merit assessment review

The CHRO is screaming for a reboot - like Star Trek
The CHRO Complaint Process is screaming for a reboot – like Star Trek

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:


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maxSo in a post earlier on Friday, I recapped most of the employment law legislation that passed — except one. That bill, Senate Bill 446, was titled “AN ACT CONCERNING THE DEFINITION OF THE TERM “DOMESTIC WORKER”.  

Innocuous enough, right?

But as it turns out, that bill was used as a cover to pass through significant changes to the CHRO process.

You will see that many of the changes are ones that I had tipped you all on earlier this year. Then back in April, we were told that the bill was “mostly dead”.

But like the Princess Bride, “Miracle Max” worked some magic and the bill came back from the dead during the session’s last week.

And there are so many changes that a separate blog post seemed like the best way to get through it all.

So let’s get to it, shall we?

Overall, the OLR summary of the bill recaps four main areas of change to the CHRO. It:

  1. shortens certain time frames for CHRO’s processing of complaints;
  2. allows the respondent (i.e., the alleged wrongdoer) to elect to participate in pre-answer conciliation;
  3. prohibits the same person from being assigned to conduct the mandatory mediation conference and investigate the complaint;
  4. transfers certain responsibilities from the CHRO executive director to the CHRO legal counsel.

But it also makes a significant change to the definition of who is an employee:

The bill also brings domestic workers who work for employers with at least three employees under the employment-related anti-discrimination laws administered by CHRO. Among other things, this provides them with (1) protections against employment-related discrimination based on their race, color, religion, age, sex, gender identity, marital status, national origin, ancestry, and mental or physical disability; (2) a right to a reasonable leave of absence for a disability resulting from a pregnancy and other pregnancy-related protections; and (3) protections against sexual harassment. By law, employees covered under the CHRO statutes can enforce their rights by filing a complaint with the commission.

If signed by the governor, the CHRO provisions will go into effect October 1, 2015, while the provisions on domestic workers will become effective January 1, 2016.

In more detail, the bill makes several changes to the CHRO process.

Responding to the Complaint
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Earlier this week, I wrote about the perception among some that the CHRO has been retaining more cases for investigation by letting more cases through the Merit Assessment Review.  These cases that used to be dismissed — mainly “frivolous” ones as  I’ve collectively termed them — mean more headaches for employers who have to spend time and money defending against them.

(To simplify the blog post for readers, I labelled all these cases that had been dismissed at MAR together as “frivolous” even though there are technically different reasons why the CHRO may dismiss a case on Merit Assessment Review, including that there is “no reasonable possibility” that an investigation will lead to a reasonable cause finding of discrimination. )

In response to my blog post, CHRO Principal Attorney Charles Krich crafted a reply. While it is attached to the original blog post, I thought it notable enough that it warranted its own blog post.   While he indicated that there were no statistics yet available, he “would not be surprised if fewer cases are being dismissed for no reasonable possibility” under the Merit Assessment Review.

Here’s his reply in full (my further comments are below):
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State Law Changes To CHRO

As I’ve noted before, the CHRO procedures were changed effective October 1, 2011.  One question that we had at the time was whether the CHRO would be retaining more discrimination claims by employees for investigation — getting past the Merit Assessment Review stage.

Previously,