Legislative Program Review and Investigations Committee

Findings and Recommendation - Staff Report
Committee Accepted
December 16, 1999

Commission on Human Rights and Opportunities
Findings and Recommendations

Section I

INTRODUCTION

The Legislative Program Review and Investigations Committee directed its staff in March 1999 to conduct a study of the discrimination complaint processes and enforcement policies of the Commission on Human Rights and Opportunities (CHRO). The study scope called for an examination of the mission, policies, structure, and management of the commission related to the handling of illegal discrimination complaints.

As noted at the committee briefing in September 1999, the study was prompted in part by turmoil at the commission in recent years, evidenced by: several discrimination lawsuits filed by CHRO employees against other CHRO employees and managers; controversial actions on the part of the former executive director, who held the position from December 1990 to July 1998; and turnover among CHRO commission members. Also, significant legislative changes were made to the CHRO statutes, including: the institution of an early case merit review process; alterations to case processing deadlines; and the institution of full-time human rights referees to hear cases where reasonable cause was found. These changes were described in the committee briefing report.

Context of staff proposals. Program review staff has attempted to balance the fact that tremendous management change at the agency has occurred in the last 18 months with the concerns prompting the study, many of which predated the management changes. Recent activities include the following:

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• in July 1998, the previous executive director for the last eight years left office upon the expiration of his second four-year term, with a pending state ethics complaint resolved in December 1998 with his payment of a $3,000 fine;

   

• a new executive director, hired by the commission on an interim basis beginning on March 15, 1999, was permanently appointed on July 22, 1999, for a four-year term;

   

• five new commissioners (out of a total of nine) have been appointed, three during the summer of 1999 and two in November. As of November, there are no vacancies on the commission. A new chairperson was also recently appointed;

   

• two deputy directors -- one responsible for enforcement, the other for education, diversity and compliance -- who directly reported to and served at the pleasure of the director, were let go in September 1999 by the current director in a reorganization, and the positions eliminated; and

   

• the long unfilled position of Chief of Field Operations was filled, with the directive to be a presence in the regional offices and a link between the regions and the executive director.

The challenge for legislative oversight purposes is to determine, at this time, whether the solutions to CHRO problems call for further statutory change or whether the focus should now be to give the new management a chance to work within the current statutory framework. In either case, the enforcement of Connecticut’s civil rights laws is a critical function of state government, which cannot be allowed to flounder if only in perception. At the committee’s October 19, 1999, public hearing, the new CHRO executive director showed an awareness of CHRO problems:

The recommendations proposed in this report take into account the promise of new leadership, but also suggest ways to promote consistency and objectivity in the execution of the complaint enforcement process, along with increased focus on maintaining accurate data for management purposes. The agency has already begun to work on some areas; where pertinent, agency initiatives and plans will be pointed out in the report.

This report sets out program review staff findings and proposed recommendations in three main areas: 1) commission structure; 2) discrimination enforcement process; and 3) management.

Methodology

Committee staff interviewed various members of current commission staff, representatives of interest groups, current and former commissioners, and former CHRO employees. Staff conducted a focus group of attorneys representing both complainants and respondents to elicit opinions and comments about their experience with the agency. CHRO automated case tracking file data were used to analyze complaint timeframes and outcomes. In addition, staff reviewed in more depth a random sample of case records also based on the agency automated tracking system. The committee held a public hearing on CHRO on October 19, 1999. In addition, staff reviewed the 1999 consultant report commissioned by CHRO to assess the agency's organizational structure and suggest ways to improve operations. Commission staff assigned to the field enforcement units were surveyed and offered a chance to relate in confidence their views on issues affecting the agency's operation. Aggregate responses to the survey are presented in Appendix A and material pertinent to areas under review are used throughout the report. Finally, committee staff gathered information on how human rights agencies are organized and operated around the country.

Section II

Commission Structure

One of the areas under review in the study is the structure of the Commission on Human Rights and Opportunities (CHRO). A central question is who ultimately is accountable for CHRO. Its structure as a state entity charged with enforcing laws, headed by a multi-member volunteer commission that appoints its executive director, is not unique in Connecticut or elsewhere. It is different, of course, from the more typical state agency model where the governor appoints a single commissioner to head a department. In analyzing CHRO’s management structure, committee staff examined the changing role of the commission over the years, compared CHRO and other similarly structured entities in state government, and reviewed the experience in other states.

Changing Role of Commission

In 1947, when the commission first acquired enforcement authority, the commissioners themselves were charged with investigating complaints. From the beginning, there have always been separate hearing officers appointed to adjudicate cases where reasonable cause was found. Over the years, a staff structure grew to handle investigations and adjudications as well as to assist the commission in its duties.

Since that time, the commission has acquired additional authority and responsibility in the areas of state agency affirmative action, contract compliance, and education and outreach. The commissioners as a group are required to vote their approval or disapproval of state agency affirmative action plans. In contrast, the role of the commissioners in CHRO’s original function -- enforcement -- has grown smaller.

Up through the 1970s, the commission members as a group voted on findings of reasonable cause and no reasonable cause, giving final approval to staff-recommended investigative dispositions; the commission no longer performs that function. Legislative changes in the last 10 years have continued to shift responsibility from the commissioners (as a group and individually) to CHRO staff, particularly the executive director.

In 1989, although there had been an executive director for years, legislation codified the position, and reconstituted the commission. The executive director was given specific duties, previously held by the commission, including: 1) conducting comprehensive planning with respect to the function of the commission; 2) coordinating the activities of the commission; and 3) causing the administrative organization of the commission to be examined with a view to promoting economy and efficiency.

One year later, in 1991, the statutory involvement of the commission in enforcement matters began shifting to its staff. Per P.A. 91-302:

Finally, in 1998, the legislature removed the responsibility for handling reconsiderations from the commission, giving it to the executive director or his or her designee.

Commission authority that has been strengthened, or at least clarified, that impacts enforcement involves authority over the executive director. As discussed in the briefing, 1998 legislation clearly establishes that the executive director serves at the pleasure of the commission.

Thus, what remains of the commission authority with respect to enforcement is:

All of the above functions could, of course, be handled by a single commissioner-headed agency. The question could be posed why civil rights enforcement shouldn’t be handled the same way as enforcement of consumer protection laws, environmental laws, or insurance laws, all administered in departments headed by single commissioners appointed by the governor. Alternatively, the commissioner of education, the chief executive of the education department, is appointed by the State Board of Education.

The conventional wisdom for the use of a board or commission that appoints its own administrative head is to diffuse political influence from the work of the agency involved. There are other enforcement agencies that are similarly structured as CHRO. Specifically, the Freedom of Information Commission (FOIC), the State Ethics Commission (Ethics), and the State Elections Enforcement Commission (EEC) all have multi-member policy boards that appoint their executive directors. Table II-1 compares selected characteristics of these commissions to CHRO.

As the table shows, all these commissions are about the same size and the commissioners serve terms of approximately the same length. Their common directive is to investigate and make determinations of violations of state laws. All four employ staff as deemed necessary to perform their duties.

Differences are seen in the appointment of the commissions’ chairpersons. Both Ethics and EEC chairpersons are elected by their fellow commissioners while the CHRO and FOIC chairpersons are selected by the governor. In terms of compensation, only the CHRO commissioners do not receive per diem pay for performing their duties. Only CHRO commissioners are not subject to political qualification requirements for member diversity. Finally, only CHRO commissioners are not required to be ratified by the legislature. This last difference is particularly interesting because the gubernatorially appointed CHRO human rights referees, who act like judges in the agency’s adjudications process, must receive the advice and consent of the General Assembly. As the responsibilities of CHRO are as important as those of any of these other agencies, this discrepancy does not make sense. The fact that there is a mixture of gubernatorial and legislative appointments for CHRO commissioners does not distinguish CHRO; other commissions have similarly mixed appointments.

Overall, there are similarities and differences among the characteristics of these four Connecticut enforcement agencies. For purposes of this study, the focus is on how the commissioners are appointed and who appoints and removes the administrative head of the agency. In those respects, other than the advice and consent issue, there is great similarity.

Other state civil rights agencies. As part of the committee’s review, staff collected information on civil rights agencies in other states. Whenever possible, information was compiled on all states, but some information was gathered only for a select number of states with certain characteristics, including similarities to Connecticut.

Forty-seven of the 50 states have an entity within state government that investigates claims of illegal discrimination. In 35 of those 47 states, civil rights enforcement is governed by a human rights commission or board. Boards vary in size, ranging from as few as three commissioners (Massachusetts) to as many as 20 (North Carolina). Commission members are typically appointed by the governor and confirmed by the senate and serve staggered terms of anywhere between three and six years. In some states, statutes mandate the geographical, political, or community group composition of the commission. Commission members are generally paid a per diem allowance for the time they devote to commission affairs rather than receive an annual salary. Typically, a full time executive director who supervises staff and administers the day to day affairs of the agency is appointed by the commission.

Detailed information on 12 states in addition to Connecticut was collected by committee staff and is provided in Appendix B. The 12 states include: California, Florida, Illinois, Iowa, Massachusetts, Michigan, Minnesota, New Jersey, New York, Ohio, Rhode Island, and Texas. These states were chosen for one or more of the following reasons: geographic proximity to Connecticut, similar average number of charges filed, similar organizational structure, and/or representing a different geographical region of the country. Table II-2 compares Connecticut to the 12 selected states with respect to organizational structure and role in enforcement.

For the 12 states reviewed, program review staff found that most commission members play some role in the enforcement process. (Information on each state's enforcement process is provided in Appendix B). In some states, the commission or board bears the responsibility of making final determinations of reasonable or probable cause. Commission staff investigates cases filed by the charging parties and presents their findings and recommendations to either the full commission or a subcommittee. The commission then serves as a quasi-judicial panel that renders a determination in the case. In other states, commission staff issues determinations without the review of the commission. In cases where the staff find probable cause but are unable to forge a conciliation agreement between the two parties, the commission members will hold a hearing to decide the case and award damages if applicable. Staff decisions can also usually be appealed by either charging party to the commission.

Overall, the structure of Connecticut's Commission on Human Rights and Opportunities is organizationally consistent with civil rights agencies in other states, although some distinctions surface with respect to the role in the enforcement process.

The direct line of accountability from a commissioner to the governor is appealing in its simplicity. However, given CHRO's role in approving state agency affirmative action plans, including the office of the governor’s plan, an argument could be made that the governor should not be appointing a single commissioner to run CHRO with its current duties. This study did not encompass the affirmative action plan work of the commission. Thus, committee staff does not recommend such structural changes.

However, staff believes the current commission with five new and four experienced members, along with a new executive director, are in a position to work together to promote the effective and credible enforcement of civil rights law in Connecticut. The 1998 legislative changes clarifying the status of the executive director provides the commissioners with a clearer statement of their role over the director. With improved data gathering and reporting, as recommended in a following section, the commission should receive relevant and up-to-date information upon which to assess the performance of the executive director and the agency.

Committee staff proposes one change with respect to structure. To strengthen accountability and make CHRO more in line with other similar state commissions, the program review staff recommends the appointment of CHRO commissioners be subject to the advice and consent of either house of the General Assembly.

Section III

CHRO Discrimination Enforcement Process

As noted in the introduction, in the last few years, significant statutory amendments to the CHRO enforcement process have been made. These include: the creation of the merit assessment review (MAR) system; the addition of mandatory mediation; and the tightening of the time frame within which investigators have to do their work. Other significant changes have only recently gone into effect, for example, giving the complainant the unilateral right to seek a release of jurisdiction after a MAR dismissal and the addition of full-time hearing officers.

Because of all the recent statutory changes, program review staff focused on how CHRO was implementing the enforcement process. The current CHRO enforcement process, described in detail in the September briefing report, has several basic components: complaint intake; an answer to the complaint from the respondent; an early merit assessment review (MAR); investigation to determine whether or not there is reasonable cause to believe discrimination occurred; and, if necessary, a public hearing at which the alleged violation is administratively adjudicated. Many of these steps have statutory deadlines. At any point in the process, the parties can settle the complaint.

In reviewing the operations of the enforcement process, program review committee staff found improvements could be made to the implementation of certain aspects of the process, particularly in the steps prior to the public hearing. The areas discussed below include: intake and merit assessment review (MAR); post-MAR investigation, especially the intermingling of mediation and investigation; the human rights referees policies; and assessing user satisfaction. Where staff deems useful, additional descriptive information is provided, along with recommendations.

Intake and Merit Assessment Review (MAR)

Perhaps the most significant recent change in the enforcement process has been the institution of MAR. The purpose of MAR is to allow CHRO to dismiss some cases without full investigation under certain circumstances. This change was intended to speed up case resolution and provide effective early case disposition. MAR standards and their implementation are important as MAR dismissals are the most common type of complaint disposition making up approximately 40 percent of all case closures.

Thus, the early stages of the complaint process are critical. Committee staff examined two aspects: 1) the importance of intake with the advent of the MAR step and its standards, and 2) the timeliness of the MAR process.

Importance of intake. To begin the complaint process, an individual may contact CHRO either by phone, mail, in person, or through a legal representative. An investigator handling intake will elicit the individual’s story and go over certain jurisdictional questions to ensure proper filing. However, 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 investigator thinks about the case.

At this point, the formal complaint is drafted. Depending on the complainant's circumstances and/or preference, the complaint may be drafted by the intake investigator, the complainant's attorney (if he or she has one), or the complainant. These varied ways in which the formal CHRO complaints are drafted obviously can affect the clarity and comprehensiveness of any given complaint.

As it is currently administered, MAR evaluates complaints on the substance of the written materials collected at the start of a complaint. These include the formal complaint, the respondent's answer (often prepared by legal counsel), and any rebuttal to the answer by the complainant. While the complainant has 15 days to respond in writing to the respondent’s answer to the complaint, the original complaint is the primary statement of the complainant’s allegation. There is no provision in the MAR process for the MAR investigator to talk to the complainant. Before the MAR process was instituted, any deficiencies in the complaint could be addressed as part of the investigatory process. However, the creation of the MAR process changed the importance of the original complaint.

With this documentation, the enforcement staff determines whether the case should be retained for further investigation or dismissed for one of the following reasons:

In reviewing the application of these standards, committee staff found the agency has provided investigators limited guidance documentation. In the CHRO investigator policy manual, there is a merit assessment form to be prepared for each complaint to explain why a case was retained or dismissed. According to the commission form that must be filled out for each MAR decision, the MAR investigator is to:

To the extent the standards are understandable, they demonstrate the importance of a complete and well-drafted complaint. The guidance that "unsupported assertions" should not be credited could potentially lead to a legitimate, but incomplete complaint, being dismissed.

Committee staff was troubled this summer when after asking the then-deputy director for enforcement what additional guidance CHRO staff was given to apply the MAR standard, he sent to committee staff a one page policy statement he acknowledged had never been included in the policy manual. It was entitled "Policy: Merit Assessment Review Reasons for Retention". That policy statement was subsequently revoked by the new executive director.

Furthermore, although the MAR process has been in statute since 1994, no CHRO regulations have been developed to inform the public about how the process works. In addition, current regulations that in effect have been superceded by MAR have not been updated.

An example of an intake-related problem created by MAR involves the complainant rebuttal step. A key respondent defense to a discrimination charge is to show there was a non-discriminatory reason for the action taken. Evidence of "pretext", that the non-discriminatory reason was just a cover for a discriminatory action, counters that defense. Before MAR, the regulations called for a CHRO investigator to actually review the respondent's answer to the complaint with the complainant. Although this regulation is still on the books, the MAR process as currently administered does not allow for that kind of communication. Any rebuttal to the respondent's answer, which must occur within 15 days, is left solely up to the complainant.

Given the MAR process and standards, committee staff finds CHRO needs to ensure the intake phase is as strong as possible. Program review staff believes clearer agency policies, staff training, and closer management oversight is needed to promote confidence in this process. Recommendations in these areas are further discussed in Section IV.

MAR timeliness. Since July 1, 1998, CHRO is required to make a determination on a complaint within 90 days of receiving the respondent's answer. Previously, however, the 90-day MAR period began when the complaint was filed. This standard was in effect in FY 96 and FY 98, the years committee staff selected to review complaints filed to examine the timeliness of this first phase.

Table III-1 summarizes and breaks out MAR dismissals by when they occur. As the table shows, a large portion of MAR dismissals occurs within the statutorily required 90 days. The percentage of complaints being dismissed within the 90-day period has increased from 43 percent in 1996 to 51 percent in 1998.

The table also presents MAR closures between 91 to 100 days for both years. A comparison of time frames reveals that many determinations are made in the 10 days just following the 90-day deadline. As noted in the table, in 1996 there were 449 (43%) MAR dismissals during the 90-day period. There were slightly more MAR closures, 465 (45%), in the following 10 days. In 1998, the number of MAR dismissals made between 91 to 100 days was significantly reduced, to 21% of MAR closures. This suggests the agency has made improvements in meeting the statutory time frame. However, the number of MAR closures after 100 days indicates improvements are still needed.

Regional differences. Committee staff also examined the data by regional office and found variations in the number of determinations in the two time frames. Table III-2 illustrates these differences for the MAR dismissals in 1996. As the table shows, each region issued approximately the same total number of MAR dismissals. However, regional differences appeared between the Bridgeport and Norwich offices compared to Hartford and Waterbury in terms of time frames. The data suggest both Bridgeport and Norwich had a disproportionate number of MAR dismissals in the 10 days following the 90-day time frame. In particular, Bridgeport made the vast majority of its MAR dismissals after the 90-day deadline.

Staff examination of case processing time information for 1998 (Table III-3) revealed a marked improvement in timely MAR closures in Region 4 from 1996. Bridgeport also improved but continues to make more MAR dismissals in the 10 days following the MAR deadline. Without closer examination of the case files in those regions, it is difficult to determine the causes for regional differences. It may be a staff resource issue, experience or training, or the difficulty of cases. Nevertheless, regional differences are still evident.

Enforcement staff views. The importance of intake and MAR is also appreciated by CHRO enforcement staff. Sixty percent of the enforcement staff responding to the program review survey stated the MAR process provides effective early case disposition. Forty percent said the MAR process helps control the case inventory. Twenty percent, though, felt MAR was unfair to those without legal representation.

Much of the supplemental written commentary supplied by the enforcement staff in the program review survey also involved the intake and MAR phase. Many of the comments focused on MAR staff and competency:

The intake and MAR steps were also discussed at length at the program review focus group. One concern mentioned to committee staff by both complainant and respondent attorneys who attended was the inconsistency of the MAR decisions—both sides noted there was no predictability about the conclusion CHRO would reach in any given case.

The critical nature of the MAR process was also recently examined by the Connecticut Superior Court in the summer of 1999. In Gilberto Torres v. Connecticut Commission on Human Rights and Opportunities, the court was asked to ruled on the constitutionality of the MAR process. Among the issues before the court in Torres were whether the MAR dismissal provisions of §46a-83 are unconstitutionally vague. The court found in favor of the commission in all issues holding that the MAR process is constitutional.

Although the decision affirms the agency's authority and practice, program review staff believes the lawsuit highlights MAR significance to individuals' civil rights. As such, staff concludes CHRO should place more emphasis on this phase and ensure determinations being made at this level are completely sound and consistent.

Given that most of the MAR process relies heavily upon filed documents, it is imperative that the quality of the paperwork and the substance of the underlying complaint are solid. Therefore, program review staff recommends CHRO re-evaluate its guidance documentation for investigators and maintain well-trained staff at the intake and MAR stage to ensure each case receives full and consistent assessment among all regions. MAR activities should be closely monitored to detect unintentional over- or underscreening of complaints and identify any problems in regional application of standards. The agency must also ensure commission members are kept informed of MAR activities on a periodic basis as prescribed by C.G.S §46a-83(b). (Additional recommendations affecting this area are presented in Section IV.)

MAR reconsiderations. If a complainant does not accept the agency's decision for a MAR dismissal, he or she may file a request for reconsideration with CHRO within 15 days of its decision. The request along with the case file is sent to the Special Enforcement Unit (SEU) at CHRO. State law requires the agency to complete its reconsideration decision 90 days after the MAR decision is made. If SEU upholds the MAR dismissal, the complainant's only recourse is to appeal the administrative decision to court. If SEU agrees that the MAR decision should have been different, the case will automatically be retained for investigation. Requests for reconsiderations may also be filed after a full investigation.

Committee staff examined reconsideration decisions from data taken from the agency's automated information system. In 1996, there were 303 reconsiderations filed; 205 were MAR reconsiderations. Eighty-four percent were denied. In 1998, the total number of reconsideration requests filed decreased to 177, including 111 MAR reconsiderations. Seventy percent were denied.

Figure III-1 presents the agency's compliance with the 90 day reconsideration requirement for MAR dismissals. As the figure illustrates, CHRO completes a large number of reconsiderations within the 90 day period with a small number of decisions following in the next ten days. However, there are a significant number of MAR reconsiderations being made well after the 90 day statutory timeframe. This seems to have somewhat improved in 1998 where there are considerably fewer MAR reconsiderations decided after 180 days.

Other early closures. In addition to MAR dismissals, complaints are closed in other ways early in the process. This means the number of complaints that actually get to the "full investigation" stage of CHRO’s enforcement process is significantly less than the number of complaints filed. In FY 1996, 48 percent (1,191 out of 2,493) of the cases filed were closed within 100 days of filing; in FY 1998, 37 percent (902 out of 2,457) of the cases filed were closed during that same time period. While about 70 percent of these early closures were MAR dismissals, the other types of early case closures include the following:

No reasonable cause (NRC): At this early stage, this closure type means the case was not within CHRO’s jurisdiction. This fact was known either at intake or soon thereafter, but the case was still filed. Typically, the respondent in this situation will receive notice of the complaint but also will be advised by CHRO that no answer is required as the case will soon be closed;

Withdrawn with settlement (WDWS): This closure type means the complainant has withdrawn the complaint, but there is a settlement between the two parties;

Withdrawn: This closure means the complainant has withdrawn the complaint;

Pre-determination conciliation (PDC): This is an agreement reached between the parties any time before the investigation deadline. The agreement must be acceptable to the CHRO investigator; and

No fault agreement (NFA): This case disposition must occur before the respondent’s answer, and involves a written settlement agreement between the parties.

Table III-4 displays the numbers of early non-MAR closures.

In 1998, nine percent (78) of the cases resolved within the first 100 days were closed due to a no reasonable cause finding, compared to 11 percent in 1996. The closures that indicate some kind of settlement was made within the first 100 days consist of withdrawn with settlement, predetermination conciliation, and no fault agreement. In 1998, combining these closures results in 98 cases being closed by settling. This is 11 percent of all case closures in the first 100 days. For 1996, the portion was seven percent. Finally, four and five percent of the cases resolved in the first 100 days of 1998 and 1996 respectively were either withdrawn by the complainant or administratively dismissed.

Complaint Investigations

Committee staff focused on two areas with respect to post-MAR investigations: case processing timeliness and the use of mediation during the investigations process.

Timeliness. Once a complaint has been merit-reviewed and retained, it is assigned to an investigator in the Full Investigations Unit.Since 1994, for cases retained after MAR, the "executive director or his designee shall determine the most appropriate method for processing any complaint pending [after MAR]..." C.G.S. Sec. 46a-83(c). The statutory possibilities are:

1) mandatory mediation sessions;

2) expedited or extended fact-finding conferences;

3) complete investigations; or

4) any combination of the above.

The stated purpose of these methods is to: 1) find facts; 2) promote the voluntary resolution of complaints; or 3) determine if there is reasonable cause for believing that a discriminatory practice has been committed. Currently, the statutory deadline gives an investigator 190 days from the MAR decision to make the reasonable cause determination, or otherwise resolve the case. For the two years in which committee staff analyzed case outcomes and timeframes, FYs 1996 and 1998, the investigation deadlines were different. In FY 1996, the cause deadline was 270 days after complaint filing, with a possible 90 day extension. In FY 1998, the deadline was lengthened to 365 days, with a possible 180 day extension.

Table III-5 shows the results of program review staff analysis of the investigatory closures occurring after 100 days from the complaint’s filing, using the applicable deadlines. The findings include:

Release of jurisdiction. Another case disposition type is granting the complainant a release of jurisdiction, allowing for court action. The CHRO process provides an administrative remedy to discrimination complaints. Under state law, persons alleging employment discrimination must first exhaust the available administrative remedy before filing suit in court. The complainant and the respondent may jointly request the complainant get a release of jurisdiction 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 still pending after 210 days from the complaint filing. Generally, the executive director must grant the release within 10 business days of receiving the request.

In 1996 and 1998, approximately 200 requests were made each year for releases of jurisdiction. This accounts for less than ten percent of all closures. The program review examination of CHRO files found only a handful of cases where a release to sue was requested before the 210 day timeframe (10 in the two years). The majority of requests were filed after that time.

Investigation and mediation. As noted earlier, since 1994, CHRO statutes have authorized the executive director or his designee to determine the most appropriate method for processing any complaint retained after MAR. The statutory possibilities include mandatory mediation sessions; fact-finding conferences; and complete investigations.

The CHRO statutes have always contemplated both investigation and voluntary resolutions of complaints. Specifically, conciliation has long been a required step by the investigator after a reasonable cause finding. The concept of active investigator involvement in settlement attempts prior to a cause finding has evolved at CHRO.

For example, beginning in 1989, CHRO statutes have authorized fact-finding conferences. One benefit of fact-finding conferences is they get the parties in the same room, which can be a first step toward settlement. The options of no fault and predetermination conciliation, described in regulation, also acknowledge the possibility of settlement.

It wasn’t until 1994, though, that the term "mandatory mediation" was added to CHRO statutory authority during the investigative stage. The term "mediation" can refer to a spectrum of activities ranging from simply getting the two sides into one room to meeting with each side separately and confidentially, and proposing solutions. The "mandatory" in mandatory mediation refers to the requirement to attend the session; parties are not required to voluntarily settle. (It may be that mandatory mediation is used by some investigators as a procedural device to ensure the parties attend the fact-finding conferences. The statutes provide a penalty for respondents not attending mandatory mediation, unlike fact-finding conferences.)

Program review staff tried to determine how often the mandatory mediation provision was used as opposed to a regular fact-finding conference. However, this was not possible given the inconsistent recording of activities in the automated case tracking system. Through interviews, committee staff is aware that its use is varied among investigators.

Mediation has been defined as the "intervention of an acceptable, impartial, and neutral third party who has no authoritative decision-making power to assist contending parties in voluntarily reaching their own mutually acceptable settlements of issues in dispute". At CHRO, the investigator who is also the mediator clearly has "authoritative decision-making power"—he or she might ultimately be making a finding of reasonable cause. In fact, the statutes explicitly authorize the investigator to make such cause determinations. (C.G.S.§46a-83 (d))

As most CHRO investigations now consist of fact-finding conferences where all relevant parties are supposed to be in attendance, and the parties theoretically can hear what the respective positions are, it is easy to understand why, depending on the circumstances, the stage is set for CHRO staff to attempt assisting the parties to settle the case. Problems arises in two ways. First, mediation requires the parties to trust the mediator; in particular, the parties must trust that whatever they tell him or her will only be used to aid in mediation and will not be used against them elsewhere. Under current circumstances, if the mediation doesn’t work, the parties will have a CHRO investigator determining reasonable cause who was told things as a mediator that an investigator would not have been told or that the parties would not have conceded. Alternatively, the possibility exists for an investigator, acting in a mediation role, to convey to either of the parties even unwittingly the message that if a particular settlement isn’t reached, they may have regrets if a reasonable cause decision is made.

The program review staff finds the use of mediation during the investigative, pre-reasonable cause stage is not well-defined in CHRO policy manuals or training and allows the same person with responsibility to determine cause to mediate. At minimum, mixing of investigator and mediator roles can create a perception of conflict for the parties. Conflict aside, because the two activities are so different (mediation and investigation), different skills and training are required.

In other CHRO arenas, the processes are kept separate. At the public hearing level, mediation is separated from adjudication. If the parties express a desire to mediate to the presiding human rights referee, they work with a different hearing referee. CHRO’s legal office has a settlement unit, where specifically designated attorneys work on cases that are identified as possible candidates for settlement. If those efforts failed, other lawyers are appointed to represent CHRO at public hearing.

Similarly, EEOC in the past few years has developed and offers as part of its complaint process a mediation track. A very important component of that program is that mediation is kept separate from any investigation procedures—the same EEOC staff assisting in mediation cannot be involved in any investigative parts.

Finally, the use of mediation among the regions is different. Until 1998, the regions had MAR staff attempting mediation after MAR retention. Two regions told committee staff they stopped doing this last year because the time spent by the MAR person to mediate cut into the investigator deadline. However, another regional office indicated it still makes those attempts, with the MAR person having no more than 30 days to try to settle.

The option of mediation clearly makes sense in any conflict resolution process. Early mediation efforts can be useful in certain kinds of CHRO cases, such as employment terminations where reinstatement is sought. Settlements aided by mediation avoid the escalating costs of continuing through the CHRO process. After a CHRO complaint is filed, the respondent’s answer preparation incurs a cost to the respondent, especially if it involves legal counsel. Assuming the case is retained after MAR, the fact-finding hearing can be costly when respondent personnel might have to appear, documentation produced, and legal counsel used. Finally, the next risk is whether a finding of probable cause will be made, which will trigger a public hearing consuming more time and resources for both sides. Therefore, early attempts at settlement can cut down on the costs to the parties.

To the extent investigators are under pressure to resolve cases, that pressure alone could challenge their neutrality, regardless of their good faith. When discussing the idea of separating the two functions with CHRO staff, the response was that it wouldn’t be fair to give all the "easy" cases to some (cases to settle) and all the "hard" ones to others (cases that don’t settle). There is less of a concern when caseload and case closure numbers are not such a significant part of staff evaluations (discussed later in the report). If the cases were separated by difficulty, the cases that could get done would be completed early, the cases needing attention would receive it, and both the process and outcomes would be enhanced. Taking these points into consideration, program review staff recommends that CHRO separate the mediation and investigations components, and establish clear and consistent policies on mediation activities. The commission should incorporate these policies into the agency’s training curriculum.

The new executive director reported to program review staff that she had planned to request additional investigator positions for the regional offices, but was thwarted for the moment due to the Office of Policy and Management hiring freeze. She wanted two new investigators per office, with one person doing strictly mediation and conciliation work. On promoting early mediation efforts, many forms used by CHRO reference opportunities for settlement. One of the initiatives CHRO management told program review staff about is the formation of a forms revision committee that is working on these forms to make the option of early mediation more noticeable.

The attorney roundtable conducted by program review staff identified a seemingly small and easily remedied problem that could impede early settlement. The respondent lawyers often cannot tell if the complainant is represented by counsel. CHRO regulations indicate the sending of the notice of appearance form that each complainant’s lawyer fills out is the complainant’s responsibility, and this does not always happen. The respondent lawyers reported it is helpful to be able to talk to a complainant’s lawyer as soon as possible. Program review staff recommends CHRO make sure that respondents are informed when complainants are represented by counsel when the respondent is notified of the complaint.

Reconsiderations after full investigation. As noted previously, state law allows a complainant to request reconsideration after a finding of no reasonable cause. CHRO has 90 days from the date of the cause finding to make its decision. If the reconsideration is granted, the case returns to the regional office. Otherwise, the case is closed.

Program review staff examined the number of "no reasonable cause" reconsiderations granted and denied in 1996 and 1998 from the agency's automated system. Table III-6 compares "no reasonable cause" reconsideration timeframes for 1996 and 1998. CHRO does complete a significant percentage of reconsiderations within the 90-day statutory timeframe. However, the agency appeared to decide a larger percentage in 1996 than in 1998.

It is also interesting to note that in 1996 the agency denied 84 percent of reconsideration requests while in 1998 the percentage has leaned slightly to granting reconsideration requests. It is unclear if this is because more errors are detected or the reconsideration review standard changed.

CHRO has reported to committee staff that reconsiderations have been an issue. As described previously, all reconsiderations are handled by the Special Enforcement Unit in Central Office. This unit has recently undergone staffing changes and the function of reconsiderations will be moved to the commission counsel office.

Human Rights Referees

The addition of permanent full-time human rights referees is a recent change for the enforcement process. Created by P.A. 98-245, the seven referees are separate from the CHRO administrative structure. However, their role in the system significantly impacts the CHRO enforcement process.

The enabling legislation outlined the terms and conditions for the referees' qualifications and compensation. The referees have the powers granted to hearing officers by statute. There is no mention in the statutes regarding operating policies and procedures for the referees.

One of the underlying purposes in the creation of the Public Hearing Office was to control and eliminate the case backlog. Currently, the public hearing phase, unlike the other phases of the enforcement process, operates without statutorily imposed deadlines. Interviews with parties having experienced the public hearing process since the inception of the referees indicate that more structure is needed.

In order for any organization to operate efficiently and effectively, there must be clear operating guidelines, procedures, and practices. This ensures that all parties fully understand the process and know what is expected of them. To be successful, any adopted policies and procedures must be well communicated and those implementing them must be uniformly trained. Therefore, the program review committee staff recommends the Chief Human Rights Referee establish uniform operating policies, procedures, and guidelines clearly defining the role and function of the Public Hearing Office. Adoption or any changes to the policies and procedures shall be duly communicated to the full Commission on Human Rights and Opportunities. It shall be the responsibility of the Chief Human Rights Referee to ensure all human rights referees are adequately trained in the uniform implementation of the policies and procedures.

The CHRO administration and the Chief Human Rights Referee both acknowledge the need for clarification of roles and standardization. The agency has reported to committee staff that it intends to address this issue in its legislative proposals for the upcoming General Assembly session.

User Satisfaction Survey

One way to measure a system's use and effectiveness is to obtain input from the people who have experience with it. Currently, the only formal method for public opinion input regarding CHRO operations is through the commission meetings. The commission, at its discretion, may allow members of the public to voice their concerns. However, ongoing formal evaluation of the process by the parties actually using the system is not done.

Committee staff believes routine assessment of the system by those who participate in and navigate through it is a good method of performance evaluation. An example of this type of assessment is the judicial evaluation process conducted by the Judicial Department, in which judges are evaluated by attorneys who practice before them and jurors who serve in trials they preside over. This idea was well received by the program review focus group of attorneys for both complainants and respondents. It was viewed as a good first step to ensuring parties’ concerns about the process are heard. An evaluation process would also help management identify potential problems and/ or inconsistencies found in the process agencywide as well as by region.

Therefore, program review staff recommends CHRO institute a follow-up evaluation form for parties involved in the complaint process to provide feedback on their experience with the agency's handling of discrimination complaints. The process should offer the parties to the complaint a confidential forum to submit observations, suggestions, concerns, and comments directly to central office management. The information should be reviewed and summarized on a periodic basis and results shared with the regions and the commissioners.

Section IV

CHRO Management

Many management functions support the discrimination complaint process. Among them are: staff performance standard setting and evaluation; staff development and training; agency policies and procedures documentation; regulation making; and management information system development. Committee staff believes internal supports in these areas are lacking. There appear to have been laudable efforts in the early to mid-1990s to try to establish consistent written policy and guidance materials, along with efforts to train staff. However, the drive behind these initiatives seemed to disappear, and implementation dwindled.

As a result, the agency at the moment is left with unfinished guidance documents, out-of-date regulations, an overwhelming number of policy statements and forms (some used, some not), an inadequately implemented management information system, and haphazard professional development. In this section, committee staff discusses these areas, as well as the internal discrimination complaint process for CHRO current and former employees, and makes recommendations where appropriate.

Staff Performance Standards and Evaluations

The productivity of each enforcement worker impacts the agency's overall effectiveness. An increase in worker productivity may allow the agency to handle more cases and, conversely, a decrease in individual employee production may result in a reduction in the agency's ability to close cases. Many states, including Connecticut, have used production standards for its case processing enforcement staff. Production standards are commonly used by civil rights enforcement agencies around the country. In response to program review staff queries, California, Illinois, and New Jersey reported the use of staff production standards but would not release what they were. New Hampshire, Missouri, Alaska, Oklahoma, South Carolina, and Texas each have production standards of four or five case closures per month. Higher standards exist in Wisconsin and Nevada, which required 12 and 15 closures per month, respectively.

In contrast, Minnesota has recently abolished its production standards, previously requiring six closures per month or 75 annually. Michigan also reported recently abolishing production standards while Iowa, Ohio, and Michigan each reported not using them. The experiences in other states are offered for background purposes. Comparisons between production standards in other jurisdictions are difficult because of differences in intake procedures, requirements for closures, methods of counting cases, and other variations.

The Connecticut Commission on Human Rights and Opportunities first instituted numerical standards for case production in 1977. It required six case closures per month for a total of 72 closures per year. This was reduced several years later to five case closures per month due to an increase in intake duties. This standard has been used as part of the employee's performance evaluation.

The use of production standards has been recognized as an issue for some time. A 1988 Governor's Task Force Report on CHRO found the numerical performance standard affected the services provided by the agency. The task force concluded the numerical standard provided no incentive to an investigator to find cause, but rather the temptation to reduce the caseload by finding no cause, on the theory the latter was a faster disposition. The task force recommended CHRO examine the numerical performance standard and develop new guidelines for performance evaluations. Until recently, the use of production standards was still in effect.

The issue of quotas was again listed as a CHRO staff concern in a 1999 independent consultant's report on the agency's operations. In that report, 15 percent of the staff interviewed identified the impact of the quota system on the quality of work as a concern.

In the program review survey of the 32 enforcement staff, 60 percent of those responding believed the use of the staff production standards is unrealistic and unfair. Although committee staff does not have empirical evidence suggesting the production requirement influences the complaint disposition, it is reasonable to assume, as did the previous 1988 task force, that individuals being evaluated on the basis of such standards would feel pressure to meet them.

Committee staff believes the use of a quantitative production standard for enforcement staff carries some risks. A numerical standard may encourage investigators to first focus on cases they can close quickly or easily. For example, in order to meet the monthly production standard, an investigator might select several simple cases rather than concentrating efforts on one complex case. Although all cases would eventually get investigated, the more difficult ones may be left to languish and deteriorate. Another possible unintended consequence of the production standard could be an adverse effect on the quality of case investigation.

Of course, the production standard predated the statutory deadlines built into the complaint process. In light of time frame standards, production standards may be irrelevant.

The current CHRO administration has told committee staff that production standards are no longer in use. At the committee’s public hearing, the CHRO executive director informed the committee that she had recently "spearheaded a committee comprised only of investigators to develop appropriate, non-numeric, performance criteria." Committee staff supports the discontinuation of evaluating staff performance on numerical standards. CHRO should establish performance standards reflecting the quality of the work and/or the difficulty of case as well as the effective management of caseloads such as regular and timely activity.

A production standard can focus an enforcement worker's attention on one of the agency's primary goals -- closing cases in a timely manner -- and provide important incentives for enforcement staff to work as efficiently as possible. However, given its possible negative effect, committee staff believes the agency needs to look for other ways to increase production, including but not limited to, appropriate employee training, proper oversight on the part of managers, and, if necessary, shifting of resources in case processing.

Staff Development and Training

Another area committee staff explored was training and development opportunities for enforcement staff. At every stage of the complaint process, enforcement workers must deal with many difficult legal and technical issues with significant potential impact on an individual's civil rights. Successful case resolution is dependent to a large extent on the ability and resources of the worker.

CHRO enforcement staff is almost evenly divided by background and years of experience. As Figure IV-1 shows, 12 of the current 32 enforcement workers (38 percent) have been with the agency more than 10 years. However, 17 (53 percent) have less than five years at CHRO, with nine hired within the last three years. Of the 32 enforcement investigators, 12 are attorneys.

The most recent group of hires spent 2-3 weeks in orientation sessions taught by the former deputy director of enforcement. The sessions were based mainly on the agency policy manual. Workers then joined a regional office and commenced casework.

Interviews and examination of agency materials indicate CHRO does not have a formal training curriculum for its enforcement workers. Program review staff requested information on the types of training either provided or paid for by the agency for current CHRO employees since 1995. Other than DAS training, which largely involves computers and general topics, the agency was not able to produce a comprehensive response about enforcement-related training. Instead, each staff person was asked to self-report on training received. The information received revealed staff attendance at different types and levels of training suggesting variable levels of skills and knowledge.

Program review staff found training opportunities have varied for existing employees. The agency does not provide a formally structured training program or a cohesive training manual to its enforcement staff. In addition, CHRO has not conducted a formal training needs assessment for its staff. Committee staff believes that a lack of comprehensive core training and ongoing skills development may be one factor impeding the agency's effectiveness. All these factors point to a need for employee training and development, for both new and experienced staff.

This is further evidenced by the results of the 1999 consultant report. Twenty percent of the staff mentioned a need for consistency across sites and training in new policies, procedures, and relevant laws. Twenty-nine percent desired clearer pathways for career and professional development. Furthermore, they indicated there are few incentives to pursue professional development and few opportunities to enhance performance on the job.

The program review survey results amplify these findings. In the committee's questionnaire, investigative employees were asked to what extent they agreed or disagreed with various statements. Table IV-1 presents the results of responses relating to training.

As the table indicates, two-thirds (66%) of those responding to the question disagreed that CHRO provides relevant training to its enforcement staff. Almost all of the workers disagreeing with the statement had more than five years of experience.

It should be noted, however, 60 percent of the enforcement staff agreed their co-workers had the skills and abilities to their job (Table IV-2). Forty percent disagreed, with half strongly disagreeing.

Committee staff compiled information about training opportunities and requirements for enforcement staff in other states. Of the 12 states surveyed in detail, four had training administrators or staff assigned to training and staff development. Almost all had core curricula developed internally and taught by in-house staff. However, the states offering formal mediation by agency staff seek training by outside specialists. Initial training for new enforcement staff ranged between one week to eight months with an average of two to three weeks.

Investigation of discrimination charges is a difficult job requiring many skills. In addition, the field of civil rights law changes continually through both legislative and judicial activity. The agency also needs to be efficient, effective, and uniformly implement its policies and procedures to ensure every similarly situated person entering the system is treated the same. To accomplish this, CHRO must develop a formally structured training process to ensure enforcement staff uniformly understand and apply policies and procedures.

It is important that both the amount of training as well as the types expand. In addition to basic CHRO policy and procedures, all levels of staff should be kept informed of new state and federal case law. Training should be relevant and tailored to the staff function. As such, training for intake and MAR workers would require a different focus than investigators or commission counsel staff, although all should have a basic level of knowledge of the overall process.

Therefore, committee staff recommends CHRO conduct a formal evaluation of the current training curriculm and an assessment of training needs of the agency. Based on the evaluation, CHRO should develop and institute a comprehensive training and professional development program. This program should be designed to provide extensive training in civil rights law, investigative techniques, mediation, analytical methods, communication skills, and other necessary areas. It should be tailored to fit the needs of enforcement staff at each level of the process including, but not limited to, intake, merit assessment review, and investigation. Training should also be provided to staff involved in the public hearing process including, but not limited to, commission counsel and human rights referees. In addition, CHRO should conduct ongoing assessment of training needs of the agency's enforcement staff. The assessment results should be monitored and used to adjust the training curriculum and to identify areas for staff improvement whenever necessary.

Policies, Procedures, and Regulations

While state statute spells out many of CHRO’s authorities and responsibilities, like any agency, its regulations and internal policies and procedures are important to codify the detail of CHRO practice.

Policies and procedures. In the early 1990s, CHRO management created two internal policy and procedure manuals for use by staff. One is called the "Investi-GATOR Policies, Practices & Forms Manual" (Investi-Gator) and the other is called the "Field Operation Interpretive Guidelines" (FOIG). It appears the original intent was to keep both manuals up to date. Some of the Investi-GATOR forms have been revised, but the FOIG manual updates are lacking.

In part, the "Investi-GATOR" manual reflected the new mode of investigation the then-new executive director brought to CHRO in 1991. The manual combines policy directives, form letters for various participants in CHRO cases, as well as formatted blank report forms with which CHRO staff was supposed to use to arrive at their conclusions about cases. The manual is a significant effort to accomplish the four objectives identified in the manual:

Committee staff observes the manual is quite voluminous and the combination of party form letters and other form material to be sent to parties blurs the impact of the staff guidance materials. Committee staff also finds there is very little guidance on mandatory mediation, how CHRO staff should handle the potential conflict of acting as both mediation and investigator, or on ways CHRO staff can encourage early settlement.

Field Operations Interpretive Guidelines. Committee staff understands these guidelines are to be used by field staff as aids to understanding legal interpretations. First, many of the written interpretive guidelines are still in draft status even though they appear to have been developed years earlier. Second, the guidelines are quite formally written, with numerous legal citations, raising the question whether the style of presentation hinders their usefulness for investigators in the field.

Program review staff is aware some forms are currently being revised for a variety of reasons. Committee staff recommends CHRO review both its Investi-GATOR manual and the Field Operations Interpretive Guidelines for ease of use by investigators in the regional offices, and ensure they represent current agency practice.

Regulations. CHRO’s existing regulations were adopted in 1993. This is in spite of the significant 1994 statutory amendment establishing the early merit assessment review process that results in almost half of CHRO complaints being dismissed. The agency acknowledges its regulations are out of date. CHRO management told committee staff the position of legislative liaison/regulations specialist was vacant until recently filled. The individual is scheduled to begin in January 2000 and the first task will be to update the agency regulations. Committee staff supports this action.

Management Information System

Another important aspect in the effectiveness of CHRO is the ability of its information systems to adequately support its operations. Every year CHRO handles hundreds of cases, most of which pass through a multi-step process involving different commission staff. In addition, both statutes and administrative policy impose restrictions on the amount of time the agency can take at various stages of the process. Therefore, it is critical for CHRO staff have a reliable way to track the progress of each case.

As part of its review, program review staff examined the CHRO management information system used for enforcement. Committee staff looked at statistical reports generated by the agency's case tracking system and interviewed CHRO personnel familiar with the program and involved with planning for future changes. In addition, through the process of analyzing CHRO case tracking data and extracting information from the system for the committee's own random case file review, program review staff also learned about the system's capabilities and limitations.

The current management information system for enforcement has been in existence since 1993. It archives the agency's entire case inventory and is used to produce statistical monitoring reports and, when necessary, customized inquiries.

Program review staff concludes the current information system could be a very useful management tool. It seems to have the ability to produce useful progress and analytical reports. However, committee staff finds the existing case tracking system has a number of deficiencies, including poor documentation and insufficient checks on data entry.

Program review staff asked the agency to provide written documentation for the system users and was told no such documentation was available. CHRO produced a list of the database tables contained in the system and the information fields that make up each table, but it could not locate further written descriptions of the fields' contents or explanations for code definitions.

The absence of documentation standardizing data input and methods for ensuring consistent code application became apparent in the program review staff's examination of the automated information. The committee staff's case file review revealed the system's codes are not mutually exclusive and do not always aptly describe the status or complaint outcomes. In addition, there is a fair amount of discretion in handling and coding the complaints by the regions. There appears to be no uniform policy on coding complaints. In many instances, the automated information does not make sense unless the paper file is examined.

Given that the case tracking system is used in all the regions, committee staff finds the lack of documentation and uniform application hinders the agency from understanding the system's internal operations. Therefore, the program review committee staff recommends CHRO re-examine its coding system. Specific codes should be developed with input from system users. Written definitions for each code should be provided to agency staff and training given to implement a uniform coding system to facilitate tracking of complaint trends and outcomes. Periodic analysis of these codes will allow the agency to identify problem areas. It should also help the agency evaluate its enforcement action in response to complaints.

Another identified deficiency was the accuracy of stored data. In reviewing the data extracted from the system for the committee's random case file review, program review staff detected examples of data entry errors such as implausible dates and incomplete or missing information.

When asked about this issue, CHRO management stated that in the past maintaining the automated information system had become a lower priority as the regions were given more responsibilities and staff resources became engaged in other duties. In addition, managers were required by the former deputy director of enforcement to maintain manual tracking records of their inventory despite the existence of an automated system.

Program review staff also looked at a number of the routine statistical reports produced by the automated system and found they provide somewhat limited information. Although the existing computer system does allow for some analysis, the deficiencies of the coding method limit its usefulness. Currently, the department does limited tracking of trends and presumably checking adherence to mandatory timeframes. However, given the lack of uniformity in present coding and inputting, program review staff concludes accurate tracking based on the automated system would be difficult. Therefore, program review staff recommends clear accountability should be assigned for assuring consistent, uniform, and accurate data recording.

The purpose of a management information system is to produce essential information about organizational accomplishments in a readily useable format. MIS reports allow management to monitor the performance of the organization, evaluate any deviations from expected or desired results, identify necessary improvements, and implement corrective actions in a timely manner.

The consequence of an ineffective MIS is that decision makers, at all levels, fail to receive an accurate understanding of program operations and the degree to which a program is meeting its intended goal. Specifically, ensuring timeliness of enforcement actions would be difficult.

Committee staff believes CHRO could make better use of the data in its information system. The agency readily admits that its information system is somewhat problematic. Program review staff found that although the information system needs improvement, it contains the basic data needed to assess the performance of the department's case processing. As such, the agency needs to take full advantage of its current information system and re-examine its information system to better utilize its ability to monitor agency operations and quality assurance. Therefore, committee staff recommends CHRO establish a uniform, automated management information system for the regions that captures essential enforcement case information and results in the production of valid, reliable data. The system, at a minimum, should include, but not be limited to, the following:

Legislative reporting. An improved management information system will enhance the information the legislature obtains about CHRO activities. At the outset of this report, committee staff noted the significant management changes that have recently occurred at CHRO. With these, committee staff expects past turmoil preventing CHRO from paying attention to its core business of handling discrimination complaints will cease. The timing of this study is such that information about the impact of recent legislative changes (e.g., full-time human rights referees and complainant’s right to seek release of jurisdiction after MAR dismissal), along with significant management changes, is impossible to measure. Because of past controversies, though, it is imperative that the legislature be kept fully informed about CHRO activities.

In its annual report, CHRO reports on case closure types and numbers of complaints filed, but never reports on the time frames for casework. As of 1998, the legislature is requiring CHRO to annually report to it about the number of cases not meeting the statutory deadlines, and the reasons for those failures. There are other performance indicators that would allow the legislature to review the impact of CHRO. These include: the number of cases where there are job reinstatements; the number of cases in which backpay was awarded; and other types of "affirmative action" allowable under the enforcement remedy statutes. In addition, even though much of the public hearing process is not subject to statutory deadlines, it is important for the legislature to know the length of time cases are pending at the public hearing stage.

CHRO should develop a set of performance measures to be used in evaluating the agency’s overall performance as well as all key components and phases of the process. At a minimum those standards shall address:

Technological Resources

The need for technological improvements was reiterated in the 1999 consultant report where 19 percent of the staff cited inadequate equipment (computers) as a staff concern. The consultant report also indicated staff desire for updating, standardization, and equitable distribution of computer hardware and software.

The current administration has stated technology is one of its top priorities. Plans for technological improvements have been forestalled due to problems with wiring in some regional office locations. Nevertheless, the agency is expecting to resolve these issues and eventually provide each enforcement worker access to more computerized technology and research tools such as Westlaw and the Internet. Program review staff supports these plans and recommends CHRO continue to assess its technological resources and equipment needs for its enforcement operations and develop a plan for addressing those needs as determined. The plan should aim to enhance accurate information sharing between field operations, the legal services unit, and the public hearing office.

The agency’s limited technological resources can have a negative impact. The daily operation of the organization can be compromised by insufficient and outdated technology. Enforcement staff need a method to track their caseloads. It is also helpful to have information readily available when parties call regarding the status of a case. Perhaps most important, managers need reliable statistics about the region's inventory of cases and its productivity in order to detect problems and make necessary changes. Finally, the commission administration should have access to this information to support quality assurance.

Management and Regional Operations

Before any new policies can be successfully implemented, a strong communications network needs to be in place. Both the consultant's report and the program review staff survey found that CHRO employees have a somewhat unfavorable view of how information is communicated to staff.

One program review survey question asked enforcement workers to rate communication in the agency. The results are presented in Table IV-3. As the results show, the staff generally view communications somewhat unfavorably.

The consultant report also suggested this finding. The number one concern regarding management identified by staff was inadequate communication, few staff meetings, and not being informed by management. It is important to note that the report was prepared at the beginning of the current administration and reflected the previous management. It does, however, suggest the need for enhanced communications. Improved communication was also the number one desired changed by staff for the new management in the consultant's report.

The consultant's report made a number of recommendations aimed at developing an effective infrastructure for organizational communication and dialogue including regular staff meetings for all work groups and quarterly meetings for the entire organization. The new administration has begun to institute these recommendations including the agencywide staff meetings. In addition, the newly appointed Chief of Field Operations, who works out of the central office in Hartford, has been directed by the executive director to visit each regional office once a month (one regional office a week). Also, the chief is to hold regional manager meetings once a month, which will rotate among the regional offices.

Program review staff believes these are positive steps to improve communications among all staff. The executive director should continue to aggressively establish an effective communication network between and among all levels within the commission.

Staff Complaint Process

One issue raised during the study relates to employment discrimination complaints made by CHRO employees. In part, the existence of any charges of employment discrimination at CHRO, due to the anti-discrimination purpose of the agency, seems incongruous to some. Another issue is whether CHRO employees have a reasonable process by which to exercise their rights to bring discrimination complaints if they feel they have been wronged.

Program review staff obtained information about how many complaints have actually been filed by CHRO employees (current or former) since 1990. Twelve former or current CHRO employees filed CHRO complaints against the agency in that time period. Table IV-4 shows the years in which complaints were made.

Five complaints were closed with a finding of no reasonable cause. One was closed after the MAR review with a finding of no claim. Two were closed through administrative dismissal. Three were closed with a right to sue determination. One was withdrawn with a settlement.

Five of the CHRO complaints became the subject of federal lawsuits, with the earliest filed in 1997 and the most recent in January 1999. Four of these suits are pending. One was settled for the amount of $105,000.

At minimum, the existence of discrimination charges at CHRO, as at any workplace, is evidence of conflict that for some reason could not be resolved through less formal methods. As such, it denotes a problem for management, if not of management. The fact that at least one of these complaints, filed originally in 1993, resulted in the state paying a significant settlement amount, is noteworthy. Also, the circumstance surrounding one of the complaints is notable. The complaint, now pending in federal court, was brought by an individual who supervised at least one of the people named as respondents in the complaint. The fact that former CHRO management allowed this conflict to continue is remarkable.

Eleven of the twelve complaints mentioned above occurred under previous CHRO management and there is no reason to attribute any past missteps to the new management at CHRO. It is instructive that the one CHRO complaint filed by a CHRO employee just days after the new director started in her acting capacity in March 1999 has already been withdrawn and settled.

CHRO employees have a process available to make discrimination complaints. In May 1997, a policy directive was issued setting out that process. It provided that, to comply with the CHRO/EEOC workshare agreement, any complaint filed by a CHRO employee would be deferred to EEOC for initial processing. As the directive stated, the purpose of the policy was to "eliminate or at least minimize any possibility of a conflict of interest, real or perceived, when a complaint…is filed….alleging employment discrimination by the Commissioners, Executive Staff or employees of the commission." Current CHRO management has told committee staff that the policy has changed and been communicated to staff that the employee also now has the option to have EEOC or CHRO investigate the complaint.

Committee staff contacted other states’ civil rights agencies to find out how they handle complaints filed by their own staff against them. In some states, the complaints are handled like any other complaint; in others, they are deferred to EEOC; and in others still, an outside party handles them.

In 1976, CHRO asked the Office of Attorney General for an opinion on whether CHRO could process a complaint filed against it by a CHRO employee charging a violation of state law. The OAG said that because CHRO was the only agency with authority to handle the complaint, under the necessity of law concept, it had to handle the complaint.

With respect to the procedure, the OAG thought there was a way to do it impartially. First, it noted that the commission members or its executive staff would not have any dealings with the substance of the claim because "investigation of the complaint, determination of probable cause and conciliation endeavors are within the exclusive province of the investigator." The investigator assigned should have no connection to the complaint.

If the matter proceeded on to the public hearing stage, the OAG said the commission chair "should exercise his ministerial duty of appointing a hearing examiner to hear and decide the case." Because the hearing officer was a gubernatorial appointment, there was no concern about commission interference, because he had sole authority to decide the issues and order relief.

Finally, the attorney general would assign an assistant attorney general who had never represented the commission or the Department of Administrative Services before to "present the case in support of the complaint." Assistant attorneys general who normally represent the commission will defend the commission. "The representation of state officials or agencies on opposite sides of a case by the Attorney General is not without precedent."

It is not clear to program review staff that the current CHRO complaint process for CHRO employees filing complaints is a genuine problem. It is true, as the 1976 attorney general opinion points out, that the CHRO investigators have significant autonomy, and as long as the investigator has no connection to the complaint, or complainant, there should be no overwhelming conflict. Any employee who files a discrimination complaint against his or her employer is in an automatic position of conflict at the workplace, so CHRO employees are not unique in that regard. Theoretically, CHRO management should know better than any employer the consequences for retaliating for filing a complaint, itself a violation of law. The commission might consider giving employees the option of the right of first refusal for the investigator selected.

Employee morale. An issue related to the internal CHRO discrimination complaint process is general employee morale. In the program review survey of enforcement workers, conducted in October 1999, respondents were asked to rate their level of satisfaction with various aspects of employment at the commission. The results are shown in Table IV-5.

Although a majority of those responding were satisfied with both the general work environment and their job overall, one-fifth to a quarter of those responding counted themselves as dissatisfied. This is slightly less than the 31 percent of persons interviewed by the consultants who conducted the 1999 organizational assessment for CHRO, who noted concern about decreasing morale at the agency. Those interviews were done in December 1998.

The agency has begun some initiatives to improve the overall work environment such as holding regular agencywide meetings and instituting monthly labor-management meetings. Although it is too soon to tell whether particular initiatives will succeed, program review staff gives the current administration credit for recognizing some deficiencies and refocusing attention on them.

Resources

In the briefing report, committee staff provided information regarding staffing trends at CHRO since FY90. Committee staff analysis found the level of enforcement staff has remained essentially the same although the volume of complaints coming into the agency during this same time period grew significantly.

In her public hearing testimony before the program review committee, the current executive director stated her intention to seek additional investigators within each region to better manage the growing case inventory and ensure that statutory case processing time frames would not be exceeded. However, she could not proceed with the plan because of the hiring freeze imposed by the Office of Policy and Management.

The agency is currently working on a projected needs assessment on enforcement staff resources. The agency's assessment is based on information in the automated tracking system, subjective data, and the assumption the MAR process remains unchanged. The executive director reported to committee staff that she would like to add two new investigators per regional office, with one person assigned strictly to mediation and conciliation. In addition, she stated her desire to augment intake.

These plans coincide with many of the program review conclusions and recommendations. Committee staff would add that re-examination and re-vamping of the automated tracking system may change the projections of staffing needs and reiterate the importance of enhancing the intake and MAR stages as well as expedited handling of reconsiderations. Therefore, program review staff defers to the agency's management on how to best allocate its resources and recommends CHRO proceed with its plan to request additional staff resources.

APPENDIX A

LEGISLATIVE PROGRAM REVIEW SURVEY OF CHRO ENFORCEMENT STAFF

Please indicate your length of service with CHRO: 21%< 5 yrs 29% 5-10 yrs 50%10+ yrs

Your current position is: 60%HRO representative 40% Asst. Comm Counsel 1 --% Other

How satisfied or dissatisfied are you with each area below? (Please circle.)

Please tell us to what extent do you agree or disagree with the following statements:

How would you rate the overall quality of communication:

- between the central office and your regional office? --% Excellent 13% Good 40% Fair 47%Poor

- among the regional offices? --% Excellent 20% Good 27% Fair 53%Poor

- within your regional office? 13% Excellent 47% Good 20% Fair 20%Poor

- between the Office of Commission Counsel and

your regional office? --% Excellent 7% Good 27% Fair 67%Poor

Please read and complete the following statements: (Check all that apply)

The MAR process: 60%provides effective early case disposition 40%is unfair to inarticulate complainants 20%is unfair to those without legal representation 40%helps control the case inventory

OTHER:________________________________________________________

The use of staff production standards: 60%is unrealistic and unfair 13%is a good evaluation measure 40%compromises the quality of work 20%is not a problem

OTHER:________________________________________________________

The CHRO complaint process: 7%favors the complainant --%favors the respondent 80%is fair to both parties 7%is unfair to both parties

OTHER:________________________________________________________

APPENDIX B

Other States Civil Rights Enforcement

Nearly all states have fair employment practices laws, sometimes designated as human rights laws. Most of these jurisdictions have established agencies to investigate charges of discrimination and to enforce the fair employment practices (FEP) laws. State agencies with enforcement standards comparable to EEOC are deferred to by the federal agency for initial processing of all charges within their jurisdiction.

State laws frequently extend farther than federal civil rights statutes. Consequently, employers can find themselves bound by the more comprehensive requirements of state and local laws as well as by the broad ban against discrimination on the basis of race, color, religion, sex, age, national origin, citizenship status, and handicap required by federal provisions. In addition, to being more comprehensive, state laws often extend to smaller employers. While federal law applies mainly to employers with 15 or more employees, some state statutes cover employees with only one. Other states make no provision for minimum number of employees needed to determine coverage. The following is a synopsis of the 12 states.

CALIFORNIA

FEP Law. The California Fair Employment and Housing Act prohibits employment discrimination on the basis of race, religion, color, age, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex.

Coverage. The act applies to employers with five or more workers, their agents, the state, or any of its political or civil subdivisions and cities. Employment agencies and labor organizations are also covered. An exception is made to the protection afforded to individuals with mental disabilities which only applies to employers with 15 or more employees.

Structure. Violations of the employment antidiscrimination law is handled by the Department of Fair Employment and Housing within the State and Consumer Services Agency. The department is administratively handled by an executive director appointed by governor subject to confirmation by the senate. The agency also works with a commission of seven members appointed by governor with advice and consent of senate. Commission members serve terms of four years. The commission chairperson is chosen by governor. The commission members receive $100 per diem and are entitled to expenses actually and necessarily incurred in performance of their duties.

Process. Complainants have one year from the date of the alleged unlawful practice in which to file a complaint with the commission. The filing time can be extended up to 90 days if the complainant did not become aware of the discrimination until after the year expired. The department investigates the complaint and endeavors to eliminate discrimination by conciliation. If a complaint is not conciliated, the department must issue a written accusation within one year of the filing of the complaint and within two years of the filing of a complaint claiming unlawful practices against a class of persons.

The department must issue an accusation or notify the complainant within 150 days of the filing of the complaint of the right to request a right to sue notice and must issue such notice no later than one year after the filing of the complaint. If the accusation includes a request for a remedy for emotional injuries, or for administrative fines or both, the respondent may elect to transfer the proceedings to a court by serving a written notice on the department, which must, within 30 days dismiss the accusation and file an action in court on behalf of the complainant.

The commission shall hold hearings on accusations issued and determines the issues raised therein. Hearings take place not more than 90 days after issuance of accusation upon which they are based.

The case is presented before commission by an attorney of department. A hearing officer appointed by commission presides unless a quorum of commission decides to hear. Within 60 days after case is submitted the hearing officer prepares a decision served on commission and all other parties. The proposed decision is deemed adopted by commission 100 days after service to commission by hearing officer unless within that time the commission rejects or amends it.

Reconsideration by any party is allowed within 20 days of the date a decision is mailed. Reconsideration may be assigned back to hearing officer for further evidence.

The commission may order the respondent to stop the discriminatory practice and order other appropriate relief such as: hiring or reinstatement with or without back pay; payment for actual damages sustained proven by a preponderance of the evidence, including for emotional pain and suffering, but such nonpecuniary damages together with any administrative fines assessed against a respondent must not exceed $50,000 per complainant; prospective relief to prevent the reoccurrence of unlawful practice; or reporting of the manner of compliance. The commission has no authority to award punitive damages. In addition, if the respondent is guilty of fraud or malice, the commission may order the payment of administrative fines which are deposited into the general fund.

Within one year of effective date of every final order or decision issued, the department shall conduct compliance review to determine whether order or decision has been fully obeyed and implemented.

FLORIDA

FEP Law. The Florida Civil Human Rights Act prohibits employment discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or martial status.

Coverage. The law covers employers of 15 or more employees, employment agencies, and labor organizations.

Structure. The Florida Commission on Human Relations is comprised of 12 members appointed by the governor subject to confirmation by the senate. The commission selects its own chairperson. Appointments to the commission must be broad representation of various racial, religious, ethnic, social, economic, political, and professional groups within the state. At least one member of the commission must be 60 years of age or older. Members serve four year terms and are compensated $50 per day. The commission appoints and removes the executive director.

Process. A complaint may be filed at any time within 180 days of the occurrence of the alleged unlawful employment practice. When it is determined that a complaint has been timely filed, the executive director shall provide notice and copy of complaint to the respondent within 15 days of the complaint filing. Unless complaint is settled or withdrawn, the complaint is assigned to the investigation unit.

During the course of the investigation, the unit may request of any person information concerning the facts and circumstances of the complaint. In the event any person fails to provide requested information, the executive director may issue and sign a subpoena on behalf of the commission. During the investigation, the investigator shall encourage the complainant and the respondent to settle the complaint on mutually agreeable terms. If the complaint is not settled nor withdrawn at the end of the investigation, the investigator shall prepare an investigation report and recommendation for the Office of General Counsel.

The Office of General Counsel reviews the report and makes a recommendation to the executive director as to whether there is reasonable cause to believe that an unlawful employment practice has occurred. The executive director makes a determination and serve notice of such determination to complainant and respondent. Redetermination is available within 20 days. After a notice of determination of reasonable cause is found, the parties are invited to participate in conciliation. If a conciliation agreement is not made within 30 days, the complainant may file a Petition for Relief.

Each respondent must file an answer with the commission within 20 days of service of the petition. The answer must include a specific, detailed statement of any affirmative defenses. Failure to plead an affirmative defense constitutes a waiver of that defense. If the respondent fails to file a timely answer, such failure shall be deemed to constitute an admission of the material facts alleged in the petition.

A copy of the petition is served upon all commissioners. Upon consideration of a recommended order, the commission may order that the petition and complaint be dismissed or may determine that an unlawful employment practice has occurred. The commission may issue an order prohibiting the practice and provide relief from the effects of the practice. The order of the commission shall constitute final agency action.

ILLINOIS

FEP Law. The Illinois Human Rights Law prohibits employment discrimination on the basis of race, color, religion, national origin, citizenship status, ancestry, age, sex (including sexual harassment), martial status, a determinable physical or mental handicap, military status, and unfavorable discharge from military service.

It is also violation for employers, employment agencies, or labor organizations to inquire into or use an expunged, sealed, or impounded arrest or criminal record as basis to refuse to hire, segregate, or act with respect to recruitment, hiring, promotion, renewal or employment, discharge, discipline, terms, privileges, or conditions of employment.

Coverage. The law applies to private employers of 15 or more employees. However, antidiscrimination laws relating to handicap or sexual harassment applies to employers with one or more employees. The state, its subdivisions, employment agencies, labor organizations, and apprenticeship and training programs are also covered. The law also applies to an employer that is a party to public contract without regard to number of employees.

Structure. The Human Rights Commission consists of 13 members and appointed by the governor with advice and consent of senate. No more than 7 members shall be of the same political party. The governor designates the chairperson. The members serve staggered terms of four years. The executive director is also appointed by the governor with the advice and consent of the senate.

Process. A charge should be filed with the Department of Human Rights as soon as possible after the act of discrimination occurs. A charge must be filed within 180 days of the date the discrimination took place. A charge may be initiated by writing, phoning, or visiting the department office. An intake investigator will interview the complainant and draft a charge which must be signed and notarized. A copy of the charge is sent to the respondent within 10 days. A verified response must be filed with the department within 60 days by the respondent. Failure to do so may result in default findings in favor of the complainant.

An investigator will be assigned to investigate the charge. A fact-finding conference will be held to gather pertinent data from the parties. Following investigation staff will make a recommendation as to whether there is substantial evidence of discrimination. If the department does not find substantial evidence of discrimination, it will dismiss the charge. The complainant may appeal the department's dismissal to the chief legal counsel. The appeal must be filed within 30 days of the date of the dismissal of the charge.

If a settlement agreement is not reached, the department will file a complaint of civil rights violation the Human Rights Commission. If the department does not issue a complaint or a notice of dismissal with 365 days after the filed date of charge, the complainant has 30 days to file a complaint at the Human Rights Commission. After a complaint is filed with the commission, it is assigned to an administrative law judge who sets a date for a public hearing. At this stage, the parties are encouraged to retain attorneys to represent them.

Following the public hearing the administrative law judge recommends a finding to a three-member panel of commissioners. If the recommended findings favor the respondent, the commission will decide whether to dismiss the complaint. If the decision favors the complainant, specific relief may be recommended. The commission may order the respondent to cease and desist, to pay actual damages, to hire, reinstate, promote, to back pay, attorney fees and costs, in order to remedy the discriminatory action. Appeals of the commission's order must be made within 35 days of the order. Appeals are made to Illinois Appellate Court.

IOWA

FEP Law. The Iowa Civil Rights Act prohibits employment discrimination on the basis of age, race, creed, color, sex, national origin, religion, or disability.

Coverage. The law applies to all employers employing workers in the state of Iowa, including the state, its political subdivisions, employment agencies, and labor organizations.

Structure. The Iowa State Civil Rights Commission consists of seven members appointed by the governor subject to confirmation by the senate. Appointments to the commission must provide geographical area representation insofar as practical. The commission is paid on a per diem basis. The governor, subject to senate confirmation, appoints the agency director.

Process. Complaints must be filed within 180 days of the last alleged discriminatory incident. When a signed and notarized complaint is received, it is reviewed by agency staff to determine whether it meets the statutory requirements. The complaint does not meet the statutory requirements if it is not timely filed or the commission does not have jurisdiction. If these criteria are not met, the complainant is notified and the complaint closed. If the complaint does meet the statutory requirements, a copy is mailed to complainant and served on the respondent.

Both complainant and respondent are required to answer a questionnaire and submit relevant documents within 30 days. When the commission receives both parties' responses to the questionnaires, all the collected information is reviewed to determine whether further investigation is warranted.

If the further investigation is not warranted, the complaint is administratively closed. The complainant has appeal rights. If further investigation is warranted, the complaint will be assigned to an investigator. After the complaint has been on file with the commission for sixty days, the complainant may request a right to sue letter which, if granted, would allow the complainant to file a lawsuit in district court alleging a violation of Illinois law. At any time during the process, the parties may decide to settle the complaint through a voluntary, no fault mediation process.

During investigation, each party is usually interviewed and additional records are collected. Witnesses are contacted and interviewed. When the investigation is complete, the investigator will analyze all of the collected information and recommend to the administrative law judge whether probable cause or no probable cause exists to believe that discrimination occurred.

If the administrative law judge finds no probable cause, the complaint is closed. A no probable cause finding cuts off the complainant's right to sue. If the judge finds probable cause, the complaint is assigned to a conciliator who will contact the parties and attempt to conciliate or settle the complaint. If conciliation fails, the complaint will be reviewed to determine whether it should proceed to public hearing. If selected for hearing, a hearing is held in accordance to Iowa APA rules. If not selected for hearing, the complaint will be administratively closed and the complainant may request a right o sue letter.

MASSACHUSETTS

FEP Law. The Massachusetts Fair Employment Practice Act prohibits employment discrimination on the basis of race, color, religious creed, national origin, age, sex including sexual harassment, sexual orientation, ancestry, or physical or mental handicap.

Coverage. FEPA applies to employers of 6 or more employers, the state and all of its political subdivision employment agencies and labor organizations.

Structure. The Massachusetts Commission Against Discrimination consists of three full-time commissioners appointed by the governor serving three-year overlapping terms. The governor appoints the chairperson. The commission may appoint such attorney, clerks, and other employees and agents as it may deem necessary to fulfill their duties.

Process. Complaints of employment bias must be filed with the Massachusetts Commission Against Discrimination within six months of the alleged act of discrimination. After the filing of any complaint the chairman of the commission shall designate one of the commissioners to make with the assistance of the commissions staff prompt investigation. Commission staff members initially review all complaints to decide whether to dismiss or process them. If processing is authorized, the investigating commissioner must begin a formal investigation of the complaint within 30 days after the authorization and complete the investigation within 18 months.

After the authorization of a formal investigation, if both parties are represented by counsel, the investigating commissioner may order the parties to conduct discovery into the allegation of the complaint and the respondent defenses to determine whether probable cause exists.

If no probable cause exists, the commissioner will within 10 days provide written notice. Within 10 days of service, the complainant may submit written request of preliminary hearing before commission to determine probable cause. The commission must allow this as matter of right.

If probable cause is found, immediate notice to parties to elect judicial determination. Parties must give written notice to agency within 20 days. If notice is received, the commission dismisses the complaint and it is given to the attorney general to commence civil action on behalf of the complainant.

If probable cause is found but the parties do not elect to judicial review, the commission endeavors to eliminate by conference, conciliation, persuasion. If this fails then a hearing is held. The case is presented before the commission by agency attorney. The investigating commissioner is not involved in hearing or else it is held by hearing officer appointed by commission. Any party aggrieved by final decision of hearing commissioner or officer may, within 10 days of receipt of decision, submit written request of review to the commission.

Within the first 90 days after the filing of a complaint, a complainant may make a written request to the investigating commissioner for permission to transfer the complaint to state court. But if the complaint has been pending before the commission for more than 90 days, the complainant can file a state court complaint without permission after filing a notice with the investigating commissioner and requesting that the commission not initiate its own complaint in the matter. The commission must make written findings of its investigation and if it finds that discrimination has occurred it must try to eliminate the unlawful practices through conference, conciliation, and persuasion. If conciliation fails, the commission conducts a public hearing and issues a written order. The order may be appealed to the full commission. The parties may obtain judicial review of a final commission order or seek enforcement of such an order.

Commission may issue an order to the respondent to stop the discriminatory conduct; order other affirmative relief such as hiring reinstatement, or upgrading of employees, with or without back pay, and order the payment of reasonable costs and attorney's fees.

MICHIGAN

FEP Law. The Michigan Civil Rights Act prohibits employment discrimination on the basis of religion, race, color, national origin, age, sex, height, weight, familial status, or martial status.

Coverage. The law applies to employers of one or more employees, employment agencies, labor organizations, and apprenticeship and training programs. However, it does not apply to employment of individuals by their parents, spouses, or child.

Structure. In Michigan, the Civil Rights Commission was created by the state constitution. The commission establishes policy and appoints the director for the Department of Civil Rights. The commission also acts as the final arbiter in contested cases filed with the department. There are eight commissioners, no more than four from the same political party, appointed by the governor for four-year terms.

Process. Complaints must be filed with the Michigan Department of Civil Rights within 180 days following the alleged act of discrimination. Complaints may be filed in state court without first filing with the Michigan Department of Civil Rights.

When a complaint is filed, a right specialist conducts a detailed interview with the complainant to decide whether the situation meets the jurisdictional requirements defined by law. If the complaint falls within the department's jurisdiction, a formal complaint is drafted. A copy of the complaint is sent to the party against whom the complaint is made. The complaint is assigned o a field representative for investigation. The respondent and the claimant may be invited to an investigative/resolution conference. This meeting provides an opportunity to explore the possibility of an early settlement agreeable to both parties and if unresolved a forum to clarify issues and receive evidence from the parties. If the matter is not resolved at this conference, additional investigation may occur including the examination of witnesses and documents that were not available prior to or during the conference.

A staff determination is made, on the basis of the investigation, whether there is sufficient evidence to credit the claimant's allegations. If there is not sufficient, the complaint is dismissed. Following such a dismissal, a claimant may petition for reconsideration of the decision and may be granted a hearing to offer proofs why the decision should be changed.

If sufficient grounds have been found, after investigation, to credit the claimant's allegations, the respondent is invited to a conciliation conference, where an attempt is made in private discussion to adjust the matter. If the efforts in conciliation are successful, the case is closed as adjusted, and the claimant and respondent are so notified.

If conciliation efforts are not successful, the department may issues a formal charge, requiring an answer from the respondent, and set a date for a formal public hearing. The hearing is conducted by one or more civil rights commissioners, or a referee. All witnesses testify under oath, the rules of evidence apply, and all parties have the right to examine and cross examine the witnesses. The burden of proof is on the department and the claimant.

Following the hearing and receipt f the referee's report, an appropriate order is issued by the commission either dismissing the complaint or directing that remedial action be taken by the respondent. A claimant or respondent who does not agree with any final order of the commission may appeal to courts for review of the case.

MINNESOTA

FEP Law. The Minnesota Human Rights Act prohibits employment discrimination on the basis of race, color, creed, religion, national origin, sex, martial status, status with regard to public assistance, membership or activity in a local commission, disability, sexual orientation, or age.

Coverage. The law applies to employers of one or more employees including the state, its subdivisions, and employment agencies and labor organizations.

Structure. The Department of Human Rights is under the direction and supervision of a commissioner who is appointed by the governor. The commissioner may appoint an advisory task force if so desired.

Process. A charge must be filed within one year of an alleged unfair discriminatory practice. A copy of the charge and initial information request is served upon the respondent within ten days of complaint filing. The respondent has 20 days within which to answer the charge in writing. The agency may investigate the complaint by interviewing the witnesses, reviewing documents, requesting further information, and statistical analysis. The enforcement officer may also call a fact finding conference to obtain information needed to investigate an allegation. At the conference, the parties may attempt to resolve the proceedings before a determination is made. Once investigation is completed, the enforcement officer makes a recommended determination which is reviewed by a supervisor.

The decision is sent to both parties whom can each request reconsideration with ten days. If probable cause is found, the department attempts conciliation. If conciliation attempts fail, the agency issues a formal complaint. The attorney general prepares the case for litigation and a hearing is conducted before an administrative law judge. The administrative law judge decides the case by issuing an order supported by written findings of fact and conclusion law. The order shall be final decision of department and may be appealed in court.

NEW JERSEY

FEP Law. The New Jersey Law Against Discrimination prohibits employment discrimination on the basis of race, creed, color, national origin, ancestry, age, martial status, affectual or sexual orientation, sex, atypical hereditary cellular or blood trait, genetic information, refusal to submit to a genetic test or to make available the results to employer, or liability for service in the Armed Forces. Handicap discrimination is also prohibited unless the handicap reasonably precludes performance of a particular job. The law also prohibits discrimination on familial status which is defined broadly to include many types of parental relationship.

Affectional or sexual orientation is defined as "male or female heterosexuality, homosexuality, or bisexuality by inclination, practice, identity, or expression. Atypical hereditary or blood trait means traits for sickle cell, hemoglobin C, thalassemia, Tay-Sachs, or cystic fibrosis.

Coverage. The law applies to private employers, the state, its political subdivision, all public officers, agencies and boards as well as employment agencies and labor organizations.

Structure. The Division of Civil Rights is housed within the New Jersey Department of Law and Public Safety. The division consists of the Attorney General and a commission of seven members appointed by the governor with the advice and consent of the senate. The commission members serve five year terms and are eligible for reimbursement for their expenses. The Attorney General appoints the division director subject to the approval of the commission and the governor.

Process. Once a complaint is accepted at the regional office, the division will conduct an investigation. Following the completion of the investigation, the director will determine whether or not probable cause exists to believe that unlawful discrimination has occurred. If a finding of probable cause is issued, the case will be transmitted to the Office of Administrative Law where a full hearing will take place before an administrative law judge. The case may be litigated by a state deputy attorney general on behalf of the division, or the complainant may choose to litigate personally or through private counsel. If a finding of no probable cause is issued, the case is closed without further proceedings by the division. If the director has not made a probable cause determination within 180 days of the filing of the complaint, the complainant may request to litigate the case at the Office of Administrative Law either personally or through private counsel (but not through a deputy attorney general)

If, after investigation and an administrative hearing of a complaint, the director determines that unlawful discrimination occurred, the director can order the respondent to take affirmative action to remedy the discrimination. The director is authorized to order relief such as reinstatement, hiring, or upgrading of the employee, and may also award back pay and damages for pain and humiliation. Further, after the hearing, the director may also award attorney's fees to prevailing complainants and may assess a statutory penalty against the responding party. Alternatively, an aggrieved party may file a complaint in New Jersey Superior Court within two years of the alleged violation.

NEW YORK

FEP Law. The New York Human Rights Law prohibits employment discrimination on the basis of age, race, creed, color, national origin, sex, disability, genetic predisposition or carrier status, or martial status.

Coverage. The law applies to employers of four or more employees, employment agencies, labor organizations, licensing agencies, and apprenticeship programs.

Structure. The Division of Human Rights is located within the executive department. It is headed by a commissioner appointed by the governor with the advice and consent of the senate. The commissioner holds office at the pleasure of the governor.

Process. If an individual feels he or she has been the victim of an illegal act of discrimination, he or she may file a complaint within one year of the date of the violation at any regional office. After contacting the regional office, and the Division's jurisdiction is established over the particulars of a given situation, the compliant can be taken either in person at the office or by telephone. In some cases, complaints may be taken by mail. In any event, the complainant will communicate with the investigator to give a summary of the specific acts of alleged unlawful discrimination. If the complaint falls within the division's jurisdiction, the investigator assists an individual in filing a formal complaint based on the information provided. The complaint is then mailed to the individual or organization charged with committing the discriminatory act, who is then asked to respond to the allegations.

Depending upon the respondent's answer, the investigator may advise whether there is reasonable basis for conciliation. The conciliation process is negotiated by the investigator, who identifies the main issues of the complaint, determines where the complainant and respondent agree and disagree, identifies what may be offered and what may be accepted, and develops an appropriate strategy for resolving the dispute.

If the complaint is not resolved at the conciliation level, or if one or both of the parties are not interested in attempting conciliation, the investigator begins a further investigation of the facts which may include, but are not limited to two party conferences, witness interviews, site visits, interrogatories and document requests. As the investigation proceeds, the investigator continues to attempt to settle the case through conciliation efforts.

Depending upon the information gathered during the investigation, the regional director reviews the investigator's work, and a determination of probable cause or no probable cause to believe that illegal discrimination has taken place is issued. If the determination is no probable cause, the complaint is dismissed, but the complainant has the right to appeal the determination to the state supreme court within 60 days.

If probable cause determination is issued, the complainant and the respondent meet with an administrative law judge in a pre-hearing conference to once again attempt to conciliate the complaint. If this effort fails, the complaint is scheduled for a formal public hearing before an administrative law judge, other than the one with whom the prehearing conference was held.

If further attempts at conciliation fail, the division convene a public hearing presided over by an administrative law judge. The complainant and the respondent or their representatives present their respective cases at hearing. When appropriate, witnesses are called upon to give testimony. If conciliation agreement is not reached before a hearing concludes, the administrative law judge will prepare a recommended order either supporting the allegations or dismissing them. The order will identify what remedy is required for the complainant to be "made whole", as if the act of discrimination had not occurred. This may include employment, promotion, raise, back pay, letter of reference, a change in the respondent's policies, and or cash award in compensation for humiliation, suffering and mental anguish. The commissioner reviews the recommended order together with the record of the hearing and makes a final approval or dismissal. Both the complainant or the respondent can appeal the commissioner's order within 60 days to the state supreme court.

The compliance review officer conducts an investigation to see if the respondent has complied with the conciliation agreement or the commissioner's order no later than one year from the date of the decision.

OHIO

FEP Law. The Ohio Fair Practices Law prohibits employment discrimination on the basis of race, color, religion, national origin, handicap, age, ancestry, and sex including pregnancy and any illness arising out of and occurring during the course of pregnancy, childbirth, or related medical condition.

Coverage. The law applies to state and local government agencies, to private employers with four or more employees within the state, employment agencies, personnel placement services, and labor organizations. However, the law does not apply to domestic servants.

Structure. The five members of the Ohio Civil Rights Commission are appointed to staggered five-year terms by the governor, and confirmed by the Ohio senate. The governor designates the member to serve as chair. The members of the commission serve as the sole decision making body for case related matters brought before the commission, and sets policies of a general nature for the agency.

The commission appoints an executive director who serves as the chief executive officer, overseeing the day to day operations of the agency, and implementing the policies of the commission.

Process. A charge of discrimination must be filed with the commission within six months of the alleged date of harm. In employment, the commission has jurisdiction over all employers with four or more employees, and all governmental entities. Charges are received and investigated by any of the commission's regional offices.

After conducting a preliminary investigation, the regional office makes a recommendation to the commission, who then reviews and confirms those recommendations. It is only at this point that a letter of determination is issued. Any party aggrieved by a determination can file a request for reconsideration, which is reviewed and decided by the commissioners. Where the commission issues a finding of probable cause, the regional office must attempt conciliation. If conciliation fails or reaches an impasse, the commission will issue a formal complaint and notice of public hearing. The commission must complete its preliminary investigation and issue the formal complaint within one year from the date of filing.

The attorney general will then present the case for the commission before a hearing examiner. At the conclusion of the hearing process, the hearing examiner will issue findings of fact, conclusions of law, and a recommendation to the commission. After reviewing this report, and any objections which may be filed in response to the report, the commission may adopt, modify, or reject the report, and issue an order of dismissal, or a cease and desist order. Any party aggrieved by a final order of the commission may file for judicial review of that order in state court.

RHODE ISLAND

FEP Law. The Rhode Island Fair Employment Practice Act prohibits employment discrimination based on an individual's race, color, religion, sex, sexual orientation, disability, age, or country of ancestral origin. Under the act, women affected by pregnancy, childbirth, or related medical conditions must be treated the same as any other employee who has similar job skills.

Coverage. The act applies to the state and all political subdivisions of the state, as well as labor organizations, employment agencies, and any person employing four or more workers. Domestic workers, spouses, parents, or children of an employer are not covered by the law.

Structure. The Rhode Island Commission for Human Rights consists of seven members appointed by the governor with the advice and consent of the senate. The chairperson is appointed by the governor. The commission should reflect the diversity of the state's population. At least one of the seven must have a background in law, business, and/or real estate. The commission members serve five year terms. They are compensated at no more than $50 a day with a maximum of $3,000 in one year. The commission appoints attorney, clerks, and any other employees as it deems necessary.

Process. A person who believes they have been discriminated against have one year from the date of alleged harm to bring their compliant to the commission. After the intake phase is completed and a formal charge of discrimination is filed, each case is assigned to an investigator. In an attempt to reach quick and easy resolution to the complaint, investigators may hold preliminary hearings with all parties present. More often, the investigators hold fact-finding conferences where both complainant and respondent can present facts which confirm or deny the allegations.

The commission attempts to settle every case, and only after all settlements possibilities are exhausted will the investigator make a recommendation to a preliminary investigating commissioner. When the commissioner rules on the investigator’s recommendation, the investigation process is completed.

An administrative hearing begins after the preliminary investigating commissioner finds probable cause and the parties fail to agree to a settlements during the conciliation process. One commissioner conducts the hearing with the assistance of legal counsel. The commission encourages both parties to subpoena witnesses, who present sworn testimony. A certified stenographer records the entire proceeding. After the parties present all their evidence, three commissioners (a quorum) reach a decision and issue an order.

TEXAS

FEP Law. The Texas Employment Discrimination Law prohibits employment discrimination on the basis of race, color, disability, religion, sex, national origin, or age. It is also prohibited based on the use of genetic test results or an employee's refusal to submit to such testing.

Coverage. The law applies to employers of 15 or more employees, the state, any individual elected to public office in the state or political subdivisions of the state. It also covers employment agencies, labor organizations, and labor management committees controlling apprenticeship-training programs.

Structure. The Texas Commission on Human Rights is governed by a six member commission, appointed by the governor to serve staggered, six year terms. The commission must be composed of one representative each from industry and labor, while the other four are public members. In addition, appointments to commission must provide for representation with respect to disability, religion, age, economic status, sex, race, and ethnicity. The governor designates the chairperson. The commission sets policy for agency operations, hires the executive director, and adopts rules governing the administration of the agency's programs. While the commission members do not receive compensation, they are entitled to reimbursement for their expenses.

Process. The complaint process begins when a complainant alleges a discriminatory practice. An agency investigator reviews the complaint to ensure that it is within the commission's authority and contains the basic elements of a discrimination complaint. Within ten days of receiving the complaint, the commission must notify the employer that a charge has been filed. By statute, the commission has 180 days after the filing date to process complaints before it must give employees notice of the right to take action in state court. After receiving this notice, the complainant has 60 days in which to take legal action, but may not take action after two years from the original filing date with the commission.

Throughout the process, the commission tries to get the parties to reach an agreed settlement. This may be formal or informal procedure. Additionally, the executive director may refer a case to the agency's mediation process within ten days of receiving a complaint. The commission employs two full time mediators to impartially conduct mediation conferences. The parties have 30 days from the date of referral to mediate. If mediation or initial settlement efforts fail, the commission begins the full-scale investigation stage to determine whether reasonable cause exists to believe an employer has discriminated. The agency generally conducts in house investigations of employment complaints. Most information is collected by telephone or by sending information requests.

The commission dismisses a complaint if the investigation reveals that no reasonable cause exists to believe discrimination occurred. If reasonable cause is found, a panel of three commission members review the evidence and determine reasonable cause. After a finding of reasonable cause, conciliation efforts resume. If conciliation terms are acceptable to all parties, the case is closed. Otherwise, the complaint may proceed to court.

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