2023 District of Columbia Code › Title 2 - Government Administration › Chapter 14 - Human Rights › Unit A - Human Rights Law › Subchapter II - Prohibited Acts of Discrimination › Part B - Employment › § 2–1402.11. Prohibitions

§ 2–1402.11. Prohibitions.
(a) General. — It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based upon the actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, political affiliation, status as a victim or family member of a victim of domestic violence, a sexual offense, or stalking, credit information, or homeless status of any individual:
(1)(A) By an employer. — To fail or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to his or hers compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his or hers employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his or hers status as an employee;
(B) To fail to treat an employee affected by pregnancy, childbirth, a pregnancy-related or childbirth-related medical condition, breastfeeding, or a reproductive health decision, the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as an employee not so affected but similar in the employee's ability or inability to work, including the requirement that an employer shall treat an employee temporarily unable to perform the functions of the employee's job because of the employee's pregnancy-related condition in the same manner as it treats other employees with temporary disabilities; provided, that this subparagraph shall not be construed to require an employer to provide insurance coverage related to a reproductive health decision;
(2) By an employment agency. — To fail or refuse to refer for employment, or to classify or refer for employment, any individual, or otherwise to discriminate against, any individual; or
(3) By a labor organization. — To exclude or to expel from its membership, or otherwise to discriminate against, any individual; or to limit, segregate, or classify its membership; or to classify, or fail, or refuse to refer for employment any individual in any way, which would deprive such individual of employment opportunities, or would limit such employment opportunities, or otherwise adversely affect his or her status as an employee or as an applicant for employment; or
(4) By an employer, employment agency or labor organization. —
(A) To discriminate against any individual in admission to or the employment in, any program established to provide apprenticeship or other training or retraining, including an on-the-job training program;
(B) To print or publish, or cause to be printed or published, any notice or advertisement, or use any publication form, relating to employment by such an employer, or to membership in, or any classification or referral for employment by such a labor organization, or to any classification or referral for employment by such an employment agency, unlawfully indicating any preference, limitation, specification, or distinction, based on the race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, gender identity or expression, family responsibilities, matriculation, genetic information, disability, political affiliation, status as a victim or family member of a victim of domestic violence, a sexual offense, or stalking, credit information, or homeless status of any individual.
(C) To request or require a genetic test of, or administer a genetic test to, any individual as a condition of employment, application for employment, or membership, or to seek to obtain, obtain, or use genetic information of an employee or applicant for employment or membership.
(D) To directly or indirectly require, request, suggest, or cause any employee to submit credit information, or use, accept, refer to, or inquire into an employee's credit information.
(b) Subterfuge. — It shall further be an unlawful discriminatory practice to do any of the above said acts for any reason that would not have been asserted but for, wholly or partially, a discriminatory reason based on the actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, matriculation, genetic information, disability, political affiliation, status as a victim or family member of a victim of domestic violence, a sexual offense, or stalking, credit information, or homeless status of any individual.
(b-1) [Medical marijuana to treat a disability. —] Not Funded.
(c) Accommodation for religious observance. —
(1) It shall further be an unlawful discriminatory practice for an employer to refuse to make a reasonable accommodation for an employee’s religious observance by permitting the employee to make up work time lost due to such observance, unless such an accommodation would cause the employer undue hardship. An accommodation would cause an employer undue hardship when it would cause the employer to incur more than de minimis costs.
(2) Such an accommodation may be made by permitting the employee to work:
(A) During the employee’s scheduled lunch time or other work breaks;
(B) Before or after the employee’s usual working hours;
(C) Outside of the employer’s normal business hours;
(D) During the employee’s paid vacation days;
(E) During another employee’s working hours as part of a voluntary swap with such other employee; or
(F) In any other manner that is mutually agreeable to the employer and employee.
(3) When an employee’s request for a particular form of accommodation would cause undue hardship to the employer, the employer shall reasonably accommodate the employee in a manner that does not cause undue hardship to the employer. Where other means of accommodation would cause undue hardship to the employer, an employee shall have the option of taking leave without pay if granting leave without pay would not cause undue hardship to the employer.
(4) An employee shall notify the employer of the need for an accommodation at least 10 working days prior to the day or days for which the accommodation is needed, unless the need for the accommodation cannot reasonably be foreseen.
(5) In any proceeding brought under this section, the employer shall have the burden of establishing that it would be unable reasonably to accommodate an employee’s religious observance without incurring an undue hardship, provided, however, that in the case of an employer that employs more than 5 but fewer than 15 full-time employees, or where accommodation of an employee’s observance of a religious practice would require the employee to take more than 3 consecutive days off from work, the employee shall have the burden of establishing that the employer could reasonably accommodate the employee’s religious observance without incurring an undue hardship; and provided further, that it shall be considered an undue hardship if an employer would be required to pay any additional compensation to an employee by reason of an accommodation for an employee’s religious observance. The mere assumption that other employees with the same religious beliefs might also request accommodation shall not be considered evidence of undue hardship. An employer that employs 5 or fewer full-time employees shall be exempt from the provisions of this subsection.
(c-1) Victims and family members of victims of domestic violence, a sexual offense, or stalking. —
(1) It shall be an unlawful discriminatory practice to do any of the acts prohibited in subsection (a) or (b) of this section based wholly or partially on the fact that:
(A) An employee attended, participated in, prepared for, or requested leave to attend, participate in, or prepare for a criminal, civil, or administrative proceeding relating to domestic violence, a sexual offense, or stalking of which the employee or employee's family member was a victim, including meetings with an attorney or law enforcement officials;
(B) An employee sought physical or mental health treatment or counseling relating to domestic violence, a sexual offense, or stalking of which the employee or employee's family member was a victim; or
(C) An individual caused a disruption at the employee's workplace or made a threat to an employee's employment, relating to domestic violence, a sexual offense, or stalking of which the employee or employee's family member was a victim.
(2) It shall be an unlawful discriminatory practice for an employer to refuse to make a reasonable accommodation for an employee who is a victim or a family member of a victim of domestic violence, a sexual offense, or stalking when an accommodation is necessary to ensure the person's security and safety, unless such an accommodation would cause the employer undue hardship.
(3)(A) It shall be an unlawful discriminatory practice for an employer to disclose any information related to an employee's status as a victim or family member of a victim of domestic violence, a sexual offense, or stalking provided to the employer by the employee, including a statement or any other documentation, record, or corroborating evidence.
(B) It shall not be a violation of subparagraph (A) of this paragraph to make a disclosure that is:
(i) Requested or voluntarily authorized in writing by the employee;
(ii) Ordered by a court or administrative agency or otherwise required by law;
(iii) Provided to a law enforcement agency;
(iv) Necessary to protect other employees from imminent harm;
(v) To the extent necessary, to provide a reasonable accommodation to the victim; or
(vi) If the employee works in a private residence, necessary to protect residents at the employee's workplace from harm.
(C) In the event of a disclosure, the employer shall notify the employee of the disclosure.
(4) For the purposes of this subsection, the term:
(A) "Reasonable accommodation" includes a transfer, reassignment, modified schedule, leave, changed work station, changed work telephone or email address, installed lock, assistance in documenting domestic violence, a sexual offense, or stalking that occurs in the workplace, or the implementation of another safety procedure in response to actual or threatened domestic violence, a sexual offense, or stalking.
(B) "Undue hardship" means any action that requires significant difficulty or expense when considered in relation to factors such as the size of the employer, its financial resources, and the nature and structure of its operation.
(c-2) Harassment. –
(1) It shall further be an unlawful discriminatory practice to engage in harassment based on one or more protected characteristics specified in subsection (a), including sexual harassment.
(2) For purposes of this subsection:
(A) "Harassment" means 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.
(B) "Sexual harassment" means:
(i) Any conduct of a sexual nature that constitutes harassment as defined in subparagraph (A) of this paragraph; and
(ii) Sexual advances, requests for sexual favors, or other conduct of a sexual nature where submission to the conduct 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.
(3) In determining whether conduct constitutes unlawful harassment under this subsection, a finder of fact shall consider the totality of the circumstances and view conduct based on multiple protected characteristics in totality, rather than in isolation. Conduct need not be severe or pervasive to constitute harassment and no specific number of incidents or specific level of egregiousness is required. The finder of fact shall consider the following factors; except, that this list shall not be considered exhaustive, and the presence or absence of any single factor shall not be determinative:
(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.
(4) The finder of fact may find that conduct constitutes unlawful harassment regardless of the following circumstances:
(A) The conduct consisted of a single incident;
(B) The conduct was directed toward a person other than the complainant;
(C) The complainant submitted to or participated in the conduct;
(D) The complainant was able to complete employment responsibilities despite the conduct;
(E) The conduct did not cause tangible physical or psychological injury;
(F) The conduct occurred outside the workplace; or
(G) The conduct was not overtly directed toward a protected characteristic.
(d) Prohibited acts that otherwise would constitute unlawful discriminatory practices based upon the credit information of an individual under subsection (a) or (b) of this section shall not apply:
(1) Where an employer is otherwise required by District law to require, request, suggest, or cause any employee to submit credit information, or use, accept, refer to, or inquire into an employee's credit information.
(2) Where an employee is applying for a position as or is employed as a police officer with the Metropolitan Police Department, as a special police officer or campus police officer appointed pursuant to § 5-129.02(a), or in a position with a law enforcement function;
(3) To the Office of the Chief Financial Officer of the District of Columbia;
(3A) To the District of Columbia Retirement Board;
(4) Where an employee is required to possess a security clearance under District law;
(5) To disclosures by District government employees of their credit information to the Board of Ethics and Government Accountability or the Office of the Inspector General, or to the use of such disclosures by those agencies;
(6) To financial institutions, where the position involves access to personal financial information; or
(7) Where an employer requests or receives credit information pursuant to a lawful subpoena, court order, or law enforcement investigation.
(e) For the purposes of this section, the term:
(1) "Credit information" means any written, oral, or other communication of information bearing on an employee's creditworthiness, credit standing, credit capacity, or credit history.
(2) "Financial institution" shall have the same meaning as provided in § 26-551.02(18).
(3) "Inquire" means any direct or indirect conduct intended to gather credit information using any method, including application forms, interviews, and credit history checks.
(Dec. 13, 1977, D.C. Law 2-38, title II, § 211, 24 DCR 6038; Mar. 17, 1993, D.C. Law 9-211, § 2, 40 DCR 21; June 28, 1994, D.C. Law 10-129, § 2(c), 41 DCR 2583; Oct. 1, 2002, D.C. Law 14-189, § 2(b), 49 DCR 6523; Apr. 5, 2005, D.C. Law 15-263, § 2(d), 52 DCR 237; Mar. 8, 2006, D.C. Law 16-58, § 2(c), 53 DCR 14; Apr. 7, 2017, D.C. Law 21-256, § 2(a), 64 DCR 2045; Dec. 13, 2017, D.C. Law 22-33, § 2252, 64 DCR 7652; Apr. 11, 2019, D.C. Law 22-281, § 2(c), 66 DCR 1601; May 6, 2020, D.C. Law 23-90, § 2(b)(1), 67 DCR 3537; Sept. 21, 2022, D.C. Law 24-172, § 2(c), 69 DCR 009218; Oct. 22, 2022, D.C. Law 24-190, § 201, 69 DCR 008849; Mar. 10, 2023, D.C. Law 24-305, § 201(b), 70 DCR 902.)
Prior Codifications
1981 Ed., § 1-2512.
1973 Ed., § 6-2221.
Section References
This section is referenced in § 2-1401.02.
Effect of Amendments
D.C. Law 14-189, in subsecs. (a) and (b), substituted “actual or perceived: race” for “race”.
D.C. Law 15-263, in subsecs. (a) and (b), substituted “genetic information, disability,” for “disability,”; and added subpar. (C) of par. (4) of subsec. (a).
D.C. Law 16-58, in the lead-in language of subsec. (a), subsec. (a)(4)(B), and subsec. (b), substituted “sexual orientation, gender identity or expression,” for “sexual orientation,”.
Cross References
Bonds and construction procurement, construction contracts and subcontracts, nondiscrimination provisions, see § 2-305.08.
Employment services, discrimination prohibited, see § 32-408.
Applicability
Applicability of D.C. Law 24-305: § 401 of D.C. Law 24-305 provided that the change made to this section by § 201(b) of D.C. Law 24-305 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.
Applicability of D.C. Law 24-190: § 401(a)(2) of D.C. Law 24-190 provided that the change made to this section by § 201 of D.C. Law 24-190 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.
Section 7077 of D.C. Law 23-149 repealed section 3 of D.C. Law 23-90 removing the applicability provision impacting this section. Therefore, the amendment of this section by Law 23-90 has been implemented.
Applicability of D.C. Law 23-90: § 3 of D.C. Law 23-90 provided that the change made to this section by § 2(b)(1) of D.C. Law 23-90 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.
Applicability of D.C. Law 22-281: § 7167 of D.C. Law 23-16 repealed § 4 of D.C. Law 22-281. Therefore the amendment of this section by D.C. Law 22-281 has been implemented.
Applicability of D.C. Law 22-281: § 4 of D.C. Law 22-281 provided that the change made to this section by § 2(c) of D.C. Law 22-281 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.
Section 7030 of D.C. Law 22-33 repealed § 4 of D.C. Law 21-256. Therefore the changes made to this section by D.C. Law 21-256 have been implemented.
Applicability of D.C. Law 21-256: § 4 of D.C. Law 21-256 provided that the change made to this section by § 2(a) of D.C. Law 21-256 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.
Emergency Legislation
For temporary (90 days) repeal of applicability provision of D.C. Law 22-281, see § 7167 of Fiscal Year 2020 Budget Support Congressional Review Emergency Act of 2019 (D.C. Act 23-112, Sept. 4, 2019, 66 DCR 11964).
For temporary (90 days) repeal of applicability provision of D.C. Law 22-281, see § 7167 of Fiscal Year 2020 Budget Support Emergency Act of 2019 (D.C. Act 23-91, July 22, 2019, 66 DCR 8497).
For temporary (90 days) repeal of § 4 of D.C. Law 21-256, see § 7030 of Fiscal Year 2018 Budget Support Congressional Review Emergency Act of 2017 (D.C. Act 22-167, Oct. 24, 2017, 64 DCR 10802).
For temporary (90 days) amendment of this section, see § 2252 of Fiscal Year 2018 Budget Support Congressional Review Emergency Act of 2017 (D.C. Act 22-167, Oct. 24, 2017, 64 DCR 10802).
For temporary (90 days) repeal of § 4 of D.C. Law 21-256, see § 7030 of Fiscal Year 2018 Budget Support Emergency Act of 2017 (D.C. Act 22-104, July 20, 2017, 64 DCR 7032).
For temporary (90 days) amendment of this section, see § 2252 of Fiscal Year 2018 Budget Support Emergency Act of 2017 (D.C. Act 22-104, July 20, 2017, 64 DCR 7032).