Corporation Counsel won't budge on Human Rights Act interpretation
Office of the Corporation Counsel
March 6, 2001
Mr. Bob Summersgill
Gay & Lesbian Activists Alliance, Inc.
P.O. Box 75265
Washington, D.C. 20013-5265
Re: D.C. Human Rights Act
Last June the Gay and Lesbian Activists Alliance of Washington, D.C. ("GLAA") sent me a memorandum, asserting that an argument this Office regularly makes in cases where the District government is sued under the D.C Human Rights Act of 1977 ("Act"), effective December 13, 1977, D.C. Law 2-38, D.C. Code § 1-2501 et seq. (1999), is without merit. This argument is that private persons allegedly harmed by the District government in violation of the Act must exhaust their administrative remedies before bringing suit in court. Both in GLAA's memorandum of last June and at our meeting on November 15, 2000, you requested that OCC attorneys desist from making this argument and withdraw the argument in cases where they have already made it. I agree that this Office should stop making this argument if it is wrong.
To this end, I asked Charles Holman, Director of the Office of Human Rights, and Wayne Witkowski, one of my Senior Counsel, to meet with you to discuss your concerns in more detail. I understand that they met with you and Rick Rosendall, GLAA's Public Safety Chair, on February 2, 2001. I also understand that you had a cordial and frank discussion, exploring GLAA's arguments and concerns. At the end of the meeting, Mr. Witkowski gave you his preliminary conclusion that this Office should continue to seek exhaustion of administrative remedies in cases against the government under the Act. This conclusion was based on the language of the Act, its legislative history, decisions of the D.C. Court of Appeals, and other factors. Without endorsing a legislative change, he nevertheless suggested ways in which the Act might be amended to achieve GLAA's objectives. Rick and you indicated that GLAA might seek a legislative change. In addition, Rick and you requested that I express this Office's position on the exhaustion issue, together with the reasons for it, in writing. This letter responds to that request.
As you know, 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.
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). This conclusion clearly flows from the language of section 316. [Footnote 1] Thus, if section 316 were the only provision of the Act bearing on the administrative exhaustion issue, I would have no trouble agreeing with you 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, section 316 is not the only provision of the Act that bears on this issue. Section 303, D.C. Code § 1-2543, 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.)
This Office historically has taken the position that this provision creates an administrative exhaustion requirement for cases of alleged discrimination by the government, and for good reason. The language of section 303 mandates 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." Among the latter surely are the provisions of section 316 that, absent section 303, would (1) allow a complainant against the government an initial choice between administrative and judicial remedies and (2) such a complainant to withdraw an administrative complaint, once filed, before the Office of Human Rights completes its investigation. If section 303 did not have this effect on section 316, then there might be no reason for section 303 at all.
What is more, in those Act-related cases brought against the government where the meaning of section 303 has been at issue, the DCCA has consistently agreed with this Office's position that section 303 imposes an administrative exhaustion requirement, notwithstanding the contrary language of section 316. The decisions I have in mind - all employment discrimination cases because the DCCA has never been called on to interpret section 303 with respect to other kinds of discrimination - are Williams v. D.C., 467 A.2d 140 (D.C. 1983), Newman v. D.C., 518 A.2d 689 (D.C. 1986), and Kennedy v. D.C., 654 A.2d 847 (D.C. 1995). [Footnote 2]
Section 303 is not on its face limited to claims of employment discrimination. Rather, it refers broadly to "complaints of discrimination against District government agencies, officials and employees." Therefore, the principle established in these decisions persuasively militates in favor of a conclusion that, if the DCCA ever squarely addresses the issue, it will probably rule that the administrative exhaustion requirement already found as to claims of employment discrimination also applies to other claims of discrimination. In other words, because section 303 focuses on the government as respondent, the exhaustion requirement applies to all complainants, regardless of employment.
Other interpretive factors support this conclusion:
- The Council of the District of Columbia and its pre-home rule predecessor, the District
of Columbia Council, could have expressly limited the scope of section 303 - for example,
to a particular category of discrimination claims - but did not do so.
The significance of this omission is highlighted by reference to 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. That scheme
provided 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..." (Emphasis added.)
See 42 U.S.C. § 2000-16(a) as quoted in Brown v. General Services Administration,
425 U.S. 820, 830 and n. 11 (1976). By contrast, the D.C. Human Rights Act of 1977 lacks
any such limiting language.
- The legislative history contains nothing to suggest that the otherwise broad scope of section 303 should be limited, as by applying it only to a particular category of discrimination claims or in some other way. See, e.g., 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, which, indeed, 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.)
- The scheme of the Act lends credence to the view that if, as the DCCA has found,
employment discrimination is covered by the exhaustion requirement of section 303, other
forms of discrimination should also be covered by section 303. Employment discrimination is
one of the most invidious forms of discrimination, depriving the victim of a means of
livelihood. Thus, from the standpoint of the victim, if employment discrimination claims
are covered by the exhaustion requirement in section 303, there is little reason why other
types of discrimination claims should not also be covered by it. In addition, the benefits
of the exhaustion requirement, including assurance that cases against the government are
heard by a specialized tribunal that is responsible for developing a uniform body of case
law, are of at least the same utility in non-employment discrimination cases as in
employment discrimination cases. The DCCA decision's cited earlier leave no doubt that
when a complaint of employment discrimination under the Act is brought against the
government, the complainant must exhaust the available administrative remedy. To conclude
that every other form of discrimination is also covered by section 303's exhaustion
requirement is, therefore, harmonious with the Act's overall scheme.
- We have not attempted a thorough review of administrative practice under section 303, but note that in at least one case it was applied to a non-employment discrimination claim against the government, at the option of the complainant. See, e.g., Kevin S. Dickerson v. Department of Human Services, Docket No. 89-465-PA(N)(complaint filed at the option of the complainant with the Office of Human Rights, alleging discrimination based on disability in a place of public accommodation, which was resolved in complainant's favor after a hearing). See also Mayor's Order 91-45 (April 2, 1991)(authorizing the D.C. Commission on Human Rights to hear the case). Standing alone, the Dickerson case i§ not instructive that non-employment discrimination cases against the government must be filed first with the Office of Human Rights. However, it does show that section 303 applies to cases against the government alleging non-employment discrimination. Given the other support for finding that section 303 imposes an administrative exhaustion requirement for cases within its scope, Dickerson therefore lends weight to the view that complainants in non-employment discrimination cases against the government must exhaust their administrative remedy.
- To the extent that the Mayor has not yet done so, courts will treat the requirement in section 303 that the Mayor establish rules for the administrative process as having been fully executed if other provisions of the Act and well-established rules of procedure generally applicable to agency adjudications are adequate to process claims in the absence of rules. See, e.g., Brown v. D.C Board ofZoning Adjustment, 413 A.2d 1276, 1280 (D.C. 1980). As the past practice described above shows, the other provisions of the Act establishing procedures before the Office of Human Rights and the well-established rules of procedure regarding administrative hearings are sufficient to permit non-employment discrimination complaints against the government to be processed administratively without specific rules adopted by the Mayor governing such complaints. Therefore, the fact that the Mayor has never adopted rules of procedure for cases against the government outside the employment area does not inhibit application of section 303 to such cases.
My staff and I have carefully considered GLAA's position, which is set out in your memorandum of last June. In particular, your memorandum quotes from the trial court decision issued by D.C. Superior Court Judge Lopez in Jefferson v. D.C, et al. (January 11, 2000) and trial court decision issued by U.S. District Court Judge Hogan in Ramirez, et al. v. D.C. (March 27, 2000). Both of these decisions rejected this Office's argument that complainants alleging non-employment discrimination by the government must exhaust their administrative remedies under section 303. Of course, these decisions are not binding on the approximately 100 other judges of the D.C. Superior Court and U.S. District Court. Nor do they bind the DCCA or preclude this Office from continuing to maintain, in good faith, its position that section 303 requires administrative exhaustion for all complaints of discrimination against the government. More important, however, and with all due respect to Judges Lopez and Hogan, these decisions fail to address section 303 of the Act and, therefore, do not warrant deference on the issue at hand. [Footnote 5]
If the DCCA ever squarely addresses this issue, the trial court decisions in Jefferson and Rameriz will not be binding as precedent and I believe OCC's arguments based on section 303 of the Act will prevail. It is possible I will be proved wrong, and arguments raised in the future may yet cause me to reconsider, but as of now I am convinced that this Office's longstanding practice as to the proper application and scope of section 303 is correct. Accordingly, I will not direct any change in that practice, and this Office will continue making the same arguments, unless the DCCA rules otherwise or the Act is amended.
Thank you very much for bringing this important issue to my attention. If you have other concerns in the future relating to this Office's application of the Human Rights Act or other District laws, please don't hesitate to call me.
Robert R. Rigsby
cc: John A. Koskinen
City Administrator/Deputy Mayor for Operations
Abdusalam H. Omer
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. 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. The DCCA went on to hold 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. In focusing on employment discrimination cases, the DCCA meant merely to say that private employment discrimination cases could go directly to court under section 316. 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. The DCCA relied for its ruling on Williams, holding that section 303 "requires the Mayor to establish procedural rules to govern Human Rights Act claims submitted by public employees ... Although generally recognizing the Council's express rejection of an administrative exhaustion requirement under [section 316 of the Human Rights Act, D.C. Code-§ 1-2556 (1981), our reading of [section 303 in Williams] led us to conclude that this rejection did not extend to claims made by government employees." Newman at 701. The Newman court was focused on employment discrimination and did not reach whether non-employment discrimination cases against the government are governed by section 316 instead of section 303. 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 Kennedy court at 863 essentially just restated the holding in Williams. Moreover, Kennedy at 863 comes close to expressly supporting the District's argument that the administrative exhaustion requirement covers all claims against the government. In particular the decision states uncategorically: "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." (Emphasis added.)
Footnote 3. 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.
Footnote 4. If my reading of section 303 is correct, then any Act-related complaint by a private individual against the government would be a contested case under section 3(8) of the District of Columbia Administrative Procedure Act ("DCAPA"), approved October 21, 1968, Pub. L. 90-614, 82 Stat. 1204, D.C. Code § 1-1502(8)(1999). Unless the Office of Human Rights dismissed the complaint on grounds of administrative convenience, the D.C. Superior Court would lack jurisdiction, and the Mayor's final decision under section 303 would be subject to judicial review in an appeal to the DCCA. See section 11 of the DCAPA, D.C. Code § 1-1510.
Footnote 5. In Jefferson, plaintiff was an asthmatic child as to whom the Fire and EMS Dept. allegedly refused treatment in violation of the Act. In rejecting the District's exhaustion argument, Judge Lopez concluded 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." Without any independent analysis of the Human Rights Act, he relied for this conclusion on tbree DCCA decisions cited earlier - i.e., Williams v. D.C., 467 A.2d 140 (D.C. 1983), Newman v. D.C., 518 A.2d 689 (D.C. 1986), and Kennedy v. D.C., 654 A.2d 847 (D.C. 1995). But these decisions stand for the proposition that section 303 of the Act requires exhaustion at least in employment cases and lead in principle to the conclusion that section 303 requires exhaustion in other kinds of cases - the very opposite of the result that Judge Lopez reaches. In Ramirez, plaintiff was a disabled public elementary school student whose wheelchair didn't fit in the restroom door and who, as a result, had to drag himself into the restroom. Judge Hogan quoted section 316 of the Act as providing a private right of action "in any court of competent jurisdiction" and then went on to cite Hunt v. D. C. Department of Corrections, 41 F. Supp. 2d 31 (D.D.C. 1999), which in turn relied on the DCCA's decision in Newman, supra, for the proposition that the exhaustion mandate in section 303 applies only to District government employees. Newman, like Williams and Kennedy, cannot fairly be stretched to become a solid underpinning for these later decisions.