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When is a Mandatory Deadline Less Than Mandatory? At the CHRO

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

Recently, the CHRO provided an update on the status of cases at the commission.  In a comment to the blog, Charles Krich reported “the ratio of cases closed to cases filed is a bit over 90% during the July 1, 2011 to February 29, 2012 period (3/4 of this fiscal year). In FY 11 the ratio was more like 70%. (These are rough estimates.) That is a big improvement, but the sobering reality is that unless it starts to exceed 100% we are going to continue to add to the backlog.”

My colleague, Mick Lavelle, provides some further perspective on this backlog and discusses whether ”mandatory” deadlines in place at the CHRO are really, well, mandatory.  

Time stands still in some places

The flow of cases through the pipeline of the Commission on Human Rights and Opportunities remains slow-moving. At least the far end of the pipeline is no longer blocked. The CHRO having reported in its April Newsletter that three new Human Rights Referees have been confirmed and are ready to conduct hearings.

At the beginning of the pipeline, new complaints seem to reach merit assessment review within 90 days of the employer’s answer to the complaint and more cases are being retained.  

But the flow from MAR to an investigator’s fact-finding and decision on reasonable cause remains very slow.

One case known to us was first filed in July, 2010, and should have had a reasonable cause determination no later than January 2012. That did not happen, and the investigation is not even tentatively scheduled until June.

It’s not that the CHRO statutes lack deadlines. Conn. Gen. Stat. Section 46a-83(e)(1) still has a (somewhat odd) time requirement for the conduct of the fact-finding investigation.

The statute says that the investigator shall make a finding of reasonable cause or no reasonable cause not later than 190 days after the merit assessment review, and the CHRO’s executive director may grant no more than two extensions of three months each. This allows approximately 374 days, give or take a few days depending on whether February is one of the months in the extension period.

But this deadline is not binding.  This is not by accident; in fact, there is a good deal of history about these deadlines. 

In 1996, the Connecticut Supreme Court held that the deadlines were mandatory, in the case of Angelsea v. CHRO.  The General Assembly, however, enacted a temporary fix of the time requirements in Conn. Gen. Stat. 46a-82c, retaining CHRO jurisdiction over otherwise delinquent complaints; the Connecticut Supreme Court confirmed that process in Angelsea II in 1999.  

(Editor’s note: Perhaps the legislature can finally remove this old statute from the books?)

Ultimately, the legislature made the fix was permanent in 1998, so that Conn. Gen. Stat. Section 46a-82e now provides that the CHRO retains jurisdiction over a complaint notwithstanding the failure of the agency to comply with the time requirements for complaint processing.

In other words, a complaint remains viable regardless of the status of the case or the interim deadlines. This means that no complainant loses statutory rights because of the CHRO failed to do its job on time.

However, employers should be reminded that there are still definite time limits. 

Although the internal CHRO deadlines remain somewhat loose, the two-year statute of limitations found in Conn. Gen. Stat. Section 46a-102 remains effective to bar superior court lawsuits brought more than two years from the date of filing of the complaint with the CHRO.

For employers, the CHRO can be a challenging place to understand the rules and procedures in place.  When deadlines are not really deadlines, it can be frustrating for employers. But until and unless there are changes to the structure and more resources to CHRO, don’t expect things to change much in the near future.