DCHRA Ammended to Introduce 20th Protected Trait: Credit Information

Job Interview with EmployerThe majority of professionals are familiar with, Title VII of the Civil Rights Act of 1964, the federal law which protects employees’ rights and makes discrimination unlawful against employees based on their sex or race. Employers and employees working in Washington, D.C., however, are governed by additional anti-discrimination laws and protections such as the DC Human Rights Act of 1977 (DCHRA). The DC Human Rights Act of 1977 (DCHRA) makes discrimination illegal for matters related to educational institutions, housing, public accommodations, and most in line with our interests—equal employment, career training, and career advancement opportunities.

As of Sunday, October 1, 2017, the DC Human Rights Act (DCHRA) was amended by the Fair Credit in Employment Amendment Act of 2016 in order to introduce “credit information” as the newest protected trait. This allowed for the District of Columbia to link arms with states—such as California, Connecticut, and Illinois—and cities such as Philadelphia, Chicago, and New York City that also limit or ban employers, employment agencies, and labor organizations from performing credit checks to make employment decisions.

The specific requirements of the 20th protected trait added by this amendment makes it illegal for employers in the District of Columbia to inquire about, accept, obtain, or take into account a current employee, prospective employee, or even unpaid interns’ credit information to determine applicant screening, credit, hiring, promotions, and various other employment practices. Credit information is defined as “any written, oral, or other communication of information bearing on an employee’s credit worthiness, credit standing, credit capacity, or credit history.” The process of filing a complaint may be completed by submission of the Online Intake Form, sending a digital copy of the Fair Credit in Employment Intake Form via email to ohr.intake@dc.gov, or mailing a printed copy of the Fair Credit in Employment Intake Form directly to the DC Office of Human Rights.

Responsibilities of the District of Columbia Office of Human Rights (OHR)

The DC Human Rights Act is proactively enforced by the District of Columbia Office of Human Rights (OHR), an agency that exists to preserve local and federal human rights in the District of Columbia through Director’s Inquiries, and aims to increase equality and decrease discrimination with respect to “20 protected traits for people that live, visit, or work in the District of Columbia.” The District of Columbia Office of Human Rights (OHR) is responsible for streamlining the legal procedure for any person or organization that feels that they have experienced discrimination based on the 20 protected traits (only 15 of which are related to employment) recognized by the DCHRA. This agency is dedicated to identifying and investigating situations where discriminatory policies and practices may have occurred.

The DCHRA safeguards employees from prejudice that may occur with respect to hiring and firing decisions, promotions, referrals, compensation, and job training. This legislation also protects employees by making it illegal to threaten, coerce, or retaliate against an organization’s employees should their employees decide to file a complaint. Aggrieved employees that feel that they have experienced an individual case of workplace discrimination, or a reoccurring case of discrimination, are encouraged to file a complaint with the OHR or in the D.C. Superior Court within one year of the occurrence.

The complete list of the 20 protected traits under the DCHRA for educational institutions, housing, public accommodations, and employment is as follows:

  1. Race
  2. Color
  3. Religion
  4. National Origin
  5. Sex
  6. Age
  7. Marital Status
  8. Personal Appearance
  9. Sexual Orientation
  10. Gender Identity or Expression
  11. Family Responsibilities
  12. Political Affiliation
  13. Disability
  14. Matriculation (Housing, Employment, and Public Accommodations)
  15. Familial Status (Housing, Educational Institutions, Public Accommodations)
  16. Genetic Information (Employment and Public Accommodations)
  17. Source of Income (Housing, Educational Institutions, Public Accommodations)
  18. Place of Residence or Business (Housing and Public Accommodations)
  19. Status as a Victim of an Intrafamily Offense (Housing)
  20. Credit Information (Employment)

Exceptions to the 20 protected traits include seniority systems for promotions, and preferential treatment in decisions made on behalf of “persons of the same religion or political persuasion” by religious or political organizations under the premise that such decisions will correspond directly with the values of that religious or political organization.

Exemptions from the Protected Trait of Credit Information

Employers in the District of Columbia are exempt from enforcement of the 20th protected trait, credit information, if and only if it is under the circumstances indicated below:

  • D.C. law requirements for the employer to request or use a candidate’s credit information
  • Candidate is interested in opportunities with the Office of the Chief Financial Officer of D.C.
  • Employer acquires credit information through lawful subpoena, court order, or law enforcement investigation
  • Candidate is interested in opportunities with a financial institution, and the role requires access to personal financial information
  • Candidate is an applicant for or currently employed with a law enforcement function
  • D.C. law requirements for the candidate to obtain and maintain a security clearance
  • D.C. government employees disclosing credit information to the Board of Ethics and Government
  • “Accountability or the Office of the Inspector General, and the agencies’ use of such disclosures are also permitted”

Compensatory Damages Recoverable Under the DCHRA

Penalties for non-compliance and engagement with unlawful discriminatory practices regarding credit information include potential fines of $1,000 for the first offense, $2,500 for the second offense, and $5,000 per subsequent violation of the protected trait. Individuals have a private right of action should they choose to file a complaint against allegedly discriminatory employment practices.

If an organization is found guilty of unlawful discrimination under the DCHRA, that organization is subject to relief under court order where the amount of compensatory damages recoverable is uncapped. Examples of corrective action penalties would be to hire, reinstate, or promote employees that have been adversely affected. Examples of monetary penalties include the cost of attorneys, litigation expenses, or civil penalties as deemed appropriate. A successful plaintiff may be awarded punitive damages in situations where said plaintiff is able to prove that the occurrence(s) of discrimination from the opposing party were purposely malicious or ill-intended.

Summarizing the DC Human Rights Act

Under DCHRA, employees’ rights to equal employment, career training, and career advancement opportunities are protected. Employees and other individuals are encouraged to file a complaint with the OHR or DC Superior Court within one year of experiencing a distinct case or routine pattern of discrimination in the workplace. If a plaintiff is successful in proving their case, they may be entitled for hiring, reinstatement, promotions, and even financial awards.

Employers, employment agencies, and labor organizations in the District of Columbia that use credit information for employment decisions need to review and revise their organization’s employment practices in order to ensure compliance with the current regulations in place. Navigating through these changes in the Human Resources industry can be a daunting task, but your organization does not have to endure it alone. Compliance Training Group is here to provide support and advising on the next steps required to maintain compliance.

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