Mary Anne Callahan
Mary Anne Callahan is an associate attorney at The Employment Law Group® law firm. Prior to becoming an associate attorney, Ms. Callahan worked as a law clerk at the firm for three years.
Ms. Callahan graduated summa cum laude from Virginia Tech, where she earned a Bachelor of Arts in English. She obtained her J.D. from George Mason University Antonin Scalia Law School in 2024.
She is admitted to practice law in the District of Columbia.
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. At the time of publication, Olivia Firmand was an associate at the firm.
As Businesses Reopen, Workplace Testing Is the ‘Wild West’
Testing employees for the coronavirus as they come into work will be an important step in safely getting Americans back on the job. But employers have been left to their own devices as they navigate the public health and legal minefield of creating testing plans for the workplace.
“It’s the Wild West out there when it comes to testing,” said Scott Oswald, managing principal of the Employment Law Group, which specializes in workplace issues. “There really is no standard at all, and employers are left to come up with decisions about testing on their own.”
[….]
Pennsylvania has mandated that businesses conduct temperature checks of all essential workers, which Oswald said is more detailed than the guidance most states have offered. Nate Wardle, press secretary at the Pennsylvania Department of Health, noted that the state has overseen testing at private food processing and distribution facilities with outbreaks.
“We do not have a clear guidance from our federal authorities on how to do this, and it’s being left to the states, with employers left holding the bag,” Oswald said. “It’s employees whose health and safety is being compromised.”
Booster Mandates Are a Tough Call for States, Businesses
Earlier this month, New Mexico became the first state to require COVID-19 boosters for its state employees, health care workers and educators.
Officials there cite recent state research showing that immunity from the first series of shots wanes over time, which corresponds with other studies from around the world.
“The evidence is incontrovertible,” said acting Health Secretary Dr. David Scrase. “Our data is telling us that more than two shots are needed to provide ongoing protection. If we feel like it’s going to save lives and protect people, we do have a bias for early action.”
But many other governments, employers and universities beyond New Mexico are struggling with whether to mandate boosters, leading to mixed messages to the public and a patchwork of policies across the country, even as COVID-19 cases see a winter surge.
[….]
Private employers are on solid footing if they choose to issue a booster requirement, said Scott Oswald, managing principal of the Employment Law Group, which specializes in workplace issues.
“It’s very clear that our regulatory agencies are going to give a wide berth to employers to institute these mandates,” he said. “It really comes down to what an employer believes is necessary to protect the safety of their workers.”
Still, he said, business leaders should make sure their region has enough available shots to allow workers to comply.
Your Questions About Non-Solicitation Agreements, Answered
Minnesota-based private wealth manager Kurt Altrichter was on the phone when it happened. He was handed a set of documents—and he just assumed they were the standard papers he’d been required to sign every year at the wealth management firm where he worked at the time.
“It got shoved at me when I was on the phone, and I just signed it without thinking about it,” he says. But about a year later—when he was planning to leave the firm—a chat with a friend led him to discover that what he’d signed included a non-solicitation agreement. He consulted an attorney and started researching.
Once he finally quit, the clause barred him from contacting any clients he’d built up at the firm. And he didn’t. But that didn’t stop the company from filing a cease-and-desist order against him….
[…]
Legal experts echo what Altrichter learned the hard way. “The most helpful thing is to just simply be aware,” says Adam Augustine Carter, an attorney and principal at The Employment Law Group, P.C. Understanding those details before signing a document or switching jobs is key, Carter says.
[…]
And remember that you don’t need to think of this (or any) agreement as a binary: sign or don’t sign. You could also look for a middle ground by negotiating with your employer. “Maybe it’s negotiable. Maybe it’s not,” Carter says. But you won’t know if you don’t try it—respectfully and professionally, of course.
If you’re being laid off, for instance, and are presented with paperwork to sign that includes a non-solicitation clause, you could ask for more severance pay to cover the time you’re under restrictions, rather than asking for the clause to be removed outright. “If you want to put me on the beach for a year, then you have to pay me to sit on a beach,” says Carter.
The Pew Charitable Trusts
The Muse
I’m an HR Professional. Can I Be Held Personally Liable for a Wrongful Firing?
A: Yes — So Here’s How to Protect Yourself
By R. Scott Oswald and Madeline Cook
This article is adapted from a presentation that Mr. Oswald has given at two annual conferences of the Society for Human Resource Management.
You’re an ethical, well-trained HR professional — but sometimes you may get dragged into a situation that makes you queasy.
Perhaps you’re asked to fire an employee who has been vocal about unsafe work conditions, for example. Or maybe you notice that a sketchy manager has targeted only Black workers in a round of layoffs.
There are lots of reasons to push back, of course: To protect the company from legal consequences; because your professional training requires it; because of your personal moral code.
But here’s another reason: Depending on the law that’s being violated, you could be sued and held personally liable for any wrongdoing. You could end up owing a lot of money — or even being imprisoned, in a worst-case scenario.
How can you avoid such a fate without getting fired yourself?
And what happens if you do get sued?
FIRST, UNDERSTAND THE LAW
Certain workplace laws allow individuals to be sued, or even prosecuted criminally. Under certain circumstances, this may include HR professionals who participate in a decision that violates the law.
In a table at the end of this article, we’ve outlined some major employment-related laws and whether they allow for personal liability. It’s not a complete list — and depending on your location, you may be vulnerable under state law, too.
A few of these statutes may not surprise you: The Foreign Corrupt Practices Act, for instance. But did you know that HR people can be sued individually for violations of the Family and Medical Leave Act?
As employee-side attorneys, we mostly file complaints against corporations — not against individuals like you. However, there are exceptions. And some of our peers can be much more aggressive.
In general, you are vulnerable to legal action if you are an active participant in wrongdoing. More than many executives, HR professionals are held responsible for knowing what’s illegal. Especially if you have a professional certification, you have been trained on this stuff. You’re the person who’s supposed to throw a flag on shady practices.
Even if you’re a passive participant, you may still be at risk. If you’re named in a lawsuit, a judge will decide whether your liability must be weighed by a jury. In an FMLA case, for instance, the standard will be whether you had “sufficient control” of the situation to be held liable. Some questions that a judge will likely consider:
- Were you fully informed about what was happening?
- Could you have prevented the alleged violation?
- Did you advise against the alleged violation?
- Did you take any affirmative step to further the alleged violation?
In many cases, individual managers will be dismissed as defendants. If you’re not dismissed, however, you may face trial.
A FEW SCENARIOS
Let’s look at some examples. They are hypothetical, but they are based on real cases and possibilities.
Section 1981: Section 1981 of the Civil Rights Act of 1866 outlaws race discrimination. It differs from Title VII of the Civil Rights Act of 1964, a more recent law that doesn’t allow individual liability.
Imagine that a high-ranking executive at your branch office keeps drawing attention to a specific employee’s race — often in your presence. You always wince but let it slide. One day, irritated, the employee snaps back rudely and follows up with a complaint to you about the race-based comments.
You raise the matter with the executive, but he insists that the employee’s rudeness was insubordinate and should be written up. You reluctantly agree. The following week, the executive asks you to put the employee on a performance improvement plan (PIP) due to stagnant sales performance — which is technically true, but also is true of the entire branch staff.
The employee doesn’t meet the PIP targets, and the executive decides to fire her. He tells you to clear the firing with corporate headquarters. You relay the request without expressing any contrary opinion to HQ. The employee is fired, and files suit under Section 1981, naming you as a defendant.
Could you be held liable, even though you were mostly just silent? In our opinion, you could.
Courts have held that Section 1981 may apply to anyone who was “substantially involved at every stage” of a violation. Your discriminatory motivation still would need to be proved – but a judge might leave that question to a jury.
Family and Medical Leave Act: Imagine that an employee hurts his back playing sports, and will need surgery. He notifies you that he’s taking FMLA leave and will make a claim on the firm’s self-funded short term disability plan.
When you tell his manager, she’s irritated that the employee’s private behavior will hurt profits. Shortly afterward, she asks you to search the employee’s work computer for unauthorized material — a check that’s allowed by company policy, but which you’ve never performed before.
Upon searching the computer, you find evidence that the employee has been using it to visit porn sites, which is grounds for immediate dismissal. After conferring with the manager, you meet with the employee and terminate him before his scheduled surgery. He files suit under the FMLA, naming you as a defendant.
Again, we believe that you might end up facing trial: By performing a pretextual search and acting on your findings, you could be found liable for FMLA interference and retaliation.
Foreign Corrupt Practices Act: Your company doesn’t ship its products overseas and you wouldn’t dream of paying anyone a bribe. How could you be liable under the FCPA?
Well, imagine that your CEO goes to a party at a foreign embassy, where the ambassador promises to place a big order — if your company will hire his nephew. The CEO comes to you, explains the situation, and tells you to create a make-work position. You feel obligated to comply, since it’s the CEO.
Unfortunately for you, the Securities and Exchange Commission has said that a job, including for a family member, is “something of value” under anti-bribery laws. And a “willful” violation of the FCPA, even if it’s just aiding and abetting, can lead to a criminal conviction and up to five years in prison.
Even if you don’t get prison time, you could be fined up to $100,000 — which your company isn’t allowed to pay for you.
HOW TO LIMIT YOUR EXPOSURE
You weren’t the main bad guy in any of these hypothetical scenarios, we know. But you could have done more to minimize your personal risk — and to do the right thing.
Here are some tips:
- Never turn a blind eye to anything that looks like illegal behavior.
- In particular, never allow HR actions to be used as a tool for retaliation.
- Speak up, explaining the law and showing how illegal behavior puts the company at risk.
- Point to company policy and industry norms, and insist on following all official procedures — including by investigating every employee complaint.
- Don’t frame anything as a personal stand: Knowing and following these rules is literally your job description.
- Document your advice in writing at every step.
- Escalate to superiors if you are ignored.
- If there is disagreement, ask for an opinion from the company’s legal advisor: No competent attorney will endorse lawbreaking.
- If you feel obliged to act, protest in writing before moving ahead.
- If tensions keep rising, get some confidential advice from an employment lawyer.
None of this is easy — and in extreme situations, speaking up may cost your job. If you get fired for refusing to act illegally, however, all of these steps will position you for a legal action of your own. After all, anti-retaliation laws protect you, too.
Another option: Complain or blow the whistle to an outside authority. Never rule this out, especially if you are certain that people face danger or laws are being broken. Consult an employment lawyer before taking such a step, however; lawyers help you to avoid mistakes.
Plus, of course, the ultimate step: Look for a new job. You take your responsibilities seriously, and you deserve an employer who values your professionalism.
WHAT IF I’M SUED PERSONALLY?
Lawsuits happen, sometimes even when you do everything right. Hopefully you will be dismissed quickly as a defendant — but the process is never pleasant.
First, check to see whether your company or one of its insurers will pay for your defense. Standard business insurance typically doesn’t cover the defense of individual executives against claims such as discrimination, retaliation, harassment, or FMLA violations — but many companies buy supplementary Employment Practices Liability Insurance (EPLI), which typically does cover it.
Some EPLI policies don’t extend to non-executive HR professionals, however, or to part-time or leased employees. Many policies also exclude criminal defense or claims under specific laws. Read the fine print.
Regardless of their insurance situation, some companies indemnify all their employees for actions that are taken “in the course of employment.” In fact, this is required in some states. Check with your company’s legal advisor — or consult with an outside attorney.
Even if your employer is paying for your defense, tread carefully: The company’s interests may not always align with your own. Good attorneys will remind you of this fact; will emphasize that their core job is to represent the company; and will advise you to retain your own counsel if your interests diverge.
Remain fully engaged with your case. Don’t assume that the company is taking care of everything — and don’t blindly follow the advice of its lawyers. Consider asking for independent counsel, which may be covered at least partially by insurance, especially if there is strong evidence against you.
At a bare minimum, seek a second legal opinion at key decision points. Your professional reputation is at stake.
| Federal Workplace Law | Individual Liability | Notes | |
|---|---|---|---|
| Civil | Criminal | ||
| Age Discrimination in Employment Act (ADEA) | No | No | |
| Americans with Disabilities Act (ADA) | No | No | |
| COBRA | Yes | No | Individual liability possible for plan administrator |
| ERISA | Yes | Yes | Criminal liability requires flagrant violation |
| Fair Labor Standards Act (FLSA) | Yes | Yes | Criminal liability requires flagrant violation |
| Family and Medical Leave Act (FMLA) | Yes | No | |
| Foreign Corrupt Practices Act (FCPA) | Yes | Yes | Criminal liability requires willful violation |
| Immigration Control and Reform Act (ICRA) | Yes | Yes | Criminal liability requires pattern of violations |
| Occupational Health and Safety Act (OSHA) | Yes | Yes | Criminal liability requires flagrant violation |
| Title VII of the Civil Rights Act of 1964 | No | No | |
| Section 1981/Civil Rights Act of 1866 | Yes | No | Different law than Title VII |
| Section 1983/Civil Rights Act of 1871 | Yes | No | |
———-
R. Scott Oswald is the managing principal of The Employment Law Group, P.C. Madeline Cook is a former TELG associate.
Nurse practitioner alleges wrongful termination over billing dispute
EAST ST. LOUIS – A former nurse practitioner with SSM Health Care claims she was instructed to bill for services that were traditionally a offered for free.
Carol Clark-Kutscher filed a federal lawsuit on Nov. 17 in the District Court for the Southern District of Illinois against SSM Health Care Corporation.
The lawsuit alleges retaliation in violation of the False Claims Act 3730 and retaliation in violation of Section 20 of the Illinois Whistleblower Act 740 ILCS 174/20.
According to the complaint, Clark-Kutscher worked for SSM Health Care Corporation as a nurse practitioner (NP) with job duties that included diagnosing patients, reading lab results, writing prescriptions and billing Medicare. SSM assigned coder Debra Wilkins to Clark-Kutscher to assist with billing and ensure compliance with regulations.
After the COVID-19 outbreak, Clark-Kutscher’s main role became handling advance directives, which involves explaining likely outcomes to family members of SSM patients and helping families make complex, end-of-life decisions; a free service offered by SSM. Clark-Kutscher alleges she was told by her supervisor to bill Medicare for the services, which was immediately stopped upon the discovery of Wilkins.
[…]
The supervisor allegedly instructed Clark-Kutscher to improperly bill Medicare six or seven times following the meeting. Each time Clark-Kutscher claims she refused and forwarded the email to Wilkins. In response, the supervisor allegedly issued a pretextual corrective action. On Oct. 9, 2020, SSM issued Clark-Kutscher a final corrective action and terminated her employment, the suit states.
Clark-Kutscher seeks reinstatement, two times the amount of back pay, interest on back pay, special damages sustained as a result of the discrimination, litigation costs and attorney’s fees. Clark-Kutscher is represented by Scott Oswald of The Employment Law Group PC in Washington, D.C.
