So a few weeks back, I suggested that we were entering into a new era of sexual harassment cases and wondered out loud when the statistics would back up my observations.

We now have our first signs.  Maybe.

In my exclusive continued look at the case statistics from the Connecticut Commission on Human Rights and Opportunities, we can see the first signs of an increase.

But as I’ll explain below, it’s difficult to know if this is a statistical anomaly.

Despite significant drops in most types of discrimination complaints, the number of sexual harassment complaints in Connecticut went up last fiscal year to 145, up from 135 the year before.

As a percentage of overall claims, sex harassment employment claims are just 3 percent of the overall claims filed, up from 2.5 percent the prior year.

But here’s the issue: When you look back at prior fiscal years in 2014 and 2015, the number of sex harassment claims is still below those years.

In other words, is it a trend up? Or overall down? Indeed, the numbers from FY 2012 are comparable to FY 2017’s numbers. Except that as a percentage, there were more sex harassment claims made 5 years ago, then now (3.6% to 3.0).

What else do we see? Well, as expected with an overall drop in cases is an drop in claims of wrongful discharge, refusal to provide reasonable accommodations, terms and conditions, and even demotions.

Remaining constant were claims for failure to promote, termination of employment due to pregnancy, and aiding & abetting discrimination.

When you review the basis for claims filed, we see drops in claims for age (FY 2017 451 vs FY 2016 518), race (551 vs 616), sex (507 vs 532) and physical disability (445 vs 520).

Some other bases hold steady or even slightly increase: ancestry claims (200 vs 188) and mental disability claims (103 vs. 110).

For employers, watch the trends. Will sex harassment claims continue to increase? And will overall claims decline?

There’s more that we can glean from these numbers too. I’ll have more in an upcoming post.

 

 

Through a recent FOI request, I was able to take a peek at the latest case statistics coming out of the Commission on Human Rights and Opportunities. (The CHRO has since added them to the website as well.)

I’ve done these recaps in years before (here’s 2016 for example) and I think you can learn a lot not just on the latest statistics but when you compare them to prior years.

So, what do the numbers from July 1, 2016 to June 30, 2017 show?

Well, for the first time in several years, we’ve seen a noticeable decrease in the numbers of complaints filed.

In FY 16-17, 2376 total complaints were filed, down from 2616 the prior year – a 9 percent decrease.  Of course, it’s still up from FY 11-12 when just 1838 total complaints were filed.

And what about employment discrimination complaints in particular?

The report also shows a drop in the number of complaints being filed, 1936, as compared to 2160 in the prior fiscal year.  That represents over a 10 percent drop. Again, however, it’s still up from FY 2012 when just 1559 employment claims were filed.

After years of marked increases, it’s nice to confirm what we have been seeing internally — that discrimination claims seems to be on the decline.

It’s difficult to know exactly why; we had seen increases the last few years at a national EEOC level too, but these new statistics from the CHRO show that the trendline up has finally broken.

Certainly the improved economy seems one factor but it’ll be interesting to see if this trend continues.

I’ll have a deeper dive into the statistics in an upcoming post.

numbersThis week, the Yankee Institute for Public Policy, a self-described “free market” think tank, issued an article suggesting that Connecticut had nearly the same number of discrimination complaints as our neighboring state, Massachusetts.

(This isn’t the first time it’s been critical of the CHRO.)

In doing so, the Yankee Institute claimed that these statistics raise “questions as to whether Connecticut is simply more litigious or if the policies at the Commission on Human Rights and Opportunities are encouraging more claims.”

The basis for its analysis is a raw look at the statistics of claims filed — something I covered way back in December 2016 in two posts here and here.

I noted back then that the statistics only told part of the story and unfortunately here, the Yankee Institute’s arguments fall into this trap of relying too heavily on just a few statistics.

For example, yes, discrimination complaints have risen in the last few years as the Yankee Institute argues, but the types of complaints being filed are changing.  The Yankee Institute’s article lumps them all together as if they are fungible.

For example, as I noted in December: If you look at the claims involving termination of employment, there were 1216 filed in FY 2016, which is actually down from historical peaks in 2003, when there were 1385 such claims.

Instead, a different type of claim is being filed over the last 15 years — with huge increases in the “terms and conditions” area.

That is, employees who claim that they are being discriminated against in the “terms and conditions” of their employment when it comes to things like hiring, promotions and pay.  It could also mean an employer is not approving leaves, or granting breaks or any other term or condition of employment, however small.

In 2003, there were 411 such claims filed.  In 2014, there were 782.  By FY 2016, however, that number has skyrocketed to 1056!

In my mind, that likely means that more current employees are bringing discrimination claims against their employers.

chro99This is bolstered by a look at the “harassment” statistics. Notably, I’m not talking about sexual harassment claims, which continue to trend noticeably downward.  Just 135 such claims were filed in FY 2016, down from 185 the prior year and the lowest number by far in the 15+ years of available data.

Instead, this is a catch all claim for “I’m harassed” because of some other reason.  Just 175 such claims were filed in 2003, though that number was up to 380 in 2014.  For FY 2016, that number is up to 545.

That’s a more than 210% increase in over a decade!

Is the CHRO to blame for this trend? Without more critical analysis, I am hesitant to place the blame on the Connecticut Commission on Human Rights and Opportunities.

Anecdotally, I hear more arguments that employees are throwing around the phrase “hostile work environment” — not understanding that having a difficult boss is not illegal harassment.

The Yankee Institute’s article is also critical of the CHRO’s closure rate for “No Reasonable Cause” at 54 percent, compared to 87 percent of the Massachusetts claims closed for a lack of probable cause.

The CHRO issued a statement of their own on Facebook this week, with its own explanation for the discrepancy:

Many companies in Connecticut choose to resolve those matters prior to going through the full investigation process, by mediating those claims. Mediation works to the benefit of both parties, allowing for faster resolution and less time and money spent on investigations. These cases are frequently closed in fewer than six months from filing.

Here too, I think there is a danger than just looking at the numbers.  Both sides have some merit to their arguments.

As the Yankee Institute correctly notes, complaints ARE more costly and employers sometimes feel that they should pay something on even meritless claims to avoid the cost of litigation.

But the CHRO can also point to the fact that it has been dismissing more cases of late on Early Legal Intervention, giving employers more opportunities to avoid the cost of the CHRO process.  And the CHRO has been using mediation more effectively in the past — even if cases are getting through Case Assessment Review that probably shouldn’t.

Statistics are helpful; but when a state agency or a think tank starts using the numbers without providing context, reader beware.

Connecticut Supreme Court
Connecticut Supreme Court

In a decision that will be officially released next week, the Connecticut Supreme Court has, at last, ruled that punitive damages are not an available remedy for state law employment discrimination claims.

You may recall that I discussed the Appellate Court’s decision that had originally found the same thing back in 2015.  The case, Tomick v. United Parcel Services, has been one I’ve also discussed in other places too.

The decision itself is one for the lawyers to get. The court was more interested in dealing with issues of “statutory construction over which [the court] exercise[s] plenary review.”

So, the court started with the statute itself. It states that a court “may grant a complainant… such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorney’s fees and court costs… ”

Notably, the court says that this language could be considered ambiguous, so the court had to dig a little deeper.  Ultimately, the court says that “To construe this language as encompassing punitive damages without expressly stating as much, as the plaintiff advocates, would be inconsistent with our approach to the statutory construction in [a prior case], in which we required, at least as a default rule, express statutory authorization for statutory punitive damages as a form of relief.”

From there, it’s a fairly easy path forward for the court.  It notes that the legislature used the term “punitive damages” in other human rights statutes, so it knew how to craft such language and remedies.  For example, public accommodation discrimination has punitive damages as a possible remedy.

Ultimately, the court says it is not for it to read punitive damages into the statute.

But it suggests one final avenue: The General Assembly.  “Had the legislature intended for § 46a-104 to provide for statutory punitive damages, it could have amended the state statute to reflect the changes to its federal counterpart, and remains free to do so.”

However, given the split in the state senate and other pressing state business, it seems unlikely we’ll see this change for a while.

What does this mean for employers? Well, it means that state law discrimination claims became worth a little less than they used to — though the Appellate Court’s decision had been factored in for a while now.  It doesn’t mean that such claims are dead — but it does mean that employees bringing claims will have one more reason to try to pursue the claim in federal court, than state court.

 

chro99Last week, the Legislative Program Review and Investigations Committee released a 129-page report on the Commission on Human Rights and Opportunities, with a focus on Discrimination Complaint Processing.  You can download it here.

The report is worth a deep dive at another time, and a final report from the Committee is due in January 2017.

Fortunately, for those of us that prefer the “Executive Summary” there is also a key staff findings sheet that recaps the main findings.

Many of these are not a real surprise given my observations and others on the CHRO over this past year.

But still, there are a number of items worth consideration:

  • Additional data collection and reporting are needed — noting that information to fully track performance is lacking in some instances and the CHRO has not fulfilled its reporting requirements in recent years.
  • Budget and staffing resources have generally decreased — noting that investigative staff within regions was at a six-year low as of July 1, 2016.
  • Written policies and procedures are outdated — noting that the manual for processing complaints was developed in the 1990s.
  • The workload of all units processing cases is not fully accounted for in overall performance — noting that the commission’s Legal Division is not required to report in its entire performance.

As a result, staff has listed several recommendations:

  • Address data limitations
  • Begin reporting on the performance of all units for greater accountability
  • Focus on meeting statutory case processing timeframes
  • Develop uniform case processing procedures
  • Make technical changes to the housing statutes to separate out the housing discrimination complaint process from the non-housing process

There are additional recommendations as well.  Overall, the report is another useful tool to help update the CHRO, as I discussed in a post earlier this month.  I’ll try to take a deeper look into the report in an upcoming report, but the report itself is worth a read for those who deal with the agency on a frequent basis.

zombieAs I did last year, after I posted on the general statistics of the CHRO to see if we could glean any trends, I took a deeper dive into what the statistics this year show.  And there were definitely a few surprises.

Obviously, at the risk of repeating yesterday’s post, FY 2015-2016 was a very big year for employment claims.

But because less employees are being fired or laid off (unemployment in Connecticut is at moderately low levels and the newest national figures this morning show just a 4.6 percent unemployment rate) than in a recession, what gives?

Well, if you look at the “discharge” claims — that is, the claim that “I was fired because of discrimination” — there was a modest increase in those claims to 1216 in FY 2016, up from 1174 in FY 2015.  But still, discharge claims are down from their historical peaks in 2003, when there were 1385 such claims.

But the bigger increase continues to be in the “terms and conditions” area.

That is, employees who claim that they are being discriminated against in the “terms and conditions” of their employment when it comes to things like hiring, promotions and pay.

It could also mean an employer is not approving leaves, or granting breaks or any other term or condition of employment, however small.

In 2003, there were 411 such claims filed.  In 2014, there were 782.  By FY 2016, however, that number has skyrocketed to 1056!  That’s a 35 percent increase in just the last two years.

In my mind, that likely means that more current employees are bringing discrimination claims against their employers.

This is bolstered by a look at the “harassment” statistics. Notably, I’m not talking about sexual harassment claims, which continue to trend noticeably downward.  Just 135 such claims were filed in FY 2016, down from 185 the prior year and the lowest number by far in the 15+ years of available data.  

Instead, this is a catch all claim for “I’m harassed” because of some other reason.  Just 175 such claims were filed in 2003, though that number was up to 380 in 2014.  For FY 2016, that number is up to 545.

That’s a more than 210% increase in over a decade!

Retaliation claims are also up again — an increase from 753 to 776. Though, it should be noted, that rise is a bit slower than the past few years.

What’s the takeaway?

As I noted last year, you may be looking for claims in the wrong spot.  Dismissal claims are up modestly but “harassment” and “terms and conditions” claims continue to see the biggest increases.

Thus, managing your current employees and getting legal counsel involved to help advise you, may be more helpful to keeping such claims to a minimum than just talking with counsel exclusively about terminations.

Regardless, employers should continue to be mindful that the trend of increased discrimination claims in Connecticut shows no signs of slowing down.

 

numbersAt this week’s CHRO information session, I was able to review the new statistics released by the CHRO this fall regarding case filings and dismissals.

They’ve now been posted live on the CHRO’s website here.

It’s something I’ve covered each year and I’m always fascinated by what these statistics show — and don’t show.

What’s the big takeaway this year?

The trend of increasing numbers of discrimination complaints being filed that we have seen in Connecticut since 2012 (when just 1838 complaints were filed) is showing no signs of abating.

Indeed, in the fiscal year ending June 30, 2016, 2616 complaints were filed, up from 2482 the year before.  Thus from FY 2012 to FY 2016, that’s a huge 42 percent increase in the number of claims filed.

Now, not all complaints with the CHRO are employment-related.

But as with prior years, that number has been going up as well.

For FY 2016, there were 2160 such complaints filed, up from 2017 last year, and up from 1559 four years ago.  Again, that’s a 39 percent increase in employment-related claims filed over the last four years!

I’ve noted this in prior years but these increases are head-scratchers.  Normally, in an improving economy, claims go down.  While the Connecticut economy hasn’t been growing a lot, it is still somewhat stable.  

Moreover, such increases are counter to the national trends which have seen the numbers of claims filed with the EEOC decrease from their peaks in 2010, 2011 and 2012.    (Though I should note that in FY 2015, the EEOC did see a slight increase — but the numbers are still down 10 percent from their peaks early this decade.)

I speculated at this week’s informational session that it could be that more claims are being filed because it’s easier than ever to pass the Case Assessment Review stage and try to get something at a mediation.  Those at the CHRO challenged that argument but no one at the meeting had a good idea of what could be causing the rise.

Regardless, employers who have been sensing that more complaints than ever are being filed aren’t far off the mark.

I’ll take a deeper dive into the statistics in tomorrow’s post.

chro99Yesterday, I had the opportunity to sit on a panel discussion sponsored by the Commission on Human Rights and Opportunities. Charles Krich, a Principal Attorney, also spoke and it was moderated by Deputy Director Cheryl Sharp.

The purpose of the discussion, before dozens of practitioners in the state, was to look at the state of affairs at the CHRO.  More specifically, though, we spent a good deal of time addressing the Case Assessment Review and Early Legal Intervention processes.

As I noted at the presentation itself, the CHRO is to be commended to having such open sessions and being responsive to suggestions and criticisms offered by me and others.

There were several items of note from the meeting itself:

  • The CHRO’s resources continue to be severely tested. Krich mentioned afterwards that the staffing levels are down to just 66 people, across all the offices.  That’s down nearly 50 percent from years ago.  Positions are not being filled when people retire.  Presently, two Regional Manager positions are being filled on an interim basis by Krich and Sharp, which even they acknowledged is less than ideal.
  • That said, the CHRO is still keeping its backlog of cases a historically low levels, so the CHRO is doing better at doing more with less.
  • Nevertheless, Krich noted that they are looking at Case Assessment Review process because it is not working as intended. Previously, too many cases were knocked out at Merit Assessment Review, Krich said; now the pendulum has swung in the opposite direction.  A fix, though, isn’t easy.
  • One of the problems, Krich noted, is that those who are required to do the Case Assessment Review are not equipped to apply the standards evenly.  As a result, it is easier to just send the cases through to mediation and investigation, than to knock them out.
  • Krich himself has now started to review the Case Assessment Reviews in the Bridgeport region the last two months and believes that more cases are not passing CAR as a result.  He is able to apply some consistency to the approach there.
  • Krich said that employers should consider submitting more information in the answer process itself which he believes can be helpful in getting more cases dismissed. I pointed out that employers have resisted that of late because, it seems no matter how much information is submitted, the cases still get retained for investigation.
  • One “safety valve” that Krich believes should be used by parties more, however, is the Early Legal Intervention.  That allows the legal department to review complaints (typically after a mediation) and figure out the best course of action for a complaint.
  • I had asked what the statistics, though, were on Early Legal Intervention and I was surprised by the results. Krich indicated that over the last three months (since September 1, 2016), there were 69 cases that had gone through that.  Of that, 3 were sent directly to public hearing and 31 cases were returned for investigation. But of the remainder, 20 were given a release of jurisdiction and 15 more were tagged with a “no reasonable cause” finding.  That allows the CHRO to focus its resources on less cases.
  • Thus, for employers and the attorneys who represent them, it may be worth exploring Early Legal Intervention more.  The risk of the case going directly to public hearing remains low.

During the discussion, I also brought up the CHRO’s ineffective handling of complaints that are brought on the same facts, but against different respondents — such as against the employer (for discrimination) and a supervisor (for aiding and abetting discrimination).  Currently, those cases are each processed separately and each office handles such complaints differently. In response to additional audience support for review of this, Deputy Director Sharp indicated she would review the process further.  It was a good example of what can come out meetings like this.

There was more to the two-hour presentation and discussion than can be wrapped up in a blog post, but suffice to say that it was a productive meeting.  Hopefully, more meetings like this will be scheduled in 2017 — perhaps in another location or two throughout the state so those in Fairfield County might have the benefit of attending the next ones.

ct flagIf you don’t have plans this afternoon, I recommend joining me over at a panel discussion at the Connecticut Commission on Human Rights and Opportunities headquarters in downtown Hartford.

There, the CHRO will be holding an informational session for attorneys to discuss its practices and procedures. As described by the CHRO:

The Commission on Human Rights and Opportunities (CHRO) will be holding a training and informational session at 2:00 pm on November 29, 2016 for firms and attorneys who regularly appear before us. You and anyone else in your firm are invited to attend. The session is free of charge. The goal of the session will be to better explain the Commission’s complaint process so that attorneys for both complainants and respondents can better represent their clients.

The event will last two hours and will give an overview of the CHRO’s complaint process with a particular focus on Case Assessment Review, Early Legal Intervention, and investigations. Training exercises for each process will be presented to explain how the Commission comes to its decisions. There will also be an opportunity to provide feedback on your experience practicing before the Commission which will be used to help improve our processing.

If you would like to attend, please RSVP to Spencer.Hill@ct.gov. Please include the names, email addresses, and phone numbers for any individuals who will be attending.

I’m thankful to the CHRO for an invitation to speak on the panel at the event to share management lawyers’ perspectives on the CHRO.   I applaud the CHRO for its major outreach to stakeholders in the CHRO process.  Through discussions like these and others, the CHRO has shown itself to be responsive to constructive criticism and open to change. Moreover, the CHRO has allowed more transparency in the process as well.  It’s also been active on social media, with a blog and Facebook posts.  All good things.

That said, it should come as no surprise to attendees that I expect to be critical of the CHRO’s Case Assessment Review process which seemingly keeps every case now for investigation and mediation. This escalates the costs for employers.  Even the CHRO investigators that we’ve dealt with seem flummoxed by the process.  The intentions of the CAR process were notable, but it still needs tweaking.

If you have an interest in the CHRO process, I recommend this program later today.  

24242102739_3a7ae99d52_mThe state agencies that employers have to deal with the most on employment law issues made two announcements this week regarding their leadership ranks.

The Commission on Human Rights & Opportunities has announced that Michele Mount has been named the Chief Human Rights Referee. Ms. Mount has been a Human Rights referee for the CHRO for the last four years or so.

For employers that go through hearings at the CHRO, the elevation of Ms. Mount won’t change things all that much, but administratively, it’ll be interesting to see if she brings about any changes to that area of the CHRO.

At the Connecticut Department of Labor, interim commissioner Dennis Murphy is moving over to the Department of Motor Vehicles.  By most accounts, Mr. Murphy brought some much needed stability to the DOL and often worked behind the scenes to get things done.  He leaves on February 12th.

Governor Malloy then appointed former Hamden mayor Scott Jackson to head up the CTDOL. Kurt Westby, former political director for 32BJ and a long-time AFL-CIO board member, has been appointed deputy Labor Commissioner.

“I’ve known both Scott and Kurt for a number of years. I am confident that with their extraordinary qualities and skill-sets – they will work with the diverse group of stakeholders to move the Department of Labor forward,” Governor Malloy said. “Scott is a friend and an exceptional public servant. Kurt has spent his career trying to improve the lives of Connecticut residents. I believe they both will work together successfully to ensure that the state’s workforce is successful while enabling and our business community to thrive.”

Of course, much of the CTDOL’s work is done by staff who have been there far longer than any political appointee.    Again, for employers, the selections will likely not impact employers much.

Jackson will start February 3, 2016.

Good luck to all the new appointees.  There’s lots of work left to be done.