Testimony on Bill 11-116
"The Human Rights Amendment Act of 1995"
Committee on Labor & Human RightsApril 24, 1996
On behalf of the Gay & Lesbian Activists Alliance of Washington, D.C. (GLAA), I am pleased to present this testimony for the record of your Committee's recent public hearings on Bill 11-116, "The Human Rights Amendment Act of 1995."
GLAA has been aware of this bill and a series of closely-related predecessors for several years now, and we are pleased that the Council is now ready to address it. There are some sections of this bill which we think can make a positive contribution for the cause of more effective enforcement of the District's comprehensive anti-discrimination statute, the Human Rights Law of 1977. At the same time, however, we are disturbed by the thrust of certain other sections of the proposed legislation.
By far the most useful part of Bill 11-116 is the section that would establish a mandatory mediation process (which would have to be completed within 45 days) for the purpose of resolving a complaint before the Office of Human Rights may commence its formal investigation of the complaint. Last year GLAA representatives had a very instructive discussion with Mr. Steven Jumper, then the Acting Chief of the Department of Human Rights and Minority Business Development, and with several of his key staff members to explore the ramifications of this provision. We came out of that meeting convinced that this proposal for mandatory mediation before the formal investigation was a basically sound idea. We believe that, once properly implemented, mandatory mediation can help reduce the enormous strain on the handful of investigators left to enforce our anti-discrimination law because many cases will be resolved before reaching their desks. We therefore urge the Council to adopt the mandatory mediation portion of Bill 11-116.
We are also pleased by the section of the bill that would suspend the one-year statute of limitations while a complaint is pending before the Human Rights office. Apparently there has been a series of conflicting opinions from D.C. courts about this issue, and we would be glad to see the matter resolved in the fashion proposed in the bill. Ideally, in fact, we would recommend that a 3-year statute of limitations should be written into law rather than a 1-year. A 1-year statute of limitations is the custom in cases of contract violations, while 3-years is the more common period when torts are involved. We believe that complaints of unlawful discriminatory practices should be treated more like tort actions rather than as contract violations.
We are not at all enthusiastic, however, by that part of Bill 11-116 which would increase from 120 days to 1 year the time within which the Office of Human Rights is required to make a determination of jurisdiction and probable cause. We realize only too painfully that the current backlog of cases is so great that anyone filing an anti-discrimination complaint today may not get a finding of probable cause until 3 or 4 years from now. GLAA has been in the vanguard of those calling for an end to the drastic reduction in investigators we have witnessed in the Human Rights office since the early 1990's. So, in one sense this whole provision, current or revised, is academic. However, GLAA feels that the original intent of the framers of the Human Rights Law of 1977 was well-founded and should remain as our goal. Changing the law because of a staff shortage strikes us as an odd way of doing business.
We also want to associate ourselves with the reservations expressed by the Washington Lawyers Committee for Civil Rights and Urban Affairs regarding the provision of Bill 11-116 that reads: "If a complaint has been pending before the Office for more than 1 year, the complainant may request a right-to-sue letter at any time prior to the completion of the Office's investigation and findings...." The reference to a "right-to-sue letter" is illegitimately taken from the law regarding actions before the federal EEOC. Unlike federal law and practices, nothing prevents a complainant from dropping a complaint filed with the Human Rights office and proceeding directly to D.C. courts. This section of the bill would have to be much rewritten or else deleted entirely.
We would like to suggest that the Council take this opportunity to codify the current policy within the Department of Human Rights & Minority Business Development of giving the highest investigative priority to complaints of HIV- and AIDS-related discrimination. We understand from our recent meeting with the Department's interim director, Mr. Gerald Draper, that when such a complaint comes in, it immediately goes to the top of the pile of cases being worked on by one of the investigators in the Human Rights section. Nothing in the present law, however, requires this humanitarian policy. We would therefore urge the Council to add language to Bill 11-116 mandating this kind of priority for complaints from individuals who have been diagnosed with an illness that is likely to terminate in death or extend beyond 12 months.
Stepping back from the details of the bill before you and looking at the broader picture, there is a distinct danger that, even if mandatory mediation is adopted, the Human Rights agency may in fact have little to do beyond providing this useful mediation process. Because complainants seldom get sizable awards from sticking with the purely administrative process, many complainants even now prefer to go to court to pursue their cases in hopes of securing more generous awards from a jury. Lawyers in this town seldom take on OHR cases for a contingency fee, but instead routinely charge hefty retainers ($5,000 being on the low side). That means that those people who do stick it out for 3 or 4 years with the Human Rights agency are typically lower or middle income. GLAA has long urged people with legitimate complaints to file their complaints with the Human Rights office because of the substantially lower costs involved. But the wait can be an ordeal, and one with only limited rewards at the end even for the winners.
Establishing a mandatory mediation process before any investigative work is a step in the right direction. But to restore the Office of Human Rights to its more proper role, a sizable boost in the number of its assigned investigators remains imperative. Thank you for your attention.
See March 1997 testimony on mandatory mediation
See related letter from Councilmember Schwartz