Wait – But the Disability Law Doesn’t Actually Say That!

By Fiona W. Ong - Shawe Rosenthal LLP

September 15, 2022

So awhile back, I wrote a blog post about Washington, DC laws that were passed but not implemented. But we just ran into the opposite issue – apparently DC has implemented a law that doesn’t – technically – exist! Let me explain.

My law partner, Liz Torphy-Donzella (who is as much of an employment law nerd as I), was reviewing the discrimination law in D.C. with regard to disabilities. Although the D.C. Human Rights Act clearly prohibits discrimination on the basis of disability, she realized that, unlike the federal Americans with Disabilities Act, the law does not actually contain a reasonable accommodation obligation. This could be significant, because the ADA (and its reasonable accommodation obligation) applies only to employers with 15 or more employees. So smaller employers are not covered by federal law – but state laws may kick in. And that is the case in D.C., whose anti-discrimination law applies to all employers, including those smaller ones.

Liz was puzzled by the fact that the D.C. law itself does not discuss reasonable accommodations, but its implementing regulations do. Regulations are only supposed to interpret/implement the law itself – but not color outside the lines. So she reached out to a D.C. colleague, the brilliant Doug Herbert, who provided this cogent and witty explanation (lightly edited for clarity):

This is actually one of my favorite stories about the DC Council.

They beat Congress to the punch and enacted a prohibition on discrimination based on disability before the ADA. But the accommodation requirement was included in the definition of “disability.”

Then when Congress enacted the ADA, the DC Council amended their definition of disability to be consistent with the federal definition — without, apparently, the slightest inkling that they had just repealed the accommodation requirement under DC law (which covers all employers, regardless of size). It remained that way for a couple of decades or so, where you just knew there was an accommodation requirement under the Human Rights Act, but you had no idea where it came from. It made advising smaller clients kind of challenging (and amusing).

Then, in 2013 the DC Court of Appeals reinstated the accommodation requirement by following its line of precedent holding that the DC discrimination law should be construed to incorporate parallel federal law — including the (otherwise non-existent) accommodation requirement. I suppose technically there is an issue of whether the Human Rights Act incorporates federal ADA law’s exclusion of employers with fewer than 15 employees, but we all know how that issue would turn out if any defendant were ever brave enough to raise it.

So there you have it. Laws gone rogue…

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Wait – But the Disability Law Doesn’t Actually Say That!