Statement of Michelle D. Thomas, Chief, Civil Rights Section, Office of the Attorney General

Before the Committee on Government Operations, Brandon T. Todd, Chairperson

Public Hearing on “B23-0073 - Attorney General Civil Rights Enforcement Clarification Amendment Act of 2019”

February 19, 2020
Room 120
John A. Wilson Building
1350 Pennsylvania Avenue, NW
Washington, District of Columbia 20004

Introduction

Greetings Chairman Todd, Councilmembers, staff, and residents of the District of Columbia. My name is Michelle Danielle Thomas, and I have the privilege to serve as the Chief of the Civil Rights Section in the Office of the Attorney General for the District of Columbia. I am pleased to appear before the Government Operations Committee on behalf of Attorney General Karl A. Racine to testify in support of the Attorney General’s Civil Rights Enforcement Clarification Amendment Act of 2019. This legislation is an important component of the Attorney General’s strategy to protect the public interest and end all forms of discrimination in the District. The bill reinforces the Attorney General’s authority under the District’s Human Rights Act (HRA) to investigate discriminatory practices, bring civil actions for HRA violations, recover significant penalties from wrongdoers, and seek restitution for victims of discrimination.

The Civil Rights Landscape

The D.C. Council enacted the HRA in 1977 “to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit,” and to ensure that “[e]very individual shall have an equal opportunity to participate … in all aspects of life[.]” More recently, in Fiscal Year 2019, the Council recognized the importance of having robust enforcement mechanisms to support the HRA and  funded OAG to build out a new Civil Rights Section to litigate discrimination cases on behalf of our residents. The Civil Rights Section and the Office of the Attorney General stand ready to combat large scale discriminatory practices that stand in the way of full opportunity for our residents and all people who live, work, and play in the District.

The establishment of the new Civil Rights Section is timely and critical because the federal government has abdicated its responsibility to protect the civil rights of all Americans. The U.S. Department of Justice’s Civil Rights Division is opening fewer new investigations than at any time in the last 18 years.  Meanwhile, the Department of Housing and Urban Development is beating a similar retreat with Secretary Ben Carson infrequently using his authority to examine widespread housing discrimination. And, throughout the federal government, agencies charged with protecting civil rights in healthcare, education, housing, and other key areas are rolling back protections for vulnerable populations like women and transgender people. Now is the time for the Office of the Attorney General to step into the gap and protect residents from large scale and systemic discriminatory practices, vigorously enforce our local antidiscrimination laws, and place individuals and businesses on notice that discrimination will not be tolerated in the District of Columbia.

Gaps In Enforcement And The Role Of The Attorney General

The District’s HRA is one of the strongest civil rights laws in the country. The HRA prohibits discrimination in housing, public accommodations, employment and education based on 21 protected traits. These include traits protected by federal law, such as race, sex, and disability, and also protects additional categories like personal appearance, source of income, and place of residence or business. District law is thus more protective of vulnerable residents than federal law and most other states’ laws, and is an efficient tool to address the complex ways that discrimination plays out in the District.

Despite these broad civil rights protections, District residents are hurting. Bias against vulnerable populations is on the rise. That bias manifests itself in all important walks of life, as vulnerable District residents are blocked from taking advantage of important opportunities. I’ll give you just a few examples.

An Urban Institute study of District-area housing opportunities found that 15 percent of landlords simply refuse to rent to people attempting to pay for housing with Section 8 vouchers.  That’s illegal! It makes it hard for low-income tenants to find affordable housing in a market we know is punishing, and it limits the ability of families to move into transit and opportunity rich communities. I should also note that more than 90 percent of voucher holders are African American, so this practice has the added effect of reinforcing racial segregation in housing. Another study, this time by our enforcement partners, the Office of Human Rights, found that nearly half of employers would prefer to hire a less qualified cisgender applicant than a more qualified transgender individual. Statistics from the Metropolitan Police Department also show that hate crimes in the District have dramatically increased in the last four years. These are the kinds of biases we cannot tolerate as a city, and having OAG as a partner enforcement agency that is equipped to litigate large-scale discriminatory impact and intent cases, and is laser focused on eradicating discrimination, will put businesses and individuals on notice that they cannot unfairly lock people out of opportunity or make them feel like they do not belong in the District.

The current enforcement mechanisms are simply insufficient to meet the District’s goals of eradicating discrimination and hate violence. Under the current law, in most cases, individual victims of discrimination must themselves pursue a claim, either before the Office of Human Rights or in court. While the Office of Human Rights does excellent work to investigate and resolve these cases in a cost-effective manner, this enforcement mechanism primarily relies on individuals to bring challenges to these discriminatory practices. Unsurprisingly, this poses major obstacles because victims of discrimination often have very limited resources to seek and receive legal advice. And they are often in dire straits, which also makes pursuing their legal rights challenging. Consider, for example, a housing provider who refuses to accept housing subsidies as rental payments. An individual who is turned away is often experiencing severe housing insecurity and is struggling to get by. For these individuals, the priority, understandably, is on moving on to another housing provider to find a safe place to live—not pursuing long and protracted legal challenges against the landlord that turned them away. And without the individual victim of discrimination pursuing a claim, the law makes it very challenging for organizations and advocacy groups to pursue these challenges.

That is where our office, and this legislation, comes in. OAG’s Civil Rights Section seeks to help close the enforcement gap by strategically investigating and challenging discriminatory policies, holding entities publicly accountable for discriminatory practices, and litigating cases that have a significant public interest or education value for the people of the District. Our office can move quickly, as I will discuss in more detail, to address discriminatory conduct and to bring widespread attention to District law that will help educate victims about their rights and businesses about their obligations.

This public education value is a critical reason for OAG enforcement of the Human Rights Act. Under the current enforcement scheme, most cases of discrimination are resolved in confidential proceedings before the Office of Human Rights. This provides important and necessary relief to individual victims of discrimination in a timely and cost-effective way. But it does not educate the broader public about the scope of District law and the protections to which they are entitled, nor does it fully address patterns of discriminatory practices that affect multiple individuals. And even more importantly, confidential and private enforcement does not provide adequate deterrence to other wrongdoers who may be engaged in similar discriminatory conduct. OAG enforcement resolves these issues by spotlighting egregious cases and holding those wrongdoers publicly accountable, putting others on notice that discrimination will not be tolerated.

This legislation provides express authority for OAG to enforce the HRA and to engage in the important work of removing barriers to equal and full participation in all aspects of the “economic, cultural and intellectual life of the District.” The law would settle any jurisdictional challenges to OAG’s authority and allow OAG to halt illegal conduct, collect significant civil penalties for the District from entities that engage in discriminatory conduct, and provide restitution for victims of discrimination.

Coordination with Office of Human Rights

Let me talk briefly about how OAG will work alongside the Office of Human Rights to accomplish the purposes of the HRA. We believe that OAG enforcement is critical to ensuring the full implementation of the Human Rights Act. But the work of the OAG’s Civil Rights Section should not and will not supplant the meaningful and necessary work that OHR performs. As I have discussed, OHR confidentially investigates and mediates individual claims of discrimination. Nothing about this law would change any aspect of that work. To the contrary, the law would allow OAG to bolster OHR’s existing enforcement efforts.

To be more concrete, individual complaints of discrimination will continue to go to OHR for investigation and mediation. And OAG will separately investigate and challenge patterns, policies and practices of discrimination—that is, discriminatory conduct that affects multiple victims—as well as cases that are particularly high profile or where there is a significant public interest value in a public process. This legislation will allow OAG and OHR to share information that would otherwise be confidential and coordinate enforcement efforts. That is, where OHR receives multiple complaints about a wrongdoer or believes that a policy has a discriminatory impact on a protected group, OHR can refer the matter to OAG to investigate whether there is a pattern or practice of discrimination. And where OAG, in the course of an investigation, concludes there was no pattern or practice, it can refer any individual victims of discrimination to OHR. OAG currently follows this practice and refers people to OHR to address their individual complaints while making note of their discrimination tip to address, as warranted, any discriminatory patterns or practices we later discover. 

In sum, the OAG authority affirmed by this legislation would allow us to complement the important work of the Office of Human Rights, which would remain the first line of defense against individual civil rights violations. Just as the Council created both a private right of action and a government enforcement agency to enforce the HRA, we are now asking the Council to reaffirm that another complementary government enforcement mechanism exists to address cases of significant public interest and patterns and practices of discriminatory behavior wherever they may occur.

The Civil Rights Section’s Work

I would like to turn now to telling you a little bit about our work so far. The Civil Rights Section was created in April 2019, and we now have a chief, three attorneys, and an investigator, thanks to the Council funding this important new work. We have used these resources to investigate dozens of matters, and we have brought and resolved several cases. I would like to tell you about a few of those.

Our most significant case thus far was brought against a housing provider who owned and managed four apartment buildings with nearly 250 units east of the River. This entity posted multiple discriminatory advertisements stating that it would not accept vouchers and other forms of housing subsidies as rental payments. We investigated and confirmed that the entity did not accept vouchers and filed suit. Shortly after filing suit, we sought a preliminary injunction halting the illegal practices, which the Court granted within a month. And just last week, we were able to settle the case with the wrongdoer paying $900,000 to the District. This represents one of, if not the largest public settlement in a source-of-income discrimination case in the District. In addition, under the settlement, the entity agreed to provide anti-discrimination training to its employees for four years. This substantial recovery sends a warning to every housing provider in the District that they must operate fairly and consistently with District law, and that housing is available to all District residents, regardless of their source of income.

This is not OAG’s only source-of-income discrimination case. We have two cases pending in the Superior Court of the District of Columbia. In one case, we allege that a housing provider in Capitol Hill broke the law by using an online scheduling platform for apartment viewings that would not let prospective tenants schedule showings if they planned to use vouchers to pay their rent. In another, we allege that a major housing provider in Wards 1, 2 and 3 illegally charged voucher holders extra fees and costs that it did not charge other tenants.

We have also brought and resolved cases outside the source-of-income context. Specifically, we have enforced the HRA’s prohibition on what is called place-of-residence discrimination. District law is clear that businesses cannot discriminate against District residents simply because of where they live. Yet too often, we see that businesses refuse to serve communities that have been historically underserved, in particular, communities east of the River. We have taken action to put a stop to this practice. We resolved place-of-residence discrimination allegations with a major national window replacement company that refused to provide services east of the River. That company agreed to change its practices, serve all District residents equally, and pay $50,000 to the District. When we announced that settlement, we heard from a District resident about another home-improvement contractor that engaged in the same practice, and we have sued to halt that conduct, as well

In addition to our enforcement work, our Civil Rights Section stands ready to make sure that the courts interpret the HRA broadly to protect all District residents. We do so by participating in the courts as amicus curiae. Working with our Office of the Solicitor General, the civil rights team helped file a brief in the federal court of appeals arguing that the HRA should apply not only to brick-and-mortar businesses but also to online entities. Our brief helps make clear to the court that the HRA must broadly protect all District residents from new forms of discrimination. 

Community Engagement

Though I have focused thus far on our litigation and enforcement efforts, I want to be clear that litigation is just one tool that the Civil Rights Section uses to protect District residents from discrimination. An important part of our mission is to engage communities to help everyone in the District understand their rights under the HRA and to engage businesses so that they understand their legal obligations. We have already undertaken significant efforts in this regard.

For example, shortly after the Civil Rights Section launched, we conducted a series of five listening sessions across the District to hear directly from District residents about what issues they were concerned about and wanted us to prioritize. In putting together these listening sessions, we worked closely with Councilmembers and other community stakeholders. What we learned from these sessions was sobering and critical. I can report that consistently in every listening session, we learned that access to safe and affordable housing is District residents’ top priority. This has deeply informed our work and has ensured that a key goal for the Section is to eradicate source-of-income and other forms of housing discrimination in the District.

District residents who attended our listening sessions also expressed significant concern about racial discrimination, discrimination and violence against the LGBTQ+ community, and discrimination against religious minorities and immigrants. Our office has taken significant steps toward investigating these forms of discrimination and looks forward to announcing action on these priorities in the coming months and years. I will note that we published a report that detailed our findings from the listening sessions, the steps we have taken to address the civil rights needs of the District, and our next steps in protecting the civil rights of the people of the District. That report is attached to my written testimony for the record.                    

In addition to our listening sessions, we have heard directly from advocates about their top priorities. This includes LGBTQ+ advocates and other civil rights leaders. Through these conversations, we have begun establishing relationships so that we can bolster not only the enforcement work that OHR does but also the enforcement work of our colleagues in the advocacy community.

We have engaged not only communities and advocates but also businesses. We view working with business as essential to ensuring full implementation of the HRA. For example, we heard from community members and advocates at the Equal Rights Center that there were hundreds of discriminatory housing advertisements posted online. We not only took immediate action against some of the landlords that posted these advertisements, but we went directly to the platforms where these advertisements were posted to halt to this form of discrimination. Through a process of collaboration, we were able to announce a partnership with Zillow and Apartments.com—two of the leading online platforms that post housing advertisements—where both companies agreed to adopt new measures and educational campaigns to eradicate discriminatory housing advertisements. These efforts have proven fruitful, and early reports suggest a dramatic decrease in discriminatory online advertising in the District.

Attorneys General Protecting Rights

I will conclude by noting that this legislation would bring the District in line with other states that have taken steps to end discrimination. Many other state attorney general offices have authority to protect the civil rights of their residents, and they have done so to great effect. State attorneys general in California, New York, Massachusetts, Illinois and Washington have been doing this work for years, racking up wins against companies for practices such as discriminating against Muslim job applicants, creating hostile work environments for female employees, and posting discriminatory advertisements that target individuals on the basis of race. We think District residents deserve the same protection.

And, indeed, our office has demonstrated how we can protect consumers, workers, and tenants in a variety of ways. We have brought cases challenging business’s deceptive trade practices, companies’ refusal to pay their workers what they have earned, and slumlords’ failure to properly maintain habitable apartments. We have recovered millions of dollars and halted illegal practices across these areas. The bill before the Council will put civil rights on an even terrain with those other areas where our office has been able to work with the Executive to make the District a fairer place to live, work, and play. Indeed, too often, we know that the same companies that are misleading their consumers or stealing from their workers or refusing to keep up their property also discriminate against our most vulnerable residents. This bill will bolster our efforts to work with our colleagues to protect all rights of District residents and visitors.

Conclusion

I want to thank this Committee for setting this hearing on this important bill, and I appreciate the opportunity to testify. We at the Office of the Attorney General are thrilled that the Council gave us funding to launch a Civil Rights Section. This legislation will strengthen the District government’s ability to eradicate discrimination in our city. OAG stands ready to work with the Council, the Office of Human Rights, community and other stakeholders to ensure full implementation of strong anti-discrimination laws in the District of Columbia and to end discrimination. I am happy to answer any questions that members may have.