Discrimination Complaint Process

This chapter describes the current process for discrimination complaint handling. As described earlier, before 1989, the CHRO complaint process had few statutory deadlines.  According to CHRO staff, cases filed would be assigned to investigators who would work on them on a first come, first serve basis.  In response to concerns about significant delays in case resolution, over the last 10 years numerous changes have been made to the statutes, including:  setting specific deadlines; expanding the right to sue; and establishing a initial merit assessment review soon after the filing of a complaint.

If a complaint proceeds through the entire investigation and public hearing process, it goes through three distinct phases. A complaint case can actually be resolved or closed at any time during the process, through voluntary settlements, dismissal after the initial merit assessment review, withdrawal, or CHRO administrative dismissal.  The three phases and the possible outcomes are described in this chapter. 

All discrimination complaints[1] start out in the four regional offices.  Depending on what path the complaint takes, various other units within the agency can become involved also.  The majority of complaints, however, are resolved at the regional office level.

Timeline example.  Before detailing the process, it might be useful at the outset to put the complaint timelines in perspective.  If a discrimination complaint was filed at CHRO on September 15, 1999, and was within CHRO’s jurisdiction, the case would proceed as follows if the maximum allowable statutory timeframes were met and no conciliation agreement was reached:

·       By February 17, 2000, five months after the complaint was filed, the  initial merit assessment decision would be made.  If the case was retained for investigation, rather than dismissed, the investigation phase would start.

·       By either August 25, 2000, almost a year after the complaint was filed (the initial investigation completion deadline), or February 21, 2001, 17 months after the complaint was filed (the extended deadline), the investigator would issue a finding of reasonable cause or no reasonable cause that a violation of law occurred.  If the finding was reasonable cause, the public hearing phase would start (after 50 days of attempting conciliation.)

·       By June 6, 2001, 21 months after the complaint was filed, the parties and the human rights referee presiding over the public hearing would meet for a pre-hearing conference.

·       There are no timeframes controlling the public hearing process, except that once the evidence-gathering portion is completed, the presiding officer must issue a decision with 90 days. 

Complaint Processing - Phase One 

Complaint intake and filing. Figure IV-1 sets out the main steps in the first phase of the process. To formally start the CHRO process, a complaint must be a written sworn statement that identifies the entity or person complained about and describes the alleged discriminatory act.  The statement must be filed with CHRO within 6 months (180 days) of the alleged act. A person may first contact CHRO by phone, letter, or by actually going to a CHRO regional office. Sometimes, complainants through their attorneys will send in written sworn affidavits.

At intake, CHRO staff will go over certain questions with the complainant about:  the timeliness of the complaint; the nature of the activity complained about; and, if pertinent, the size of the employer. These questions relate to whether CHRO has jurisdiction over the case. As a matter of policy, CHRO instructs its staff to advise a complainant he or she has the right to file a complaint regardless of what the intake person thinks about the case.  In fact, there is a form a complainant signs showing he or she has been so advised.

Sometimes the written complaint will be produced by CHRO staff at the time of intake, and signed by the complainant.  Sometimes, after a telephone interview or a face-to-face  meeting, CHRO staff will prepare a complaint and mail it to the complainant for review and signature.  Alternatively, the complainant can draft his or her own complaint after discussion with staff and mail or deliver it.  CHRO policy dictates that complaints are to be filed in the region where the alleged discriminatory act occurred.  If some conflict arises, the deputy director may waive the policy and direct the complaint to another region.

At the time of intake, the complainant must also sign a “Notice to Complainant of Duty to Cooperate.”  If at any time CHRO believes the complainant is not cooperating, for example, not providing names of witnesses or failing to attend a mandatory mediation session, the case can be dismissed after notice.  Also at intake, the CHRO investigator will inform the complainant what type of remedies might be available if the allegation is ultimately proved, such as backpay.  As will be discussed later, the available remedies under the CHRO process vary by type of discrimination alleged.

Respondent notification and information request.  After the complaint is filed, it is again reviewed for legal sufficiency, to determine if the complaint falls under CHRO jurisdiction.  If sufficient, CHRO staff will prepare informational questions for the person or business against whom the complaint is made (the respondent) to answer, which are sent along with the initial notice of the complaint to the respondent. The questions are referred to as “Schedule A” questions. In the past, these inquiries would come in the form of  “pre-packaged” questions deemed applicable based on the nature of the complaint, which could require the employer to answer the same or similar questions more than once.  Recently, CHRO has changed its approach and sends out more consolidated, tailored questions, requiring less repetitive information from respondents. 

A general notice outlining the complainant’s and respondent’s rights and responsibilities is also sent in the initial CHRO mailings. Since 1998, state law requires that the respondent receive notice of the complaint within 20 days after it is filed (the previous deadline was 10 days).

Respondent answer.  A respondent has 30 days after receiving the complaint and questions to “file an answer”. According to CHRO, the answer can be as basic as an admission or denial of the charge; failure to answer all Schedule A questions is not deemed a failure to answer. Since July 1, 1998, CHRO has had the authority to grant respondents a 15-day extension to the 30-day response period.  If the respondent doesn’t submit his or her answer within the deadline, the CHRO investigator can request a default dismissal. The executive director approves default requests.   

If CHRO finds at an early stage—either at intake or after the complaint is filed—that it does not have jurisdiction, staff will notify the respondent that a complaint has been filed, but will not require the respondent to file an answer.  The case will then be dismissed based on a finding of no reasonable cause for lack of jurisdiction.

No fault conciliation.  CHRO regulations set out a process called no fault conciliation at a very early stage of the process.  This option is described in information sent out to both parties when the respondent is served with notice of the complaint.  The respondent must initiate the process before the answer deadline, by making an offer to the complainant.  If the complainant accepts the offer and CHRO deems it a fair offer, a written agreement must be entered into by the parties before the answer deadline.  According to the regulations, the respondent makes no statement about fault.  In practice, while not specified in regulation, virtually all the other conciliation agreements and settlements that occur at other stages in the process likewise specifically indicate the agreements carry no admission of wrongdoing.   

Merit assessment review (MAR).  Once the respondent’s answer has been received by CHRO, the “executive director or his designee” must review any non-housing case within 90 days[2] to determine if the case should be retained for further investigation or dismissed, based on criteria in statute.  CHRO regional investigative staff  assigned to the MAR unit actually does the review.  Specifically, a case may be dismissed if:

·       the complaint states no claim for relief;

·       the complaint is frivolous on its face; or

·       there is no reasonable possibility that reasonable cause will be found that a violation of law occurred.

The CHRO investigator must fill out a standard merit assessment form, which leads the investigator through the three criteria with a series of questions designed to analytically bring the investigator to conclusions about the case.  At this point in a case, the documentation available to the investigator is the original complaint, the respondent’s answer to the complaint, and any rebuttal of that answer by the complainant. The third criteria, no reasonable possibility, is by far the factor most often cited to dismiss a case.

Until last July, MAR staff were encouraged to attempt to mediate cases retained after the MAR process .  When the deadline for investigations changed, the decision was made to get the cases to the full investigations unit investigators as quickly as possible.

 Each regional manager reviews the completed merit assessment forms. Whether and to what extent they review case file documentation appears to vary by manager and his or her assessment of the MAR review staff’s experience.

Reconsideration.  If the complaint is dismissed after the MAR review, the complainant has two options if he or she does not accept CHRO’s decision. He or she may file a request for reconsideration with CHRO within 15 days of its decision.  This essentially means asking the agency to review its own work.  The request along with the case file is sent to a unit in the CHRO Central Office called the Special Enforcement Unit (SEU), which is responsible for reviewing requests for reconsideration of non-housing cases. 

Under the statute,  SEU has 90 days after the decision date to make its determination.  If  SEU upholds the MAR decision, the only recourse left to the complainant is to appeal the administrative decision to court.  If SEU agrees that the MAR decision should have been different because some error was made by the investigator, the case will automatically be retained for investigation.

Release to sue.  Until July 1, 1998, a complainant’s only recourse after a MAR dismissal was to request a reconsideration. Per P.A. 98-245, CHRO was given the authority to authorize a complainant whose case was dismissed after MAR, and who did NOT request a reconsideration, to file a complaint in court—giving the complainant a release of jurisdiction enabling the complainant to sue.  The complainant must file any suit within 90 days of the release. The general subject of release to sue is addressed later in this chapter.

Alternative dispute resolution.  Since 1994, the statutes have provided an alternative dispute resolution (ADR) process, which is available by agreement of both parties (e.g., binding arbitration or voluntary mediation). Under ADR, the parties go outside CHRO for assistance, but must first inform CHRO of the type and provider of ADR sought and get CHRO’s approval to use the process.  ADR use suspends normal CHRO case processing.  To date, it has hardly been used.  

Complaint Processing - Phase Two 

Figure IV-2 displays the main steps in the second phase of the complaint process.  Once a complaint has been merit-reviewed and retained, it is assigned to an investigator in the Full Investigations Unit.  The stated purpose of this phase is threefold: 1) to find facts; 2) to promote the voluntary resolution of complaints;  or 3) to determine if there is reasonable cause  for believing that a discriminatory practice has been committed.  Currently, the statutory deadline gives the investigator 190 days (a little over 6 months) from the MAR decision to make  the reasonable cause determination, or otherwise resolve the case.  With good cause, the executive director can extend that period for two three-month periods, for an overall available time of 370 days (just over a year) for the reasonable cause finding.

Since 1989, CHRO has had the authority to conduct factfinding conferences during investigations.  The law now provides that for cases retained after MAR, the “executive director or designee is to determine the most appropriate method for processing the complaint.”  The statutory possibilities are:

   ·  mandatory mediation sessions;

·  expedited or extended fact-finding conferences;

·  complete investigations; or

·  any combination of the above. 

 

 

In practice, usually a regional  investigator will schedule a fact-finding conference with all the parties soon after a case is assigned to him or her.  Even though the statute appears to contemplate a choice of approaches, CHRO management has adopted a policy that fact-finding conferences are the most efficient method for complaint processing.

Prior to the conference, the investigator reviews the case file.  A form notice sent to all the parties explains what will happen at the fact-finding conference.  Some investigators will request additional information from the parties prior to the conference.  The parties are encouraged to bring people with direct knowledge of the issues, as well as those with authority to enter into conciliation (settlement) agreements.  Documentary evidence, as well as witness testimony, may be presented at this conference. 

Both sides may be represented by counsel.  Only the CHRO investigator is supposed to ask questions; parties may pose questions through the investigator if the investigator agrees. By CHRO policy, all testimony is under oath and the conferences are taped, unless anyone objects.  If a participant does object, he must sign an agreement to CHRO staff’s rendition of the proceedings.

Often, the investigator will schedule a mandatory mediation at the same time as the fact-finding conference (the decision is made by the investigator). All the parties must attend.  If either the respondent or complainant do not, the investigator can seek a default in the case of the respondent, or dismissal in the case of the complainant. 

Pre-determination conciliation.  A possible result from a fact-finding conference, where both parties have a chance to communicate, is that the parties might agree to settle, or enter into what CHRO calls a pre-determination conciliation.  According to CHRO regulations, such a settlement can occur anytime from the MAR decision up until a reasonable cause decision is made.  Any such agreement has to be acceptable to the investigator, and the agreement is reduced to writing and signed by the parties and the commission. CHRO explains in a form notice sent to the parties reasons why they might want to participate in pre-determination conciliation.  The form states, in part:

Make whole relief.  In 1994, the legislature enacted what is known as the “make whole relief” provision.  If a respondent agrees to a settlement that would make the complainant “whole”, in the view of the CHRO investigator, but the complainant does not accept the offer, the complaint can be dismissed.  Such an offer can be made at any time after the complaint is filed. The idea behind the provision, according to CHRO, is to give “the respondent the right to control … cost and limit … exposure to liability by settling the complaint despite opposition by the complainant.”  Make whole relief, according to statute,  consists of: 1) elimination by respondent of the discriminatory act complained of; 2) taking steps to prevent a like occurrence in the future; and 3) an offer of full relief to complainant (e.g., job reinstatement and backpay). A 1998 statutory change allows the complainant who doesn’t accept a make whole relief offer a release to sue.

Preliminary draft findings.  If no settlement is reached and the investigation deadline draws near, the statute requires that the investigator produce draft findings of fact and analysis that the parties may review and comment on – either finding reasonable cause or not.  The parties are also allowed to review material contained in the case file.  The investigator is supposed to consider any timely filed comments in making his or her final determination.

The investigator is also required to send a copy of his or her draft reasonable cause findings to the CHRO central office for a review of the draft decision.  At one time, CHRO management planned to review all reasonable cause and no reasonable cause findings to monitor the quality of the decisions, staff development, and the effectiveness of written guidelines intended to assist the investigators.  The task proved to be too burdensome, so the review focuses now just on reasonable cause draft findings.  One staff person is currently responsible for the reviews.  The intent is to complete the review during the 15 days available to the parties.  CHRO management may take an additional 10 days, but if no comments have been received at the end of the ten days, the final decision can be issued. 

Final reasonable cause finding.  Unlike other decisions at different points in the discrimination complaint process that state “the executive director or designee” makes the determination, the statute refers specifically to the “investigator” as the individual who makes the final reasonable cause determination at the regional level.  The regional managers who supervise the investigators believe this to mean that they cannot change a decision of an investigator if they do not agree with it. While they note they may talk to an investigator about areas where a decision is weak, they maintain the decision is ultimately the investigator’s.

If the investigator finds no reasonable cause, the complainant may request a reconsideration of the decision within 15 days of the decision.  The executive director or designees (SEU) handles the reconsiderations, within 90 days.  They can conduct additional proceedings if needed to decide on the request. If the reconsideration is granted, the case returns to the regional office.

If reasonable cause is found, the investigator must by statute attempt to eliminate the practice by “conference, conciliation and persuasion within 50 days of the reasonable cause finding.”  If this attempt is unsuccessful, within 10 days the investigator files a certification form to that effect, and the case moves to the public hearing process, transferring the case out of the regional office to the central office. 

Complaint Processing - Phase Three

Figure IV-3 sets out the main steps in the third phase of the complaint process.  If there is a finding of reasonable cause, and the investigator certifies that attempts at conciliation failed, the case enters the public hearing stage. The entire case gets transferred from the region to the central office, and falls under the jurisdiction of the Public Hearing Office. A recent 1998 change from part-time hearing officers, receiving per diem payments to preside over certified discrimination complaints, to full-time human rights referees should significantly change the way this third phase is carried out, at least in terms of timeframes.

Decertification. While the investigator in the regional office has the final word on the reasonable cause finding, there is one avenue of review. If either the attorney general or the Commission Counsel, after receiving a case for public hearing, determines a material mistake of law or fact has been made in the finding of reasonable cause, he may withdraw certification of the complaint and remand the file to the regional investigator for further action. 

Once the case has been transferred to the central office, the chief human rights referee assigns the case to a human rights referee, who must schedule a hearing conference meeting within 45 days after the case was certified.  Among other activities at the hearing conference,  a hearing schedule may be established.

Attorneys in the CHRO commission counsel’s office (or attorneys from the Office of Attorney General in housing and other cases) represent CHRO during the public hearing phase.  While the attorneys will familiarize themselves with the case through the investigative files,  the hearing is considered a totally new proceeding.  The respondent gets a formal notice of the public hearing and is required to file an answer to the complaint, even if it is the same used during the investigation stage. Additional information may be sought from the parties, and evidentiary hearings where witnesses are examined and cross-examined can be held.

Since the advent of the full time human rights referees, the policy is if the parties seem interested in mediation, the human rights referee will direct the parties to consult with another referee.  If a referee is  involved in mediation discussions, he or she will not be the referee presiding over any evidentiary hearings, to avoid concerns about inappropriate use of information learned by the referee or other bias in mediation attempts.

Deadlines.  Once the pre-hearing conference is held, the hearing process falls under the auspices of the Uniform Administrative Procedures Act (UAPA). The UAPA imposes no specific statutory time frame on the hearing process.  Instead, it calls for “reasonable dispatch”.  However, once the hearing is considered closed, after any written briefs and reply briefs have been submitted, the referee must issue his or her decision within 90 days.

Upon the close of the hearing process, if the referee determines a violation has occurred, the referee issues an order for appropriate remedies available under the statutes.  Either party may appeal the decision to court, but the court is limited to a review of the administrative proceedings for “arbitrariness and capriciousness”.  It cannot consider the case anew.

If the referee determines no violation occurred, the complainant may appeal the administrative decision to court.

Remedies.  Under current law, if a referee determines a discriminatory practice occurred, the referee can order a respondent to:

·       cease and desist from the discriminatory practice; 

·       take “affirmative action as in the judgement of the referee” will carry out the purpose of the anti-discrimination laws; 

·       in employment cases,  hire or reinstate employees, pay back pay[3], or restore union membership, as applicable; 

·       in housing, public accommodations,  and licensing-based cases, pay damages suffered by the complainant (e.g., cost of obtaining alternate housing, moving expenses) and reasonable attorney’s fees; and 

·       in credit cases, pay damages resulting from the discriminatory practice.

In 1995, the Connecticut Supreme Court ruled the 12-year practice by CHRO hearing officers of awarding compensatory damages and attorneys fees in employment cases was not authorized by statute, and must stop. Legislation was introduced in 1996 to provide this remedy in employment cases, but was not successful.

Release of Jurisdiction to Sue 

A person who believes he or she has been illegally discriminated against in violation of state law must first seek redress through CHRO, as opposed to filing suit in court against the respondent. Prior court decisions establish the courts lack subject matter jurisdiction in a matter if an adequate administrative remedy exists but has not been exhausted. CHRO provides an administrative remedy to civil rights violations.  By statute, however, there are certain circumstances when a person may seek a release to sue.

·       The complainant and respondent may jointly request the complainant get a release to sue at any time from the filing of a complaint to 210 days after a complaint has been filed. 

·       The complainant may request a release if the complaint is about employment or other certain matters and the complaint is still pending after 210 days from the complaint filing; 

·       If a complaint is dismissed after the MAR review, and the complainant does not request reconsideration, he or she may request a release to sue (since 1998). 

·       If a case is dismissed because the complainant fails to accept a make whole relief offer, he or she may request a release to sue (since 1998). 

·       Housing discrimination allegations may be brought to court within one year of the allegation unless CHRO has obtained a conciliation agreement or has begun an administrative hearing.

·       Credit discrimination complainants may either file a complaint with CHRO, or a suit against the respondent within one year of the allegation.

A complainant cannot get a release to sue  when there is a finding of no reasonable cause, in cases where the complaint was dismissed because the complainant failed to appear at a mandatory mediation session, or where the cases are otherwise dismissed.

The executive director must grant the release within 10 business days of receiving the request.  If the case is scheduled for public hearing, though, the director may decline to issue the release.  Also, the director may defer acting on a release request for 30 days if the he or she certifies there is reason to believe the case may be resolved in that time period.

If a release is granted, CHRO dismisses the complaint without cost or penalty to either party.  The complainant must file suit within 90 days from the date of the release.

Complaints Pending Over 21 Months 

In 1998, the legislature instituted a new provision regarding CHRO case processing.  Now, if a complaint has been pending at CHRO for more than 21 months, the executive director must send a notice informing the complainant of his or her right to request a release from CHRO in order to bring the case “directly” to court. Per the law, the director is to investigate the cause for the delay, and may schedule a deadline for CHRO to issue a finding.

If a complaint has been pending at CHRO for more than two years, and the CHRO investigator does not issue a reasonable cause or no reasonable cause finding  by the date set by CHRO, the complainant may petition the Hartford/New Britain Superior Court for an order requiring CHRO to issue a finding by a certain deadline.

The court clerk fixes a date for the hearing and notifies the parties.  If CHRO and the parties agree on a date certain for a CHRO case decision, the court will make an order to that effect.  The court can award court costs and attorney’s fees to the petitioner (not to exceed $500) unless CHRO can show good cause for not issuing the finding of reasonable cause or no reasonable cause within two years of the filing date or the date the executive director  ordered

This provision does not apply to complaints initiated by the commission or to pattern or practice or systemic cases.