GLAA details govt non-compliance with Mayor's Order on Human Rights Act

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GLAA details government non-compliance with Mayor's Order on Human Rights Act

GAY AND LESBIAN ACTIVISTS ALLIANCE OF WASHINGTON
P. O. Box 75265
Washington, D.C. 20013
(202)667-5139

TESTIMONY ON OVERSIGHT HEARING ON
COMPLIANCE WITH MAYOR'S ORDER 2000-131

Before the Subcommittee on Human Rights, Latino Affairs,
and Property Management
JULY 12, 2002

Chairman Graham, Members of the Council, and Fellow Citizens:

Good morning. My name is Craig Howell. I am a former President of the Gay and Lesbian Activists Alliance of Washington (GLAA), the nation's oldest continuously active gay and lesbian civil rights organization. GLAA recently celebrated its 31st anniversary, and I am proud to say that I have been associated with GLAA for about 28 of those years. One of my major interests has always been the enforcement of the D.C. Human Rights Law, one of the strongest and most comprehensive civil rights laws in the nation.

I am delighted that you, Mr. Graham, took the initiative to convene this oversight hearing, and we all hope it will play a useful role in getting the notoriously recalcitrant D.C. government to pay attention both to its own civil rights laws and to the Mayor's Orders.

A little bit of background might be in order to explain the events and philosophy behind the original issuance of Mayor's Order 2000-131 by Mayor Williams in August 2000.

When the Human Rights Act was first enacted back in the 1970s, its opening section defined its vast sweep of protection: "It is the intent of the Council of the District of Columbia...to secure an end in the District of Columbia, to discrimination for any reason other than that of individual merit, including, but not limited to, discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, physical handicap, source of income, and place of residence or business."

Yet for many years few if any city agencies reflected the full coverage of this local law in their own anti-discrimination policy statements. Instead, nearly all agencies limited the "laundry list" included in these statements to those categories protected under federal civil rights laws--race, religion, sex, age, and so on. These laundry lists overlooked all the additional classes protected under our own law. GAA (as we were then called) complained about this to Mayor Walter Washington, who ignored us. But Mayor Marion Barry had pledged himself during the 1978 campaign to repair this policy, which he did through a Mayor's Order in February 1980.

This Mayor's Order enjoyed a long and fruitful life in the 1980s and much of the 1990s. But several cases of inadequate government anti-discrimination policy statements came to light in the first year of the Williams Administration, making it obvious to us that it was time for a new Mayor's Order. Mayor Williams responded to GLAA's efforts with Mayor's Order 2000-131 in August 2000, ordering all government agencies to include all categories protected under the D.C. Human Rights Act of 1977 in their anti-discrimination policies, and to clear the language of their proposed anti-discrimination regulations with OHR.

Let me note the language of Section 4: "Effective Date: This Order shall become effective immediately." What part of "immediately" does the District government not understand? The bizarre proposition we first heard advanced by the Administration this week -- that the Order was not officially effective until it was published in the D.C. Register, which did not occur until last Friday, July 5 -- is flatly contradicted by the Order's own unambiguous language.

Unfortunately, inadequate anti-discrimination statements continued to surface even after issuance of this Mayor's Order, making it clear that agencies were either unaware of or ignoring its existence. In August 2001 then-OHR Director Holman issued a statement reminding all agencies of the Executive Order and their need to clear their policy statements with his office. But still the problem persists, most recently with inadequate language in statements from the Metropolitan Police Department and the D.C. Housing Authority.

At least some blame must be attached to the Office of the Corporation Counsel (OCC), since all proposed regulations must be cleared by them before being published in the Register. Unfortunately, OCC's own record in respecting the Human Rights Act over the last decade has been abysmal, as we have documented more than once before this subcommittee. Councilmember David Catania sent a letter to the OCC on July 16, 2001, criticizing their failure to enforce Executive Order 2000-131; a copy of that letter is attached to my testimony. To quote from the Councilmember's letter: "Two vital issues remain. First, the Office of the Corporation Counsel needs to find a remedy for past violations of this Executive Order. Second, a structure needs to be put in place to ensure that this problem does not repeat itself in the future. I look forward to your response on how both objectives will be accomplished." Not surprisingly, the Corporation Counsel's office never bothered to reply to Mr. Catania.

I would like to cite some relatively recent examples where we found that various DC government agencies were not following EO 2000-131.

In March of this year, the Metropolitan Police Department drafted a copy of a proposed order on Biased Policing, a copy of which was sent to us for our review. We noticed the inadequacies of the definition of biased policing incorporated into this draft order: "Section III. Definition. Biased policing is the practice of singling out or treating differently any person on the basis or race, ethnicity, national origin, religion, age, gender, gender identity or sexual orientation. Such policing occurs when law enforcement inappropriately considers any of these listed factors in deciding with whom and how to intervene in an enforcement capacity." While we are naturally pleased by the draft order's inclusion of the term "gender identity," we are concerned that the order omits a number of other categories protected by DC law (including "personal appearance," a term that has always been used to prohibit discrimination on the basis of, among other things, what we nowadays call "gender identity.") We are not aware whether this problem has been corrected, or whether MPD has submitted its draft order to OHR for its review.

We found another example of a poorly worded anti-discrimination policy in the draft regulations for a housing voucher program published in the May 3 D.C. Register by the D.C. Housing Authority. As we pointed out in our comments dated May 23, the proposed policy omits the following protected categories: age, marital status, personal appearance, family responsibilities, matriculation, political affiliation, disability, source of income, and place of residence or business. Obviously the proposed language was not first vetted with OHR.

The D.C. Housing Authority, by the way, presents a peculiar case study indeed. DCHA also included an inadequate anti-discrimination statement in proposed regulations published in the Register last August 10 regarding the Section 8 voucher program. In that case, the following categories were left out: marital status, personal appearance, family responsibilities, matriculation, political affiliation, source of income, and place of residence or business. It also included two redundancies: "religion" and "creed," and "handicap" and "disability." Yet DCHA included a perfect anti-discrimination policy in a set of final regulations published March 15 of this year covering Chapter 74 of Title 14 DCMR, "Reasonable Accommodation Policies and Procedures." Truly, at DCHA, the right hand knoweth not what the left hand doeth.

But at least I am happy to report that the final version of DCHA's regulations for the HCV/HOAP program, published in the June 21 Register, includes a comprehensive anti-discrimination statement at its conclusion. But just as a curiosity, the redundant categories "religion" and "creed" both appear.

The February 22 issue of the Register included an inadequate statement in final regulations from the Child and Family Services Agency regarding "Licensing of Independent Living Programs for Adolescents and Young Adults." In providing a "Statement of Residents' Rights and Responsibilities," these regulations declared that all residents of youth facilities have "the right to be free from discrimination, including the right to equal access to services regardless of race, religion, ethnicity, sexual orientation, disability, or gender." Again, a number of protected categories have been overlooked.

We do not mean to imply that DC government agencies never get it right. To cite one recent example, the Citizen Complaint Review Board published proposed regulations for its own operations and those of its companion Office of Citizen Complaint Review in the May 31 Register. In defining the Office's jurisdiction, the regulations included a complete list of categories protected from discriminatory treatment by the Metropolitan Police Department. (We have no way of knowing, however, whether OHR was given a chance to review this language, or whether CCRB just happened to get it right anyway--which they could have done by looking at the law creating the new system of citizen complaint review.)

Please note that all these examples refer to regulations published in the Register. But the scope of Mayor's Order 2000-131 goes far beyond regulations to include all sorts of other materials, whether published internally or aimed at the general public. To quote from the Order, it covers "job postings, equal employment opportunity notices, general orders, departmental directives, special instructions, and materials processed through the Administrative Issuance System." We at GLAA have no way of monitoring these other materials. We stumbled across an inadequate anti-discrimination statement in a D.C. government contract not long ago, but usually such items fly beneath our radar.

We hope that the hiring of a compliance officer within OHR, as authorized in its FY 2003 budget thanks to the initiative of former Director Charles Holman, will eventually provide an avenue for aggressively seeking out and checking such materials throughout the District government, and ensuring that they all are up to snuff. It is especially important that policy statements meant to be read by the general public include the complete list of protected categories, precisely because most people don't realize that the D.C. Human Rights Law is so much broader than the federal civil rights laws.

Thank you. I would be glad to answer any questions you may have.

Additional notes by Craig Howell after the hearing:

Neither Nadine Wilburn of OHR nor Councilmember Graham's office was aware that the Order had been published in last Friday's DC Register, so they copied my copy. They had been told it would be published in today's Register.
Wilburn had not seen Holman's message from August 2001 reminding all agencies of their responsibilities under the Mayor's Order, so she copied my printout.
Mr. Graham said the actual language of the Mayor's Order does not tell agencies to submit their anti-discrimination policy statements to OHR before they're published. I said the language of the Order was not explicit, but that was our understanding from the get-go, that Holman and/or Hizzoner said as much in the ceremony announcing the Order, and that Holman had explicitly asked all agencies to submit such statements to him a year ago and nobody complained of his lack of authority to do so.
Wilburn said some agencies knew about the Order but others did not. (She gave me a bulky folder to absorb of agency submissions related to the Order.) Mr. Graham said the actual publication in the Register was of no consequence since the Order said it took effect immediately. Wilburn did not dispute the point.
Mr. Graham said the Order should be reissued to reflect the inclusion of protection against harassment now in the Human Rights Act, once the Human Rights Amendment Act clears Congress.
Mr. Graham suggested it is too onerous and unrealistic to expect all agencies to submit all their anti-discrimination statements to OHR every time a new publication comes out. He wants each agency to commit to boilerplate language that will be included everywhere from then on. I said in too many agencies, the right hand knoweth not etc., so OHR will still have to monitor each statement.
Wilburn says she has sent an e-mail to every agency reminding them of the need to follow the Order. She says every agency should be in compliance with the Order by the end of this FY. She will follow through on Holman's plans to hire a compliance officer to work on this matter and she's asking every agency to submit proposed anti-discrimination statements to her. Mr. Graham asked her to come up with an effective monitoring strategy by the end of the FY, and said he will reconvene this same hearing after September 15 to check what she's come up with. He says if OHR has rule-making authority, they should develop an appropriate rule; if not, OHR should submit guidance with more "oomph" than Holman's August 2001 letter provided.
Wilburn said the February 1980 Order of Barry was superseded in 1985 by Order 85-59 that did not include all the protected categories. Who knew?! First I heard of the '85 order was from Holman at the ceremony releasing Order 2000-131. He said it was virtually identical to the 1980 Order. Obviously it wasn't; I never actually saw the '85 Order. But the fact that I never noticed any problems with the policy statements issued after '85 indicates that agencies were still following the wording of the original '80 Order.
Wilburn was accompanied by Shane Salter, the Chief of Staff of Carolyn Graham, Deputy Mayor for Children, Youth, Families & Elders. Didn't say much, except to express the Administration's commitment to get the Order properly enforced.
Mr. Graham took note of our questionnaire question about continuing to increase OHR's budget. He said it was his idea, so he guesses he will continue to support himself. Didn't say anything about those questions where we don't agree.
In his opening statement, Councilmember Graham criticized then-OHR Director Charles Holman for doing nothing to enforce the Order until a year after it was issued, when he sent a message to all agencies reminding them of the Order and their responsibilities under it. I modified my testimony to note that this was not a fair criticism. Holman assumed, as did we, that the Mayor's Office itself was responsible for distributing the Order, just as they would be for the distribution of any other Mayor's Order. When we found several examples indicating the Order was not in general circulation, Holman took the initiative to send out his own reminder, which apparently was the first time many agencies had been made aware of the Order.
In discussing the inadequacy of the anti-discrimination policy statement finalized early this year by the Child and Family Services Agency in my testimony, I added that the same agency had made virtually the same mistake in similar rules published in May 2001. OHR Director Holman told Deputy Mayor Carolyn Graham about our discovery and she promised to rectify it. Obviously the Child and Family Services Agency did not learn its lesson.
Mr. Graham noted that the D.C. Housing Authority is an independent agency and as such is not bound by Mayor's Orders. I noted that the Agency is still bound by the D.C. Human Rights Law itself and that, to its credit, DCHA has never invoked its independent status as an excuse for not publishing comprehensive anti-discrimination policy statements.
Mr. Graham said it is unfair to expect the Corporation Counsel to enforce the Mayor's Order because it has no jurisdiction to review job postings, departmental directives, and many other kinds of materials covered by the Mayor's Orders. I said that OCC cannot be expected to do everything but it can do something where it does have jurisdiction, such as reviewing proposed regulations, and it has failed miserably in noticing when agencies fail to comply with the Order.
The hearing lasted about 45 minutes. Should be re-runs on Channel 13 all summer long until the Council reconvenes in mid-September.