Last year, the General Assembly considered changes to the Commission on Human Rights and Opportunities. That bill did not receive a final vote. This year, it’s back but recently died in the Judiciary Committee, according to the CBIA. Will it get attached to another bill? Will it be tweaked further this fall in preparation for next year’s term? My colleague, Christopher Parkin, chimes in with the details and why employers need to keep an eye on any proposed changes.
The ink is still drying on the most recent round of changes at the CHRO, the massive amendments known as PA 11-237 (in fact, the CHRO website still points to old versions of the General Statutes), but the legislature has been grappling with proposed changes to the statutes that govern the CHRO in the last few months.
These amendments, Senate Bill 385, represent a considerable effort to clean up antiquated language and recodify the statutes to make them more accessible to the public.
Among the hundreds of technical amendments built into the bill are plenty of new substantive changes that employers and their counsel will need to become familiar with. Recently the CBIA has noted that this particular effort has seemed to die in committee; however, the bill is likely to reappear at one point or another. Here are the details and the impact on employers when this is considered again.
Investigator and mediator will no longer be the same person
The CHRO has long been criticized for its practice of combining the mediation and investigation process by assigning a single investigator to handle both duties, a process the Commission has insisted is a function of insufficient funding. Until recently, mediations and fact findings were very frequently held consecutively in one marathon day.
Nobody is best served when these processes are combined. Neither employers nor employees can fully trust the confidentiality of the mediation process when the mediator will be tasked with soliciting testimony a few hours later if the case doesn’t settle.
It’s also not fair to the investigators to expect that they can fully partition their brain between mediation and investigation to conduct both appropriately.
SB 385 would strictly prohibit the same individual from conducting both phases of the process. Not a bad thing for employers necessarily.
The CBIA is rightfully concerned that the bill may not go far enough because it does not spell out limitations on what the investigator and mediator can discuss regarding the mediation process but the change would be an important step forward.
Dramatic reduction in case processing time
SB 385 builds on PA 11-237’s efforts to tighten case processing time and close at least as many cases as are opened each year. Among many smaller tweaks to deadlines is a major change to the Merit Assessment Review process.
Currently, the MAR process must be completed within 90 days of a respondent’s answer, with any dismissals automatically sent to legal review for completion within 60 more days.
The proposed bill would roll the two processes together and shorten the time frame. A MAR determination and legal review would need to be completed within just 60 days of the answer.
Time will tell whether such a timeframe is realistic and there is no penalty for failing to comply but the Commission does have a track record for taking the current 90 day MAR deadline seriously.
Goodbye MAR, hello CAR
In an effort to eliminate the perception that the CHRO’s “Merit Assessment Review” process suggests that the Commission believes that a complaint is actually meritorious if it is retained as opposed to simply being sufficient to proceed to an investigation where the merits will actually be considered, SB 385 dispatches with the phrase Merit Assessment Review, known in CHRO parlance as “the MAR.”
The term would be replaced with the somewhat more neutral “Case Assessment Review” or CAR process.
Expanded early legal intervention
Early legal intervention was first introduced with PA 11-237. It allows the processing of some cases to be streamlined by permitting immediate release of jurisdiction, immediate public hearing, or full investigation.
If SB 385 is passed, early legal intervention will become a part of the process for all complaints filed after December 31, 2014.
If a complaint is not dismissed following the case assessment review and the mandatory mediation fails, the case will go to early legal intervention where the Commission must assign it to one of the three early legal intervention tracks within ninety days.
Discovery without rules
The most significant change proposed in SB 385 is the introduction of a discovery mechanism at CHRO. The bill proposes that in cases where both sides are represented by counsel, the Commission may order the parties to conduct written discovery. In effect, the bill would deputize the lawyers to do the documentary fact finding for the investigator.
The CHRO’s testimony in support of the bill is silent as to how it expects lawyers to carry out this new obligation without any rules governing its scope.
This part of the proposed bill has the very real risk of creating an enormous new cost to parties litigating at the CHRO as well as complicating the already burdensome discovery process in state and federal court should cases progress to that forum.
Again, it seems unlikely at this point that these changes will get adopted. But because the agency remains committed to these efforts, employers would be wise to tell their legislators how to make changes in a way that does not significantly increase litigation costs.