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Are Any Cases Getting Thrown Out as “Frivolous” at the CHRO Anymore?

Posted in CHRO & EEOC, Discrimination & Harassment, Laws and Regulations, Litigation

 

State Law Changes To CHRO

As I’ve noted before, the CHRO procedures were changed effective October 1, 2011.  One question that we had at the time was whether the CHRO would be retaining more discrimination claims by employees for investigation — getting past the Merit Assessment Review stage.

Previously, employers have had at least a little luck getting plainly frivolous claims thrown out at MAR.

If the reports I’ve been getting from multiple reliance sources are true, then it appears those days are over.

I’ve spoken with several people this month about cases that they are seeing at the CHRO.  Universally, the reports are that the CHRO is retaining nearly every case for a fact-finding and mandatory mediation, even the blatantly frivolous ones.

This has a few implications for employers:

1) First, employers may want to consider whether it is worthwhile preparing a long position statement and response to the initial complaint. If the case is going to move forward anyways and there is no hope of getting the case dismissed early, then what is the benefit to spelling out the entire case?

2) Second, this also means that cases at the CHRO are now going to be even more expensive.  Even the frivolous cases will have some nuisance value attached to them now because the employer will have to be involved with a full investigation if the case doesn’t settle early on.

3) Third, employers should now respond to the allegations with the idea that the case will virtually always go to investigation. That may schange the strategy and the time expended.

The CHRO has yet to publicly release any statistics about this (they still haven’t even released their FY 2010-2011 statistics; indeed, minutes from the CHRO’s meeting in October reveal only that “With the New Public Act #11-237 the cases should be moved along quickly. Agency training has started, which wilil produce more closures with less people.”  While that may be a long term trend, it is just as important to understand when the case will close.

So readers, what have you been seeing at the CHRO? Any trends over the last quarter?

 

 

  • Charles Krich

    Are you referring to cases dismissed as frivolous (Merit Assessment Standard 2) or for no reasonable possibility (Merit Assessment Standard 4)? Except for one region I would say that the Commission never dismissed that many as frivolous, and if reconsideration of those complaints dismissed as frivolous was requested they were usually granted. Merit Assessment Standard 2 mirrors the judicial standard for dismissing complaints as frivolous in federal court–and how many court cases are dismissed as being frivolous?

    I would not be surprised if fewer cases are being dismissed for no reasonable possibility under Merit Assessment Standard 4 and I would guess the statistics will bear that out, but at this point we have a largely non-working computer system and cannot extract the data. We have not had a computer person in-house for nearly a year. DAS is now in charge of our information technology.

    If I were an employer I definitely would not hold back presenting my company’s case. I just did a legal review and was persuaded the original dismissal should stand because of a thorough response from the employer. If the response had been less detailed this complaint would have gone to investigation.

    A well prepared response will reap benefits at mediation, could influence an early legal intervention decision and will structure the investigation to a degree. We have a situation now where an employer represented by a law firm has chosen not to comply with a Schedule A request – unless the information is provided I can see the agency bringing an enforcement action in Superior Court. That is something we have not done in years, but it is something for employers to be aware of. We will go to court if we have to. We can also default employers for failing to respond to discovery.

    Keep in mind that all cases retained at MAR do not necessarily to go a full investigation if mediation fails. A party or the Commission may request early legal intervention. One outcome of early legal intervention is that the Legal Division can make a recommendation that the complaint be dismissed or no reasonable cause found. I anticipate doing that in some cases here in Legal now. Obviously a comprehensive response will make that outcome more likely and a stingy response will make that outcome essentially impossible.

    All cases are not created equal and just because the agency retains a complaint at MAR does not mean it is going to result in a cause finding.

    I agree that the emphasis has shifted from MAR to mediation, but it is too early to tell what that is going to mean for parties or practitioners.

    Charles Krich, Principal Attorney
    Commission on Human Rights and Opportunities

    • Anonymous

      For simplification for a blog post to employers, I was referring to all cases under MAR (both under the “frivolous” and “no reasonable possibility” standard).

      I agree that there are still times when a thorough response is needed (and I didn’t advocate for ignoring Schedule As) but there are certainly cases that don’t merit such a lengthy response.

      Your point on the early legal intervention is noted, though, again, we will need to see the way this develops in practice, not just in theory.

      Many thanks for your detailed response.

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