GLAA responds to Corporation Counsel on Human Rights Act interpretation
P.O. Box 75265
Washington, D.C. 20013
May 4, 2001
Robert R. Rigsby
One Judiciary Square
Washington, D.C. 20001
Re: D.C. Human Rights Act
Dear Mr. Rigsby:
Thank you for your letter of March 6, 2001, responding to our memorandum of June 7, 2000, concerning your office’s interpretation of the D.C Human Rights Act of 1977, D.C. Law 2-38, D.C. Code § 1-2501 et seq. (1999) ["the Act"]. In that memorandum, the Gay and Lesbian Activists Alliance of Washington, D.C. ["GLAA"] expressed our disagreement with an argument regularly made by your office that private persons allegedly harmed by the District government in violation of the Act must exhaust their administrative remedies before bringing suit in court. We expressed our disagreement further in meetings with you and your staff on November 15, 2000 and on February 2, 2001.
In your March 6, 2001 letter, you note, as we have, that section 316 of the Act, D.C. Code § 1-2556, is the provision that establishes a private right of court action for Act-related claims of discrimination. Section 316 provides:
Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of competent jurisdiction for damages and such other remedies as may be appropriate, unless such person has filed a complaint hereunder [i.e., with the Office of Human Rights under section 304 of the Act, D.C. Code § 1-2544]; provided, that where the Office has dismissed such complaint on the grounds of administrative convenience, or where the complainant has withdrawn a complaint, such person shall maintain all rights to bring suit as if no complaint had been filed. No person who maintains, in a court of competent jurisdiction, any action based upon such act which would be an unlawful discriminatory practice under this act may file the same, complaint with the Office.
You further note that the District of Columbia Court of Appeals ["DCCA"] has held, in cases of non-District government defendants, that this provision entitles complainants under the Act to a choice between alternative avenues of redress - administrative or judicial - for claims of unlawful discrimination. See, e.g., Timus v. D.C. Department of Human Rights, 633 A.2d 751, 753 (D.C. 1993). [Footnote 1] You acknowledge that this conclusion flows clearly from the cited language of the Act and that, if section 316 is the only provision of the Act bearing on the administrative exhaustion issue, you would agree that, irrespective of whether the defendant is the government or a private party, a complainant alleging any Act-related discrimination has the initial option to pursue an administrative or judicial remedy.
However, you contend that section 316 is not the only provision of the Act that bears on this issue. You cite section 303, D.C. Code § 1-2543, which provides:
Notwithstanding any other provision of this act, the Mayor shall establish rules of procedure for the investigation, conciliation, and hearing of complaints filed against District government agencies, officials and employees alleging violations of this act. The final determination in such matters shall be made by the Mayor or his designee. (Emphasis added.)
You state that the Office of the Corporation Counsel historically has taken the position that this provision creates an administrative exhaustion requirement for cases of alleged discrimination by the government. You base your position on the language of section 303 instructing the Mayor to establish an administrative process for "complaints of discrimination against District government agencies, officials and employees" and makes this process applicable in such cases "[n]otwithstanding any other provision of this act." You therefore argue that, notwithstanding the provisions of section 316 of the Act, section 303 applies to all matters brought for resolution pursuant to the Act.
We are not persuaded by your reasoning. Your interpretation of the Act fails to account for the Act’s making a clear distinction between a "complaint," which is brought administratively, and an "action," or "cause of action," which is brought judicially. This distinction is made quite clearly in section 316 of the Act, which recognizes complaints and actions as separate approaches – one administrative, the other judicial – for the resolution of grievances under the Act. The United States District Court for the District of Columbia recognized this in Blake v. American College of Obstetricians and Gynecologists, 608 F.Supp. 1239, 1240-1241 (D.D.C. 1985), noting the distinction between actions at law as judicial proceedings and complaints as administrative proceedings under the Act. Section 303, which refers solely to "complaints filed" and not to actions, can by its terms apply only to grievances brought through an administrative process, and not through a judicial process. While we understand that it may make some degree of sense to give the Mayor authority to set up rules for the processing of administrative complaints, notwithstanding any other provision of the act, that itself does not give the mayor authority to set forth rules for bringing a judicial action, nor to insist that an administrative complaint be filed prior to seeking judicial redress via an action.
You argue that, absent section 303, a person aggrieved by the government could exercise an initial choice between administrative and judicial remedies, but then, having chosen an administrative remedy, withdraw the administrative complaint, once filed, before the Office of Human Rights completes its investigation, just as a person aggrieved by a non-government entity may do pursuant to section 304 of the Act. You further argue that if section 303 fails to serve the function of prohibiting such a withdrawal, it serves no purpose at all. Again, we do not find your reasoning persuasive. Section 303 serves the clear purpose of permitting the Mayor to establish rules of procedure for the processing and resolution of administrative complaints filed against District government agencies, officials, and employees. This is certainly a sufficient reason for the section’s presence in the Act. However, there is no evidence that section 303 allows the Mayor to require that all District residents seek administrative redress against the government for violations of the Act prior to taking the government to court.
You claim that the DCCA has consistently agreed with your office’s position that section 303 imposes an administrative exhaustion requirement on private citizens. We do not find that the cases you cite demonstrate this. In fact, they demonstrate the contrary. The decisions you cite are Williams v. D. C., 467 A.2d 140 (D.C. 1983); Newman v. D. C, 518 A.2d 698 (D.C. 1986); and Kennedy v. D.C, 654 A.2d 847 (D.C. 1995). In each of those cases, it was a grievance brought by a public employee, and not by a private citizen, that was at issue. In each of those cases, the court clearly distinguished between public and private citizens, finding that private citizens were not subject by the Act to an administrative exhaustion requirement. In Williams, a District government employee initially filed a complaint of employment discrimination with the D.C. Office of Human Rights, but then withdrew it and filed suit in Superior Court. The DCCA held that for claims of employment discrimination by a District employee against the government, the Act requires the administrative process in section 303 of the Act to be followed, but also held that "the private right of [court] action established by [section 316 of the Act,] D.C. Code § 1-2556 (1981) and its predecessor ... is available only to non-government employees." Williams at 142. [Footnote 2] Similarly, in Newman, a District government employee filed a complaint of employment discrimination directly in Superior Court, and the DCCA affirmed the Superior Court's dismissal based on failure to exhaust remedies under section 303. In doing so, and relying upon Williams, the DCCA recognized "the Council's express rejection of an administrative exhaustion requirement under [section 316 of] the Human Rights Act, D.C. Code-§ 1-2556 (1981)," while "conclud[ing] that this rejection did not extend to claims made by government employees." Newman at 701. In the third decision, Kennedy, a District government employee who won his employment discrimination case before the Office of Human Rights, appealed the Office's rejection of his claim for attorney's fees. In affirming the Office's decision, the court stated, on a petition for rehearing, that "in directing [in section 303] that the Mayor establish 'rules of procedure,' the Council was directing the Mayor to establish, inter alia, the remedies that would be available to persons who filed complaints of discrimination against the District government." Kennedy at 863. Again, establishing rules of procedure for those who file administrative complaints does not mandate that a private citizen must exhaust administrative remedies before seeking his or her right to judicial redress. The Kennedy court also noted that it is only District government employees who, "unlike non-government employees, are required to exhaust the administrative remedies available to them under the D.C. Human Rights Act." Kennedy at 863.
Most recently, D.C. Superior Court Judge Lopez in Jefferson v. D.C, et al. (January 11, 2000) and U.S. District Court Judge Hogan in Ramirez, et al. v. D.C. (March 27, 2000) examined this question and rejected your Office's argument that all persons aggrieved by the government must exhaust administrative remedies prior to instituting a court action. Relying upon Williams, Newman, and Kennedy, supra, Judge Lopez concluded in Jefferson that only "those individuals employed by the District of Columbia at the time of the incident need comply with the requirement of exhausting all administrative remedies first." Similarly, in Ramirez, Judge Hogan cited Hunt v. D. C. Department of Corrections, 41 F.Supp.2d 31 (D.D.C. 1999), which relied upon Newman, supra, and found that the exhaustion of administrative remedies mandate applies only to District government employees. Judge Hogan further found that section 316 of the Act provides a private right of action "in any court of competent jurisdiction" to any person who claims to be aggrieved by an unlawful discriminatory practice. Though you claim that these decisions are insufficiently persuasive and binding, inter alia, as they fail to address the issue of the impact of section 303 on section 316, this is incorrect. The Williams court clearly discussed both sections 303 and 316, and found that section 303 did not impose an administrative exhaustion requirement on private citizens. All subsequent courts addressing this issue have accepted and followed that holding. As the Act clearly is structured, as we have demonstrated, and as the courts have agreed, section 303 simply has no bearing on the right of a private citizen to initiate an action against the government for alleged violations of the Act.
We note your insistence in your letter that although the cited cases arise principally in the context of employment discrimination, that the Act and your office’s interpretation of it are not limited to instances of employment discrimination. We agree that the Act should be applied equally, according to its terms, to all forms of covered discrimination. Our point is that the terms of the Act, and the holdings of those courts addressing its application, clearly do not require private individuals seeking redress through court action to exhaust administrative remedies as a condition precedent to instituting such an action. Though you argue that section 303 of the Act focuses on the government as respondent, and that therefore the exhaustion requirement applies to all complainants, regardless of employment, this is not the case. Section 303 focuses on the government’s responsibility to establish rules of procedure for administrative complaints brought under the Act, but says nothing about establishing conditions precedent to a court action.
This is also demonstrated by the legislative history of the Act which you cite. Neither the Council of the District of Columbia nor its pre-home rule predecessor, the District of Columbia Council, limited the scope of section 303 to a particular category of discrimination claims, as you recognize, but both bodies limited that section’s application to the administrative process, as opposed to the judicial. [Footnote 3] We recognize that the previous statutory scheme, established under section 717(a) of the federal Civil Rights Act of 1964, 42 U.S.C. § 2000-16(a), which was applicable to the District government, did provide an exclusive administrative scheme for redress of discrimination in federal employment and "those units of the Government of the District of Columbia having positions in the competitive service . . . ." See 42 U.S.C. § 2000-16(a) as quoted in Brown v. General Services Administration, 425 U.S. 820, 830 at n. 11 (1976). Though the D.C. Human Rights Act of 1977 lacks any such limiting language, this could be understood to be the basis of the administrative exhaustion requirement placed upon District employees. In addition, the legislative history recognizes that the focus of section 303 is to establish rules and procedures for administrative complaints, not judicial actions. For example, page one of the District of Columbia City Council, Education and Youth Affairs Committee, November 6, 1973 Supplemental Report on Title 34, the Human Rights Law, describes then-existing section 29.3 - what is now section 303 - as making "clear the Mayor's power to establish rules and procedures for the investigations of complaints lodged against D.C. officials and employees." (Emphasis added.)
As we have consistently stated, we expect the government to defend itself against charges of discrimination. However, we also expect the government to do so in a manner that does not undermine the protections of the Human Rights Act. Once again, we urge you to order your staff attorneys to desist from making the unsupported argument that the Human Rights Act forbids private litigants alleging discriminatory practices from taking the District government to court absent an exhaustion of administrative remedies. We also urge you to withdraw this argument from all pending cases brought by private litigants in which it has been made.
Robert J. Summersgill
City Administrator/Deputy Mayor for Operations
Interim Chief of Staff
Deputy Mayor for Public Safety and Justice
Charles F. Holman, III
Director, Office of Human Rights
Cornelius R. Alexander, Jr.
Chief Hearing Examiner, D.C. Commission on Human Rights
Special Assistant/Liaison for the Gay and Lesbian Community
Darlene R. Taylor
Director, Office of Intergovernmental Relations
Senior Deputy Corporation Counsel for Torts and Equity
Charles L. Reischel
Deputy Corporation Counsel, Appellate Division
Footnote 1. Section 316 nevertheless prohibits a complainant from pursuing concurrent administrative and judicial remedies. In addition, together with section 304, D.C. Code § 1-2544, section 316 permits a complainant to withdraw an administrative complaint filed against a non-government respondent and thereafter file a court suit based on the same matter if the Office of Human Rights has not completed its investigation. However, if the Office has completed its investigation, the administrative complaint cannot be withdrawn and no court suit can be brought. See, e.g., Brown v. Capitol Hill Club, 425 A.2d 1309, 1312 (D.C. 198 1). Nonetheless, section 316 is clear that a court suit can always be brought after the filing of an administrative complaint if the Office has dismissed the complaint on grounds of administrative convenience.
Footnote 2. We find no basis for your assertion that the DCCA's reference to a "private right of [court] action" as cited here is meant solely to encompass actions against discrimination by a private employer.
Footnote 3. As you have noted, the present language of sections 303 and 316 of the Human Rights Act is, almost word for word, the text originally adopted by the former District of Columbia Council as part of the "Human Rights Law," Regulation No. 73-22, on November 17,1973. This law was codified as Title 34 of the DCRR.