126.1

When the Director finds that an employee of an agency was discriminated against and as a result of that discrimination was denied an employment benefit, or was subjected to an adverse administrative decision, the agency shall take remedial actions which shall include one (1) or more of the following, but need not be limited to, these actions:

1. (a) Retroactive promotion, when the record clearly shows that but for the discrimination the employee would have been promoted to a higher grade; provided, that the backpay liability may not accrue from a date more than two (2) years prior to the date the discrimination complaint was filed, or the actual date he or she would have been promoted;
2. (b) If a finding of discrimination was not based on a complaint, the backpay liability may not accrue from a date earlier than two (2) years prior to the date the finding of discrimination was recorded, or the actual date the employee would have been promoted, whichever is the shorter period;
3. (c) Consideration for promotion to a position for which the employee is qualified before consideration is given to other candidates, when the record shows that discrimination existed at the time selection for promotion was made, but it is clear that except for the discrimination the employee would have been promoted. If the individual is not selected, the agency shall record the reasons for nonselection;
4. (d) Cancellation of an unwarranted personnel action and restoration of withheld benefits that would have accrued to the employee;
5. (e) Expungement from the agency's records of any reference to, or any record of, an unwarranted disciplinary action that is not a personnel action; and
6. (f) Full opportunity to participate in the employee benefit denied the employee (e.g., training, preferential work assignments, overtime scheduling), or a reasonable substitute.

126.2

Application of the provisions of § 120.1 shall be waived whenever the Director and the agency head concerned agree that sufficient and appropriate opportunities will be available to provide relief to the complainant if his or her complaint is sustained, or whenever the agency head effects the action on a temporary basis and the temporary action is made specifically subject to termination if the complainant's assertion of discrimination is upheld.

126.3 In cases where an appointment has proceeded to a point that a third party might be aggrieved if no basis is proved for the allegation of discrimination, a temporary appointment or promotion shall be effected.

126.4 When corrective action is ordered by the Director in connection with resolving a complaint, the Director shall transmit a copy of the corrective order to the head of the agency concerned, and the corrective action ordered shall be taken without delay by the agency head.

126.5 If the agency head fails to comply with the corrective order within the stated time frame, the Director shall certify the order to the City Administrator, who shall direct the agency head to comply with the order.

Source: Final Rulemaking published at 57 DCR 9162, 9186-9187 (October 1, 2010).