DCHRA, Part 2: New Amendments Further Broaden DC Discrimination Law

In 2022, the DCHRA was amended to include even broader protections, including changing the definition of harassment.

Sonja DeWitt, Esq.

2/27/20232 min read

In addition to the very broad provisions of the DC Human Rights Act I discussed in the prior blog, the Act was amended in 2022 to include even broader protections for DC employees.

These amendments make significant changes regarding which employees are covered and how the law is interpreted.

The 2022 amendment makes three primary changes in the Act.

1. It adds independent contractors to the definition of employees.

This is significant because prior to this independent contractors were not covered. It should be noted that this definition does not include a service vendor who provides a discrete service to an individual customer. DC Code § 1401.02(9)(B).

1. It adds Homelessness as a protected class.

It is now illegal in DC to refuse to hire a person, fire them, or take any other adverse action against them because they are homeless.

2. It changes the standard for making a case of harassment.

This is by far the most significant change in the Act. To understand why, you need to understand how harassment has been interpreted by federal law and nearly all state laws up to this point. The almost universal standard for demonstrating harassment is that the employee has been subjected to a work environment that it is sufficiently “severe or pervasive” to create a hostile work environment for a reasonable person.

There are numerous cases interpreting this standard and some principles are generally accepted. For example, a single incident rarely qualifies as “severe or pervasive” unless it is extremely severe. Only truly outrageous single incidents like a sexual assault, a noose on an employee’s desk, or the use of the “n-word,” are generally considered sufficiently severe or pervasive under the federal standard.

In addition, under the federal standard, if harassing conduct was directed at someone other than the complaining employee, it is hard for the complaining employee to show that the conduct was sufficiently severe.

Also, particularly in sexual harassment cases, the fact that an employee may have participated in sexual banter often makes them unable to file a successful claim because courts tend to view the employee's participation as evidence that the sexual conduct is not “unwelcome.”

The new definition under the DCHRA is intended to addresses all these issues and create a new standard, “totality of the circumstances.” That means that a fact-finder is required to analyze a list of factors to determine whether a particular set of facts rises to the level of creating a hostile work environment.

These factors are listed in the amendment itself. They are:

“(A) The frequency of the conduct;

(B) The duration of the conduct;

(C) The location where the conduct occurred;

(D) Whether the conduct involved threats, slurs, epithets, stereotypes, or humiliating or degrading conduct; and

(E) Whether any party to the conduct held a position of formal authority over or informal power relative to another party.”

DC Code § 2-1402.11 (C-2)(B)

This broadening of the harassment standard makes it much easier for an employee to state a successful harassment claim. And it makes these claims much harder for employers to defend against. That’s why it’s more crucial than ever to have legal guidance to help you navigate these issues, whether you’re an employee or an employer.

If you’re a DC-based small business, I’d be glad to help you understand and deal appropriately with these issues. Contact me.

Disclaimer: This blog is for informational purposes only and should not be interpreted as legal advice. If you need legal guidance on any of the issues addressed here, contact me or another attorney barred in DC for advice addressing your specific problem.