify as DCFMLA leave, it shall request additional information from the employee so as to make this determination.

History

Source: Notice of Final Rulemaking published at 57 DCR 10788, 10805 (November 19, 2010).

4 DCMR § 1615 CLAIMS FOR LEAVE—MEDICAL CERTIFICATION

1615.1 An employer may require that an employee support a claim for family leave under the DCFMLA for the care of a family member who has a serious health condition by submitting a medical certification issued by the family member’s health care provider.

1615.2 An employer may require that a claim for medical leave under the DCFMLA for an eligible employee who has a serious health condition be supported by a medical certification issued by the employee’s health care provider. If the employee’s employer requests such a certification, the employee shall submit the requested certification to the employer within fifteen (15) days, unless it is not practicable for the employee to do so under the particular circumstances, despite the employee’s diligent, good-faith efforts. For example, if the employee has diligently submitted the certification request to the employee’s health care provider in a timely manner, but the employee’s health care provider has not returned the completed certification before the fifteen (15) day deadline, the employee may need additional time to communicate with the health care provider regarding the need to return the completed certification or to see another health care provider who can complete the certification.

1615.3 The medical certification shall state the following:

(a) The date on which the serious health condition began, or is expected to begin;

(b) The probable duration of the condition;

provider that would entitle the eligible employee to leave under the DCFMLA; and

(d) For purposes of medical leave, a statement that the employee

is unable to perform the essential functions of the employee’s position; or, for purposes of family leave, an estimate of the amount of time that the employee is needed to care for the family member.

1615.4 The certification shall not include any genetic information or family medical history of the employee or the employee’s family members. An employer shall not require, and an employee is under no obligation to provide, genetic information or family medical history of the employee or the employee’s family members.

1615.5 If the employer believes that the medical certification returned by an employee does not provide the information required by § 1615.3, the employer shall notify the employee, in writing, of the missing or deficient information within five (5) days of receipt of the medical certification. The employee shall then have ten (10) days to correct the certification by providing the missing or deficient information to the employer, unless it is not practicable for the employee to do so, despite the employee’s diligent good-faith efforts.

1615.6 If the employer has reason to doubt the validity of the certification provided under this section, the employer may require that the employee obtain, at the expense of the employer, the opinion of a second health care provider approved by the employer, in regard to any information required to be certified.

1615.7 If the second opinion provided under this subsection differs from the original certification provided for in this section, the employee may obtain the opinion of a third health care provider mutually agreed upon by the employer and the employee, in regard to any information required to be certified under this section. The employer shall pay the cost of the opinion of the third health care provider. The third health care provider approved or mutually agreed upon by the employer and employee may not be a health care provider retained on a regular basis by the employer or employee, or a health care provider who otherwise bears such a close relationship to the employer or employee that there would be the appearance that the certification is biased.

1615.8 The opinion of the third health care provider shall be final and binding on the employer and employee.

1615.9 The employer may require that the employee obtain subsequent

recertifications if:

The employee requests an extension of leave or a different type or

frequency of leave, beyond what the employee requested in the

employee’s initial certification or request for DCFMLA leave;

The employer obtains new information which causes it to doubt the

validity of the employee’s stated reason for the leave or the

continuing validity of the certification; or

More than six (6) months has passed since the employee previously submitted a certification for the leave.

1615.10 Certification information requested under this section shall be used

only to make a decision in regard to the provisions of this chapter. An employer shall keep any medical information obtained from a certification request confidential.

1615.11 For family leave under the DCFMLA for the care of a family member who has a serious health condition, in addition to requiring submission of a medical certification, an employer may require that an employee support a claim for family leave by submitting a signed affidavit stating that the employee is, in fact, the person who will be taking care of the specific family member with the serious health condition.

History

Source: Notice of Final Rulemaking published at 57 DCR 10788, 10806 (November 19, 2010).

4 DCMR § 1616 CALCULATION OF LEAVE

1616.1 A private employer may choose any of the following methods for determining the twenty-four (24)-month period in which the sixteen (16) weeks of family leave and sixteen (16) workweeks of medical leave under DCFMLA may be taken by an employee:

The calendar year;

Any fixed twelve (12)-month leave year, such as a fiscal year, a

year required by state law, or a year starting on an employee’s anniversary date;

The twenty-four (24)-month period measured forward from the date any employee’s first DCFMLA leave begins; or

The twenty-four (24)-month period measured backward from the date an employee uses (or would use, pursuant to a request) DCFMLA leave.

1616.2 Employers may choose any of the alternatives described in § 1616.1 for

the leave entitlements, provided that the alternative chosen is applied

consistently and uniformly to all employees. Employers shall inform

employees of the method it has chosen to calculate DCFMLA leave

entitlements either as part of its general notice to employees, as described

in § 1613, or in its eligibility notices to employees.

1616.3 For District government purposes, the FMLA Coordinator shall utilize the “twenty-four (24)-month period forward” alternative described in § 1616.1 (c).

1616.4 For intermittent or reduced schedule leave, leave shall be counted based on the proportion of a normal workweek that the employee misses for DCFMLA leave purposes. For example, if an employee, who normally works five (5) days a week, takes two (2) days of intermittent DCFMLA leave, that leave shall be counted as two fifths (2/5) of one (1) workweek. If an employee who normally works forty (40) hours per week decreases to working thirty (30) hours per week due to reduced schedule DCFMLA leave, that leave shall be counted as one forth (1/4) of one (1) workweek for each week that such reduced schedule leave is maintained.

1616.5 The employer may designate leave on an hourly basis. Six hundred forty (640) hours shall equal 16 workweeks for a forty (40)-hour per week schedule.

History

Source: Notice of Final Rulemaking published at 57 DCR 10788, 10808 (November 19, 2010).

4 DCMR § 1617 ADMINISTRATION AND EMPLOYER RECORDKEEPING

1617.1 All District government agencies shall designate an FMLA Coordinator for the agency. The FMLA Coordinator may be the individual designated as the Human Resource Specialist for the agency.

1617.2 All private employers are encouraged to designate an FMLA Coordinator or a specific person to administer DCFMLA and the federal FMLA.

1617.3 An FMLA Coordinator shall be knowledgeable of the requirements in order to ensure proper handling and processing of all FMLA requests.

1617.4 The FMLA Coordinator of a District of Columbia government agency, or the FMLA designee of a private employer, shall have the following responsibilities:

(a) Notifying the employees of their rights under the applicable law through posters, the employee handbook or manual, and trainings on the subject;

(b) Providing information to an employee regarding his or her rights and obligations if an employee requests DCFMLA leave or if the employee gives notice of a DCFMLA-qualifying event;

(d) Issuing a designation letter within five (5) days after the submission of the employee’s medical certification.

1617.5 Each employer subject to the Act, through its FMLA Coordinator or other person coordinating FMLA compliance and/or responding to a DCFMLA request on behalf of a private employer, shall maintain records which document on an annual basis the following:

The total number of employees who have taken leave pursuant to

the DCFMLA;

The annual additional cost to the employer for the expenses incurred to replace an employee during the time the employee is on leave granted pursuant to the DCFMLA;

The annual additional cost incurred to pay for the employee’s health insurance during the time the employee is on leave granted pursuant to the DCFMLA;

The length of leave taken by an employee pursuant to the DCFMLA;

The reason(s) an employee took leave pursuant to the DCFMLA;

The salary, hourly wage, or grade level of the employee who has taken leave pursuant to the DCFMLA;

The employee’s request and supporting documents for leave requested pursuant to the DCFMLA; and

The employer’s disposition of the employee’s request for leave pursuant to the DCFMLA.

1617.6 The employer shall preserve the confidentiality of information relating to the circumstances and the particular reasons for an employee’s request for leave pursuant to the DCFMLA.

1617.7 Only individuals with a demonstrated need to know an employee’s DCFMLA status or request can be provided such information. Even if the information is provided, information contained on the DCFMLA questionnaire or medical certification shall not be disclosed or shared with a supervisor, manager, or other agency official unless it is determined that the supervisor, manager, or other agency official has demonstrated the need to know particular information contained on the DCFMLA questionnaire or medical certification for work-related reasons.

1617.8 Given the confidential nature of DCFMLA requests, DCFMLA forms and supporting medical certifications shall be maintained in a segregated and locked file, and the documents shall be stored separate and apart from the agency’s human resources files.

1617.9 Employer records relating to leave requests made pursuant to the DCFMLA shall be available for inspection by a representative of OHR during an employer’s regular business hours at the employer’s place of business in the District of Columbia as required by section 9(a) of the DCFMLA (D.C. Official Code § 32-508(a)).

History

Source: Notice of Final Rulemaking published at 57 DCR 10788, 10809 (November 19, 2010).

4 DCMR § 1618 EXCEPTION TO ELIGIBILITY — SCHOOL EMPLOYEES

1618.1 If the conditions of eligibility in § 1604 are met, a local educational agency (“educational agency”) or private elementary or secondary school (“school”) may require an employee who is employed principally in an instructional capacity to elect to:

(a) Take family or medical leave for periods not to exceed the exact duration of inpatient care or continuing treatment by a medical provider; or

(b) Transfer temporarily to an available alternative position offered by

the educational agency or school for which the employee is qualified, which has equivalent pay and benefits, and better accommodates the recurring periods of leave than the employee’s regular employment position.

1618.2 This section shall apply if the employee described in § 1618.1:

(a) Elects to take family leave or medical leave that is foreseeable based on planned medical treatment or supervision;

(b) Would be on leave for greater than twenty percent (20%) of the total number of working days in the period during which leave would extend; and

1618.3 If an employee of an educational agency or school who is employed

principally in an instructional capacity begins family or medical leave more than five (5) weeks before the end of the academic term, the educational agency or school may require the employee to continue to take leave until the end of the term if:

(a) The leave is at least three (3) weeks in duration; and

(b) The return to employment would occur during the three (3) week period before the end of the academic term.

1618.4 If an employee of an educational agency or school who is employed principally in an instructional capacity begins medical or family leave under § 1605 or § 1606 during the period that commences from more than three (3) weeks and up to and including five (5) weeks before the end of the academic term, the educational agency or school may require the employee to continue to take leave until the end of the term if:

(a) The leave is greater than two (2) weeks in duration; and

(b) The return to employment would occur during the two (2) week period before the end of the academic term.

1618.5 If an employee of an educational agency or school who is employed principally in an instructional capacity begins leave under § 1605 or § 1606 during the period that commences three (3) weeks or less before the end of the academic term and the duration of the leave is greater than five (5) working days, the educational agency or school may require the employee to continue to take leave until the end of the term.

1618.6 For purposes of a restoration of employment determination under section 6(d)(2) of the DCFMLA (D.C. Official Code § 32-505(d)(2)), in the case of an educational agency or school, the determination shall be made on the basis of established educational agency or school policies, practices, and collective bargaining agreements.

History

Source: Notice of Final Rulemaking published at 57 DCR 10788, 10811 (November 19, 2010).

4 DCMR § 1619 EXCEPTION TO ELIGIBILTY — UNIFORMED EMPLOYEES

1619.1 A uniformed member of the Metropolitan Police Department (MPD) or Fire and Emergency Medical Services Department (FEMS) is eligible for family and medical leave to the same extent as any other District government employee. However, rights provided under DCFMLA may be suspended temporarily if the employee is required by rules, regulations, or orders of MPD or FEMS, or by the provisions of a collective bargaining agreement, to be on duty.

History

Source: Notice of Final Rulemaking published at 57 DCR 10788, 10812 (November 19, 2010).

4 DCMR § 1620 INTERACTION WITH FEDERAL LAW

1620.1 Both DCFMLA and federal FMLA apply to employers who have at least fifty (50) employees within the District of Columbia provided an exception does not apply.

1620.2 For leave which qualifies under both DCFMLA and federal FMLA, the leave shall count against an employee’s entitlement for both laws and shall be counted or applied concurrently under both laws.

1620.3 Nothing in the DCFMLA shall modify or affect any federal or District law

prohibiting discrimination on the basis of 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, including the District of Columbia Human Rights Act (D.C. Official Code §§ 2-1401.01 et seq.) (DCHRA) and Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000(e) et. seq.).

1620.4 The DCFMLA is not intended to modify or affect the Rehabilitation Act of 1973 (29 U.S.C. §§ 701 et seq.), the Americans with Disabilities Act of 1990 (42 U.S.C.A. §§ 12101 to 12213) (ADA), or the disability provisions of the DCHRA or the regulations issued under those Acts.

1620.5 The leave provisions of the DCFMLA are wholly distinct from the reasonable accommodation obligations of employers covered under the ADA and the DCHRA. The purpose of the DCFMLA and federal FMLA is to make leave available to eligible employees and employers within its coverage, and not to limit already existing rights and protections. An employer shall therefore provide leave under whichever statutory provision provides the greater rights to employees.

1620.6 When an employer violates both the DCFMLA or federal FMLA and a discrimination law, an employee may recover under either or both statutes, if not otherwise prohibited by law. Double relief, however, shall not be awarded for the same loss. When remedies coincide, a claimant may utilize whichever avenue of relief is desired, if not otherwise restricted by law.

1620.7 If an employee is a qualified individual with a disability within the meaning of the ADA, the employer must make reasonable accommodations, barring undue hardship, in accordance with the ADA. At the same time, the employer must afford an employee his or her DCFMLA and federal FMLA rights. The ADA’s “disability” and DCFMLA and federal FMLA’s “serious health condition” are different concepts, and must be analyzed separately. DCFMLA entitles eligible employees to sixteen (16) weeks of medical leave in any twenty-four (24)-month period due to their own serious health condition, whereas the ADA allows an indeterminate amount of medical leave, barring undue hardship, as a reasonable accommodation.

1620.8 The DCFMLA and federal FMLA require employers to maintain employees’ group health plan coverage during DCFMLA and FMLA leave on the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period. However, ADA does not require maintenance of health insurance unless other employees receive health insurance during leave under the same circumstances. When evaluating a situation where both the DCFMLA or federal FMLA and the ADA apply to an individual, the law that provides the greater right or benefit to the individual shall be applied. (See 29 CFR § 825.702 for specific examples of the interaction of the federal FMLA with the ADA.)

1620.9 Under Title VII of the Civil Rights Act of 1964 and the DCHRA, an employer shall provide the same benefits for women who are pregnant as the employer provides to other employees with short-term disabilities. Because Title VII does not require employees to be employed for a certain period of time to be protected, an employee employed for less than twelve (12) months by the employer (and, therefore, not an “eligible” employee under DCFMLA) may not be denied maternity leave if the employer normally provides short-term disability benefits or the ability to take similar periods of medical leave to employees with the same tenure who are experiencing other short-term disabilities.

1620.10 Under the Uniformed Services Employment and Reemployment Rights

Act of 1994 (38 U.S.C. §§ 4301 et seq.) (USERRA), veterans are entitled to receive all rights and benefits of employment that they would have obtained if they had been continuously employed. Therefore, under USERRA, a returning service member would be eligible for DCFMLA or federal FMLA leave if the months and hours that he or she would have worked for the civilian employer during the period of military service, combined with the months employed and the hours actually worked, meet the DCFMLA or federal FMLA eligibility thresholds.

History

Source: Notice of Final Rulemaking published at 57 DCR 10812 (November 19, 2010).

4 DCMR § 1621 PROHIBITED ACTS

1621.1 It shall be unlawful for any person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided by this chapter. Such unlawful interference shall include discriminating in any manner against any person because the person engages or attempts to engage in any practice authorized by this chapter, including but not limited to requesting, inquiring about, or taking a period of family or medical leave. An employer shall not use the fact that an employee has requested, inquired about, or taken a period of family or medical leave under this chapter as a negative factor in employment actions, such as hiring, promotions, terminations, or disciplinary actions. An employer also shall not interfere with an employee’s ability to take leave under this chapter by, for example, transferring the employee to another worksite or reducing the employee’s hours so as to render the employee ineligible for such leave.

1621.2 It shall be unlawful for an employer to discharge or discriminate in any manner against any person because the person:

(a) Opposes any practice made unlawful by this chapter; or

(b) Participates in any procedure related to this chapter by doing any of the following:

(1) Filing or attempting to file a charge;

(2) Instituting or attempting to institute a proceeding;

(3) Facilitating the institution of a proceeding; or

(4) Giving any information or testimony in connection with an inquiry or proceeding related to this chapter.

History

Source: Notice of Final Rulemaking published at 57 10788, DCR 10814 (November 19, 2010).

4 DCMR § 1622 INVESTIGATION

1622.1 An aggrieved person (a “complainant”) shall file a written complaint with OHR alleging a violation of the DCFMLA within one (1) year after the occurrence or the discovery of the action or occurrence that the person alleges to be a violation.

1622.2 OHR shall serve a copy of the complaint filed pursuant to § 1622.1 on the employer who is alleged to have violated the DCFMLA (the “respondent”). OHR shall serve the copy of the complaint by certified mail within five (5) business days after the date the complaint is filed.

1622.3 The respondent shall file a response with OHR within fifteen (15) business days after the respondent receives the complaint.

1622.4 OHR shall investigate the complaint and, where necessary, conduct a hearing to decide if a violation of the DCFMLA occurred.

1622.5 OHR may accept statements of evidence with respect to the allegations made in the complaint and the response of the employer. OHR shall use such means as it considers suitable to conduct an investigation, including, but not limited to, written or verbal inquiry, field visits, fact-finding conferences, or other methods or a combination of methods.

1622.6 OHR shall complete its investigation within ninety (90) days after it commences the investigation or as soon as practicable thereafter.

1622.7 OHR shall issue a written determination as to whether probable cause exists to believe that a violation of the DCFMLA occurred. All determinations shall be supported by substantial evidence.

1622.8 The complaint shall be considered dismissed if no probable cause is found. The complainant may seek whatever judicial review may be available pursuant to section 10(c) of the DCFMLA (D.C. Official Code § 32-509(c)).

1622.9 If OHR determines that probable cause exists that a violation of the DCFMLA has occurred, it shall serve on the parties a notice indicating this determination, together with a Notice of Hearing setting a hearing date on the alleged violation.

1622.10 OHR shall schedule the hearing to be held within thirty (30) days after it serves the Notice of Hearing or as soon as practicable thereafter.

History

Source: Notice of Final Rulemaking published at 57 DCR 10788, 10815 (November 19, 2010).

4 DCMR § 1623 HEARINGS

1623.1 Hearings shall be conducted in accordance with the Subchapter I of the Administrative Procedure Act (D.C. Official Code §§ 2-501 et seq.) and shall be conducted by hearing examiners employed by, or providing pro bono assistance, to OHR.

1623.2 Discovery may be obtained through any of the following methods; provided, that all requests for discovery shall be filed with the hearing examiner and served on the adverse party no later than fifteen (15) calendar days prior to the hearing:

Deposition upon oral examination or written questions;

Written interrogatories;

Request for production of documents, objects, or permission to enter upon premises for inspection;

Physical or mental examination by a qualified practitioner; or

Requests for admissions.

1623.3 If a party fails to answer a request for discovery, the requesting party may move for an order from the hearing examiner compelling discovery by filing a motion to compel discovery. The party shall also file the motion on the adverse party.

1623.4 An evasive or incomplete answer to a request for discovery shall be considered a failure to answer.

1623.5 Should the party resisting discovery find that the discovery request is unduly burdensome, it may file a motion to quash with the hearing examiner. In its opposition to the motion, the requesting party shall show a substantial need for the requested material and its inability to obtain the material by alternate means.

1623.6 The party resisting discovery may file a response with the hearing examiner and serve the adverse party with the response within five (5) calendar days after the original request for an order.

1623.7 The hearing examiner may issue an order compelling the discovery, limiting its scope, issuing a protective order, or granting any other relief as the case and the interests of justice demand.

1623.8 Any party may request that the hearing examiner issue a subpoena compelling the appearance and testimony of a witness or the production of documents. The application for any subpoena shall state, with particularity, the testimony or evidence being sought and the time and place for production. The adverse party may challenge the issuance of a subpoena by filing a motion to quash with the hearing examiner and serving the motion to quash on the adverse party within five (5) calendar days after the service of the subpoena on the party challenging the subpoena.

1623.9 The hearing examiner shall have the same powers and remedies available in ruling on challenges to subpoenas as in ruling on challenges to discovery.

1623.10 A party that fails to obey an order of the hearing examiner with respect to discovery or a subpoena shall be subject to those sanctions or remedies which exist for similar failures to obey orders in civil cases in the Superior Court of the District of Columbia.

1623.11 Pre-hearing statements, if any, shall be filed by the parties at least ten (10) calendar days prior to the scheduled hearing date and served on the opposing party.

1623.12 Hearings shall be conducted in an impartial manner. The hearing examiner may ask questions of witnesses, request the submission of additional documents or other evidence, may issue subpoenas for witnesses who refuse to attend, and may otherwise act to ensure both the protection of the substantive rights of the parties and the presentation of all relevant issues necessary for consideration and decision.

1623.13 The party alleging violation of the DCFMLA bears the burden of coming forward with evidence to establish a prima facie case that the DCFMLA was violated. Once a prima facie case is established, the respondent employer shall bear the burden of producing evidence to the contrary. The complainant shall bear the burden of proof that the violations of the DCFMLA occurred; provided, that the employer shall bear the burden of proof that it should receive a reduction in damages pursuant to section 10(b)(6)(C) of the DCFMLA (D.C. Official Code § 32-509(b)(6)(C)).

1623.14 If either party fails to appear without good cause, the hearing examiner may hold that party in default, or may go forward with the hearing and decide the case on the basis of the record and the evidence presented by the appearing party.

1623.15 The hearing examiner may exclude evidence from the record if it is incompetent, irrelevant, immaterial, or unduly repetitious.

1623.16 Admissions or representations made in connection with prior settlement negotiations shall be excluded from the record.

1623.17 Hearsay evidence may be admitted into the record at the discretion of the hearing examiner and accorded such weight as the hearing examiner considers warranted by the circumstances.

1623.18 The parties may stipulate as to any matter of fact. A stipulation shall satisfy a party’s burden of proving that fact.

1623.19 The hearing examiner may, on the motion of a party or on its own initiative, take official notice of matters of common knowledge or of any information contained in the records of OHR or of other matters that can be verified. Official notice of any fact shall satisfy a party’s burden of proving that fact.

1623.20 When a witness is unavailable, as defined by the Civil Rules of the Superior Court of the District of Columbia, to testify in person, or upon the agreement of the parties, the hearing examiner may admit the content of the proffered testimony, in an alternate form, such as the following:

An affidavit attested to by the witness;

A transcript of the deposition of the witness; or

Written responses by the witness to interrogatories propounded by

the parties.

1623.21 If a party seeks the admission of an alternate form of testimony, the hearing examiner shall require that party to provide notice and evidence of the witness’s unavailability, as well as a proffer of the relevance of the testimony.

History

Source: Notice of Final Rulemaking published at 57 DCR 10816 (November 19, 2010).

4 DCMR § 1624 FINDINGS AND RECOMMENDATIONS OF THE HEARING EXAMINER

1624.1 Within thirty (30) days after receipt of the transcript or post hearing submissions, whichever is later, the hearing examiner shall transmit to the Director the following:

The complaint file;

The record of the hearing;

A report, including a brief and concise statement of the history of the subject matter of the complaint;

(d) Proposed findings of fact;

(e) Proposed conclusions of law;

(f) Analysis and recommendations addressing the following:

(1) Whether a violation of the Act occurred;

(2) Whether the employer shall pay the employee damages

and, if so, in what amount;

(3) Any reduction in damages for an employer who acted in good faith and has reasonable grounds to conclude that its conduct was not violative of the Act; and

(4) Any award of costs and reasonable attorney’s fees to the prevailing party; and

(g) A proposed decision and order.

1624.2 A copy of the hearing examiner’s report shall be transmitted to the parties or their representatives and, if not a party, to the agency involved, including a notice of the date on which the report was transmitted to the Director.

1624.3 Any party who is aggrieved by the adoption of the hearing examiner’s report and proposed recommendation or order, may, within twenty (20) days after receipt of the report, submit to the Director a proposed substitute order or findings, along with arguments in support of the proposed substitute.

History

Source: Notice of Final Rulemaking published at 57 DCR 10788, 10818 (November 19, 2010).

4 DCMR § 1625 FINAL DECISION OF THE DIRECTOR AFTER THE HEARING

1625.1 Following receipt of the hearing examiner’s recommendations or proposed decision or order, and any argument or proposed substitute order or findings submitted by a party, the Director shall do one of the following:

(a) Render a final decision which may adopt, reject, or modify the decision of the hearing examiner in whole or in part; or

(b) Remand the matter for further hearing.

1625.2 If the Director rejects or modifies the recommended decision of the hearing examiner, the final decision of the Director shall set forth in detail the specific reasons for rejection or modification.

1625.3 The final decision of the Director shall be served on the parties or their representatives and, if not a party, the agency involved.

1625.4 Either party may file a written request with the Director for reconsideration or to reopen the case within fifteen (15) days after the date of issuance of the final decision.

1625.5 A party seeking reconsideration of the Director’s final decision shall submit an application for reconsideration to the Director in writing, stating specifically the grounds upon which the request for reconsideration is based. The grounds shall be limited to misapplication of law, material misstatement of fact, or discovery of evidence not available during the investigation.

1625.6 A request for reconsideration shall only be considered if the requesting party demonstrates that there is newly discovered evidence that is competent, relevant, and material and was not reasonably discoverable prior to issuance of the final decision by the Director and that such evidence, if credited, would alter the ultimate outcome in the case.

1625.7 The letter transmitting the final decision of the Director shall advise the parties of their right to request reconsideration of the case pursuant to § 1625.4 or to seek judicial review of the decision by a court of competent jurisdiction.

1625.8 If either party requests reconsideration or the reopening of the case pursuant to § 1625.4, and the Director determines that the case should be reconsidered, the Director shall inform the parties that the case is being reconsidered or reopened and that the final decision previously issued by the Director is vacated or stayed.

1625.9 If neither party requests reconsideration or the reopening of the case pursuant to § 1625.4, the final decision of the Director shall become the final administrative action of the District government fifteen (15) days after issuance of the decision, and the parties shall be deemed to have exhausted all administrative remedies.

1625.10 If the Director decides not to grant a request for reconsideration, the Director shall so notify the parties in writing. At the time the notification is issued, the decision previously issued shall become the final administrative action of the District government.

1625.11 If no action is taken on a request for reconsideration or to reopen a case within ninety (90) days after the request is filed, the request shall be deemed disapproved, and the decision previously issued shall become the final administrative action of the District government.

1625.12 In the interests of justice, the Director may, on his or her own initiative, reopen or reconsider a case in which the Director has issued a decision at any time prior to the filing of an appeal by either party with a court of competent jurisdiction.

1625.13 If the Director reconsiders or reopens a case and modifies the case findings, the Director shall inform the parties that the decision previously issued by the Director is vacated and issue a second decision and order.

1625.14 A party may appeal the final decision of OHR to the Superior Court of the District of Columbia.

1625.15 The appealing party must file a Petition for Review with the Clerk of the Superior Court’s Civil Division within thirty (30) days after service of notice of the final decision.

History

Source: Notice of Final Rulemaking published at 57 DCR 10788, 10819 (November 19, 2010).

4 DCMR § 1699 DEFINITIONS

1699.1 For the purposes of this chapter, the following terms and phrases shall have the meanings ascribed:

Agency or agencies – an agency or agencies of the District of Columbia government.

Child – (a) a person under twenty-one (21) years of age; (b) a person, regardless of age, who is substantially dependent upon the employee by reason of physical or mental disability; and (c) a person who is under twenty-three (23) years of age who is a full-time student at an accredited college or university.

Committed relationship – a domestic partnership, as defined in section 2(4) of the Health Care Expansion Act of 1992; D.C. Official Code § 32-701(4), or a familial relationship between two individuals demonstrated by such factors as, but not limited to, mutual economic interdependence, including joint bank accounts, joint tenancy, shared lease, and joint and mutual financial obligations such as loans; domestic interdependence, including close association, public presentment of the relationship, and exclusiveness of the relationship; length of the relationship; and the intent of the relationship, as evidenced by a will or life insurance.

Director – the Director of the Office of Human Rights.

Employee employed in an instructional capacity – an employee employed principally in an instructional capacity by an educational agency or school whose principal function is to teach and instruct students in a class, a small group, or an individual setting, and includes athletic coaches, driving instructors, and special education assistants such as signers for the hearing impaired. The term does not include teacher assistants or aides who do not have as their principal function actual teaching or instructing, or auxiliary personnel, such as counselors, psychologists, curriculum specialists, cafeteria workers, maintenance workers, bus drivers, or other primarily noninstructional employees.

Employer – an individual, firm, association, or corporation, a receiver or trustee of any individual firm, association, or corporation, or the legal representative of a deceased employer, including the District of Columbia government, who employs the services of another individual for pay in the District.

Employment benefit – a benefit, other than salary or wages, provided or made available to an employee by an employer, including, but not limited to, group life, health, and disability insurance; sick and annual leave; and educational and pension benefits, regardless of whether the benefit is provided by a policy or practice of an employer or by an employee welfare benefit plan as defined in title 1, subtitle A, section 3(3) of the Employee Retirement Income Security Act of 1974, effective September 2, 1974 (88 Stat. 833; 29 U.S.C. § 1002(1)).

Family member – (a) a person related by blood, legal custody, or marriage; (b) a foster child; (c) a child who lives with an eligible employee and for whom the eligible employee permanently assumes and discharges parental responsibility; or (d) a person with whom the eligible employee shares or has shared, within the last year, a mutual residence and with whom the eligible employee maintains a committed relationship.

Health care provider – a person licensed under federal, state, or District law to provide healthcare services.

Intermittent leave – leave taken in separate periods of time due to a single illness or injury, rather than for one continuous period of time. Intermittent leave may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six (6) months, such as for chemotherapy.

Local educational agency – this term shall have the same meaning as the term has in section 1471(12) of the Elementary and Secondary Education Act of 1965, approved April 28, 1988 (102 Stat. 201; 20 U.S.C. § 2891(12)).

Mayor – the Mayor of the District of Columbia.

Primary employer – an employer that shares a joint employment relationship with a secondary employer regarding an employee. The primary employer generally has the following authority or responsibilities: hiring and firing, assigning or placing the employee, making payroll, and provision of employment benefits. For a joint employment relationship that exists when a temporary placement agency supplies employees to a second employer, the placement agency most commonly would be the primary employer.

Reduced leave schedule – leave that is scheduled for a fewer number of hours than the employee is officially scheduled to work each workweek or workday. A reduced leave schedule is one that includes less than forty (40) hours or five (5) days in a given week. Examples of reduced schedule leave would include where an employee who typically works a full-time schedule works less than full-time due to the fatigue, pain, or anxiety caused by the employee’s normal schedule or due to a serious health condition, or where an employee works a reduced schedule in order to provide care or psychological comfort to a family member with a serious health condition who does not require full-time care.

Secondary employer – an employer that shares a joint employment relationship with a primary employer regarding an employee. A secondary employer generally lacks authority over an employee regarding things such as hiring and firing, assigning or placing the employee, making payroll, and provision of employment benefits. For a joint employment relationship that exists when a temporary placement agency supplies employees to another employer, that employer which receives the employees would generally be the secondary employer.

State – a state of the United States, the District of Columbia, or a territory or possession of the United States.

Workweek – a period of not more than forty (40) hours over seven (7) consecutive days, beginning on a day designated by the employer.

History

SOURCE: Final Rulemaking published at 38 DCR 4350, 4358-59 (July 12, 1991); as amended by Notice of Final Rulemaking published at 57 DCR 10788, 10821 (November 19, 2010).

4-17 COMPLAINTS OF INTERFERENCE AND RETALIATION UNDER THE UNIVERSAL PAID LEAVE AMENDMENT ACT OF 2016 AND COORDINATION OF BENEFITS WITH THE D.C. FAMILY & MEDICAL LEAVE ACT OF 1990 AND THE FEDERAL FAMILY & MEDICAL LEAVE ACT OF 1993

4 DCMR § 1700 AUTHORITY, SCOPE, AND PURPOSE

1700.1 Pursuant to Mayor’s Order 2021-026, dated March 4, 2021, the Mayor has delegated her regulatory authority under section 102(b)(1) of the Universal Paid Leave Amendment Act of 2016 (UPLA), effective April 7, 2017 (D.C. Law 21-264; D.C. Official Code § 32-541.10), to the Office of Human Rights (OHR) to enforce the provisions of, and to receive and adjudicate administrative complaints alleging interference or retaliation made under, section 110(a) and (b) of the UPLA (D.C. Official Code § 32-541.10(a) and (b)).

1700.2 OHR has no jurisdiction over claims determinations or appeals of claims determinations under the UPLA.

1700.3 The purpose of this Chapter is to describe the scope of OHR’s authority under the UPLA, to clarify the procedures and remedies for complaints under OHR’s jurisdiction, to interpret provisions of the UPLA relevant to OHR’s enforcement authority, and to describe how the UPLA interacts with the DCFMLA and the federal FMLA.

History

SOURCE: Final Rulemaking published at 69 DCR 009526 (July 29, 2022). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1700

4 DCMR § 1701 INTERFERENCE PROHIBITED

1701.1 As provided in section 110(a) of the UPLA (D.C. Official Code § 32-541.10(a)), it is unlawful for any person to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided by the UPLA.

1701.2 Unlawful interference, restraint, or denial includes, but is not limited to:

Intimidating or threatening conduct intended to discourage an employee from accessing paid-leave benefits, or which has the effect of discouraging an employee from accessing paid-leave benefits;

Providing false or misleading information intended to interfere with an employee’s ability to access paid-leave benefits, or which has the effect of interfering with an employee’s ability to access paid-leave benefits;

Failing to provide notice, as required by 7 DCMR § 3407 (Employer Responsibilities (under the UPLA), where such failure has the effect of causing material harm to the employee, including the loss of paid-leave benefits;

Failing to grant a leave request for a period of leave for which paid-leave benefits would be available, absent a legitimate business reason, where such denial of leave has the effect of causing material harm to the employee, including the loss of paid-leave benefits;

Failing to cooperate with the Department of Employment Services in processing a request for paid-leave benefits, where such failure has the effect of causing material harm to the employee, including the loss of or significant delay in receiving paid-leave benefits;

Failing to cooperate with OHR during the processing of a complaint filed under this Chapter, where such failure has the effect of substantially impeding OHR’s enforcement efforts or of foreseeably causing material harm to the employee, including a significant delay in compensation for one or more violations of this Chapter; and

Failure to comply with § 1704.4.

History

SOURCE: Final Rulemaking published at 69 DCR 009526 (July 29, 2022). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1701

4 DCMR § 1702 RETALIATION PROHIBITED

1702.1 As provided in section 110(b) of the UPLA (D.C. Official Code § 32-541.10(b)), it is unlawful for an employer to retaliate in any manner against any other person because the person:

(a) Opposes any practice made unlawful by the UPLA;

(b) Files or attempts to file a charge, institutes or attempts to institute a proceeding, or facilitates the institution of a proceeding under the UPLA;

(d) Gives any information or testimony in connection with an inquiry or proceeding related to the UPLA.

1702.2 Unlawful retaliation includes, but is not limited to:

Subjecting an employee to intimidation, threat, reprisal, harassment, or discrimination;

Subjecting an employee to an adverse employment action, absent a legitimate business reason, including discipline, discharge, suspension, transfer or assignment to a lesser position in terms of job classification, job security, or another term or condition of employment, including those terms and conditions enumerated in 4 DCMR § 506;

Reducing the pay or hours of work of an employee or denying an employee additional hours of work, absent a legitimate business reason;

Informing any prospective employer (whether or not covered under the UPLA) that the person has engaged in a protected activity described in § 1702.1 of this Chapter, absent a legitimate business reason;

Reporting, or threatening to report, the actual or suspected citizenship or immigration status of an employee, former employee, or family member of an employee or former employee, to a federal, state, or local agency; and

Engaging in conduct which would reasonably have the effect of discouraging a reasonable employee from accessing paid-leave benefits, absent a legitimate business reason.

History

SOURCE: Final Rulemaking published at 69 DCR 009526 (July 29, 2022). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1702

4 DCMR § 1703 INTERACTION WITH THE FEDERAL FMLA AND THE DCFMLA: CONCURRENT USAGE, ENTITLEMENTS, NOTICE, RIGHTS, AND SCOPE OF COVERAGE

1703.1 The UPLA provides a pay benefit but does not create an entitlement to take leave beyond the entitlements of the D.C. Family & Medical Leave Act of 1990 (DCFMLA), effective October 9, 1990 ((D.C. Law 8-181; D.C. Official Code §§ 32.501 et seq.), as amended.

1703.2 As provided in section 107(b) of the UPLA (D.C. Official Code § 32-541.07(b)), if leave, which qualifies for the paid-leave benefit under the UPLA, qualifies as protected leave under the federal FMLA as amended, or the DCFMLA, the period of leave under the UPLA shall run concurrently with, and not in addition to, leave taken under the federal FMLA and/or the DCFMLA.

1703.3 Except as provided by § 1701.2(d), an employer is not required by the UPLA to grant a leave request for a period of leave for which paid-leave benefits would be available, unless otherwise required by sections 3, 3a, and 4 of the DCFMLA (D.C. Official Code §§ 32-502, 32-502.01, and 32-503) (Family, Covid-19, and Medical Leave Entitlements under the DCFMLA) or other federally mandated provisions.

1703.4 Even if a DCFMLA leave entitlement has been exhausted during the pertinent twenty-four (24)-month DCFMLA leave calculation period, nonetheless under some circumstances, eligibility for paid-leave benefits during the fifty-two (52)-week paid-leave benefits calculation period may remain; however, such additional period of leave would not be subject to any of the entitlements or protections afforded by the DCFMLA.

1703.5 An employee’s failure to comply with the UPLA notice requirements of 7 DCMR § 3509 (Employee Notice to Employer (Under the UPLA)) shall not, of itself, affect an employee’s rights under the DCFMLA, but designation of DCFMLA coverage may be delayed pursuant to 4 DCMR § 1614 (Reasonable Notice by Employee to be Provided to Employer Under the DCFMLA).

1703.6 No provision of the UPLA or this Chapter, whether substantive or procedural, nor any logistical aspect of the processing of paid-leave benefits, shall affect the legal rights of an employee or the legal obligations of an employer under the DCFMLA.

1703.7 Paid-leave benefits under the UPLA are not limited to employees who are covered by the DCFMLA, because the scope of “covered employer,” “covered employee,” and “eligible individual” under section 101 of the UPLA (D.C. Official Code § 32-541.01)), are each broader than the definitions of “employee,” and “employer,” under section 2 of the DCFMLA (D.C. Official Code § 32-501(1)-(2)) and are not subject to the applicability requirement in § 17 of the DCFMLA (D.C. Official Code § 32-516(2)).

History

SOURCE: Final Rulemaking published at 69 DCR 009526 (July 29, 2022). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1703

4 DCMR § 1704 INTERACTION WITH DCFMLA: EMPLOYMENT AND BENEFITS PROTECTION

1704.1 Pursuant to section 107(c) of the UPLA (D.C. Official Code § 32-541.07(c)), the UPLA does not provide job protection beyond that which the DCFMLA provides. However, where a person is eligible to receive paid-leave benefits for a period of leave, which also qualifies as DCFMLA leave, the person is entitled to job protection under the DCFMLA, pursuant to 4 DCMR § 1609 (DCFMLA Employment and Benefits Protection).

1704.2 Regardless of whether a period of leave is job protected under the DCFMLA or other job protection laws, actions such as reduction of hours, transfer to a lesser position, or termination, absent a legitimate business reason, could constitute retaliation under § 1702.2 of this Chapter, if taken after a period of leave for which UPLA benefits were requested or received.

1704.3 Where an employee is eligible to receive paid-leave benefits for a period of leave, which also qualifies as DCFMLA leave, the employer must maintain seniority and benefits as required by the DCFMLA, pursuant to 4 DCMR § 1609.

1704.4 Where a person customarily receives benefits or seniority for unpaid, non-DCFMLA qualifying leave, these benefits or seniority must be maintained while the person is on leave for which the employee is eligible for paid-leave benefits under the UPLA.

History

SOURCE: Final Rulemaking published at 69 DCR 009526 (July 29, 2022). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1704

4 DCMR § 1705 ADMINISTRATIVE PROCEEDINGS AND CIVIL ACTIONS

1705.1 A person claiming to be aggrieved by an act of interference or retaliation under the UPLA may file an administrative complaint pursuant to this Chapter within one (1) year of the occurrence or discovery of the alleged violation, whichever is later.

1705.2 OHR shall process an administrative complaint filed under this Chapter in accordance with the complaint procedures of the DCFMLA (D.C. Official Code §§ 32-501, et seq.), as set forth in 4 DCMR §§ 1600 et seq.

1705.3 To the extent practicable, where a complaint states a claim of one or more violations under both the UPLA and the DCFMLA, OHR shall attempt to process the complaints concurrently.

1705.4 Pursuant to D.C. Official Code § 32-541.12(b)(2), the one-year statute of limitations to file a civil action under the UPLA shall be tolled during the pendency of an administrative proceeding pursuant to this Chapter or during any period when an employer has failed to comply with the notice provisions of section 106(i) of the UPLA (D.C. Official Code § 32-541.06(i)) and 7 DCMR § 3407 (Employer Responsibilities under the UPLA). An employer’s failure to comply with any notice provision shall not toll the one-year statute of limitations to file an administrative action.

1705.5 Any rule found at 4 DCMR §§ 1600 et seq. regarding any effect of a private cause of action on the processing of an administrative complaint is applicable to proceedings governed by this Chapter, except that if there is any inconsistency, the UPLA shall control.

1705.6 The Director of OHR may initiate a complaint of interference in violation of § 1701.2(f) of this Chapter, where the Director plausibly believes that a person other than the complainant has engaged in conduct prohibited by § 1701.2(f).

History

SOURCE: Final Rulemaking published at 69 DCR 009526 (July 29, 2022). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1705

4 DCMR § 1706 REMEDIES

1706.1 The damages and relief for which a person may be eligible under this Chapter shall be the same as those under the DCFMLA (D.C. Official Code § 32-509(b)(6) and (7)), except the person may not recover duplicative damages, fees, or costs under both this Chapter and the DCFMLA.

History

SOURCE: Final Rulemaking published at 69 DCR 009526 (July 29, 2022). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1706

4 DCMR § 1799 DEFINITIONS

For the purposes of this Chapter, the following words and phrases shall have the meanings ascribed:

“DCFMLA” – The District of Columbia Family and Medical Leave Act of 1990, effective October 3, 1990 (D.C. Law 8-181; D.C. Official Code §§ 32-501 et seq.).

“DOES” - the District of Columbia Department of Employment Services.

“Employee” - an individual who qualifies as a “covered employee” pursuant to D.C. Official Code § 32-541.01(3).

“Employer” - a “covered employer” pursuant to D.C. Official Code § 32-541.01(4).

“Federal FMLA” - The Family and Medical Leave Act of 1993, approved February 5, 1993 (Pub. L 103-3; 107 Stat. 6; 29 U.S.C.A. §§ 2601 et seq.).

“Paid-Leave Benefits” - leave or benefits related to the UPLA as described throughout 7 DCMR §§ 3400 et seq. and 3500 et seq.

“OHR” – the District of Columbia Office of Human Rights.

“UPLA” – The Universal Paid Leave Amendment Act of 2016, effective April 7, 2017 (D.C. Law 21-264; D.C. Official Code § 32-541.02(b)).

History

SOURCE: Final Rulemaking published at 69 DCR 009526 (July 29, 2022). District of Columbia Municipal Regulations Human Rights and Relations 4 DCMR § 1799