explaining that discrimination will not establish liability under the DCHRA if the defendant can show the discrimination is justified by business necessity
How later courts described this case
- explaining that discrimination will not establish liability under the DCHRA if the defendant can show the discrimination is justified by business necessity
- noting that where the defendant failed to offer a business necessity for a discriminatory act, judgment was entered in the plaintiffs favor
Written by the judges who cited it.
The opinion
FERREN, Associate Judge,
concurring:
I concur in the majority opinion but believe it is important, for the sake of clarity, to make two points.
First, in Part II concerning the alleged statute of limitations bar, the majority states that “no legal discrimination could occur until the blood was actually tested.” I agree that the actual testing of the blood is a discrete, discriminatory act under the circumstances and thus that the statute does not bar the claim. This is not to say, however, that the act of drawing blood itself could not also be a discrete, discriminatory act justifying (presumably lesser) recovery. The majority apparently accounts for this possibility in footnote 4 indicating that such a claim would be time barred. I simply want to stress, therefore, that theoretically there can be two discriminatory aspects of a blood test on this record: one barred by the statute of limitations, the other not.
Second, and more importantly, I want to emphasize that nothing in the majority opinion should be understood to support an argument that sexual orientation, without a medical history of sexually transmitted diseases, can serve as a proper basis for any discriminatory treatment. Nor, as I see it, can sexual orientation properly be considered even a high risk factor absent such a medical history. Any reference to homosexuality in this case as a high risk factor, therefore, is relevant only because of the history of sexually transmitted diseases.