District of Columbia: New Human Rights Enhancement Amendment Act Changes Definitions of “Harassment” and “Employee”

/in /by

APPLIES TO

Employers with Employees in the District of Columbia

EFFECTIVE

October 1, 2022

  

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Quick Look

  • The DCHREAA adds “homeless status” as a new protected category.
  • Under the DCHREAA, the definition of “employee” now includes both independent contractors and unpaid interns.
  • Under DCHREAA, D.C. embraces a “totality of the circumstances” test for determining unlawful workplace harassment, as opposed to the traditional “severe and pervasive” standard.

Discussion

The District of Columbia recently passed the Human Rights Enhancement Amendment Act of 2022 (“DCHREAA”), amending the D.C Human Rights Act (“DCHRA”) and adding new protections, broadening who is covered under the act, and codifying protections against workplace harassment. First, the DCHREAA added “homeless status” as a protected classification, which includes, in part, any individual or family who is fleeing or attempting to flee domestic violence, has no other residence, and lacks the resources or support networks needed to obtain other permanent housing. Because it is not clear from the DCHREAA’s test what will place an employer on notice of an employee’s homeless status, employers should monitor case law interpretations of the amendment closely.

The DCHREAA also expanded the DCHRA’s definition of an “employee.” Previously, an employee was defined as an “individual employed by or seeking employment from an employer.” However, the new definition under the DCHREAA broadens this definition, stating “[t]he term ‘employee’ includes an unpaid intern and an individual working or seeking work as an independent contractor.” This represents a significant departure from Title VII jurisprudence, which explicitly excludes independent contractors from coverage and protections afforded to employees.

Lastly, the DCHREAA broadened the definition of “harassment,” defining the term 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 DCHREAA specifically incorporated sexual harassment within the amended definition of harassment.

D.C. previously applied the traditional “severe and pervasive” standard when evaluating claims for workplace harassment. D.C. now uses a modified version of the “totality of the circumstances” analysis to determine whether certain conduct constitutes unlawful harassment. Specifically, conduct may constitute unlawful “harassment” regardless of whether the conduct: (1) was an isolated instance, (2) was directed toward a person other than the complainant, the complainant submitted to or participated in the conduct, or the complainant was able to complete employment responsibilities despite the conduct, (3) caused tangible physical or psychological injury; (4) occurred outside the workplace; and (5) did not implicate a protected characteristic. The new definition appears to broaden the protection and lessen the burden imposed on proving harassment.

 

Action Items

  1. Have harassment and discrimination policies updated for compliance.
  2. Assess what employment practices may directly or indirectly call into question or reveal an employee’s homeless status.
  3. Have appropriate personnel trained on what constitutes unlawful harassment under this amended definition.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase