I sometimes lament that employers get the short end of the stick when it comes to matters before the Commission on Human Rights and Opportunities. There’s little doubt, as I’ve said before, that more cases are being retained for investigation.
But what happens after an investigation has concluded that there is “reasonable cause” to believe that discrimination occurred? How do employers fare at a public hearing stage which is supposed to be a “clean slate”?
It’s hard to judge because there aren’t easily identifiable statistics to work from. Instead, you have to piece together a few recent decisions.
In one case this past summer, the employer (the state Judicial Branch) successfully defended itself against a claim of race discrimination. In doing so, the presiding human rights referee found that the evidence was insufficient to support a claim. (From a legal perspective, there isn’t much to be gleaned from the fact-specific analysis.)
In another case, the employer also successfully defended itself against a claim of age discrimination. The referee found that the evidence of discrimination to be “tenuous, at best”. The referee said that “While I do not doubt his personal conviction that the failure to hire him was ill advised, for his discrimination claim to be viable the record must either contain evidence sufficient to prove that Respondent harbored and acted with discriminatory animus, intentionally taking Complainant’s age into account in failing to consider him for a…position, or evidence of pretext.”
That burden was not met here.
But in another case, the employer (the state’s Joint Committee on Legislative Management), the presiding human rights referee found that the employer did not provide reasonable accommodations to the employee and discriminated against him on the basis of her disability. In doing so, the hearing officer awarded over $177,000 in back pay damages and ordered the employer to reinstate the employee.
Unfortunately, there just aren’t many more recent cases published by the CHRO’s hearing office to make a determination. Employers lately seem to win some and lose some. Others get settled without a disclosed outcome.
All hope isn’t lost for employers at the CHRO. It just may take a while (and a good amount of attorneys fees) to get there.