Legislative Program Review and Investigations Committee

Commission on Human Rights and Opportunities
Chapter III

Selected Events Affecting Enforcement

 

While CHRO’s origins date back to 1943, the last 11 years have seen significant attention to and change within the agency’s discrimination complaint enforcement operations.  Also, commission leadership at both the commission level and the executive director position experienced significant shifts over the last two years, with several new commissioners and a new permanent executive director recently appointed.  It is important to place this 1999 review of CHRO in the context of these changes that have taken place over time.

In July 1988, Governor William A. O’Neill appointed an independent task force to review the management, operations and standards of CHRO.  This action was taken in response to public criticism of the commission. Particular attention was given to the agency’s management and operations, legal standards for assessing discrimination, and timeliness of investigations. In brief, the task force identified problems of timeliness and fairness in the complaint processing system as well as deficiencies in organizational and management structure.  A summary of the task force’s findings and recommendations are provided in Figure III-1.

Public Act 89-332 was passed to address the task force’s findings and made several significant changes to CHRO’s procedures for handling discrimination cases. In particular, the act imposed time frames for conducting investigations, completing conciliation efforts, and scheduling a hearing once a reasonable cause finding had been made. Investigators were required to make written findings of reasonable cause or no reasonable cause, including the factual findings on which it is based, within nine months of the date the complaint was filed. One three-month extension was permissible for good cause. If the complainant requested a reconsideration of a finding of no reasonable cause, it was to be filed within 15 days after the finding was issued and the agency had to reconsider it within 90 days of issuance.

The act also codified the reasonable cause definition similar to that established by the courts. “Reasonable cause” is defined as a bona fide belief that the material issues of fact are such that a person of ordinary caution, prudence, and judgement could believe the facts alleged in the complaint.

P.A. 89-332 also authorized CHRO to conduct fact-finding conferences during the investigatory stage to promote settlements. Each party and his or her representative were given the right to inspect and copy all documents, statements of witnesses, and other evidence unless disclosure was otherwise prohibited by federal or state law. In addition, the complainant was given the right to be represented by his or her own counsel at any hearing.

Because of a reported case backlog, the legislature also mandated in this act that all discrimination complaints pending on January 1, 1990, had to be resolved by July 1, 1991.  In 1990, the legislature granted an extension of one year to July 1, 1992. 

 
  Text Box: Figure III-I. Summary of 1988 Task Force Findings and Recommendations (recommendations are italicized) The Task Force found: Repetitive steps in the process impede timely processing of discrimination complaints. · Complaint processing procedure should be streamlined, and in cases where lengthy delays exist, a private right of action made available. Refusal to provide access to documents contained in the CHRO investigative files to the involved parties offends fundamental principles of fairness. · Statutory access to investigative files should be provided. Prioritizing of discrimination complaints according to basis is not justified. · CHRO should adopt a formal policy to treat all discrimination cases equally. The CHRO “reasonable cause” standard is unclearly defined. · Define in statute and expand the pool of hearing officers. Numerical performance standard applied to investigators negatively impacts reasonable cause determinations. · Performance standard should be redesigned for differences in quality and case difficulty. The standard for administrative complaint dismissal following a reasonable cause finding is ambiguous. · Statutory clarification of the right to dismiss administratively and assignment of someone other than the investigator to conciliation efforts. The advocacy role of CHRO throughout the discrimination complaint process is unclear. · Complainants should be entitled to their own legal representation at a CHRO hearing and the attorney’s fees should be available to prevailing complainants. A morale problem exists within the agency. · An independent study of staff morale should be undertaken. CHRO’s scope and mission are too limited, and do not address the community education component mandated by statute. · CHRO commissioners need to develop a better understanding of their role and responsibilities.

 

In 1991, another legislative amendment allowed employment discrimination complaints still pending with the commission after 210 days to be filed in court, if the complainant desired. If both parties agree, a complaint may be filed in court prior to the 210 days.

The legislature again addressed the CHRO complaint process in 1994. Public Act 94-238 authorized CHRO to dismiss some cases without full investigation under certain circumstances. This process became known as the Merit Assessment Review. Within 90 days of the filing of the complaint, the commission had to review: the complaint; the respondent’s answer and response to CHRO’s request for information, if any; and the complainant’s comments about the answer and response, if any. If the commission determined the complaint did not state a claim for relief or was frivolous on its face, or there was no reasonable possibility that investigating it would result in a finding of reasonable cause, CHRO must dismiss the complaint. This new provision was intended to speed up case resolution.

 In April 1996, the Connecticut Supreme Court issued a decision in Angelsea Productions Inc. v. CHRO 236 Conn. 681 (1996), which ruled that the statutory time limits set for the investigation of a complaint and for the holding of a public hearing after a finding of reasonable cause were mandatory. The court held that failure to meet those time frames meant CHRO lost jurisdiction over the affected cases and must dismiss them.

Concerned over the possible dismissal of hundreds of cases, the General Assembly again responded with legislation passed in Public Act 96-241. The act granted the commission jurisdiction over any pending discrimination complaint filed with it before January 1, 1996, even if it had failed to meet statutory time limits for handling them.  Under the act, if CHRO did not issue a determination on these complaints by January 1, 1997, its executive director must immediately issue a release to sue. 

The act also provided more time and flexibility in processing by permitting two additional three-month extensions. The final provision of the act required the Connecticut Law Revision Commission, with the assistance of an advisory committee, to study and recommend a revision of the CHRO complaint process to the General Assembly by January 15, 1997.

Pursuant to the act, the Law Revision Commission (with the advice of the advisory committee) developed a set of recommendations that again revised time frames to reflect the realities of the complaint process and to facilitate efficient case flow while taking into account the need to appropriately balance the interests of complainants and respondents. A summary of the Law Revision Commission study recommendations is provided in Figure III-2.

Finally, in 1998, legislation was passed adopting several of the Law Revision Commission’s recommendations. Specifically, P.A. 98-245 required CHRO to annually report the number of cases where statutory time frames are not met and the reasons for it. The act also specified that CHRO maintains jurisdiction to resolve complaints even if it fails to meet deadlines for completing investigations and initiating administrative hearings. The law also required the agency’s panel of part time hearing officers be replaced with seven full time human rights referees and expanded the right to file a discrimination lawsuit. Finally, CHRO may for good cause grant a 15-day extension beyond the 30-day period within which an answer must be filed to the complaint.

 
  Text Box: Figure III-2. Summary of the 1996 Law Revision Commission Recommendations The recommendations of the Law Revision Commission are as follows: · Extend the time within which notice must be served on a respondent after a complaint is filed. · Allow CHRO to grant one 15-day extension within which an answer must be filed. · Begin the 90-day period for the merit assessment review (MAR) from the date of the filing of a respondent’s answer rather than from the filing of the complaint. · Require reasonable cause findings be made within 190 days of the completion of the MAR, rather than within 12 months after the filing of the complaint. · Specify a 50-day rather than a 60-day post-reasonable cause conciliation period. · Require certification of complaints within ten days after failure of conciliation attempts. · Require the pre-hearing conference be held within 45 days after certification, rather than within 90 days after the reasonable cause finding. · Revise forms to more specifically elicit information and documentation relevant to the complaint under investigation. · Reduce volume and complexity of paperwork and improve public education efforts. · Revise the complaint process to reduce the need for parties to retain counsel. · Develop a uniform policy to clarify the effect of a respondent’s failure to respond to a request for information in a timely manner. · Give an automatic right to sue in Superior Court for all complaints dismissed because of CHRO failure to make timely reasonable cause findings and give notice of that right. · Require CHRO to annually document and explain the number of cases dismissed due to CHRO failure to act in a timely manner. · Require an early dispute resolution session, after the filing of the respondent’s answer, if requested by a party. The session should be conducted by a skilled arbitrator who is precluded from acting as investigator later in the case. · Review the management structure and case management practices of CHRO no later than January 1, 1999 (by the Program Review and Investigations Committee). · Grant complainants the right to request a release to sue in all CHRO cases still pending after 210 days. · Where parties are in agreement, cases that have passed the MAR process should be afforded the right to request a release to sue. · When a case is returned to an investigator after reconsideration, the investigator is given up to 90 additional days to conduct further investigation even if that period extends beyond the usual statutory deadline.

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