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CHRO Annual Statistics (Part II) — When Most Complaints Are Dismissed or Settled, What Does That Mean for the Future of the CHRO?

By Daniel Schwartz on Posted in CHRO & EEOC

Last week, I took at initial look at some of the new numbers available in this year’s Annual Report from the CHRO (the state agency responsible for investigating discrimination complaints).  As I indicted, the numbers of complaints being filed held fairly steady last year.

The statistics (you can download the full report here) regarding case closures and reasonable cause findings show that the vast majority of cases either settled or were dismissed even before an investigation is completed. 

For example, of the 1760+ cases that were closed last year, approximately one-third didn’t even make it past the initial paper review (called the "Merit Assessment Review") either because they were frivolous on their face or there was no possibility that there would be a reasonable cause finding in the case.   Another one-third of the cases were settled or resolved at various stages of the case. 

Of those cases that went through a full investigation to a finding of "reasonable cause" or "no reasonable cause", there just 75 reasonable cause findings and about 225 no reasonable cause findings. 

(Those numbers don’t tell the full story of the number of complaints that could’ve proceeded to a hearing, however; complainants were granted a ‘release of jurisdiction’ — basically, permission to file in court directly  — 290 times as well.  Some of these cases could’ve resulted in a "reasonable cause" finding if the complainant had chosen to remain at the agency.)

Nevertheless, because there are over 1900 discrimination cases filed each year, what does it really mean that the CHRO found "reasonable cause" in just 75 cases?    Is the CHRO really still serving a useful and productive function in Connecticut? 

You might be tempted to answer that question "no" by looking further at what happened to cases after a reasonable cause finding that proceeded to the public hearing stage.  The CHRO made a final determination by a human rights referee in just seven instances (and not all were in the complainant’s favor) — down from nearly 50 as recently as 2002.  

That statistic raises the question as well: Do we continue to need at least four human rights referees to handle the small number of public hearing cases? (Updated: There are presently five human rights referees, going down to 3 effective July 1, 2011). 

Having raised the questions, let me answer them in part by saying that there is no doubt that in addition to its stated goals of finding and eliminating discrimination, the agency does help reduce the cases filed in court through its dismissals and settlements.  Eliminating the agency entirely might push some of those cases directly to court which is already struggling with mass numbers of foreclosure cases.

But even with the CHRO’s gatekeeper function, the statistics can and should be used by legislators to analyze how the CHRO’s limited resources should be used and ask important questions such as "When only 75 cases of reasonable cause are found each year in Connecticut, is the agency still serving an important public service?" 

  • Charlie Krich

    - To be fair, the 75 reasonable cause findings tells only part of the story. The CHRO achieved another 632 closures through settlement. Some of that number would have resulted in additional reasonable cause findings. Of the 632 settlements, 44 were at public hearing so we know those were previous reasonable cause findings.
    - There were another 290 release of jurisdictions issued. Almost all of these ROJs go to attorneys. I have to think that lawyers getting involved in these ROJ cases think there is some merit to them. Granted it is just speculation but I am reasonably confident that many of the ROJs we issue would have ended up as reasonable cause findings if the complaints had remained at CHRO.
    - There are currently 5 human rights referees, although I think 2 are on some type of medical leave at the moment. That number will be reduced to 3 on July 1, 2011 per P.A. 09-07 from the Special Session. Human rights referees also hear whistleblower retaliation complaints.

  • Hugh Murray

    Has there been thought given to operating more like EEOC (or state agencies in Maine, RI and others) and having CHRO investigate, conciliate and, in appropriate cases, bring court actions? Seems like that may result in a better use of resources.

  • http://www.ctemploymentlawblog.com Dan Schwartz

    I think the above points are well taken. And yes, Hugh, I think your point about having the CHRO take on an advocacy role might be an interesting approach. That would ensure that the resources are devoted to situations where the government is in the best position take on the role of advocate. Perhaps as the government is looking for creative solutions to the budget issues, this is an idea that gets floated.

  • Charlie Krich

    There’s been some thought given to compressing the process, or at least creating some sort of alternate universe for a portion of the cases. Right now you have in effect three trials: merit assessment, investigation and public hearing. We’re discussing an early legal intervention process where the parties or the commission could identify cases that a commission legal counsel would want (or not want) to present at public hearing. It would be a process largely independent of the normal investigative route our complaints now take.
    We currently bring court actions in our housing election cases. That process is completely untidy, mainly due to the systemic delays inherent in the court system as well as the tendency of counsel to file a flurry of motions. Fortunately housing cases are only a small part of our case inventory, but I’m not sure anyone would be anxious to repeat that experience on a larger scale with employment cases. As a option for Legal to bring an action in Superior Court or before a Human Rights Referee, that may hold some promise. Just my thoughts.
    If anyone has any concrete language to propose I’d be very happy to look at it. If we’re going to do one, our legislative proposal must be cleared by our Executive Director and in to OPM by the beginning of October.

  • Human Rights Referees

    What we think gets lost in translation is that the cases we referees administer – both CHRO and Whistleblower retaliation – get hands-on attention by the assigned presiding referee from certification or filing (WBR) right through final disposition. The assigned referee takes control of the docket, schedules all necessary proceedings, sets the parameters of discovery and makes rulings on the scope thereof. Jurisdictional dispositive motions are often filed on issues as erudite as the first amendment or as practical as res judicata, and can result in legal rulings of thirty pages or more. Pre-hearing conferences (often protracted) identify the witnesses and exhibits for the public hearing to come, and the hearing itself is virtually indistinguishable from a courtside trial (state or federal).
    Parallel to the duties of the presiding referee are the duties of the designated settlement referee assigned to settlement efforts. Settlement efforts commence shortly after certification and sometimes continue throughout the life of the case, resulting in the ultimate settlement of a majority of the cases certified to public hearing.
    For fiscal year 2009-2010 the referees conducted 209 conferences, four hearings in damages and the cited seven public hearings (trials) over 54 trial days. We also ruled on 467 procedural and substantive motions. We resolved a total of 66 certified discrimination cases and 27 whistleblower retaliation cases, principally through the aforementioned settlement endeavors and dispositive memoranda of dismissal. In discrimination settlements alone over $500,000.00 was obtained for claimants in fiscal 2009-2010, and this number does not include the many settlements the terms of which are protected by confidentiality agreements.
    The quality of our legal analysis is confirmed by the superior courts’ dismissals of all ten administrative appeals of referee decisions issued during the past fiscal year.
    September 9, 2010
    J. Allen Kerr, Jr., Chief Human Rights Referee
    Jon P. FitzGerald, Human Rights Referee
    Thomas C. Austin, Jr., Human Rights Referee