DOJ Extends Protection To

Employees Based On Gender

Identity; 2014 District of
Columbia New Employment Laws
By: Lawrence P. Postol, Vice President For Legislative Affairs
Lpostol@seyfarth.com
DOJ Extends Protection To Employees Based On Gender Identity
Attorney General Holder announced in December, 2014 that the U.S. Department of
Justice will take the position in litigation that the protection of Title VII of the Civil Rights Act of
1964 extends to claims of discrimination based on an individuals gender identity, including
transgender status.
In a memorandum released by the U.S. Department of Justice, Treatment of Transgender
Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964, Attorney
General Holder concludes that after considering the text of Title VII, the relevant Supreme
Court case law interpreting the statute, and the developing jurisprudence in this area, I have
determined that the best reading of Title VIIs prohibition of sex discrimination is that it
encompasses discrimination based on gender identity, including transgender status.
In the memo, Holder informed all Department of Justice Component Heads and United
States Attorneys that the Department will no longer assert that Title VIIs prohibition against
discrimination based on sex excludes discrimination based on gender identity per se, including
transgender discrimination. In doing so, Holder reverses a previous Department of Justice
position on this topic.

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The memo clarifies the Civil Rights Divisions ability to file Title VII claims against state
and local public employers on behalf of transgender individuals.

Note, however, that the

Department of Justice does not have authority to file suit against private employers.
Nevertheless, various legal protections exist for employees in the private sector, including for
employees of government contractors.
It should also be noted that 18 states have extended their nondiscrimination laws to
protect people based on sexual orientation and gender identity.
2014 District of Columbia New Employment Laws
One legislative body in the District of Columbia has been busy this year . . . the DC
Council has enacted a cornucopia of new statutes in 2014 that address many hot button
employment issuespregnancy accommodation, wage theft, background checks and paid sick
leaveon which Congress has been unable to act.
Protecting Pregnant Workers Fairness Act of 2014 (PPWFA)
The Basics. The PPWFA, which is projected to go into effect December 30, 2014,
requires employers to provide reasonable accommodations to employees whose ability to
perform their job is affected by pregnancy, childbirth, breastfeeding, or related medical
conditions, unless such accommodations would work an undue hardship on the operation of the
employers business. Because the PPWFA requires an employer to engage in an interactive
process with any employee requesting or needing an accommodation, the employer arguably has
more of an obligation to initiate the interactive process if the employee does not request an
accommodation than exists under the Americans with Disabilities regarding known disabilities.
Specific reasonable accommodations included in the PPWFAs definition of that term include
more frequent or longer breaks; leave to recover from childbirth; a private non-bathroom space

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for expressing breast milk; proper seating; light duty job assignments; temporary transfer to a
less strenuous position; modifying equipment; modifying work schedule; and excusing an
employee from heavy lifting.
An undue hardship is defined as any action that requires significant difficulty in the
operation of the employers business or significant expense on the behalf of the employer when
considered in relation to factors such as the size of the business, its financial resources, and the
nature and structure of its operation. An employer may also require medical certification
regarding the need for reasonable accommodations, provided it does so for other situations
involving temporary disabilities (e.g., DC/FMLA leave, ADA reasonable accommodations, etc.).
Violations of this law include:
Refusal to make reasonable accommodations;
Retaliation against an employee that requested an accommodation;
Denying employment due to the employers need to make reasonable accommodations;
Forcing an employee to accept an accommodation that is not necessary; or
Requiring an employee take leave instead of offering an accommodation.
Employers must post and maintain a notice of PPWFA rights in English and Spanish.
Employers must also provide written notice to all new employees upon hire and to all existing
employees within 120 days after the Acts enactment date. Finally, employers also must provide
written notice to any employee that notifies the employer of her pregnancy or other condition
covered by the Act, within 10 days of receiving such notice.
Enforcement. PPWFA actions may be brought in court or through an administrative
complaint to the District of Columbia Department of Employment Services.

Penalties for

violations include back pay, job reinstatement, attorney fees and costs, along with civil penalties

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ranging from $1,000 to $2,000 per offense and an additional penalty of up to $50 per day for
each day an employer fails to provide the required notice of rights. Notably, there is no stated
statute of limitations for claims under the PPWFA.
Wage Theft Prevention Amendment Act of 2014 (WTPAA)
The WTPAA, which is projected to take effect on January 14, 2015, significantly
modifies DCs various wage laws.
New Pay Notice Requirements. Within 90 days of the laws effective date, employers
must provide every existing employee a written notice, in English and in the employees primary
language, containing:
The employers name and any dba names it uses;
The employers main office or principal business place address;
The employers telephone number;
The employees rate of pay, basis of that rate including by the hour, shift, day, week,
salary, piece, or commission, any allowances claimed as part of the minimum wage, including
tip, meal or lodging allowances, or overtime rate of pay, exemptions from overtime pay, living
wage, exemptions from the living wage, and the applicable prevailing wages;
The employees regular payday; and
Any other information deemed material and necessary by DC.
New employees must receive this notice upon hire once the law goes into effect. The
notice must be amended whenever the above information changes for a given employee (e.g.,
changes in pay rates). The notice must be signed and dated by the employer and the employee.
DC will issue a template notice within 60 days of the laws effective date, although it is not yet

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known whether it will provide any non-English templates. Failure to comply with the Acts
notice requirements subjects employers to fines of $500 per employee.
Modifications To Other DC Wage Laws. The law also amends the Wage Payment and
Wage Collection Law (WPWCL), the Living Wage Act (LWA), the Minimum Wage
Revision Act (MWRA), and the Accrued Sick and Safe Leave Act (ASSLA) in several
respects:
The WPWCL now requires both FLSA exempt and non-exempt employees to be paid at
least twice a month and within one business day following involuntary terminations (excluding
employees responsible for handling employer monies).
General contractors are jointly and severally liable for their subcontractors WPWCL,
LWA and ASSLA violations, and failure to pay wages under the MWRA, although
subcontractors generally must indemnify general contractors for damages caused by such
violations.
Employers likewise are jointly and severally liable for their staffing agencies WPWCL,
LWA, MWRA and ASSLA violations, with the staffing agency required to indemnify its client
barring an agreement to the contrary.
Negligent WPWCL and MWRA violations are now punishable as misdemeanors.
There is a new, streamlined administrative process for MWRA, LWA, ASSLA and
WPWCL administrative complaints, and each statute now allows for a private cause of action
with remedies including back pay and reinstatement and, for the MWRA, treble damages.

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 Any business found guilty or liable in any judicial or administrative proceeding of

committing or attempting to commit willful violations of these laws cannot be issued a license to
do business for the three-year period following the violation.
Class actions are now more viable given that similarly situated employees are now
defined as two or more persons employed by the same employer at some point during the
applicable statute of limitations period who allege one or more violations that raise similar
questions as to liability and seek similar relief. Employees cannot be considered dissimilar
simply because they seek different amounts in damages or have different jobs.
Employers cannot retaliate against any employee who does or is believed to have done
any of the following:
Made a complaint to his employer, the Mayor, the DC Attorney General, any federal or
District employee, or any other person, that the employee reasonably believes in good faith that
his employer has violated any provision of the WPWCL, MWRA or the LWA
Initiated or is about to initiate a proceeding under the law;
Provided information to the Mayor, the DC Attorney General, any federal or District
employee, or any other person regarding a violation, investigation or proceeding under the law;
Testified or is about to testify in an investigation or proceeding under the Act; or
Otherwise exercised rights under the law.
Retaliation is presumed to have occurred if an adverse action is taken against the
employee within 90 days of any of the above protected activities. Employees can bring a civil
action or file an administrative complaint asserting a retaliation claim under any of these statutes.
Employers found liable for retaliation will be subject to a variety of penalties, including

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economic damages, civil penalties, liquidated damages, attorney fees, and injunctive relief
(including reinstatement of the complaining employee).
Fair Criminal Record Screening Amendment Act of 2014 (FCRSAA)
The Basics. The FCRSAA, which is projected to take effect on December 11, 2015,
prohibits employers with 10 or more employees in the District from inquiring about an
applicants criminal convictions before making a conditional offer of employment to the person,
with very limited exceptions such as another law requiring consideration of an applicants
criminal history. A conviction includes a sentence arising from a guilty verdict, guilty plea or
plea of nolo contendere, including incarceration, a suspended sentence, probation or an
unconditional discharge. Although the law does not prohibit inquiries into pending (as opposed
to prior) criminal charges against an applicant, such as an arrest, these inquiries are best made
following a conditional job offer. The above prohibitions also apply to unpaid internships and
independent contractor relationships.
Employers may withdraw a conditional offer or take an adverse employment action
based on criminal background information only if it is done for a legitimate business reason in
light of the following factors:
The specific duties and responsibilities for the position sought;
The bearing of the criminal offense on the applicants fitness or ability to perform the
duties and responsibilities of the position sought;
The time since the offense;
The age of the applicant at the time of the offense;
The frequency and seriousness of the offense; and,

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 Any information produced by or on behalf of the applicant to show his or her

rehabilitation and good conduct since the offense.
An applicant that believes an adverse action was impermissibly taken based on a criminal
conviction has 30 days from the time of the adverse action to request the employer provide a
copy of all records obtained in its consideration of the applicant. The employer then has 30 days
to provide these records and also provide the applicant with a notice of his or her right to file an
administrative complaint with the DC Office of Human Rights.
Enforcement. There is no private right of action under the law, meaning an aggrieved
person must file an administrative complaint with the DC Office of Human Rights. Penalties for
employers violating the law range from $1,000 to $5,000 depending on the employers size, with
half of the penalty going to the complainant.
Earned Sick and Safe Leave Amendment Act of 2013
The Basics. As originally reported, this law, which officially took effect on February 22,
2014 but was not added to the District budget until October 2014, significantly amended and
expanded the protections afforded to workers by the DC Accrued Sick and Safe Leave Act of
2008. Coverage was extended to restaurant wait staff and bartenders who receive gratuities, tips,
or commissions, who can accrue up to five (5) days of leave each year (paid at the minimum
wage rate) regardless of the employers size, as well as to temporary employees and employees
working at an employer through a staffing company.
Rather than having to wait a year and work at least 1,000 hours to accrue leave,
employees can now immediately accrue leave upon hire for use after 90 days of employment.
Employees rehired within 12 months, or employees returning to the District after having been

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transferred out of the District, can immediately access any accrued leave remaining from their
prior employment or time working in the District.
Employers must retain records documenting hours worked and leave taken by employees
for three (3) years. Failure to maintain these records creates a presumption of a violation if a
dispute arises regarding an employees entitlement to leave.
Enforcement. The amended law now allows for a private right of action for the first time.
Also, the anti-retaliation provisions have been dramatically strengthened by adding a
presumption of retaliation any time an employer takes an adverse action against an employee
within 90 days of the employee engaging in activity protected by the law.
In all, 2014 was an unprecedented year of employment law change for District
employers. Companies with employees in the District need to understand these new laws, train
their managers and modify their policies and procedures to ensure compliance with the
increasingly complex web of DC employment laws and ensure a truly Happy New Year

2015 by Lawrence Postol

If you have any questions about the information in this article, you may email Mr. Postol at Lpostol@seyfarth.com or call him at 202-828-5385.
Disclaimer: This newsletter does not provide legal or other professional
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