Petition for Review of a Decision of the District of Columbia Commission on Human Rights
Before Ferren* and Farrell, Associate Judges, and Pryor, Senior Judge. Opinion for the court Per Curiam. Dissenting opinion by Senior Judge Pryor.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: The District of Columbia Commission on Human Rights (the Commission) assessed $35,000 in damages against petitioner, Joel Truitt Management, Inc., on the ground that petitioner had violated the District of Columbia Human Rights Act *fn1 by refusing to perform needed plumbing services for a tenant in a building managed by petitioner because the tenant had AIDS. Petitioner challenges the sufficiency of the evidence that it engaged in the forbidden discrimination (specifically the Commission's finding that it failed to show a "business necessity" for the discriminatory conduct), and claims as well that the award of damages was excessive. We affirm.
Petitioner was hired to manage the building in question in 1991, a position it held until 1992. The complainant-tenant, J. Corwin Condren, occupied a rental apartment in the building during petitioner's period of management. Condren had been diagnosed as having AIDS in 1990. On an occasion prior to December 19, 1991, an employee of Bauer Plumbing Company, the building's regular plumber, arrived at the building to perform repairs, but after witnessing an argument between two residents he left the job site. When Fred Bauer called petitioner's agent, Beverly Whiting, to tell her that his plumber had left because of the altercation, she stated that Mr. Condren was probably involved, that he might have AIDS, and that "she did not want anyone from Bauer Plumbing going into apartment."
On December 19, 1991, an employee of Bauer Plumbing Company arrived at the building to make repairs. After being told that the repairs were to be made in Mr. Condren's unit, the plumber stated that he would not enter the unit without an assurance of medical safety and left the building, returning to Bauer Plumbing. Joseph Bauer called Beverly Whiting and told her that because Condren had AIDS, his employees would not enter the apartment unit unless they were given a certificate of assurance stating there was no danger of contracting AIDS. That same day (December 19) petitioner sent the following memorandum to Condren:
It is a well known fact that you have told the world that you have AIDS. Trades people have told us they are afraid to enter your apartment. Please provide certification from a qualified health authority that it is safe to enter your apartment, and that there is no danger of getting the disease and that the apartment is sanitary (no needles, etc. on which they can get AIDS). Thank you. JTM
Thereafter, Condren filed a complaint of discrimination with the District of Columbia Department of Human Rights and Minority Business Development, alleging that petitioner had engaged in an unlawful discriminatory practice by refusing to repair his rental unit because of his physical handicap, in violation of D.C. Code § 1-2515 (a)(4) (1992). The Department determined that there was probable cause to support this claim and certified the matter to the Commission for a hearing. Following an evidentiary hearing, the Commission found that petitioner, without justification, had violated the statute "by restricting or impeding repairs to [Condren's] apartment on the basis of his physical handicap (AIDS)." The Commission ordered petitioner to pay Condren $35,000 in compensatory damages.
Under the District of Columbia Human Rights Act, it is an unlawful discriminatory practice for the owner or managing agent of a property "to refuse or restrict facilities, service, repairs or improvements for a tenant or lessee" on the basis of, inter alia, the tenant's physical handicap. D.C. Code § 1-2515 (a)(4). Acquired Immune Deficiency Syndrome (AIDS) is a condition falling within the definition of "physical handicap." *fn2 Not every practice having a "discriminatory effect" is unlawful, however; any such practice that "would otherwise be prohibited by this chapter shall not be deemed unlawful if it can be established that such practice is not intentionally devised or operated to contravene the prohibitions of this chapter and can be justified by business necessity." Id., § 2503(a). But the "business necessity" exception is itself limited, as it is
applicable only . . . where it can be proved by a respondent that, without such exception, such business cannot be conducted; a "business necessity" exception cannot be justified by the facts of increased cost to business, business efficiency, the comparative characteristics of 1 group as opposed to another, the stereotyped characterization of 1 group as opposed to another, and the preferences of co-workers, employers, customers or any other person.
The Commission found that petitioner's December 19 memorandum to Condren "involved facial discrimination" on the basis of Condren's physical condition, viz., an "implied . . . threat that repair people would not perform any repairs in complainant's apartment without . . . certification" demanded. The Commission also found that petitioner had "not provided any evidence which demonstrates that it had a reasonable basis to believe that complainant posed a threat to repair people because of his AIDS condition." Petitioner does not challenge the latter finding and, as to the former, does not dispute that there was a discriminatory refusal to provide services. Petitioner contends, however, that the discriminator was Bauer Plumbing: "the memorandum was merely an attempt to notify Mr. Condren of Bauer's requirement" (emphasis added), and was motivated by petitioner's desire "to facilitate the provision of services to Mr. Condren."
The Commission correctly saw that this assertion boiled down to an unjustified reliance on the statutory "business necessity" exception. First, as the Commission pointed out, Bauer Plumbing Company was petitioner's agent in making authorized repairs to the rental units in question, and the exception, by its terms, could not be invoked to insulate petitioner from the bias or "preferences of co-workers, employees, customers or any other person." § 1-2503(a). Moreover, the Commission pointed to the "evidence in the record" -- i.e., Beverly Whiting's earlier instruction that Bauer Plumbing employees were not to enter Condren's unit -- "which indicates that the idea of keeping repair people away from complainant's apartment may have originated with ." In its brief petitioner cites to the Commission's acknowledgment that petitioner "was compelled to continue using Bauer Plumbing because [the ownership of the building] was in debt, thus causing difficulty in retaining another plumbing company." *fn3 But, as the Commission replies in ...