ACLU/NCA testifies on anti-harassment bill
American Civil Liberties Union
Of the National Capital Area
Stephen M. Block
Subcommittee on Human Rights, Latino Affairs, and Property Management
Council of the District of Columbia
"Prohibition of Harassment and Sexual Harassment Amendment Act of 2001," Bill 14-132
December 3, 2001
At the request of the Gay and Lesbian Activists Alliance, the ACLU of the National Capital Area drafted a bill to substitute for the version originally introduced by Councilmember Carol Schwartz. For the most part, the differences are technical. Because we understand that Councilmember Schwartz is agreeable to the substitution, I shall limit my comments to the substituted bill.
Before reviewing the bill's provisions, the ACLU would like to express its appreciation to Councilmember Schwartz for taking the initiative to introduce this legislation. As the bill states in its Findings, the District can justifiably take real pride in having been among the first to pass broad scope anti-discrimination protection. We are grateful to Carol Schwartz for working to strengthen the Human Rights Act.
For the most part, the bill clarifies but does not alter the protections afforded by the Human Rights Act. Thus, the bill makes explicit that harassment engaged in for reasons prohibited by the Act is unlawful discrimination. This clarification is especially useful in the application of the Act to educational institutions. We also make explicit that the Act prohibits discrimination against persons whether they are actual or perceived members of a protected class.
We recognize that existing case law is generally positive in applying the Human Rights Act to sanction discrimination. Our purpose is to encourage this development and not to limit this favorable trend.
The following is a section-by-section analysis of the bill:
Section 2(a): The definition of "unlawful discriminatory practice" is expanded to make explicit that "unlawful discriminatory practice" includes harassment engaged in for unlawful discriminatory reasons.
Section 2(b): Concerning the application of the Act to educational institutions, this section makes explicit that the Act applies to the "services, programs or benefits of any program or activity" and not merely to the "services" of an educational institution. It is appropriate to make this provision for educational institutions parallel to the provision concerning the District of Columbia in section 4(c) of the bill.
Section 3: This section makes explicit the Act's protection of persons whether they are actual or perceived members of protected classes. It should not be a defense to a complaint alleging discrimination that the respondent was mistaken about the person's membership in a protected class. Thus, harassment of a student based on the mistaken belief that the student was gay would still constitute a valid basis for a complaint under the Act.
Section 4(a) and (b): These provisions resolve the question whether persons with discrimination complaints against the District of Columbia under the Human Rights Act are required to exhaust administrative remedies. Notwithstanding two Superior Court decisions that there is no such requirement, the Corporation Counsel, in a March 6, 2001letter to GLAA, argues that exhaustion is required in all areas of discrimination and not only in the area of employment, for which there is D.C. Court of Appeals authority. GLAA and the ACLU believe that all persons, employees of the District of Columbia and non-employees, should be free to elect the forum to pursue their discrimination complaints against the District of Columbia, the Office of Human Rights or Superior Court. No one should be required to exhaust the administrative remedy before filing a lawsuit. The right to elect one's remedy should extend to all areas of discrimination covered by the Human Rights Act.
For many complaints of discrimination, the administrative remedy through the Office of Human Rights will be seen as most appropriate, especially where the complainant is not represented by an attorney. In other cases where substantial damages are claimed, the complainant may legitimately prefer to have a jury in Superior Court hear the case from the outset.
While an argument could be made that the Office of Human Rights has special expertise in handling complaints of discrimination, that argument implies that the exhaustion of administrative remedies requirement should be applied to all complaints under the Human Rights Act and not just those against the District of Columbia. Happily, no one makes that argument. It makes no sense to require exhaustion of administrative remedies for cases where the District of Columbia is the respondent but not for other cases.
The other problem with the exhaustion of administrative remedies requirement is that there currently is a substantial backlog of cases in the Office of Human Rights. It takes too long for a complaint to be investigated and decided at that level. While courts may also not be able to resolve cases expeditiously, a complainant who wants a court to hear the case should not have to suffer the delays of both forums.
In addition, there will be cases where immediate injunctive relief is required, which can only be granted by a court and not the Office of Human Rights. Where the District is the respondent, the requirement for the exhaustion of administrative remedies prevents such relief.
And finally, we believe that employees of the District of Columbia should have the same rights under the Human Rights Act as persons not employed by the District. Since there is no exhaustion of administrative remedies requirement for persons who proceed against their non-governmental employer, there should not be any exhaustion of administrative remedies requirement for employees of the District of Columbia who proceed against their employer.
Section 4(c) makes explicit that the Human Rights Act applies to all the programs, services, benefits, and facilities of the government of the District of Columbia. The clarification puts to rest any argument that the application of the Act to the District of Columbia depends upon where the services are rendered. Thus a complaint alleging that a District EMT refused to provide first aid to a person because she was transgendered would be subject to the Act whether that refusal took place on the street or elsewhere.
Sections 5, 6, and 7 of the bill amend the regulations that govern the public schools in the District.
Section 5 voices the policy that all members of the school community should be respectful and tolerant of their differences including different and controversial ideas. Harassment is defined in the school context as "verbal and non-verbal conduct that creates a hostile environment that substantially interferes with a student's educational benefits, opportunities, performance, or with a student's physical or psychological well-being or that is threatening or seriously intimidating."
Section 6 adds two items to the list of grounds that constitute "just cause for adverse action" to which school employees are subject.
First, is any practice, including harassment, that violates the Human Rights Act.
Second, is being "deliberately indifferent to conduct by students on school premises, on school-related transportation or at school sponsored activities that violates or, if continued, will violate the rights of students as provided in the Student Bill of Rights, CDCR 5-24 2401 et. seq." Thus school employees are subject to discipline if they knowingly and willfully disregard incidents in which one student violates the rights of another. Regardless of their assigned jobs, school employees who know of serious student-on-student abuse may not turn a blind eye. At a minimum, they are required to report the matter to a responsible official.
Section 7 adds "harassment of a student" to the list of Level II infractions for which a student may be disciplined. Whereas item (g) in that list concerns only sexual harassment, the new item (h) includes harassment for all reasons prohibited by the Human Rights Act.
Thank you for your consideration.