Employees who suffer race-based workplace discrimination in Washington, D.C. may be able to file a lawsuit under three distinct laws: The District of Columbia Human Rights Act; Title VII of the Civil Rights Act of 1964; and Section 1981 of the federal Civil Rights Act of 1866. They will also need to decide between two different court systems. What is the best combination of options — and why? Our race discrimination lawyers believe there is usually a clear answer.
This article by
TELG managing principal R. Scott Oswald and TELG associate Olivia Firmand was published by The Employment Law Group, P.C. on December 23, 2021.
Choosing the Best Law for Race-Based Employment Claims in D.C.
By R. Scott Oswald and Olivia Firmand
» View the flowchart that accompanies this article
Are you considering filing a legal complaint about race-based discrimination or retaliation in a District of Columbia workplace — or by a D.C.-based employer?
If so, you may be weighing the pros and cons of the three main statutes under which you might proceed:
- The District of Columbia Human Rights Act (DCHRA), a local law;
- Title VII of the Civil Rights Act of 1964 (Title VII), a federal law; and
- Section 1981 of the Civil Rights Act of 1866 (Section 1981), a federal law.
In our firm’s experience, the choice is usually straightforward. Where possible, you should proceed in D.C. Superior Court under the DCHRA alone. The D.C. statute gives you better odds of winning than either of the federal laws; it doesn’t set a limit on compensatory damages, also known as “pain and suffering”; and your action will likely remain in the D.C. courts, a favorable environment for plaintiffs.
This article summarizes our lawyers’ thinking on each option and explains why D.C. Superior Court is usually the best venue for employees with this sort of claim. We’ve also created a flowchart that shows, in simplified form, how we decide between the three options at our race discrimination law firm.
Of course, each case is unique: A competent attorney always considers individual circumstances before making a decision. In particular, the calculus may be affected if there are additional claims and/or you could file in a local jurisdiction other than D.C.
About the DCHRA
The DCHRA is a wide-ranging law. As relevant here, it forbids race-based workplace discrimination and retaliation against workers for raising concerns about such discrimination. It protects employees who work in D.C.; employees of D.C.-based employers; and other employees who suffer an adverse action that happened in D.C. or was based on a decision made in D.C.
The DCHRA applies to all employers with at least one employee — except for the federal government. (In D.C., of course, that’s a huge exception.)
The DCHRA has a favorable causation standard, relatively speaking. For both discrimination and retaliation, employees need to prove only that race was a “motivating factor” for the action that harmed them. By comparison, Title VII is more demanding for retaliation claims; Section 1981 has a higher causation standard for both discrimination and retaliation claims.
Except for employees of the D.C. city government, the DCHRA doesn’t require administrative exhaustion. That means a plaintiff can go directly to court without any preliminary investigation or action by an agency. D.C. government employees must go through an administrative process first, but it’s not as demanding as the Title VII process at the U.S. Equal Employment Opportunity Commission.
Furthermore, unlike Title VII, which caps compensatory damages at $300,000, the DCHRA has no ceiling for the amount a jury can award for pain and suffering. This makes litigation risky for employers, and it may help to motivate an early settlement.
Finally, for most cases, limiting your claims to the DCHRA will ensure that your case remains in the D.C. courts.
Advantages of D.C. Courts
What’s so great about D.C. courts? In general, cases in D.C. Superior Court move faster than those in federal court — and D.C. rules of procedure offer plaintiffs some tactical advantages at each step.
At the start of a case, for example, an employee plaintiff can serve initial discovery requests along with the complaint, with answers or production due in just 30 days. Compare this to federal court, where discovery doesn’t start until preliminary motions are resolved and the judge has set the timetable after a Rule 26(f) conference — a matter of months, at the very least.
Faced with substantial discovery expenses at an early stage, many defendants will choose to negotiate sooner and in better faith.
Also, in our experience, D.C. Superior Court judges are less likely than federal judges to grant a defendant’s motion for summary judgment. That means employers must reckon with the unpredictability of a jury trial. And because D.C. juries are drawn from a broader economic spectrum than federal juries — the eligible pools are different — they’re more likely to favor employees, in our view.
Even before considering the specific benefits of the DCHRA, in other words, employees get a head start in D.C. courts.
About Section 1981
So why would anyone in D.C. pursue a race-based employment claim under federal law?
In short, because the DCHRA isn’t always available. We’ll talk about federal employees shortly, but the main reason a non-federal employee would choose federal law is the DCHRA’s statute of limitations — that is, the maximum time that’s allowed to elapse between an adverse action and the filing of a claim based on that action. For the DCHRA that’s one year.
The DCHRA is more generous in this regard than Title VII, so non-federal employees should never need Title VII for D.C.-based cases. If more than a year has passed since a race-based adverse action, however, pursuing a Section 1981 claim is a good option.
Section 1981 isn’t available to federal employees. Unlike the DCHRA and Title VII, which are broad civil rights laws, it is limited to race-based actions. It allows lawsuits for incidents or situations up to four years old — but claims must be robust, since the statute is less favorable to plaintiffs than the DCHRA.
Specifically, courts have held that Section 1981 requires employees to show that they wouldn’t have been harmed “but for” their race or, in retaliation cases, their race-based concerns. This is a tougher standard than the DCHRA’s “motivating factor.”
On the plus side, Section 1981 is similar to the DCHRA in its lack of a ceiling on compensatory damages. Smart defendants will be eager to avoid a trial, especially if the employee is sympathetic.
About Title VII
Finally, for federal employees with race-based employment claims in D.C., Title VII is the only avenue available. And they must act quickly: The deadline for filing an informal complaint with their agency’s Equal Employment Opportunity Counselor is just 45 days after an adverse action.
The Title VII process requires an initial attempt to resolve the matter internally, followed by an EEOC investigation that could last six months or more, after which an employee may file a complaint in federal court. Once in court, plaintiffs must prove that race was a “motivating factor” for an action that was discriminatory — or that race concerns were the “but for” cause of a retaliatory action.
As noted above, Title VII imposes a $300,000 cap on compensatory damages. Still, this landmark civil-rights law remains a powerful tool and offers a viable remedy for employees whose damages are mostly economic.
» View the flowchart that accompanies this article
R. Scott Oswald is managing principal at The Employment Law Group, P.C. Olivia Firmand is an associate at the firm.