GLAA calls for clarification of Human Rights Act to include harassment
the Prohibition of Harassment and Sexual Harassment Amendment Act of 2001 to be amended and known as the Clarification of the Human Rights Act, Amendment Act of 2001
Delivered before the Subcommittee on Human Rights, Latino Affairs and Property Management
December 3, 2001
Good morning, Chairman Graham, Councilmembers and fellow citizens.
My name is Bob Summersgill. I am President of the Gay and Lesbian Activists Alliance of Washington (GLAA), the oldest continuously active gay and lesbian civil rights organization in the country.
We would like to thank you for the opportunity to testify on this bill. We would also like to thank Councilmember Carol Schwartz who took an early interest in this issue and introduced the bill.
GLAA's first lobbying success was persuading the DC Board of Education in May 1972 to ban discrimination on the basis of sexual orientation throughout the public school system. We have been involved in a number of other issues involving the school system over the past 29 years.
In 1973, GLAA worked for the passage of the Human Rights Act and then in 1977, worked with the newly elected DC Council to reenact the Human Rights Bill as part of the DC Code without amendments.
In December of 1998, GLAA became aware of the lack of a policy prohibiting harassment in the DC Public Schools. We started a lobbying effort to convince the DCPS to adopt a policy to protect the students. With the help of Councilmembers Graham and Schwartz; the direction of the Emergency Transitional Educational Board of Trustees; and the advice of the Office of the Corporation Counsel (OCC), then-Superintendent Arlene Ackerman issued Directive number 314.5, "Harassment and Sexual Harassment against Students" on March 29, 2000.
The Directive specifically calls for implementation through the Student Disciplinary Policy in Title 5 of the DCMR §2503.2, Level II Infractions, and states that harassment constitutes grounds for disciplinary options and/or class exclusion as set forth in those provisions.
In the wake of the resignation of Superintendent Ackerman, changes in the leadership of community organizations including GLAA, and the change in School Board structure and membership, meetings to implement the Directive ceased and the Directive has not been implemented or even announced to teachers or students.
This has left two problems. First, the Directive can only apply to the DC Public Schools; and two, Title 5, Chapter 25 of the DCMR was replaced and published in the DC Register on February 23, 2001 without any mention of harassment as mandated in the Superintendent's Directive.
The bill before us elegantly addresses both of these problems and codifies and makes explicit the case law that has developed around human rights and harassment over the past 28 years since the DC Human Rights Act was first written.
First, the definition of "Unlawful discriminatory practice" is rewritten to explicitly include harassment as a form of discrimination. This insures that harassment in all DC educational institutions-as well as in employment, housing and public accommodation-is explicitly prohibited and not just implicitly prohibited.
Second, the words "actual or perceived" are added before each listing of the protected categories. This language removes the question of whether or not a victim of discrimination or harassment is a member of a particular protected group, focusing rather on whether the discriminator thought they were. Straight people who are thought to be gay are often harassed and otherwise subject to discrimination; and Hindus and Sikhs have recently been subject to harassment and worse when thought to be Muslim. The question of applicability of the Human Rights Act should depend not on a victim's actual sexual orientation, religion, etc., but rather on the basis and motivation of the discriminatory action.
Third, the bill removes special obstacles to bringing claims of discrimination against the DC Government. When Tyra Hunter lay gravely injured on the side of the road, and the Firefighter Adrian Williams withheld care and harassed her, the OCC argued that the street was not a place of public accommodation and therefore the suit was invalid. At GLAA's urging the then-Corporation Counsel, Judge John Ferren, issued a praecipe removing that absurd argument. Here, the programs, services, benefits or facilities of the District Government are explicitly added to the definition of a public accommodation.
This is also consistent with the Executive Order 94-132 which former Mayor Sharon Pratt Kelly signed on May 19, 1994, stating, "Offices and agencies of the District government are covered by the prohibitions of the Human Rights Act. There are no exceptions. No office or agency of the District government may engage in any prohibited activity, including denial of full and equal enjoyment of its services, facilities, privileges or advantages to any person in violation of the Human Rights Act."
Mayor William's Order 2000-131 issued on August 21, 2000 also makes clear that the District Government is subject to the law.
The OCC also argued that Tyra Hunter's case was invalid because her mother had not exhausted administrative remedies prior to bringing suit against the District. The City lost this argument and lost similar arguments in several other cases but continues to make the argument nonetheless.
The OCC is legally correct when it argues that DC employees must exhaust administrative remedies before taking the city to court. However, those administrative procedures through the Office of Human Rights (OHR) typically last several years, and in the unusual case of discrimination by the Boy Scouts, it took 9 years to finally move to the courts.
Only DC Government employees must first go through the OHR. In the current case of Fire/EMS Chief Few threatening to fire employees for long hair or beards, employees with religious motivations went directly to court and won under the First Amendment protection of religion.
Employees who chose to argue in DC Courts, are still waiting for a decision from the Office of Human Rights. This diminishes the enforceability and usefulness of DC's Human Rights Act and makes the redundant protections of religion and race pointless in light of the protections that may be gained by ignoring the DC law. Only the wealthy and resolute are then protected. This is inconsistent with the intent of the law and the Executive Orders of our mayors.
Finally, the bill fulfills the promise of Superintendent Ackerman's Directive by amending the DC Municipal Regulations to cover harassment in student discipline. While the Regulations modified by this bill only apply to DC Public Schools, all schools are subject to the Human Rights Act itself and must protect their students from harassment. The various Public Charter Schools and private schools may adopt this discipline policy, or develop their own.
On behalf of GLAA, I strongly urge you to vote for bill 14-132.
Thank you, I am available to answer any questions that you may have.
Substitute for Bill 14-132
(Proposed by GLAA and ACLU/NCA)
BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Clarification of the Human Rights Act, Amendment Act of 2001."
FINDINGS - The District of Columbia takes pride in being among the first to provide broad scope anti-discrimination protection. The Council recalls and re-emphasizes the finding of the Council in originally enacting the District of Columbia Human Rights Act that the Act is among the most important laws of the District and that the Act is to receive the highest priority by all elements of the government of the District of Columbia. The Council of the District of Columbia finds there is a problem of discrimination caused by harassment in educational institutions as well as in other areas covered by the District of Columbia Human Rights Act. Such harassment can effectively deny students and others the equal opportunity to participate fully in the economic, cultural, and intellectual life of the District, and is therefore a source of great public concern. While harassment in educational institutions and elsewhere is implicitly prohibited by the Act, there is a need to make such prohibitions explicit.
The Council therefore adopts the "Clarification of the Human Rights Act, Amendment Act of 2001":
(1) To make explicit that harassment constitutes unlawful discrimination when engaged in for reasons prohibited by the Act.
(2) To make explicit that such harassment is unlawful when practiced in educational institutions as well as in other areas covered by the District of Columbia Human Rights Act.
(3) To make explicit that the Act prohibits discrimination against persons who are actual or perceived members of protected classes.
Further, the Council finds that amendments are required to make explicit the application of the Act to the government of the District of Columbia and to ensure equal judicial protection for employees of the District of Columbia and others in cases brought against the District of Columbia.
Sec. 2. The Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Code § 2-1401.01 et seq.) is amended as follows:
(a) Amend § 2-1401.02(31) to read as follows:
"`Unlawful discriminatory practice' means those discriminatory practices which are so specified in subchapter II of Unit A of this chapter. 'Unlawful discriminatory practice' also includes harassment engaged in for discriminatory reasons specified in § 2-1401.01."
(b) § 2-1402.41(1) is amended by striking out the phrase "and services" and inserting in lieu thereof the phrase: "services, programs or benefits of any program or activity."
Sec. 3. The Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Code § 2-1401.01 et seq.) is amended as follows:
(a) § 2-1402.11(a) is amended by adding "actual or perceived" before "race."
(b) § 2-1402.11(b) is amended by adding "actual or perceived" before "race."
(c) § 2-1402.21(a) is amended by adding "actual or perceived" before "race."
(d) § 2-1402.21(b) is amended by adding "actual or perceived" before "race."
(e) § 2-1402.31(a) is amended by adding "actual or perceived" before "race."
(f) § 2-1402.31(b) is amended by adding "actual or perceived" before "race."
(g) § 2-1402.41(1) is amended by adding "actual or perceived" before "race."
(h) § 2-1402.71 is amended by adding "actual or perceived" before "race."
Sec. 4. The Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Code § 2-1401.01 et seq.) is amended as follows:
(a) § 2-1403.03 is amended to read as follows:
"(a) The Mayor shall establish rules of procedure for the investigation, conciliation, and hearing of administrative complaints filed against District government agencies, officials and employees alleging violations of this chapter. The final administrative determination of such complaints shall be made by the Mayor or his designee.
"(b) Any person claiming to be aggrieved by an unlawful discriminatory practice on the part of District government agencies, officials or employees may elect to file an administrative complaint under the rules of procedure established by the Mayor under this section, or a civil action in a court of competent jurisdiction under § 2-1403.16."
(b) § 2-1403.16 is amended to read as follows:
"The timely filing of a complaint with the Office, or under the administrative procedures established by the Mayor pursuant to § 2-1403.03, shall toll the running of the statute of limitations while the complaint is pending before the Office."
(c) § 2-1401.02(24) is amended to add the following after the phrase, "or by the owner and 1 or more tenants":
"; agencies and offices of the government of the District of Columbia that provide programs, services, benefits, or facilities to the public."
Sec. 5. D.C. Municipal Regulations, section 2401.9 of Title 5 Board of Education, Chapter 24, Student Rights and Responsibilities, CDCR 5-24-2401, is amended as follows:
"The School District of the District of Columbia is committed to providing all students with a safe and supportive learning environment. Members of the school community (teachers, students, administrators and all other employees of the School District of the District of Columbia) should respect each other and be tolerant of differences, including different and controversial ideas. Students have the right to participate in school activities without being subject to unlawful discrimination because of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, political affiliation, handicapping condition, or any other basis of unlawful discrimination under the laws of the District of Columbia. In addition:
"(a) Harassment of a member of the school community by another member of the school community is prohibited. Harassment means 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. Harassment includes harassment based on actual or perceived race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, political affiliation, handicapping condition, or any other basis of unlawful discrimination under the laws of the District of Columbia."
Sec. 6. DC Municipal Regulations, Title 5 Board of Education, Chapter 14, Adverse Actions CDCR 5-14-1401, is amended by adding the following to section 1401.2:
"(x) Engaging in any practice, including harassment, that violates any of the provisions of the District of Columbia Human Rights Act.
"(y) 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."
Sec. 7. DC Municipal Regulations, Title 5 Board of Education, Chapter 25 Student Discipline CDCR 5-25-2503, section 2503.2 is amended by adding the following:
"(h) Harassment of a student. Harassment means 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. Harassment includes harassment based on actual or perceived race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, political affiliation, handicapping condition, or any other basis of unlawful discrimination under the laws of the District of Columbia."