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.

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:

Continue Reading The CHRO Complaint Process Needs A Reboot

UPDATED

As I’ve talked about before, an employee who claims various types of employment discrimination must typically file his/her complaint first with the Connecticut Commission on Human Rights and Opportunities. Many times, the employee will then ask the CHRO for a "release of jurisdiction" allowing that person to pursue a claim in state court.

A group of other employees allow the cases to continue at the CHRO for investigation. In those circumstances, the CHRO may make a finding of "no reasonable cause" which, in essence, closes the matter out. The employee can still ask for a release of jurisdiction before the draft becomes final

However, there is another less well traveled option — appealing the "no reasonable cause" finding directly to Superior Court.  (The employee can also ask for reconsideration of that request as well, but that’s beyond the scope of this particular post).

A case released by the Connecticut Appellate Court, Prioleau v. CHRO (officially released on September 1, 2009) (download available here) addresses that very circumstance.  In doing so, the Appellate Court found that the CHRO followed the appropriate procedures in its investigation and that the CHRO’s conclusions should be upheld. A court’s review in that case is not whether the employee should "win" their discrimination case but rather was the process that the CHRO used fair.  That is a much easier question for the court (and much harder one for the employee to prevail on).

The Appellate Court emphasized the notion that the CHRO need not use the strict analytical framework that courts use in determining discrimination cases. Rather, the CHRO can use all reliable probative evidence, including evidence unfavorable to an employee’s claim, to make its decision.

In addition, the Court easily disposed of the remaining arguments, finding that the investigation was indeed proper and that the investigator was entitled to draw conclusions from that investigation.

The employee here had an uphill battle in its appeal. Courts will be deferential to a CHRO’s decisions, as it must under its jurisprudence. For employers faced with these types of appeals, this case will serve as a helpful reminder about the appropriate standards that a court will use in reviewing the claim. 

Nevertheless, its still another stark reminder that these cases can take a good deal of time and money to defend.  Being pragmatic in the business decisions you make will help ensure that if you do have to defend yourself, it will be money well spent.