After my post last week on discrimination statistics (and the lack thereof of CHRO statistics that were publicly available), the CHRO was kind enough to release some additional statistics to me that hadn’t been posted on its website and hadn’t been released publicly before.

My sincere thanks to CHRO Principal Attorney Charles Krich for the additional e-mails and information.

Unfortunately, said Krich, the public won’t be able to get as detailed statistical information as it used to because of staffing cuts.  Instead, the CHRO is focusing on statistics to evaluate the CHRO’s performance relative to its “statutory and contractual obligations”.

For fiscal year 2012-2013, there were 1850 cases filed — which is up slightly from the year before, but down from 2517 nearly 10 years ago.  Notably, from the CHRO’s perspective, it is now closing more cases than it is opening.  In the CHRO’s view, it is thus doing a “much better job.”

In 2010-2011, the ratio of cases closed to cases filed was 71 percent. That increased to 105 percent in 2012-2013.  In other words, for the 1850 cases filed, there were 1951 cases closed in the last fiscal year.

Krich as passed along some more detailed statistics, which I have uploaded here, here, here and here.

Although the statistics aren’t as helpful as in the past, there are a few items worth noting.

It shouldn’t be much of a surprise, particularly given the mediocre economy, that complaints about employment termination are still the number one basis for discrimination complaints.  Retaliation claims, also not surprisingly, still rank pretty high as well.

But it is a bit surprising to see significant numbers of sexual harassment claims still being filed.  While precision isn’t available on these numbers, it appears that such claims are up significantly from a decade ago.  This is counter to the national trend which has seen a drop in such claims over the last decade. 

The CHRO’s focus, though, is on closing cases.  While this is a positive trend overall, particularly to reduce the backlog of cases that had built up, it still leaves some questions unanswered.  How are the cases getting closed? Dismissals after finding the claims had no merit? Settlements? Withdrawals by parties frustrated by the process?

Talking with other lawyers who represent employers, we still see too many meritless cases getting pushed through the system — costing employers time and money to defend.

With new leadership at the CHRO, employers should watch the CHRO closely to see what, if any, changes will be implemented in the next year.    Statistics can tell part of the story, but how the CHRO handles particular cases will be just as telling.

 

A new lawsuit filed last Thursday in Connecticut state court by an employer alleges that the employer’s due process rights are being violated by “inherently conflicted and irreparably unfair proceedings” at the Commission on Human Rights and Opportunities (CHRO) — the state agency responsible for investigating and enforcing the state’s anti-discrimination laws. 

In the lawsuit, NERAC v. Krich, a copy of which can be downloaded here, the employer alleges (among other things) that that the administrative law judge (a human rights referee) is a client of the presenting attorney (Commission Counsel) in a federal court lawsuit that has similiar issues to the ones that the employer is facing. 

Because of that attorney-client relationship and other due process violations, the employer alleges that the five cases it has before the ALJ must be dismissed.

There are lots of details to this lawsuit that can’t be neatly summarized in one short blog post, but several allegations jump out upon a quick review:

  • First, for those employers, that think the CHRO hearing process is quick and cheap, the lawsuit shows that the employer in this case has been dealing with allegations for over five years and many weeks’ worth of hearings in five consolidated cases.
  • Moreover, the employer sought to recuse the human rights referee (Michele Mount) on the grounds that she had applied for an associate position at the employer’s lawfirm (Jackson Lewis LLP) and was denied a position from the employer’s specific counsel (Victoria Woodin Chavey) in January 2012.   Ms. Mount denied the recusal motion, the lawsuit alleges, on the ground that “‘administrative adjudicators”‘are not required to meet the same standards of impartiality as judges.”  
  • On the date that the motion for recusal was denied, the lawsuit also alleges that Ms. Mount “had reviewed the LinkedIn profile of a senior officer of [the employer] whose alleged remarks had been the subject of a motion in limine” that had been denied.  When the employer sought to preclude reliance on information outside the evidence admitted at the hearing, the referee also denied that motion as well.
  • The lawsuit alleges that the CHRO is also pursuing an agenda of allowing attorney’s fees or emotional distress damages despite “no statutory authority to award such damages pursuant to Conn. Gen. Stat. Sec. 46a-58(a).”  It cites to the City of Shelton lawsuit that I covered back in August 2012.

The employer sought an ex-parte injunction, which was denied, but the court did schedule a hearing on the motion shortly.  The CHRO — through the attorney general’s office — has not yet filed a response and just filed an appearance in the matter on Friday.

For employers, the lawsuit should be carefully watched.  Some employers have been suspicious of whether they are able to get a “fair shake” at the CHRO and this lawsuit will certainly bolster those suspicions.  Whether a court will ultimately intervene, however, is an entirely different question that is simply impossible to answer at this early stage. 

Regardless, if employers have any hearings at the CHRO where the agency is seeking emotional distress damages on behalf of a complainant, they should continue to monitor this case and the Shelton case previously mentioned.

(Disclosure: I previously worked with the employer’s counsel, Ms. Chavey, at our former firm, Day, Berry & Howard up to 2005 or so.  I have no involvement, however, in the above proceeding.)

NERAC v. CHRO