Employers in the District of Columbia should be aware that, effective October 1, 2022, the Human Rights Enhancement Amendment Act expanded the D.C. Human Rights Act (“DCHRA”) in several significant ways. Specifically, pursuant to the amendment, the definition of “employees” protected from discrimination under the DCHRA now includes independent contractors and unpaid interns. The amendment also protects individuals experiencing homelessness from discrimination, and codifies protections against workplace harassment.
The DCHRA prohibits discrimination in housing, employment, public accommodations and educational institutions, and renders discrimination illegal based on a number of protected characteristics for people that live, visit, or work in D.C. Prior to the amendment, an “employee” was defined in the DCHRA as an individual employed by or seeking employment from an employer. Now, the term “employee” also includes an individual working or seeking work as an independent contractor, as well as unpaid interns. While the DCHRA does not define “independent contractor,” it does note that the phrase does not “mean a service vendor who provides a discrete service to an individual customer.”
Protected characteristics under the DCHRA for housing, employment, public accommodations and educational institutions include race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, political affiliation, and disability. Now, as a result of the amendment, “homeless status” is included as a protected characteristic. Note that additional protected characteristics apply to employment (matriculation, genetic information, credit information, and status as a victim or family member of a victim of domestic violence, a sexual offense, or stalking), while other additional traits are applicable solely to the areas of housing and public accommodations. Under the amendment, an employer may not fail or refuse to hire, or to discharge, any individual or to otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment on the basis of an employee or applicant’s actual or perceived status as homeless. Homelessness is defined in the amendment as set forth in the Homeless Services Reform Act, specifically “[a]n individual or family that lacks a fixed, regular, and adequate nighttime residence.”
Lastly, the amendment provides that it is an unlawful discriminatory practice to engage in sexual harassment or harassment based on one or more protected characteristics. Harassment is defined as “conduct, whether direct or indirect, verbal or nonverbal, that unreasonably alters an individual’s terms, conditions, or privileges of employment or has the purpose or effect of creating an intimidating, hostile, or offensive work environment.” The amendment further provides the following definition for sexual harassment: conduct of a sexual nature that constitutes harassment, and where submission to sexual advances, requests for sexual favors, or other such conduct of a sexual nature is made, either explicitly or implicitly, a term or condition of employment or where submission to or rejection of the conduct is used as the basis for an employment decision affecting the individual’s employment. The amendment also lists a number of factors to be considered in determining whether conduct constitutes unlawful harassment, including the frequency, duration and location of the conduct, whether the conduct involved threats, slurs, epithets, stereotypes or humiliating/degrading conduct, and whether any party to the conduct held a position of formal or informal power relative to another party.
D.C. employers should be aware of these expanded protections, and be sure that their policies have been updated accordingly. For example, these employers should confirm that all antidiscrimination policies reflect that independent contractors and unpaid interns are protected under the law, and that all anti-harassment policies are up to date.
For further information, please contact:
Kris D. Meade, Partner, Crowell & Moring
kmeade@crowell.com
