Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today we’re featuring a conversation about the 60th anniversary of the passage of Title VII and the past, present and future of protected classes in the workplace. Our guest is Hnin Khaing, the Director of the DC Office of Human Rights.
Khaing sees the history of Title VII as a mixed bag. Our court and regulatory systems are still swamped with allegations of discrimination, so the problem of inequality remains firmly entrenched in American workplace culture. But at the same time, she says, it’s better than it was when Title VII was adopted in 1964.
Khaing says some states have jumped out ahead of the federal government, with more robust laws and a deeper set of protected classes. Washington, D.C., for example, protects employees against 18 kinds of discrimination, while Title VII covers only 5. She forecasts more changes, and more public arguments about them, foreseeing new laws covering hairstyle, domestic workers and the trans community.
Hnin Khaing’s Office of Human Rights profile.
2:24 | Title VII of the Civil Rights Act of 1964, § 7, 42 U.S.C. § 2000e et seq (1964). US Equal Employment Opportunity Commission.
5:01 | Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity. (2020). US Equal Employment Opportunity Commission.
6:44 | Khaing, Hnin N. (2022). Civil Rights in the Workplace: It's Time to Cut the Excess and Get to the Truth. American University Journal of Gender, Social Policy & the Law: Vol. 30: Iss. 3, Article 2.
15:42 | Neman, Daniel. (May 26, 2023). Protesters outside St. Charles County library clash over worker wearing goatee and makeup. St. Louis Post-Dispatch.
I. A HISTORY OF TITLE VII: HAS IT WORKED?
Matt Crossman, Host: You are the director of the Washington, D.C. Office of Human Rights. What is that, and what do you do there?
Hnin Khaing: I have the honor and privilege of serving the people of the District of Columbia by leading an agency that adjudicates, educates and prosecutes cases of discrimination. We are in charge of making determinations on complaints of discrimination that are filed based on D.C. laws, and sometimes federal laws, because we have a work-share agreement with the EEOC and HUD.
But I want to note here, of course, that today I’m here in my individual capacity and passion to talk about the subject matter at hand and not as a government representative.
MC: Duly noted. The subject that we’re going to talk about is Title VII, which turns 60 next year. What were the goals of Title VII, and have we made any progress toward reaching them?
HK: I’m going to give you a very lawyerly response. It depends on how you look at it. The goals of Title VII were to really end discrimination, provide equal opportunity, and it did that based on five specific very narrow protective traits. Those include race, color, national origin, religion and sex. And by now a lot of us are familiar with those protected classes.
In some ways, we’ve made some progress, especially if we’re comparing it to the state of the nation in 1964 when this law was first enacted. So since 1964, we’ve established the EEOC, the federal agency that enforces Title VII, and we have added some new laws to protect people in the workplace, with the Americans with Disabilities Act, for instance.
We have had courts make interpretations of the law that expand the protections under Title VII. So in some ways we’ve made progress. But when you look at the numbers, you wonder if we have.
And by numbers, I’m talking about the charges that are filed at the EEOC, for instance. So when you look at those numbers just from the late 1990s to the early millennium, you’ll see that on average, the race discrimination component of the protected classes is one of the top major complaints that are being alleged at the EEOC. And so race and ending segregation were the driving force behind legislation that enacted Title VII. So have we made progress if race is still an issue? The jury’s out on that.
MC: You talked about the ways some of the workplace anti-discrimination laws have evolved or expanded. Let’s start at the federal level. What’s happening there?
HK: At the federal level, since 1964 we have added laws like disabilities protection. We’ve added protections around non-discrimination concerning genetic information. We have expanded the way that we view and read sex discrimination, for instance, but that isn’t an explicit amendment to Title VII, because that is by case precedent from legal opinions stemming from courts.
Examples of the evolution of sex discrimination include banning discrimination based on sexual orientation and gender identity and expression, which stems from the Supreme Court’s Bostock decision in 2020. So that’s an example of how federal laws, including Title VII, have evolved in some ways.
MC: You’ve looked at this at the state level, too. What have you found in your research about what states are doing?
HK: States have been much more progressive in their protections. As I mentioned at the top of this conversation, Title VII only covers five protected traits. As compared to, for instance, in D.C. there are eighteen protected traits outside of the five.
New York has a similar number of protected traits. Washington is similar. Philadelphia is similar in that it has a much more expansive number of protected areas under those anti-discrimination laws.
MC: You mentioned D.C. That’s where the biggest part of your expertise is. What is unique there about the laws that the rest of the country can learn from—either good or bad?
HK: It’s always going to be a little bit of a mixed bag, but I think it’s mostly good, which is that D.C. is really a trendsetter. We are always on the cutting edge when it comes to protecting civil rights—or human rights as we prefer to frame it in D.C. Since our D.C. Human Rights Act was enacted in 1977, there’s been additional protections in the workplace to include examples like Ban the Box, which is a criminal background check. We’ve added protections for pregnant workers.
When I started practicing law in 2007, you were accustomed to following federal precedent and federal law and federal interpretations of laws. These days, it’s the other way around, where federal laws are trying to catch up to the different state provisions that are much more expansive and much more protective.
II. BROKEN PROCESSES AND HOW TO FIX THEM
MC: I want to ask you some questions about a piece you wrote recently in American University’s Journal of Gender, Social Policy and Law. You wrote, “If, as history indicates, our civil rights laws were made only to end segregation, as opposed to achieving equality and the processes assigned to enforce these laws are broken, how then can we truly expect to reduce discrimination in the workplace?”
That’s a fantastic question. What is the answer to it?
HK: The thought there is that the goal was limited in 1964 to have provisions that would prohibit discrimination. But now we’re talking about not just prohibition of discrimination, but making a workplace equal and inclusive.
And so all of that means that we need to look at not just our laws, but our processes to see if the laws that we have in place effectively ensure that discrimination is prohibited and that we have an inclusive environment. And so to do that, we need to look at our entire legal ecosystem that includes not just laws, but processes.
MC: Legal ecosystem. That phrase takes me right to my next question. This stat that I’m going to read makes me think, frankly, that the legal ecosystem is broken. Only 1 percent of employment civil rights cases reach trial. That’s an astounding statistic.
HK: It is an astounding fact, but there are a number of reasons why that is the case. When a case is first filed, it can be immediately dismissed on motion to dismiss. At the next juncture, after discovery has been conducted, then the case can again be dismissed based on summary judgment that a defendant might file.
Now, between all those moments of motions to dismiss and motions for summary judgment and discovery, cases can always settle. So that’s another reason why cases might resolve on their own. And oftentimes courts have mandatory mediation or settlement conferences that will result in resolution of the cases.
So it’s not entirely surprising that a lot of cases don’t make it to trial. But it is astounding, especially for employment cases. More employment cases are dismissed at those junctures than their counterparts in other civil litigation-type cases.
MC: One of the big challenges a plaintiff faces as well, particularly in employment law cases, is in discovery. What’s going on there that employment lawyers need to understand, and frankly, can it be fixed?
HK: We can probably do an entire podcast on things that go wrong with discovery in civil litigation and particularly employment litigation. But that said, the gist of it is, there’s a lot of ping-pong effect where one party is seeking perhaps too much information and the other party is trying to hold back as much as possible.
So there’s really a huge mismatch of intention in what can happen or what needs to happen in obtaining the evidence or information that is necessary to bring the case to trial. And so can that be fixed? The response is, I hope so. I think so. I am optimistic that we can fix that, particularly with amending our rules that govern so much of the ping-pong effect of discovery and what I call litigation within litigation.
MC: In that piece that I mentioned, you compare and contrast what happens in the United States with what happens in France, where employment discrimination cases are criminal. You suggest some things we can learn from how the French handle such cases. What are some things we can learn?
HK: We’re never going to see a day when civil rights cases are going to become criminal cases, but we can learn from how they are prosecuting those cases. In the French system, they have what’s called an investigative judge who has broad powers to obtain the evidence—the information that is necessary to get to the bottom of what happened here. Was there discrimination?
And in our country, in our current system, it’s not that way. This discovery is set up so that there’s limited opportunities to get the evidence, and then it becomes a contest of who has what evidence, and whether that really then shows a picture of whether discrimination occurred or not. So it’s really not designed to figure out what happened, but what information does each of the parties have, and does that paint a picture of discrimination?
MC: I want to read another quote to you. You wrote, “Rather than just expanding the scope of our laws, we must make meaningful changes to the system in which the substance of the law will depend.” What meaningful changes do you suggest?
HK: One major thing that we can do, and it’s not really that big of a lift—and that’s the wonderful thing about it—is amending our rules that govern litigation. For instance, our federal rules of civil procedures, we can use some amendment in those rules to require the parties to immediately exchange the relevant information that’s always going to be necessary in cases.
For instance, we have what’s called comparative information. In any employment case, you want to know was another employee outside of the protected group of the complainant or the plaintiff treated differently? Were they treated in a more favorable manner?
And so that’s the basic information that ought to be exchanged—information about, for instance, employer’s policies.
And on the plaintiff’s side, information about damages. What damages did the plaintiff suffer as a result of the alleged discrimination? That type of thing should be exchanged immediately without having to have a discovery battle over whether or not a party has a right to access that information. So if we can expedite the process of obtaining the evidence so that we can get that case ready for trial or for a more robust discussion about resolving the case, then these cases are going to track a little bit faster.
MC: How challenging would that be to both enact and enforce? I can imagine companies saying, “You can’t force me to tell you anything. I’m going to give you the bare minimum of information and take it or leave it.”
HK: Right, and so the amending of the rules would also cover that. If amended in this fashion, the rules would dictate that lack of compliance would result in penalties. That’s more robust and has more teeth.
III. WHAT’S NEXT: THE CROWN ACT, TRANS PROTECTION AND MORE
MC: I’m going to step back from rules and regulations and ask more of a culture question. We are having this conversation in the middle of culture wars. This is a difficult environment in which to craft, pass and interpret law. How have the law and culture interacted with each other as far as discrimination goes? Does the culture bring issues to light that the law then has to sort out or do the new laws kickstart the culture wars?
HK: I think it’s very intertwined. Culture can definitely influence lawmaking, and interpretation of laws can also, as you say, kickstart cultural or political debates for sure.
MC: Speaking of culture wars, and some of the different protected classes—you mentioned eighteen in Washington, D.C., and more get added with some frequency. Do you see a new horizon? What’s the next protected class that we’re going to argue about?
HK: There is a lot of movement to make explicit the protections I spoke about earlier that courts have construed for Title VII to include, including sexual orientation, gender identity and expression. I am hopeful that those will eventually be explicitly added into Title VII as it is the case with many of the local and state laws.
Another one that advocates have been pushing for is what’s called the CROWN Act—creating a respectful and open world for natural hair, and that really protects against discrimination based on hairstyle. And so we’re lucky in Washington, D.C. for instance—that’s one of the protected traits that already exists since 1977 under the D.C. Human Rights Act.
But in Title VII, that’s not covered. So there’s been a push for that. And so I think that there will be ongoing efforts to try to add that to Title VII as well.
Another hot one that will probably be coming down the pike is covering domestic workers. So in D.C., our laws were just amended to include domestic workers as a protected class under our anti-discrimination law, and many other states have enacted a similar provision.
I think that’s going to catch on. We probably will have legislation in Congress that addresses coverage for domestic workers from anti-discrimination.
MC: We had a story in the news near where I live recently about a worker at a library whose dress did not match their gender. There was a big protest. Is that a freedom of speech issue? Can an employer say you have to dress this particular way, I mean, outside of a uniform requirement?
HK: So that is indeed a big issue. Now I’m talking a little bit more about the First Amendment and also religious freedom and protecting those interests alongside anti-discrimination provisions.
But generally speaking that is becoming a very hot button issue in our nation with respect to gender identity and expression, with expression meaning how a person might express themselves through something like appearance or how they dress.
Can an employer dictate how a person dresses? It depends on what state you’re in and how they have interpreted their sex discrimination laws and whether or not there are protections for gender identity or expression in those jurisdictions.
It largely will depend, not just state by state but city by city as well. There’s going to be a lot of conversations that will come out for months to come around gender identity and how one dresses as it relates to uniforms in schools, as it relates to uniforms in workplaces, and whether schools or employers can prohibit someone from wearing the clothes that best resonate with their identity.
IV. READING, WRITING AND PRACTICING FOR COURTROOM APPEARANCES
MC: I want to pivot and ask you some professional development questions. My first one is about your journey. You were born in Burma, went to law school in Florida, and now you work in D.C. How did that happen?
HK: A lot of stumbling. My story of how we got here to the U.S. again could be another whole episode and conversation. In short, my family was escaping all of the atrocities and militant government that Burma had in the 1980s and 1990s.
And so that brought us to the U.S. I grew up in Washington, D.C. Law school was not my intention. I headed to undergrad with the idea of becoming a doctor. So I was pursuing pre-med and biomedical engineering, but organic chemistry and I didn’t get along so well, so I abandoned that.
I have always been interested in civil rights, and so I decided to pursue law school. I initially wanted to do investment banking litigation as it relates to minorities and women. That brought me down this path of actually starting out with labor law in New York City and then to various types of employment law as well as civil rights laws to include various protections in Washington, D.C..
MC: It can’t be a coincidence that you wound up in the civil rights world with that background.
HK: Sure, yeah. I think that the environment that I was in in Burma had a lot of profound impact on my interest in ensuring that workplace environments and other places are free from discrimination, free from disparate treatment, and that people are treated equally based on their merits and not on any of the other characteristics that have little or nothing to do with the merits of a job.
MC: For a young lawyer listening to this who thinks, “That work really sounds interesting, it sounds meaningful, it sounds impactful.” What advice do you have in terms of how to work your way up into a position like that?
HK: This work is very interesting. It is cutting edge, and it is rewarding. It is meaningful, but it’s also very demanding. And it does require a lot of focus on knowing how to analyze laws and knowing how to write very well.
When people ask me, “What do you do for a living?” I say, “I read and write for a living,” because that is what I do. It’s not like what you see in “Law and Order” where you’re going to court every day and making arguments. Making those arguments takes months to prepare for. So you’re going to be in an office in front of a computer, reading and writing constantly, and then practicing your oral arguments because you haven’t had a chance to talk that much because you’ve just been reading and writing.
Those are the skills that’ll be necessary for you to be able to be successful in this field.
MC: In addition to hosting a podcast about employment law, I’ve been a NASCAR writer for 20 something years. At least five drivers have admitted to me that they practiced being interviewed by answering questions into a mirror. How do you practice for a courtroom appearance?
HK: That is definitely one of them. It’s helpful today with Zoom and all the different technologies that we have where you can actually record yourself. So probably folks today are practicing by recording themselves on camera and on their phones.
And it really helps to record yourself in order to listen to your diction, how you sound, whether or not you’re persuasive. Do you have that human element in connecting with the judge and the parties that you’re working with? As I tell a lot of my less experienced attorneys, it isn’t about having the right of it when you’re arguing a case, it’s about being able to persuade and prevail upon the fact finder, and whether that’s the judge or the jury.
So you’ve got to be able to make that human connection. And practicing for that is probably more important than the substance of it. If you’re hard-working, you’re going to know the facts, but being able to connect, knowing where the issues are, and being able to speak persuasively on them will be very critical.
MC: What has been the biggest challenge you have faced in your career, and how did you overcome it, or how are you overcoming it if it’s ongoing?
HK: There are a lot of lawyers, particularly in D.C. for instance. I say this is the mecca of lawyers. It’s very competitive.
And my regret, the onus that I put on me, is that I grew up at a time when I didn’t use the Internet prolifically, so I probably didn’t make the most informed decisions in my career search or in the way that I could have gone about advancing my career.
And so that’s something that I give back to the budding attorneys and new graduates is to say, make an informed decision. Do as much research as possible, because that’s what’s going to help you to propel you to where you want to go. Even if you don’t think you know where you want to go, the more you learn, the more you experience, the more you are conscious of what you’re experiencing, then the better you will be for the next stone that you want to step on.
This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on June 30, 2023.
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