Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

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?" 

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The conventional wisdom in a down economy is that employment discrimination claims will skyrocket. While there have been some indications of that at a national level, the numbers in Connecticut tell a very different story.

The state agency in Connecticut responsible for investigating discrimination complaints recently released its annual report (download here) for the fiscal year ending June 30, 2010. 

It shows that 1740 employment discrimination complaints were filed in the 2009-2010 fiscal year, up slightly from 1716 complaints the year before (a little over 1 percent). However, these numbers are still well below the 1814 complaints filed in FY2008, and the over 2000 complaints in FY 2001. 

(I've previously looked at the annual report numbers in posts here, here and here.) 

Notably, the numbers of "reasonable cause" findings are down 15 percent from the year prior -- to just 75 instances during the whole year (down from 91 in FY2009). It is the first time in 4 years, that the numbers of reasonable cause findings were this low. 

In upcoming posts I'll delve into the numbers a bit further including increasing numbers of retaliation complaints being filed.

The numbers confirm what I had suspected last year -- a discrimination complaint is not a foregone conclusion from a layoff, at least not in Connecticut.

Photo credit: Grafixar from morguefile.com

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At the ABA Annual Meeting in San Francisco on Friday, there was a terrific panel discussion by various researchers who have been looking at discrimination cases brought at both the EEOC and in federal courts.  

The program was based on two academic articles over the last few years: One was written by Laura Beth Nielsen, Robert Nelson and Ryan Lancaster and the other written by Elizabeth Hirsh. 

Here are some of the notable findings: 

• Ms. Hirsh looked at EEOC cases and found that having some prior legal experience, being a larger employer and having other EEO compliance programs can reduce the likelihood of an unfavorable outcome for employers.
  
  Put another, small employers, with no prior legal cases and no other systems in place to ensure EEO compliance (like being a federal contractor) are at higher risk when a discrimination claim is filed against them.
  
  Interestingly, though, those same larger employers are more likely to pay more for settlement and receive mandates to change their workplace policies while at the EEOC stage.
   
• Based on the other research, employment discrimination litigation overwhelmingly consists of individual cases, a majority of which end in a small settlement.
  
  Notably, outcomes of cases are difficult to predict at the outset of litigation. 
  
  However, class actions tends to fare better for the individuals bringing such claims.
  
  In short, the authors conclude that discrimination lawsuits are "not so much an engine for social change, or even a forum for carefully judging the merits of claims of discrimination, as it is a mechanism for channelng and deflecting individual claims of workplace injustice".

This research obviously has some important implications. For small employers, the research should be seen as a caution sign; it appears that there are built-in disadvantages for those employers in the legal system.

For all employers, even though most cases end in a small settlement, the research also shows that it's difficult to predict the outcome at the outset.  That makes for a challenge for employers trying to plan for a particular outcome.

The articles are well worth a read. You can find some background on the American Bar Foundation website here.

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-- There are three kinds of lies: lies, damned lies, and statistics

                                                                                     ----- Mark Twain

Given that Mark Twain is one of Hartford's most famous residents (now "celebrating" 100 years since his death), it seems appropriate to invoke another one of his famous sayings.

Time and again, statistics keep getting raised to the forefront of public discourse. This time, it's in the context of why we need the Paycheck Fairness Act -- a proposed bill in Congress that I've discussed before.

Notably for those in Connecticut, the bill's lead sponsor is Representative Rosa DeLauro (D-Conn3.)

This week, Stephanie Thomas -- an economic and statistical consultant specializing in EEO issues -- published a thought provoking piece about one statistic being raised in support of the bill:  that women still only earn 77 cents for each dollar earned by men.

As Stephanie notes, when most people hear that statistic, they assume that gender discrimination must be the reason for the difference. But Stephanie says that discrimination cannot be the reason when you look at the data.

She goes to the original source for the statistic and found that well over half of the difference can be explained by non-discriminatory factors:

[In the study, the researchers] found that 59% of the gender differential could be explained by non-discriminatory things: experience, chosen occupation, chosen industry, etc. So the "77 cents" statistic can't be due to discrimination:

• Estimated wage gap based on "77 cents" statistic = $0.23 per hour
• Amount explained by nondiscriminatory factors = $0.14 per hour
• Amount NOT explained = $0.09 per hour

According to [the study], the most that could be attributed to discrimination is $0.09 per hour. And this assumes that their model accounts for ALL legitimate nondiscriminatory factors.

She notes that there may be other reasons for the difference as well such as negotiating skills.

Of course, that's not to say that there may not be yet compelling reasons for changes in the law. But as Stephanie is wise to point out -- using this statistic as the basis isn't one of them. 

(Photo courtesy of Library of Congress Flickr photostream)

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Today, The New York Times reported on a privileged memo sent to Wal-Mart from its outside lawfirm back in 1995 that "found widespread gender disparities in pay and promotion at Wal-Mart and Sam’s Club stores and urged the company to take basic steps — like posting every job opening and creating specific goals to promote women and minorities — to avoid liability." (For more background, see this post by the Workplace Prof Blog.) 

Wal-Mart in response has said that the memorandum was part of a investigation conducted by the lawfirm and that the report was a privileged communication between its lawfirm and it.  No doubt it will argue that its disclosure -- or use in a pending sex discrimination class action -- would be improper.  

But it raises another interesting question that some company attorneys might be wondering about: What ever happened to the "self-critical analysis" privilege that companies tried to use to insulate themselves from critical memorandum like this one? The rationale behind the theory developed in the medical field, where - for example - hospitals were encouraged to review their safety protocols and procedures after a significant event with the idea that such studies improved safety and should be encouraged.

In the employment context, the U.S. Supreme Court seemed to limit that argument back in 1990 in the University of Pennsylvania v. EEOC case where the court rejected the application of an "academic peer review privilege" in a discrimination suit against the University of Pennsylvania. (Amazingly, I worked for the school newspaper that covered the case at the time.)   That case has been cited in many lower court decisions rejecting the self-critical analysis privilege.

The privilege still lives on in some instances, at least in theory.  (See also this case from the Connecticut Supreme Court in 1999 about the privilege in the medical context.) But it's very difficult to establish and its hard to imagine that Wal-Mart would get much traction out of this argument right now.

Should the privilege be advanced further? Perhaps, but until and unless Congress or state legislatures act to explicitly create such a privilege, courts are going to continue to be reluctant to act upon it.  Companies should certainly not anticipate that this privilege is going to apply in most circumstances.

For now, I'm reminded of an oft-quoted rule: Never put something in writing that you don't want to see on the front page of The New York Times (or its business section).  Its easy in theory to follow, but hard in practice.  That approach often gets tested when the client requests something in writing from the lawfirm or the attorney wants to do so to make sure the client understands the ramifications.  

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In this week's Connecticut Law Tribune, there's a story about how the U.S. Department of Labor is hiring 250 more investigators and what this potentially means for wage/hour suits in Connecticut. The gist of the story is that employers should not surprised if there's an increased focus on such claims.

I happen to be quoted in this article saying that some of the fuss may be a bit unwarranted.  "[Schwartz] said the number of wage and hour cases he’s seen has remained steady for a couple of years. 'We’ve seen some increased publicity about it,” Schwartz said. “We still see those cases, but it’s not as though we’ve seen a spike in the state.'"

The article then goes on to quote another attorney saying that it's a "hot topic", seemingly contradicting me. So what gives?

Well, I actually think we're both right and talking about two different things. There is no doubt that wage/hour suits are a "hot topic".  As I noted in the article, there's been increased publicity about such claims. But as of yet, that has not translated to more federal lawsuits featuring wage/hour claims. [Statistics for state wage/hour claims are not easily identifiable.]

Before talking with the reporter, I reviewed the federal court caseload in Connecticut.  What did that reveal? That for 2006-2008, the number of "labor" lawsuits filed (of which wage/hour claims are a significant part) remained surprisingly consistent: 127 lawsuits in 2006, 122 in 2007, 125 in 2008.

But those numbers tell only part of the story.  As it turns out, the the number of federal lawsuits filed in Connecticut is down over 20 percent over the last 10 years. So, putting these numbers together, it suggests that wage/hour claims represent a higher percentage of all the lawsuits being brought. However, the overall number of those wage/hour suits has remained fairly consistent.

What does this mean if you're an employer? Well, for starters, it means that wage/hour issues remain important for employers to resolve.  Misclassifying workers can lead to big headaches and big penalties for companies. Taking steps to correct any issues you have before then turn into major class-actions can save time and lots of effort down. And the DOL's renewed focus on these issues ensure that wage/hour claims remain a "hot topic".  

However, before you devote all your resources to this issue, keep the risk in perspective. Yes, wage/hour claims are important but human resources departments have many other "hot topics" as well (including equal pay , FMLA and ADA issues).  Each of these issues is no less important just because there hasn't been an article written about it.  

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With the local economy suffering the effects of the economic recession, the prevailing wisdom of experts has been that the number of discrimination claims filed would continue to skyrocket. However, as I've pointed out before, we just haven't seen that trend in Connecticut play out.

New data just released by the Connecticut Commission on Human Rights and Opportunities (CHRO) confirms that the number of discrimination claims filed has actually dropped significantly over the last fiscal year (July 1, 2008-June 30, 2009). You can view the latest annual report here (and see my prior reports on the CHRO annual reports for FYs 2007 and 2008 both here and here). 

Thus in FY 2009, 1716 employment discrimination complaints were filed with the agency, compared with 1814 in the prior year.  Interestingly, the CHRO made almost the exact same number of "reasonable cause findings" -- 91 -- as it did in the prior year (88).  Over one-third of cases were dismissed on the merit assessment review stage and nearly another third were withdrawn with settlement. 

In an upcoming post or two, I'll delve into the statistics a bit further (including big drops in the numbers of harassment and retaliation claims being filed). 

For employers, trying to figure out why the number of discrimination complaints here in the state is has dropped while the among of people unemployed is up, is a tough one to tackle.

Could it be that more employers are offering severance in exchange for waivers of discrimination complaints? Is it that people who are laid off during a recession understand the rationale (tough economic times) better than when times are good? Are employers seeking more legal advice about the process, anticipating a higher risk of a lawsuit?

Adding to the head-scratching is the fact that complaints to the EEOC on a nation-wide basis are actually up significantly.  In any case, the new statistics reveal that a discrimination claim is not a foregone conclusion arising from a layoff, at least in Connecticut.

Photo credit: Grafixar from morguefile.com

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Record numbers of discrimination complaints were filed with the Equal Employment Opportunity Commission, according to a MSNBC column:

Discrimination claims filed with the Equal Employment Opportunity Commission jumped 15 percent in fiscal 2008 to 95,402 — the highest level since the agency opened in 1965, said spokesman David Grinberg. That is up from 82,792 claims filed the year before by workers who believe they were discriminated against because of age, race, religion, gender or other reasons.

Those are truly stunning statistics because the unemployment numbers for 2008 didn't even start to spike until the last few months and this is for the fiscal year ending September 30, 2008.  If you were to extrapolate that trend for 2009, it's entirely plausible that we could hit 100,000 claims filed during 2009. 

The formal numbers will be released later this week, but already, the EEOC spokesman has his interpretation: "It's possible we have yet to see the full impact of the recession on discrimination charge filings as the economy continues to spiral downward since fiscal year 2008,” Grinberg said.

What is the makeup of these increases? Well, according to the MSNBC report, retaliation claims are up nearly 23%, age claims up nearly 29% and gender and religion claims up 14%.  By contrast, race claims are up only 11%, while disability claims are up a mere 10%.  Interestingly, Equal Pay Act claims -- which will get a boost from the Lilly Ledbetter Fair Pay Act -- were already up nearly 17% last year, before the passage of that bill.

What Does This Mean For Employers?

While the CHRO has yet to release its statistics for Connecticut, the EEOC numbers indicate that claims are on the rise..and in a big way.  Every decision to terminate an employee carries an even greater risk of a complaint.  With jobs becoming scarcer by the day, laid-off or terminated employees may view a complaint as their own way to stay afloat and their only option. 

These numbers emphasize the point that decisions to terminate employees should be made cautiously and carefully.  What are the consequences? You could end up being part of next year's statistics.

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Time for a few multiple-choice questions:

1. In the fiscal year ending September 30, 2008, the number of cases filed in federal court in Connecticut was: a) up significantly over 2007; b) about the same as 2007; c) markedly down from 2007.

2. Since 2003, the number of cases filed and pending in the federal court in Connecticut is: a) trending noticeably upwards; b) remaining fairly constant; c) trending noticeably downwards.

3. In 2008, the median time it took a civil case to get to trial in federal court in Connecticut was: a) 18 months; b) 25 months; c) 32 months; d) 40 months 

If you answered c) to each of the questions, you are well on your way to becoming an expert on court statistics.

But for those needing a little extra study, you can find the new statistics for Connecticut (and every other federal court) available on the U.S. Courts website here. The statistics were just released and reveal overall trends in the federal court system.

Why is this important for employers? Employers should be aware of the federal court statistics because many claims of discrimination are brought under federal law (and therefore, in federal court).  If there are big increases in the numbers of discrimination cases, you would expect to see a noticeable uptick in the court caseload.  

The fact that the caseload has decreased in 2008 and has continued to decrease for multiple years reveals that whatever trends may be happening at an administrative level or national level, they haven't translated in Connecticut to significantly more cases as of yet..  Compare this with the New York City area which shows the caseload trending higher over the last several years. 

In fact, Connecticut seems be running counter to the national numbers, which showed the number of cases filed in district courts nationwide was up 4.3% over 2007.)  Employers should also be cognizant that they were not likely to get a quick outcome of the case. Waiting 32 months for a trial is, as the statistics reveal, quite common in Connecticut.

Employers should not draw too many conclusions from the statistics.  After all, the most recent statistics of charges pending at the EEOC shows quite a number of claims in the pipeline. While 2008 may not have been the most litigious one for employers in Connecticut, where 2009 ends up remains a big question.

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AS UPDATED (9/9)

Last week, I posted about the statistics released by the Connecticut Commission on Human Rights and Opportunities.  (You can view the CHRO's Annual Report here.)  Today, I continue to take a look behind the numbers and the implications for employers in Connecticut.

Among the most striking of the statistics is this fact: Human Rights Referees issued only six referee decisions for the entire fiscal year (2007-2008) that closed cases after public hearings. 48 other cases were closed through a stipulated agreement. 

Why is this number significant? Because there are seven human rights referees that are employed full-time by the State of Connecticut to handle these cases. (UPDATE: Although the statute does provide for seven, a reader noted that only five or six have actually been appointed -- which may be a post for another day).   And yes, for those doing the math, that works out to about  one referee decision for each human rights referee for the entire year. 

Now you may be asking if 6 referee decisions is actually a lot when compared with past years. The answer is unequivocally no.  In 2000-2001, there were 87 public hearing referee decisions.  In 2002-2003, there were still 67 referee decisions.  Even for the year ending 2004-2005, 30 referee decisions were issued.  That's a drop of over 90 percent since 2001.

Despite the decreasing numbers, effective July 1, 2004, the legislature approved of seven human rights referees to serve for three year terms (Conn. Gen. Stat. Sec. 46a-57.)  Unlike their predecessors (who served part-time), these human rights referees serve on a full-time basis.  (46a-57(b)). 

It's obvious from the most recent numbers that a review of the staffing levels of the human rights referees is in order by the General Assembly -- which is where the blame clearly lies for its passage of the statute requiring certain staffing levels.   Perhaps the General Assembly, which is looking for ways to trim the budget, can review the CHRO's staffing levels and determine whether having five to seven full-time human rights referees who issue a total of six decisions in a year on public hearings is the best use of taxpayer funds.  (For a fairly scathing review of the CHRO, the Law Tribune has a column this week by Karen Lee Torre.)

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Last week, I publicized the release of federal court statistics; that story has now been picked up by the American Lawyer which crunches the numbers in more detail. 

But now you can break out your abacus again. The Connecticut Commission on Human Rights and Opportunities has also just released their annual report (available for download here) which contains all sorts of notable numbers, statistics and factoids. Over the next few days, we'll slice and dice some of the numbers to see what trends can be glistened.  For some background, you can view my post analyzing last year's numbers here. 

Here are some of the top-level observations:

• Consistent with the trend at the EEOC this year, employment claims filed with the CHRO are up for the 2007-2008 fiscal year ending June 30, 2008.  Specifically, claims are up to 1814, from 1743 for the year ending June 30, 2007 - an increase of about 5 percent.  Not a huge jump, but still notable. However, claims are still way down compared with 5 years ago (when they topped out at 2211).
• Retaliation claims are up substantially over the last year. Specifically, claims for 2007-2008 were 618, compared with 507 in 2006-2007 -- an increase of over 20 percent.  Also notable, retaliation claims continue to make up a large percentage of the claims being filed.
• "Harassment" and "Sexual Harassment" claims are also up substantially from last year's numbers. For sexual harassment claims, this reverses a trend of decreased numbers that had existed for the last several years.

For employers, what is the immediate takeaway from these statistics? 

These statistics show that after years of decreases in the numbers of employment claims, those decreases have come to an end.  Being vigilant about human resources policies and procedures, and sensitive to the issues relating to various employment laws will be one way to reduce the risk that a claim filed will turn into a substantial issue down the road.

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Attorney John Williams is well-known in this state for his avid representation of various state workers -- particularly state police officials -- in discrimination matters.  Yesterday, he held a press conference to announce that he will be filing a class action lawsuit in a few weeks challenging the hiring procedures of the Connecticut State Police.

The Hartford Courant has the details in an article this morning:

Racism is so entrenched in the Connecticut State Police that basic hiring practices ensure only a few minority troopers will even enter a training class, never mind be promoted in the ranks, an attorney representing a black troopers' coalition said Thursday.  ...

Only candidates who score at least 85 out of 100 on a written test are chosen to continue training, even though the passing score is 65. That practice discriminates against members of minority groups, Williams said.

Public Safety Commissioner John A. Danaher III vehemently denied Williams' accusations and defended the department's hiring practices, saying they are fair and blind to race. He also said he has taken steps since becoming commissioner to recruit more members of minority groups, including reaching out to more colleges and forming a selections unit that is largely minority.

WTNH has this report on the subject, as does the AP.  Because the complaint hasn't be filed yet, it is too early to tell the exact legal theories and arguments that will be used in the case, but it appears to be following a well-worn path of what are known as "disparate impact" cases.

So what is "disparate impact"? Well, when most of us hear of discrimination cases, they are known as "disparate treatment" cases, not "disparate impact" cases. These cases allege that someone intentionally discriminated against them because of a protected class (race, gender, etc.)

"Disparate Impact" cases are something different.  LawMemo has a nice little summary in its blog:

Disparate impact is the idea that some employer practices, as matter of statistics, have a greater impact on one group than on another.

A good example, taken from the first US Supreme Court Title VII case on the topic: When hiring laborers, the employer required applicants to have a high school diploma. The diploma requirement screened out vastly more blacks than it did whites. Therefore, there was a disparate impact based on race, even though there was no intentional discrimination.

The Supreme Court said that once the employees proved a significant disparate impact, the burden shifted to the employer to prove that the diploma requirement had "a manifest relationship to the employment in question."

Federal legislation enacted in 1991 says that if the employees prove that a practice causes a disparate impact, then the employer must demonstrate that the practice "is job related for the position in question and consistent with business necessity."

The allegations being raised by Attorney Williams are similar. He appears to be saying that the decision to screen applicants based on their score of a written test has a disparate impact on black applicants.  The EEOC has issued some guidance on employment tests that shed further light on the subject:

Moreover, as the EEOC notes, in 1978, the EEOC adopted the Uniform Guidelines on Employee Selection Procedures or “UGESP” under Title VII.  UGESP provided uniform guidance for employers about how to determine if their tests and selection procedures were lawful for purposes of Title VII disparate impact theory:

UGESP outlines three different ways employers can show that their employment tests and other selection criteria are job-related and consistent with business necessity. These methods of demonstrating job-relatedness are called “test validation.” UGESP provides detailed guidance about each method of test validation.  

In general, disparate impact cases are typically long drawn out cases that rely, in good measure on statistical analyses by experts.  They are costly and time-consuming affairs.  Thus, don't expect a quick resolution to the claims raised in this new lawsuit.  Indeed, the State Police will likely spend lots of time arguing that the standards it uses are "job related" and "consistent with business necessity".   Who will prevail? Stay tuned....

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Are unions are dying breed? The answer to that question often depends on your perspective.  

As we've seen in Connecticut, if unions are "dying", they are not going down without a fight.

But statistics just released by the U.S. Department of Labor tell a more complete story.  The statistics show a leveling off of the decline in union membership that's been ongoing for the last two decades. 

The percentage of workers who belonged to a union in 2007 was 12.1 percentage, up slightly from the 12.0 percent in 2006.  (For comparison, union membership in 1983 was at approximately 20 percent.)

Indeed, unions can claim a 300,000+ union membership increase in 2007.  The full statistics are available from the U.S. Department of Labor on their website. 

The numbers for Connecticut also tell a noteworthy story:

• In 2006, 247,000 Connecticut workers belong to a union -- or 15.6 percent of the workforce.  This is higher than the national average.
• That number increased slightly in 2007 to 253,000 workers -- also 15.6 percent of the workforce.
• It is unclear from the survey whether this 6,000 worker increase includes the 2600 dealers who voted to unionize at Foxwoods last fall. As readers know, the election results are being appealed now.

For unions, the numbers in Connecticut show a relatively stable unionized workforce and should give them some solace that they are holding their own. And for employers, the numbers are a good reminder that unions still maintain sizable support in the state. 

Unions may be down overall from where they were decades ago, but they remain an important influence in today's workplace. Whether the numbers will decrease over time depends on so many factors -- including the possible passage of the Employee Free Choice Act -- that it would be irresponsible to predict what will happen.

But, the next time you read an article about how unions are going the way of the "horse and carriage", just remember that the statistics don't tell that story -- at least not yet.

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Last 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.

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.   

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The CHRO has issued its Annual report ending for the fiscal year June 30, 2007, and made it available for public viewing. Its full of statistics that show trends in the workplace; such information is particularly useful for human resources personnel and in-house counsel. 

What does it show?

• Employment claims are down nearly 20 percent from a peak in FY 2002/2003.  (1743 for FY ending 6/07 vs. 2211 ending 6/03). 
  
• Notably, despite the theory that retaliation claims are being filed more frequently, that number is virtually identical (507 for 6/07 vs. 516 in 6/03).  However, because the overall employment claims are down, retaliation cases certainly appear to make up a greater percentage of the cases filed.  Perhaps that's why many perceive retaliation cases to be on the "rise". 
  

A few other trends are worth noting as well.

• Sexual harassment cases filed are down substantially by over 30 percent in the last 6 years.  In 2000, 271 cases were filed, while in 2006, just 188 cases were filed. 
  
• General "harassment" cases, however, are up over 100 percent.  In 2002/03, 175 claims were filed, while in 2006/07, 428 complaints were filed. It is unclear whether this is due to a reclassification of the term "harassment" or whether the actual claims are up.
  
• Claims for "terms and conditions" discrimination (in other words, something other than hiring/firing), are up over 10 percent (from 411 to 461, in the last 4 years). 
  
• The numbers of decisions from the Public Hearing Officers is WAY down. In 2002/2003, they issued 67 decisions, compared with just 10 in 2006/2007.  (Most cases are now being resolved at this level by settlement.)
• Yet the number of reasonable cause findings is remarkably consistent (88 in 2002/2003 compared with 92 in 2006/2007) -- again making up a bigger percentage of overall cases filed. 
  

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