D.C. Expands Employment Protections for Certain Groups and Lowers the Standard for Harassment.
The District of Columbia City Council has passed bills that expand protections for several categories: domestic workers, interns, independent contractors and the homeless. It also enshrines into law a definition of harassment that will result in more employees bringing and winning harassment claims before D.C. agencies and courts.
- The Domestic Worker Employment Rights Amendment Act of 2022 applies to those providing domestic services in or around a private residence. The Act requires a hiring entity to execute a services contract with a domestic worker, whether an employee or an independent contractor. The contract must include (or specifically indicate that the item does not apply) an extensive list of items, and any changes must be reflected in writing. Among other things, the contract may not contain a non-compete in violation of the recently-effected Ban on Non-Compete Agreements Amendment Act of 2020. The hiring entity must also make reasonable efforts to provide the contract in the worker’s preferred language. The Mayor’s office will make template contracts and required notices available to the public, which will be available on a new website that will provide information about this new law, including how to file complaints of violations.
The Act also amends the D.C. Human Rights law to include domestic workers within its protections (previously excluded). It also provides that sex may be a bona fide occupational qualification for domestic workers based on legitimate privacy concerns, but protects such workers from discrimination on the basis of actual or perceived sexual orientation, as well as their preferred name or personal pronouns.
This bill will now go to the Mayor’s desk for approval and, if signed, will take effect after a 60-day period of Congressional review and publication in the D.C. Register.
- The Human Rights Enhancement Amendment Act, which took effect on October 1, 2022, expanded the definition of “employees” to include interns and independent contractors, similar to other jurisdictions like Maryland. It also added “homeless status” – meaning one who “lacks a fixed, regular, and adequate nighttime residence” – to the list of personal characteristics protected from discrimination.
The Act further codifies the definition of workplace harassment and sexual harassment under the D.C. Code.
- “Harassment” means conduct “that unreasonably alters the terms, conditions, or privileges of employment” or creates “an intimidating, hostile, or offensive work environment.”
- “Sexual harassment” means any conduct of a sexual nature that meets the definition of harassment, but also where submission to such conduct is made a term or condition of employment or where submission to/rejection of such conduct serves as the basis for an employment decision.
In determining whether unlawful harassment exists, the Act states that the totality of the circumstances must be considered and, unlike the standard under federal law, such conduct need not be severe or pervasive. The Act further sets forth a non-exhaustive list of factors to consider, including: frequency; duration; location; whether there were threats, slurs, epithets, stereotypes, or humiliating or degrading conduct; and whether the alleged harasser held a formal or informal position of power over any other party.
The Act further provides that conduct may constitute illegal harassment regardless of the following: it was a single incident; it was directed towards someone else; the complainant submitted to or participated in the conduct; the complainant was able to do their job despite the conduct; the conduct did not cause tangible physical or psychological injury; the conduct occurred outside the workplace; or the conduct was not overtly directed at a particular protected characteristic.