Domestic Workers Employment Rights Amendment Act of 2022

Beginning October 1, 2023, domestic workers are protected under the DC Human Rights Act (DCHRA) with the passage of the Domestic Workers Employment Rights Amendment Act of 2022. This act amends the DCHRA to include “domestic workers” as protected workers covered under the DCHRA’s anti-discrimination provisions. Additionally, this act amends the Office of Human Rights Establisment Act of 1999 (HREA) to require OHR to create written guidance for employment situations involving “domestic workers.”  

This means that covered domestic workers now can file a claim of discrimination under the DCHRA.  While being a domestic worker is not itself a protected trait, this act prohibits an employer from discriminating against a domestic worker on the basis of one of the 18 protected traits for employees. These are:

1. Age 
2. Color
3. Credit Information
4. Disability
5. Family Responsibilities
6. Gender Identity and Expression
7. Genetic Information
8. Homeless Status
9. Marital Status
10. Matriculation
11. National Origin
12. Personal Appearance
13. Political Affiliation
14. Race
15. Religion
16. Sex
17. Sexual Orientation
18. Status as a Victim or Family Member of a Victim or Domestic Violence, a Sexual Offense, or Stalking (“DVSOS”) 

The Act therefore prohibits an employer from discriminating against their domestic worker on the basis of any of these traits. Discrimination includes failing to hire someone, subjected an employee to a hostile work environment, or retaliating against an employee for filing a complaint with OHR. For the definitions of these protected traits, please click here. 

What Is a “Domestic Worker” and How Does the Act Protect Them?

Domestic workers are employees who provide services for compensation in private residences. Domestic workers may include those regularly providing in-home childcare such as nannying; elder care such as nursing or other assistance; cleaning services; cooking or food preparation; and other related household services.  Domestic workers do not include family members of the employer; those performing household repairs such as construction or plumbing; those providing pet-care; or individuals who only perform paid work on an irregular or as-needed basis.

The following scenarios provide information how the new law protects domestic workers from discrimination.

Scenario 1: Parents who occasionally go out together in the evenings have a babysitter they call occasionally. The babysitter is likely not considered a domestic worker because they provide services on a “casual basis,” meaning irregularly or at incidental times. The babysitter is therefore not covered by the DCHRA.

Scenario 2: An employer wishes to hire a domestic worker for a live-in position, which will require the employee to live in the employer’s home. Marital status and family responsibilities are protected traits under the DCHRA.  The employer may not refuse to hire someone because they have a spouse or children; however, nothing in the DCHRA requires the employer to provide lodging for their employee’s spouse or children.

Exemptions

For the most part, the Act ensures that domestic workers enjoy the same protections as any other employee. However, because the domestic worker employment situation differs from the other employment situation in keys ways, there are some exceptions or differences in how the DCHRA applies to domestic workers and their employers.

Sex as a bona fide occupational qualification

In some situations, domestic workers will work with individuals who need assistance with dressing, bathing, toileting, or other activities that implicate the individual’s privacy rights. Where this is the case, an employer may wish to hire someone of a preferential sex (including female, intersex, and male) due to privacy concerns. Accordingly, the Act provides that it shall NOT be an unlawful discriminatory practice for an employer to hire on the basis of sex provided that sex is a bona fide occupational qualification (“BFOQ”). Sex is a BFOQ where:

• The employer has a factual basis for believing that hiring an individual of a particular sex would undermine the privacy interests of the individual receiving services in the private residence;
• The individual receiving services has a privacy interest entitled to protection under the law; and
• No reasonable alternative exists to protect the individual's privacy interest.

A “factual basis” means a reason based on facts, such as the particular job duties involved, that supports the belief that sex is a BFOQ. A factual basis does not include beliefs based on stereotypes or subjective opinion. In addition, “sex” does not include sexual orientation or gender expression. In fact, the Act specifically provides that there is no BFOQ exemption for sex if the employment decision is based on:

• The stereotyped characterization of one group as opposed to another;
• Actual or perceived sexual orientation of a prospective employee; or
• The prospective employee's preferred name or personal pronouns.

Scenario 3: An employer wishes to hire someone to care for their elderly mother. The job will entail assisting their mother with bathing, changing, and toileting. The employer advertises the job as available to women only. This situation likely does not violate the DCHRA – as long as the employer has a factual basis to believe that being a woman is a bona fide occupational qualification of providing intimate services for their mother, who is also a woman, in order to protect their mother’s privacy rights and no other reasonable alternative exists to protect their mother’s privacy interests.

Scenario 4: An employer wishes to hire a nanny for their young children. The employer believes that women are natural caregivers, so they advertise the job as available to women only. This situation likely does violate the DCHRA because the employer does not have a factual basis to believe that being a woman is necessary to perform the job. Instead, the belief is based on a stereotype about men and women generally and is not a permissible reason to discriminate on the basis of sex.

Status as a Victim of (or Family Member of a Victim of) Domestic Violence, a Sexual Offense, or Stalking

The DCHRA prohibits discrimination in employment against those who are, or whose family members are, victims of domestic violence, a sexual offense, or stalking (“DVSOS” status). In addition, the DCHRA requires employers to provide certain accommodations for employees with DVSOS status, such as allowing them to take time off to attend court hearings. The Act does not exclude domestic workers from these protections, and employers of domestic workers may not discriminate against their employees based on their DVSOS status. However, because there could beare safety implications, the Act does permits employers of domestic workers to disclose an employee's status to others if the information is necessary to protect the residents of the workplace from harm. For example, if someone is a stalking victim, and the perpetrator of the stalking is still at large and likely to follow that individual to work, an employer may disclose information about an employee's DVSOS status to other in the residence in order to protect themselves and their family.

Notice of a Worker’s Rights Under the DCHRA.