Last week, I discussed the data from the CHRO Annual Report and suggested that it should be used as a springboard for a discussion about the agency. Indeed, one of the comments in a post suggested that the CHRO may be open to concrete proposals to help the agency going forward.
So, I’m going to advance one today: Consider reforming the CHRO into an EEOC-type model and remove the weigh-station aspect that it functions as today.
What does that mean? It means that perhaps the state would be best served by having the agency just devote its resources to investigating and pursuing those instances of discrimination that are either so egregious or involve a state interest. Perhaps it is in cases of systemic discrimination; or perhaps its in cases where the agency has more resources than the minimum wage worker whose damages may not be significant, but whose treatment has been unfair.
The agency — much like the EEOC — could then be the primary party in a lawsuit and could take those cases to court where the agency is in the best position to serve as the "plaintiff" in prosecuting the matter. I think we can all agree that there still exists a role for the state in ensuring that discrimination does not occur in the private workplace.
How would the CHRO know about such cases? Well, it could require employees to still file such claims with the agency; however, instead of conducting a merit-assessment review, the agency could apply another type of review to determine if the case is the type of case that the agency should get directly involved in.
What would happen to the remainder of such cases? Well, there are two options. First, the agency could still serve (as the EEOC does) as a tool for getting such cases settled early on through an effective mediation service. The agency could even consider allowing outside attorneys to assist in mediating such disputes. This would also reduce the number of claims that would ultimately get filed in court as well.
As to the cases that don’t settle, we could consider allowing the parties to ask for an immediate release of jurisdiction after the agency has done their initial review. This will prevent the matter from becoming stale and would remove a criticism that the agency only serves to delay justice.
There are, of course, many more details to this type of proposal that would have to be ironed out (and that a short blog post cannot even begin to address). Is it worth, for example, making the CHRO part of the Department of Labor? What do you do in the interim with the pending cases? Can the agency build up an expertise to serve an advocate rather than an investigator? Is the current allotment of funds sufficient to deal with this function if the agency were reformed?
Is this the best model? Maybe not. But if we don’t ask these questions, the unhappiness from both complainants and respondents and the attorneys who represent them will continue which serves no one. We don’t require, for example, wage & hour plaintiffs to file a claim at the state Department of Labor and then wait; what makes discrimination claims so special?
I want to emphasize that this is not about the people at the CHRO who work tirelessly (and with limited resources) to do the work. Rather its about the structure and purpose of the agency. There have been other proposals in the past, but some just call for elimination of the agency entirely (which seems to be wishful thinking by some) or getting rid of particular people they dislike. Others just suggest doing modest tweaks like those done in the past (with the introduction of the Merit Assessment Review a decade ago.)
Maybe its just time for a different approach entirely.