commission on human rights and opportunities

Through a recent FOI request, I was able to take a peek at the latest case statistics coming out of the Commission on Human Rights and Opportunities. (The CHRO has since added them to the website as well.)

I’ve done these recaps in years before (here’s 2016 for example) and I think you can learn a lot not just on the latest statistics but when you compare them to prior years.

So, what do the numbers from July 1, 2016 to June 30, 2017 show?

Well, for the first time in several years, we’ve seen a noticeable decrease in the numbers of complaints filed.

In FY 16-17, 2376 total complaints were filed, down from 2616 the prior year – a 9 percent decrease.  Of course, it’s still up from FY 11-12 when just 1838 total complaints were filed.

And what about employment discrimination complaints in particular?

The report also shows a drop in the number of complaints being filed, 1936, as compared to 2160 in the prior fiscal year.  That represents over a 10 percent drop. Again, however, it’s still up from FY 2012 when just 1559 employment claims were filed.

After years of marked increases, it’s nice to confirm what we have been seeing internally — that discrimination claims seems to be on the decline.

It’s difficult to know exactly why; we had seen increases the last few years at a national EEOC level too, but these new statistics from the CHRO show that the trendline up has finally broken.

Certainly the improved economy seems one factor but it’ll be interesting to see if this trend continues.

I’ll have a deeper dive into the statistics in an upcoming post.

The Commission on Human Rights and Opportunities released a new set of statistics yesterday (my thanks to CHRO liaison James O’Neill for the update which I had requested a while back).  Unlike years past, the statistics this year show some dramatic changes; those changes should have a significant impact on how employers view the agency and the state of affairs in Connecticut.

  • First, the number of claims filed (which includes employment law claims as well as other types of discrimination — including housing) with the agency rose 16 percent for the fiscal year ended June 30, 2014.  The claims rose from 1850 to 2146.  After years of modest decline, significantly more claims were filed in the last year.  What were the reasons for that increase? That remains to be seen.
  • To its’ credit, the CHRO continues to improve on its ratio of closed cases to open cases.  Last year the rate was 106%; it edged up slightly to 107%.  It closed 2303 cases (as compared with the 2146 cases it opened).  That means cases are less likely to linger at the agency.
  • But how those cases are being closed should be concerning to employers in some respects.  The agency dismissed just 97 cases on Merit Assessment Review (basically, the paper review after the parties submit their initial filings).  Compare that with over 800 cases closed on MAR review ten years ago.  That means a lot more cases are going to mediation and investigation and cases cost a lot more to defend than in past years.
  • And what else does that mean?  It means that more cases are also getting settled at the investigation stage.  935 cases were “withdrawn with a settlement” last year.  Compare that with just 481 over ten years ago.  For employers, even the cases that would be deemed as without merit years ago are getting some type of settlement now.  Again, an increase in costs for employers.

Unfortunately, the statistics don’t yet show how many cases were found to have “reasonable cause” to proceed to a public hearing, nor how many cases were the subject of early legal invention as well.

What’s interesting as well is that the increase is consistent with the increase in claims at the EEOC for claims filed in Connecticut as well.  Over the last five years, the number of EEOC claims in Connecticut has risen by 53 percent (from 191 charges to 294.)

I’ve previously covered the trends of such statistics in various posts for the last seven years, so it’s worth reviewing them (here, here and here for example) too to see the larger trends.

For employers who believed that the discrimination claims are a relic of history, the statistics show that such claims are alive and well.  And they are costing more in time and money than ten years ago.

 

Collins, left, addresses CBA; Shipman & Goodwin Partner Gabe Jiran, right, moderates.

At Monday’s Connecticut Legal Conference, CHRO Chair Gary Collins spoke for a bit about the developments at the oft-maligned agency since he’s come on board.  (You can follow all the tweets from the conference on Twitter using #ctlegalconf as the hashtag.)While he joked that attendees could just read this blog to find out what was going on, he did highlight a few new developments at the agency that are worth sharing here.

  • First, he noted that Cheryl Sharp, a 21 year veteran of the agency, was just appointed Deputy Executive Director.  Sharp — who received her law degree from UConn Law — is fairly well regarded by both sides of the labor & employment law bar.  She is also credited with starting the Kids Speak and Kids Court outreach programs as well.
  • Next, he noted that Human Rights Referee Ellen Bromley submitted her resignation last month.  No replacement has yet been named.  One look at the public hearing calendar for the agency and its clear that in order to maintain some of the gains made in reducing the backlog, one will have to be named relatively soon.
  • Mr. Collins also noted that the agency is looking to make some tweaks to Public Act 11-237 — the law that made significant changes to how the CHRO processes discrimination complaints.  (For background on that law, see my prior posts starting here.)  He encouraged attorneys and other stakeholders to provide him feedback on how changes in the law can help improve the agency.
  • Notably, he said that the agency is now closing significantly more cases than a year ago.  He indicated that while the agency is still taking in more cases each year than it closes, he hopes that within the next year, that trend will be reversed. He cautioned that he wanted the agency to do so in the right way  — not just closing cases solely to meet certain “numbers” or benchmarks.

While I won’t speak for other attendees, Mr. Collins’ outreach should be welcomed.  He is genuine in his concern to improve the agency.  To that end, here are a few minor suggestions that can be done easily to continue to increase the transparency and visibility of the agency.

The agency still has a lot of work to do to remain relevant and useful.  While opinions about the agency are still down among practitioners anecdotally, with a new Executive Director last fall and Mr. Collins’ as its Chair, the agency is certainly far from out.

Next week, one of my colleagues, Peter Murphy will be at the Connecticut Bar Association to present a program entitled “CHRO 101 – From Complaint to Public Hearing”.   Full details are available at the CBA website.

The program includes a discussion of

  • The Complaint Process, MAR (Merit Assessment Review), and Mandatory Mediation,
  • Responding to the Complaint and Fact-finding,
  • Reasonable Cause and Public Hearings, and
  • Considerations for Appeal to the Superior Court

It promises to be an informative session.   In addition to Peter will be The Honorable Henry S. Cohn, Connecticut Superior Court, Judicial District of New Britain, New Britain, Mary Kelly from Livingston Adler Pulda Meiklejohn & Kelly PC, Hartford, and Michele C. Mount, Referee, Commission on Human Rights and Opportunities.

From my perspective, I’d add three observations.

First, the CHRO moves slow. Very slow.  While there has been a sincere effort now to close and move cases faster, old habits die hard.  Employers who expect things to happen quickly at the CHRO will be sorely disappointed.

Second, there is still a good deal of inconsistency between the regions of the CHRO.  In addition, each investigator has his or her own style and quirks.  As a result, for employers that are unfamiliar with the process it is crucial to talk with counsel about what you can expect with a particular investigator or in a specific CHRO office.

Third, the CHRO remains permissive of lousy discrimination claims. What do I mean? The system does not do a good job of getting claims that have no or very little legal merit to them out of the system.  As a result, employers are often times forced to spend thousands of dollars to defend itself at the administrative level. Worse, they may feel pressure to settle those claims for “nuisance” value even though the claims ought to be readily dismissed, just to avoid future costs.

Of course, there is new leadership at the helm so it’s also fair to say that employers should not expect the agency to remain static. Changes are continuing to be made so its important for employers to stay vigilent.

Having talked with Peter, there are lots of other little tips that you can expect at the presentation.  So it promises to be a worthwhile program to attend.

The CBA has another Labor & Employment Law program scheduled for next week as well at the Farms Country Club in Wallingford. Full details on that program are also available on the CHRO website. 

Earlier this month, I posted on a bill pending before the Connecticut General Assembly that would have changed the statute of limitations for filing employment discrimination claims and allowed a Complainant to ask for a release of jurisdiction of the CHRO as soon as possible.

This week, the Labor & Public Employee Committee approved of the bill — with some significant differences than the original bill. 

H.B. 5206 now gives an person who complains to the CHRO the right to opt out of the process any time. The CHRO mutst provide the release within 10 days unless the case has been certified for a public hearing.  The CHRO can defer on the request for 30 days "if the executive director…certifies that he has reason to believe that the complaint may be resolved within that period."

You can view the substitute bill here and the joint favorable report here. 

The bill now moves on to the Judiciary Committee.

(My thanks to my partner Joshua Hawks-Ladds, for his background on this post.) 

Kudos to Robert Brothers, the new Executive Director of the CHRO, for agreeing to meet with the Connecticut Bar Association’s Labor & Employment Law Committee. It is now set for February 25, 2010 at 6 p.m. at the Crowne Plaza in Cromwell, Connecticut. Full details are available here as well as instructions on how you can RSVP to the dinner.

Attorney Brothers will take questions, comments and suggestions for improving the CHRO.  In particular, he would like to hear from attorneys about the potential for e-filing, streamlining CHRO services and how the CHRO can best serve its constituents within its current budget and with proposed cuts to its budget next year. 

Mr. Brothers has made it known in various press accounts that he is taking his new role seriously.  And as I said last month, meeting with the CBA would be a terrific step towards rebuilding the agency’s reputation among practitioners.  So, you have to applaud him for his willingness to do so. 

If you’re unable to make last this month, what questions do you have for Mr. Brothers? Feel free to use the comment section below and I’ll try to pass them along for consideration at the February 25th event.

 

chro logoLast week, I posted about a working group that Governor Rell had formed to review the workings of the Connecticut Commission on Human Rights and Opportunities (CHRO).

Today, Hartford Courant columnist Stan Simpson has an interesting column on the same subject.  It’s worth a read.  It discussed the ongoing backlog of complaint and the issues that the agency has had with its leadership. 

He also quotes from the current Connecticut NAACP head who laments the fact that the CHRO’s top positions are held by white males. 

Now, there’s grumbling that the current key leaders — chairman, executive director, legal director, field operations and chief human rights referee — are all white males. The preferred candidate for the deputy director’s job also appears to be a white male.

"It’s the civil rights community that brought that whole agency into fruition," said Scot X. Esdaile, president of the state NAACP, which supports a thorough review of the agency. "For the [upper leadership] ranks to turn all white is criminal."

Executive Director Raymond Peck points out that about 40 percent of the 100 staffers are non-white, and that about half of the middle managers, including regional directors, are people of color.

"Would it be better if we looked more diverse at the very top? Yes," Peck said. "We want to be as diverse as we can at all levels."

However, credit Simpson with pointing out that, although the CHRO may have been built from the civil rights era, the CHRO’s functions of investigating discrimination go far beyond race discrimination today.   Indeed, I pointed out in October that the Annual Report for the CHRO shows decreases in the numbers of employment law claims over the last five years, while some claims (such as harassment) have increased.

According to the report of the types of claims filed in 2006-2007, the statistics show that race discrimiantion employment claims running about equal with gender discrimination claims and not far ahead of age and disability discrimination claims.  Here are some partial statistics on the numbers of claims being filed.

Number of Employment Claims Filed 2006-2007
Age 411
Color 449
Mental Disability 71
National Origin 260
Physical Disability 401
Race 571
Sex 557

Simpson concludes that the best solution may be to "tear it down — [and] rebuild CHRO into an independent, apolitical watchdog that ferrets out discrimination of all kinds and promotes inclusion in state hiring."  Given the numerous attempts to fix the CHRO over the years, you can’t blame him for suggesting that the agency work from a clean slate.   

In Connecticut, it’s well known that the state agency responsible for investigating complaints, the Connecticut Commission on Human Rights and Opportunities (CHRO) has been the subject  of lots of discussion and criticism for over a decade, dating back to the years under Executive Director Louis Martin.

Recently, a new series of criticisms have been heard about the agency, and the agency appears to be having difficulty keeping up with the caseload.  As such, Governor Jodi Rell has quietly formed a working group to review the agency and its ability to carry out its stated goals.

A recent article by the Waterbury Republican-American picks up the story from here:

The review is expected to take several months, said Christopher Cooper, the governor’s chief spokesman. He said the assessment grew out of contacts between the state NAACP and the governor’s office this summer.

There are well-documented problems at the human rights commission, including a backlog of complaints, high caseloads for investigators, and allegations of discrimination within the agency itself. Additionally, three executive directors have left under questionable circumstances in the last 10 years.

Cooper said the commission’s troubles entered into Rell’s decision to look into its possible restructuring….

The governor’s working group initially met last month; its second meeting is scheduled for Dec. 13.

Ann Noble, the governor’s deputy counsel, is heading the working group. It also includes representatives from the Connecticut Women’s Education and Legal Fund, the Connecticut Business and Industry Association, the NAACP, the state’s African-American Affairs Commission, Latino, Puerto Rican Affairs Commission and Commission on Aging, and the University of Connecticut’s Asian American Cultural Center.

In the article, I was asked to comment on the issues facing the CHRO.  I’ll let you read the article (in part, to give the intrepid reporter, Paul Hughes, credit for the article) but suffice to say that I indicated that more needs to be done to speed up the resolution of cases.  Indeed, cases are falling further and further behind, while the caseloads of the investigators increase.

This is an issue that affect both the employee and the employer.  Neither side can be happy with the delays that are plaguing the agency right now.  It increases the cost of litigation to both sides — which can only serve to make settlement more difficult down the road.

For an agency that has had its share of difficulties over the years, a working group to review it is certainly a welcome addition.   There will be no shortage of issues for the group to address.  Hopefully, the group will reach out to practitioners from both sides of the cases to provide the group with additional feedback and suggestions.