Molovinsky v. Fair Employment Council of Greater Washington, Inc.

TERRY, Associate Judge,

concurring:

I join fully in the court’s opinion. I write separately, however, to note a possible defect in the DCHRA which our legislature, the Council of the District of Columbia, might appropriately address.

Mr. Molovinsky contends that the evidence was insufficient to prove that his conduct was a “discriminatory practice” proscribed by the *150DCHRA. The Act provides that it is an “unlawful discriminatory practice to ... fail or refuse to refer for employment ... any individual, or otherwise to discriminate against, any individual.” D.C.Code § 1-2512(a)(2) (emphasis added). Molovinsky argues that he did not “fail or refuse” to refer the women testers for employment, nor did he offer better services to the men. Indeed, after learning of their inability to pay, he refused his services equally to the men. He further argues that the conduct alleged by appellees, even if proven, is not actionable because it is not the type of discrimination prohibited by the statute. Appellees contend, on the other hand, that the phrase “or otherwise” gives the statute broad application to cover all employment relationships, including the type of sexual harassment in which Molovinsky engaged.

There is no question that Molovinsky’s behavior was crude, boorish, and utterly unacceptable. He makes a compelling argument, however, that this type of conduct is not prohibited by the DCHRA. Although sexual harassment is actionable as a discriminatory practice under Title VII, it has been limited to situations in the workplace that either involve the conditioning of concrete employment benefits on sexual favors or create a hostile working environment. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Since no employment relationship existed between Molovinsky and the testers, neither of these conditions is met here. I have found no case, nor have appellees cited any, suggesting that the phrase “or otherwise” should be construed so as to bring conduct such as that of Mr. Molovinsky within the ambit of the DCHRA. On the other hand, I would be reluctant to interpret narrowly a statute that was “undoubtedly intended” by the legislature “to be read broadly to eliminate the many proscribed forms of discrimination in. the District_” Dean v. District of Columbia, 653 A.2d 307, 320 (D.C.1995).

I agree with my colleagues that we need not decide whether the evidence was sufficient to establish a discriminatory practice because Mr. Molovinsky failed to preserve the issue for appellate review by moving for a directed verdict on this ground. Nevertheless, the issue is a troubling one, and the statutory language is not as clear as it ought to be. Mr. Molovinsky has exposed what may be a significant loophole in the statute. If the Council believes that conduct such as that of Mr. Molovinsky is or should be actionable under the DCHRA, it may wish to consider legislative action to make clear that the DCHRA covers such behavior.