If a DC government employee wins a discrimination claim at the Office of Human Rights, can the OHR order the District to pay attorneys' fees and compensatory damages?

Plain-English summary

DC's Human Rights Act of 1977 prohibits employment discrimination and creates two parallel enforcement tracks. Private-sector complaints (against private employers) go to the Office of Human Rights for investigation, and then to the Commission on Human Rights for adjudication. If the Commission finds discrimination, it can award a full set of remedies, including hiring, reinstatement, promotion, back pay, compensatory damages, and attorneys' fees.

Public-sector complaints (DC employees suing DC agencies) take a different path. By statute, the Council told the Mayor to set the procedures for those internal cases, and in 1975 the Mayor issued Order 75-230, designating the Director of the Office of Human Rights as the EEO Director and setting the available remedies. The Mayor's Order authorized "hiring, reinstatement, or promotion with or without backpay." It did not mention compensatory damages or attorneys' fees.

City Administrator Elijah Rogers asked Corporation Counsel Judith Rogers in 1982 whether OHR could nonetheless award fees and damages to a DC employee who won an internal discrimination case. The answer was no. The omission of fees and damages from the Mayor's Order, set against the express authorization of the same remedies for the Commission in private-sector cases, was a deliberate choice. Under the maxim "to express one is to exclude the others" (expressio unius est exclusio alterius), the silence was read as denial. The federal "American Rule," reaffirmed in Alyeska Pipeline, also says attorneys' fees are not recoverable absent express statutory authorization, reinforcing the result.

What this means for you

If you are a DC government employee considering a discrimination claim

This opinion limits what you can recover from the Office of Human Rights itself. If you win at OHR on a complaint against a DC agency, the order can put you back to work (hire, reinstate, promote, with or without back pay) but cannot give you compensatory damages or pay your lawyer's fees.

Two practical consequences:

1. Plan your case for non-monetary relief. OHR is the right path if your goal is to keep a job, get reinstated, or be made whole through promotion and back pay. If you also need money damages or attorneys' fees, you have to look elsewhere, typically Title VII in federal court (which authorizes both fees under 42 U.S.C. § 2000e-5(k) and limited compensatory damages under the 1991 Civil Rights Act amendments).
2. Watch the election of remedies trap. D.C. Code § 1-2556 (formerly § 6-2296) bars filing both an OHR complaint and a Superior Court Human Rights Act suit on the same facts. Brown v. Capitol Hill Club held you cannot abandon an OHR complaint mid-stream and refile in Superior Court. Plan your forum at the start.

If you are a DC agency manager or HR professional

You can settle internal discrimination complaints with the full range of make-whole employment relief (hiring, reinstatement, promotion, back pay) without exposing the agency to fees or compensatory damages from an OHR order. That said, settlement agreements often include attorneys' fees as a negotiated term, and Title VII exposure remains. This opinion does not give the District a fees-and-damages immunity in every forum, only in OHR proceedings.

If you are an employment discrimination attorney

Two doctrinal points worth remembering. First, this opinion turns on Mayor's Order 75-230 reading as the exclusive procedure for public-sector claims, displacing Title 34 D.C.R.R. and the Commission's adjudicative authority over those cases. Second, the result depends on the absence of fees-and-damages language in the Mayor's Order. If a successor Mayor's Order or Council amendment ever adds those remedies, the public-sector framework changes. As of 2026, the Mayor's Order framework remains in effect for public-sector OHR cases.

For client counseling, the comparison is stark: a DC agency employee with a Title VII-eligible claim usually gets more in federal court than at OHR, while a private-sector employee can get the full remedy set at OHR through the Commission.

If you are a journalist covering DC employment cases

When you see a press release about a DC employee winning a discrimination case at OHR, the headline number for "damages" is usually the back-pay component, not pain-and-suffering or punitive damages, because OHR cannot award the latter. Federal court suits against DC under Title VII are where the larger awards happen.

Common questions

Q: Why does OHR have different authority for public-sector and private-sector cases?
A: Because the Council assigned the public-sector procedure to the Mayor (under Title 34 § 29.3, carried into the 1977 Act), and the Mayor wrote a more limited remedy menu in Order 75-230. The Council itself authorized the broader Commission remedies for private-sector cases when it enacted Title 34 § 33.4(a) and § 313 of the 1977 Act.

Q: What is the "American Rule" and why does it matter here?
A: The default rule in U.S. courts is that each side pays its own lawyers, regardless of who wins. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), reaffirmed that attorneys' fees are recoverable only when a statute, contract, or recognized equitable exception expressly authorizes them. Since neither the Human Rights Act nor Mayor's Order 75-230 authorizes fees in public-sector cases, the American Rule controls and OHR cannot order fees.

Q: Can the Council change this by amending the Human Rights Act?
A: Yes. The Council could expressly authorize OHR to award fees and damages in public-sector cases. As of the date of the opinion, it had not. The Council also has authority to require the Mayor to amend Order 75-230, but the cleaner path would be statutory.

Q: What if the Mayor amends Order 75-230 to add fees and damages?
A: Then OHR's authority to award them in public-sector cases would follow, since the Mayor's Order is the source of OHR's adjudicative remedy power for those claims. The Mayor would need to balance Council intent (set out in the Human Rights Act) and the original statutory delegation under Title 34 § 29.3.

Q: Does this opinion affect Title VII claims?
A: No. Title VII (42 U.S.C. § 2000e et seq.) is a separate federal statute with its own remedy structure. A DC employee with a Title VII claim against a DC agency can recover attorneys' fees under § 2000e-5(k) in federal court and limited compensatory damages under the 1991 Civil Rights Act amendments. This opinion only addresses what OHR itself can award, not what other courts can.

Q: What about back pay? Can OHR order that?
A: Yes. Back pay is expressly authorized in Mayor's Order 75-230 ("hiring, reinstatement, or promotion with or without back pay"). It is the closest thing to monetary relief OHR can order in a public-sector case.

Background and statutory framework

DC's modern human rights framework dates to 1973. The Council of the District of Columbia (then appointed) enacted Title 34 D.C.R.R. (the Human Rights Law) on November 16, 1973. Title 34 prohibited discrimination in employment, housing, and public accommodations. Subpart C, "Procedures," set up dual tracks. The Office of Human Rights and a Commission on Human Rights handled private-sector complaints, with the Commission able to order full remedies including compensatory damages and attorneys' fees (subject to a guideline submission requirement to the Council before implementation). For complaints against DC government agencies, Title 34 § 29.3 told the Mayor-Commissioner to "establish rules of procedure" and made the Mayor's "final determination" the binding outcome.

Mayor Walter Washington (succeeding to the Mayor-Commissioner role under D.C. Code § 1-212) issued Mayor's Order 75-230 on October 31, 1975. Order 75-230 designated the Director of OHR as the EEO Director for purposes of public-sector cases, and authorized the Director to order "appropriate remedial action including, but not limited to" hiring, reinstatement, or promotion with or without back pay. The order did not list compensatory damages or attorneys' fees.

The Human Rights Act of 1977 (D.C. Law 2-38) reenacted Title 34 verbatim with a single technical amendment. The Council Committee Report explicitly said the Act made "no substantive changes" and that the purpose was to give the existing Title 34 provisions "greater stature and force." Under standard statutory construction, reenactment of a regulation as a statute does not change its substance. So Mayor's Order 75-230 continued to govern public-sector cases.

The 1982 Corporation Counsel opinion applied two interpretive principles. First, expressio unius est exclusio alterius: when a statute or order expressly lists remedies in one context (the Commission's authority over private-sector cases under § 313 / D.C. Code § 1-2553(a)) and omits the same remedies in a parallel context (OHR's authority over public-sector cases under § 303 / D.C. Code § 1-2543), the omission is read as deliberate. Second, Alyeska Pipeline's American Rule says attorneys' fees require express statutory authorization. The federal D.C. Circuit had just applied that rule in Kennedy v. Whitehurst to deny attorneys' fees to a DC government employee in an Age Discrimination in Employment Act administrative proceeding.

The Corporation Counsel also looked to the case law confirming that Mayor's Order 75-230 governs exclusively for public-sector cases: Porter v. District of Columbia, 502 F. Supp. 271 (D.D.C. 1980), and O'Neill v. District of Columbia Office of Human Rights, 355 A.2d 805 (D.C. App. 1976).

The conclusion was that OHR has no authority, in cases by DC employees against DC agencies, to award compensatory damages or attorneys' fees. To change that, either the Council needed to amend the Human Rights Act, or the Mayor needed to amend Order 75-230 to expressly authorize those remedies.

Citations and references

Statutes and regulations:
- Title 34 D.C.R.R. (Human Rights Law, Reg. No. 73-22)
- Mayor's Order 75-230 (October 31, 1975)
- D.C. Law 2-38 (Human Rights Act of 1977), D.C. Code §§ 1-2501 et seq.
- D.C. Code §§ 1-2543, 1-2553(a), 1-2556

Cases:
- Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), American Rule on attorneys' fees
- Kennedy v. Whitehurst, Civil No. 80-1183 (D.C. Cir., Sept. 17, 1982), no fees absent statutory authorization for DC employee in ADEA administrative case
- Porter v. District of Columbia, 502 F. Supp. 271 (D.D.C. 1980), Mayor's Order 75-230 governs public-sector cases
- O'Neill v. District of Columbia Office of Human Rights, 355 A.2d 805 (D.C. App. 1976), same

License

This opinion is published by the Office of the Attorney General for the District of Columbia. Per the DC.gov terms of use, content is licensed under Creative Commons Attribution 3.0, which permits commercial use, redistribution, and modification with attribution.

Source

• Original PDF: https://oag.dc.gov/sites/default/files/2018-02/Opinion-July-2014-Attorneys-Fees-Compensatory-Damages.pdf

Original opinion text

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OFFICE OF THE CORPORATION COUNSEL
DISTRICT BUILDING
WASHINGTON. D. C.

20004

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IN REPLY REFER TO:

LCD:L&O:TB:pm
(82-653)
October 7, 1982
CPINICN OF THE OORP<EATICN CXXJN3EL
SUBJECl': Award of Attorneys Fees an:l
"Ccxnpensatory Damages by the Office of
Human Rights

•

Mr. Elijah B. Rogers

City Administrator
District Building
Washington, D. C. 20004
Dear Mr. Rogers:
This is in reply to your request dated September 16, 1982 for an
opinion of this Office as to whether or not the Office of Human Rights has
the authority to award attorney's fees or "cxxnpensatory damages in proceedings initiated by emplOyees against the District of Columbia Government. In
my opinion, the Office of Human Rights presently lacks the authority to make
such awards.

•

On November 16, 1973, the appointed District of Columbia Council
enacted Title 34 D.C.R.R., the Human Rights Law, prohibiting certain discriminatory acts in employment. Reg. No. 73-22, 20 D.C.R. 345. In
Subpart C, "Procedures," Title 34 pt'O\Tided that the Commission on Human
Rights, upon a fiming of unlawful discrimination, may order hiring,
reinstatem:mt, or prarotion with or without back pay, am the payment of
both o:mpensatory damages an:l attorney's fees; hcMever, the Ccxnmission was
required to sul:::mit guidelines for the award of canpensatory damages am
attorney's fees to the Council for review prior to implementation. Sec. 33.4
(a). Title 34 also provided that "Notwithstaming arq other provision of this
Title, the Mayor-Gammissioner shall establish rules of procedure" for the
han:l1ing of complaints filed against D.C. Government agencies; "The final
detemdnation in such matters shall be made by the Mayor-Ccxnmissioner or
his designee." Sec. 29.3 •

•

•

-2On October 31, 1975, the Mayor (having succeeded to the authority of

the Mayor-Gommissioner, D.C. Code sec. 1-212) issued Mayor's Order 75-230,
establishing procedures for the handling of complaints against D. C.
Government agencies urrler Title 34. He designated the Director of the
Office of Human Rights as the Director of Equal Employment Opportunity to
act for him in such matters. Sec. 5. He authorized the Director EEO in
cases of discrimination by D.C. Goverrunent agencies to "issue an order to
the depart~nt head requiring appropriate rerredial action including, but
not limited to" hiring, reinstateIrent, or pronotion with or without backpay. See secs. 10 and 19. Mayor's Order 75-230 does oot mention
compensatory damages or attorney's fees.
The elected Council of the District of Columbia subsequently adopted
the Human Rights Act of 1977, D.C. Law 2-38, effective Dec. 13, 1977, D.C.
Code sees. 1-2501 et ~ That Act reenacted Title 34 verbatUn ~ith one
technical amandrrent, wluch does oot change the substance of the bill."
Conmittee on Public Services and Consumer Affairs, Catmittee Report on Bill
2-179, July 5, 1977 at 1. The new statute "makes 00 substantive changes in
the text of present Title 34." Id. The sole purpose of reenacting Title 34
as statute. was to give its proviSIOns greater stature and force. Id. at 1-3.
As a matter of statutory construction, reenactJrent of a prior law results
in continuous operation of the reenacted provisions. 1A C.A. Sands,
Sutherland on Statutory Construction. Sec. 22.33 at 191 (4th ed. 1972) In
these circumstances Mayor's Order 75-230 still governs exclusively discrimination claims by employees against D.C. Governnent agencies. See Porter v.
District of Columbia, 502 F.Supp. 271 (D.D.C. 1980), and O'Neill v. District
of Columbia Office of Human Rights, 355 A.2d 805 (D.C. App. 1976).
I find the absence of any explicit authorization in Mayor's ~r
75-230 to be dispositive of the question of whether or not the Office of
Human Rights has authority to award corrpensatory damages and attorney's fees
in proceedings initiated by employees against D. C. GoverI'l1rent agencies.
When the Council authorized the Ccmnission on Human Rights to order
"affirmative action", it went on to authorize explicitly the award of
compensatory damages and attorney's fees; the Council recognized the special
nature of these awards by requiring the Commission to submit guidelines
for such awards to it for review before impleIre ntat ion. See Human Rights
Act of 1977, sec. 313, D.C. Code sec. l-2553(a). In contrast, when the Mayor
authorized the Director EEO to order "appropriate remedial action", he went
on to authorize explicitly a number of the actions available to the Commission
without mentioning compensatory damages or attorney's fees. See Human Rights
Act of 1977, sec. 303, D.C. Code sec. 1-2543. Expressio un ius est exclusio
alterius. "The force of the maxim is strengthened by contrast where a thing
is provided in one part of the statute and omitted in another". 2A C.A. Sands
Sutherland on StatutOry Construction sec. 47.23 at 123.

••

This construction of Mayor's Order 75-230 is reinforced by the decision
in Alyeska Pipeline Service Co. v. Wilderness Society, 421 u.S. 240 (1975), and
its progeny. In AlyeSka, the.Supreme Court held attorney's fees are not

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"::'~'~';~' "'ordinarily 'reoc:werable~bY-'''the'~preVailiiifTitigant urrler the "American Rule",
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absent statutoryauthorization~: Alyeska was follCMed in Ke~ v. Whitehurst,

.'

Civil No. 80-1183 (D.C.; Cir.,' Sept. 17, 1982), a case with striking similarities
·to the facts presented in this' <:pinion. There the Court fouoo no statutory
authority to award attorney's fees in administrative proceedings brought by an
employee of the District of Columbia Department of Human Services urrler the Age
Discrimination in Employnent Act1 the Court was persuaded by the statute's
silence with regard to attorney's fees awards to such employees, despite the
statute's explicit authorization of attorney's fees for private sector employees.
Slip opinion, pp. 29-30.
Sincerely,

~.~W.~

~ith W. Rogers

Corporation Counsel, D. C•

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