Lately, I’ve been hearing a lot of complaints about the Connecticut Commission on Human Rights & Opportunities from both attorneys and clients. And I’ve come to one conclusion:
The CHRO Complaint Procedure needs a reboot.
Now, before you dismiss this as a critical column – let’s be clear. I like many reboots. Sure, the Superman Returns movie paled in comparison to the Christopher Reeve version, but I thought the new Star Trek reboot was pretty snazzy.
Why do movies go through reboots? Because the formula that had worked for the movie series for so long has just stopped working.
Think George Clooney in Batman & Robin and then the reboot with Christian Bale.
And right now, the process that the CHRO has created is just not working. It’s not working for individuals, it’s not working for companies and, I believe, it’s not really working well for the agency itself. (And note too that I’m not suggesting the agency itself needs a reboot — though some have argued for that — rather, it’s the process as mandated by the law that this post is addressing.)
A reboot doesn’t mean failure; it doesn’t mean to throw out the entire formula. The agency has made some good strides on public outreach, for example, under the new leadership team. It is closing cases at a good clip and the mediation process seems better than in years past with dedicated staff just for mediations.
And I wouldn’t go so far as to say we live in a post-modern age where it has completely outlived its usefulness.
But the complaint procedure which was reworked a few years ago just isn’t working for anyone. Here’s why:
Any person who believes her employer discriminated against her for any reason has to file a complaint first at the CHRO. It is a jurisdictional prerequisite to later filing in court. Until recently, the agency would dismiss some of those cases very early on in a Merit Assessment Review finding that there was no real likelihood that an investigation would lead to a finding of reasonable cause.
In FY 2008-2009, for example, the CHRO threw out 610 cases on Merit Assessment Review because there was no possibility of a reasonable cause finding. (If we go back to 2001, that number was even higher — 975). In other words, the CHRO threw out some of what is inarticulately known in legal parlance as the “garbage” cases.
All that changed a few years ago when the statute was changed something I pointed out back in 2011 too. The new case statistics (which I will delve into more deeply next week) show that for FY 2014-2015, just 31 cases were dismissed for that same reason.
The practical effect of that change is that basically all of the claims being filed now are being retained for both mediation and an investigation.
That has taken up huge amounts of time both for the agency and for employers who suddenly find themselves having to attend a mediation for cases that don’t deserve to settled at all. Sometimes, employers even have to travel from Fairfield County to Hartford for the mediation.
This is particularly troublesome for cities, towns and school districts who have limited budgets to which to defend themselves.
Mediators say that they are required to hold these mediations too, even when the demands by the employee (or the offers by the employer) before the mediation make it plain that the mediation will be an utter waste of time.
So, as a result, employers are spending more defending themselves against claims (some of which have no merit) and more agency time is spent on cases that don’t merit government involvement.
There’s obviously more to this than a single blog post can begin to delve into.
But anyone who is dealing with the CHRO now has probably come to the same conclusion: the procedure that is now in place isn’t working well.
What’s the fix?
Well, the legislature did pass a series of changes to the process earlier this year that will start to kick in next week. But I’m not convinced that will really solve the issues we’ve been seeing the last few years. Will the CHRO really issue release of jurisdiction on cases that would’ve just gotten the boot years ago?
Instead, I’d like to see the CHRO use its background to help winnow out the cases. That would involve revisting the law and looking at the process again anew.
I’ll discuss that, and a deeper dive into the case statistics, in upcoming blog posts.
But for now, employers that haven’t dealt with the CHRO in the last few years would be wise to understand the takeaway from all this: A deeper understanding that the process has significantly changed a lot the last few years. And, in my view, not for the better.