Legislative Program Review and Investigations Committee

Commission on Human Rights and Opportunities: Enforcement
Staff Briefing
September 15, 1999

With origins dating back to 1943, the Commission on Human Rights and Opportunities (CHRO) is the state agency authorized to enforce civil rights laws in Connecticut. Its primary function is to enforce state laws prohibiting discrimination in employment, housing, credit, and public accommodations. The agency investigates discrimination complaints and attempts to correct any violation it finds through conciliation, public hearing, or court action, if necessary. It also enforces laws regarding affirmative action and contract compliance of state agencies.

In March 1999, the Legislative Program Review and Investigations Committee authorized a study of the Commission on Human Rights and Opportunities. The scope of the study approved by the committee calls for an examination of the mission, policies, structure, and management of the commission related to the handling of illegal discrimination complaints. The scope excludes the contract compliance and state agency affirmative action plan responsibilities of the commission.

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 1991 to July 1998; and turnover among CHRO commission members. These events occurred against a backdrop of chronic concerns about case backlogs. Since this study began, a new permanent executive director has been appointed as well as several new commissioners.

To the extent the issues mentioned above relate to CHRO management structure and policies, particularly relating to personnel processes, committee staff is reviewing those areas and will address them as necessary in the next staff report.

In preparing this briefing paper, committee staff reviewed applicable statutes, agency policy, procedures, and general literature dealing with CHRO. Staff also interviewed agency staff and several individuals associated or having contact with the agency. Preliminary descriptive and performance data pertaining to the agency’s operation have also been collected and reviewed.

This briefing report is divided into five sections. Section I provides historical background on the policy and development of civil rights and gives a brief summary of existing federal and state laws related to discrimination. An overview of the agency’s organizational structure and changes in expenditures and staffing over time is described in Section II. Section III discusses significant selected events affected the commission’s operation over the last eleven years. Section IV gives a detailed description of the CHRO discrimination complaint process and other activities related to complaint resolution. The final section, Section V, includes CHRO caseload statistics.

In its everyday sense, to "discriminate" suggests noticing differences between things or people that are otherwise alike and making decisions based on those differences. In a legal context, "discrimination" means to treat someone unfavorably in comparison to others because of his/her protected status. Every U.S. citizen is a member of some protected class because of race, color, religion, sex, national origin, age, or handicap condition. The scope of protection is specifically outlined by state and federal law.

Treating a person unfavorably in comparison to others may be a violation of anti-discrimination laws only when that person’s protected status is a factor in the treatment. Thus, unfair treatment alone is not equivalent to illegal discrimination.

There are many forms of discriminatory actions. Typically, they are explained under three legal theories of discrimination: overt; disparate treatment; and disparate impact.

Overt discrimination is a specific, observable action to discriminate against a person or class of persons because of protected status. This treatment is also referred to as intentional discrimination. An example would be failing to interview job applicants based solely on their race (race discrimination).

Disparate treatment is the inconsistent application of rules, policies, or practices to one group of people over another. For example, male employees being reprimanded for arriving late to work while female employees who are also late are not reprimanded could constitute sex discrimination.

Disparate impact is the uniform application to all individuals that has the effect of distinguishing or differentiating members of protected classes. This treatment also is referred to as adverse impact. An example would be having a height requirement for employment. Unless it is an essential part of the job, this requirement may have a discriminatory impact on females.

The purpose of civil rights laws is to guarantee individuals equal opportunity in political, economic, and social activities. Historically, civil rights laws have been enacted in response to evidence of groups and categories of people having been discriminated against. Initial federal civil rights laws were passed in the 1960s. The scope of protection and areas covered by anti-discrimination laws continued to grow throughout the 70s, 80s and well into the 90s. As a result, there are several federal and state anti-discrimination laws.

In Connecticut, state and federal anti-discrimination laws are very similar in nature, but some distinctions exist. State law is generally broader than federal provisions. The first part of this section contains a discussion of the major anti-discrimination laws relating to employment, housing, credit, public accommodations and facilities. A synopsis of the types and basis of prohibited discrimination in Connecticut is provided in Table I-1.

Authority to enforce these laws falls upon both federal and state agencies. However, the federal agencies are authorized by statute to defer resolution of complaints to the state entity affording discrimination protection. In Connecticut, the Commission on Human Rights and Opportunities is the agency charged with enforcing these laws in conjunction with the federal agencies. (The enforcement structure is explained in more detail at the end of this section.)

Federal law. Various federal laws protect individuals from employment discrimination on the basis of race, color, sex, religion, national origin, age, or disability. The federal Equal Employment Opportunity Commission (EEOC) has jurisdiction over all these laws, but will defer administrative enforcement to designated state agencies, like CHRO. Also, complainants generally have the right to sue in federal court if the complaint is not resolved administratively. Among the federal laws are:

Equal Pay Act of 1963 - Prohibits discrimination on the basis of gender in compensation for substantially similar work under similar conditions. It applies to both public and private employers having two or more employees.

Civil Rights Act of 1964, Title VII - Forbids employment discrimination on the basis of race, religion, sex, or national origin. It applies to both public and private employers with at least 15 employees as well as unions and employment agencies.

Age Discrimination in Employment Act of 1967 - The Age Discrimination in Employment Act of 1967 (ADEA) makes it unlawful to discriminate against employees or job applicants on account of age when they are 40 years of age or older. ADEA applies to both public and private employers employing 20 or more workers for at least 20 weeks a year. It also applies to employment agencies and labor unions with 25 members.

Employment decisions based on age do not violate ADEA if a danger to public safety might occur because of physical degeneration factors. The act prohibits employers from forcing retirement at a certain age. ADEA also requires employers to offer older employees and their spouses the same health care benefits as it provides for younger employees and spouses.

Rehabilitation Act of 1973 – This act protects handicapped individuals against employment discrimination by federal departments and agencies and federal contractors and subcontractors.

Americans with Disabilities Act (ADA) of 1990 - The Americans with Disabilities Act (ADA) prohibits discrimination against qualified individuals with disabilities with regard to job application, hiring, discharge, promotion, training, wages, or other terms, privileges, or conditions of employment. The law applies to private sector employers having 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. ADA also covers government employees.

A "qualified individual" is defined as one who can perform the essential functions of the job, with or without any accommodation by the employer. However, employers are required to make any reasonable accommodation for the employee’s disability that does not inflict undue hardship on the business operation. Under ADA, alcoholics and drug addicts are not qualified as disabled.

State law . Connecticut employment discrimination law is similar, but not identical, to federal provisions, and is enforced administratively by CHRO. In general, state law provides broader protection. Connecticut prohibits employment discrimination, except in the case of a bona fide occupational qualification or need, based on race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability (CGS § 46a-60). Similar to the federal statute, this applies to public and private employers as well as employment agencies and labor organizations. However, state law is broader than federal law in that it applies to employers with three or more employees. Connecticut’s age discrimination law is also broader than federal law because it is not limited to people 40 years of age or older. Furthermore, state law extends protection on the basis of marital status and sexual orientation (C.G.S. §46a-81c).

Connecticut also prohibits employers from discriminating in the amount of compensation paid to employees solely on the basis of sex (C.G.S. 31-75). The federal Equal Pay Act coverage appears slightly broader in that it covers employers with two or more employees while Connecticut law covers those with three or more.

In addition, Connecticut law prohibits public employers from discriminating against state job or licensure applicants solely because of a prior criminal conviction. State law is also more explicit than federal statutes with respect to discrimination against pregnant employees and sexual harassment.

Connecticut considers an employer engaged in a discriminatory practice if it terminates a woman’s employment because of pregnancy or refuses to grant her a reasonable leave of absence for maternity. Employers must also assure pregnant women a reasonable disability leave and the full maintenance of her employee benefit rights. The woman’s right to her job is protected except in case of a private employer whose circumstances have changed in her absence, making reinstatement unreasonable or impossible.

State law also addresses sexual harassment directly in statute. It is an unlawful discriminatory practice for an employer to harass any employee or person seeking employment on the basis of sex. The statutes define "sexual harassment" as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when: 1) submission to such conduct is made, either explicitly or implicitly, a term or condition of an individual’s employment; 2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting him or her; or 3) the conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.

Finally, it is illegal in Connecticut for an employer to request or require employees or potential employees to provide genetic information or other information related to the individual’s child bearing age or plans, pregnancy, reproductive system, use of birth control methods, or family responsibilities.

HOUSING

Federal law. Discrimination in the sale or rental of housing on the basis of race, color, national origin, religion, sex, disability, or family status is illegal. Federal housing law is enforced by the U.S. Department of Housing and Urban Development (HUD) by means of investigation, conciliation, and administrative hearing. Complainants may file a private suit in federal court at any time. As with employment, HUD can defer case enforcement to designated state agencies, like CHRO. The major federal housing discrimination law includes:

Civil Rights Act of 1968, Title VIII and IX (as amended by the Fair Housing Amendments Act of 1988) – prohibits discrimination in the sale or rental of housing on account of race, color, religion, sex, national origin, handicap, or familial status (having children). The law exempts: 1) single family house which are sold or rented without brokerage services or advertising, and provided that the sale or rental is a bona fide private transaction and not part of a larger business; 2) owner-occupied houses with up to four resident families; and 3) retirement communities from the prohibition against selling or renting to families with children.

Landlords are required to allow handicapped tenants (at their own expense) to make reasonable alterations to render housing accessible. Landlords are also required to make reasonable adjustments to rules or services for such tenants. The law further requires any new multifamily housing to be designed to accommodate the handicapped.

State law . Connecticut prohibits discrimination in housing based on race, color, national origin, ancestry, creed, sex, familial status, disability, marital status, age, lawful source of income, and sexual orientation (C.G.S. §46a-64c and 46a-81e). CHRO administratively enforces violations of these laws. One significant distinction between federal and state statutes is that federal laws do not cover marital status, age, sexual orientation, or lawful source of income. Otherwise, state law is substantially equivalent to the federal provisions with respect to prohibited practices. Prohibited activities covered by the law include to:

 

• refuse to rent or sell housing;

   

• falsely deny housing is available for inspection, sale, or rental;

   

• steer individuals only to certain neighborhoods;

   

• set different terms, conditions, or privileges for sale or rental of a dwelling;

   

• provide different housing services or facilities; and

   

• persuade owners to sell or rent by telling them that certain groups are moving into a neighborhood.

State discriminatory practices also include refusing to allow disabled individuals to make reasonable modifications at their own expense to accommodate their disability (C.G.S.§ 46a-64c). Connecticut provides exemptions to these laws to owner-occupied buildings with up to four units. Exceptions are also made in housing designed for and occupied by older persons.

Federal law. Federal laws prohibit discrimination in providing credit or credit-related services. These laws are administered by various regulatory agencies under the direction of the Federal Reserve Board. Complainants may also file private civil suits in federal court. As mentioned previously, the federal housing provisions cover discrimination in financial or credit transactions related to housing. In addition:

Equal Credit Opportunity Act of 1974 - Forbids discrimination in the granting of credit on account of sex, martial status, race, color, religion, national origin, age, or receipt of public assistance benefits. This law applies to institutions granting consumer, business, or commercial loans. In credit transactions related to housing, individuals are also protected from discrimination because of family status or disability.

State law. Under Connecticut law, it is illegal for a creditor to discriminate against any person eighteen years of age or older on the basis of sex, age, race, color, religious creed, national origin, ancestry, marital status, mental retardation, sexual orientation, learning disability, blindness or physical disability (C.G.S. §46a-66 and 46a-81f). Enforcement of these laws is done by CHRO in cooperation with the state Department of Banking.

PUBLIC ACCOMMODATIONS AND FACILITIES

Federal law. Federal law prohibits privately owned facilities that offer food, lodging, entertainment, or other services to the public from discriminating on the basis of race, color, religion, or national origin. The federal statutes related to nondiscrimination in public accommodations and facilities include:

Civil Rights Act of 1964, Title II – Forbids discrimination on account of race, color, religion or national origin in privately owed places of accommodation offered to the public, such as hotels, restaurants, and theaters. Victims of such discrimination may submit a complaint with the Civil Rights Division of the U.S. Department of Justice or file a civil action in federal court. However, if there is a state law prohibiting such discrimination state remedies must be exhausted before bringing suit in federal court.

Civil Rights Act of 1964, Title III – Authorizes the U.S. Attorney General to file suit in federal court to prevent discrimination against any individual who has been denied equal use of any public facility owned, operated or managed by a state or local government on account of race, color, religion or national origin.

Americans with Disabilities Act, Titles II and III – Prohibits discrimination on the basis of disability in public services, public accommodation and services operated by private companies. The term disability is defined as "a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such impairment".

State law. Connecticut law also addresses discrimination in places of public accommodation, resort, or amusement defined as any establishment which caters or offers its services or facilities or goods to the general public. C.G.S. §46a-64 makes it unlawful to discriminate on the basis of race, creed, color, national origin, ancestry, sex, marital status, age, lawful source of income, mental retardation, mental or physical disability. These laws are administratively enforced by CHRO. In addition, public accommodation discrimination on the basis of sexual orientation is covered by C.G.S. § 46a-81d. Among the prohibited practices are to:

 

• deny full and equal access to all covered facilities;

   

• to segregate or separate because of any of the basis; and

   

• to restrict or limit breast-feeding of child.

Exemptions are made for sex discrimination for rental of sleeping accommodations for the exclusive use of persons of the same sex and separate bathrooms or lockers rooms based on sex. The law allows age exceptions for minors or special discounts for persons 60 years of age or older. Nursing homes owned, operated, and affiliated with a religious organization are allowed to discriminate on the basis of creed. Furthermore, denial of accommodations or services on account of insufficient income does not constitute discrimination on the basis of lawful source of income.

In addition, places of public accommodations are required to post notice, in a conspicuous place, that guide dogs may enter such premises. The statute also sets a fine of not more than $100 but not less than $25 for public accommodation violations. Imprisonment for not more than 30 days is also possible.

The overlap of state and federal law allows individuals alleging discrimination to seek recourse through either state or federally established administrative or judicial procedures. Individuals may sue in court for discrimination claims, generally if administrative remedies have been exhausted.

An administrative charge of discrimination is a prerequisite for a lawsuit under Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act of 1967; Title I of Americans with Disabilities Act of 1990; and the Rehabilitation Act of 1973. Under these laws, a complainant must first exhaust administrative procedures before pursuing court action. Otherwise, the court has discretion as to whether an aggrieved party must seek administrative adjudication before filing a lawsuit.

Federal Role in Enforcement

On the federal level, there are several government agencies that handle discrimination issues. Among them are: the U.S. Equal Employment Opportunity Commission (EEOC); the Department of Justice; the Department of Labor; and the Department of Housing and Urban Development.

The EEOC is the lead federal agency responsible for enforcing equal employment opportunity laws and regulations. After the EEOC has processed a case and failed in conciliation efforts, the Department of Justice may file suit in federal district court against employers charged with discrimination under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act (ADA). The Department of Labor’s Office of Federal Contract Compliance Programs enforces laws against discrimination by federal government contractors and subcontractors. Discrimination issues relating to housing are primarily overseen by the U.S. Department of Housing and Urban Development (HUD).

Equal Employment Opportunity Commission (EEOC). Originally created by Congress in 1964 as part of the Civil Rights Act, the EEOC enforces key federal statutes prohibiting discrimination in the workplace through investigation, conciliation, litigation, coordination, education, and technical assistance. The agency’s jurisdiction covers all government employers, private employers, employment agencies, and labor unions. The EEOC is also responsible for the federal sector employment discrimination program and provides funding and support to state and local fair employment practices agencies known as FEPAs. FEPAs, such as Connecticut’s CHRO, enter into workshare agreements to assist the EEOC with their enforcement responsibilities.

EEOC is composed of five commissioners and a general counsel appointed by the President and confirmed by the Senate. The five-member commission makes equal employment opportunity policy and approves most litigation. The general counsel is responsible for conducting EEOC enforcement litigation. In federal fiscal year 1998, EEOC’s appropriated budget was $242 million and had 2,544 full-time employees. The EEOC carries out its work through its Washington headquarters and in 50 field offices throughout the United States.

EEOC process. Individuals alleging employment discrimination may begin the EEOC process by filing administrative charges. Individual commissioners may also initiate charges that the law has been violated. If the EEOC determines through investigation that there is "reasonable cause" to believe discrimination has occurred, it must seek to conciliate the charge to reach a voluntary resolution between the charging party and the respondent. If conciliation is not possible, the EEOC may bring suit in federal court. Whenever the EEOC concludes its processing of a case, or earlier upon the request of a charging party, it issues a "notice of right to sue" which enables the charging party to bring an individual action in court.

To manage the approximately 80,000 charges filed annually, EEOC has developed a system of categorization. Charges are prioritized into three categories for the purposes of investigation and resource allocation. "Category A" charges are designated a high priority and are assigned principal investigative and settlement efforts. "Category B" charges are believed to have some merit but more investigation is needed before a decision is made on handling. "Category C" charges include non-jurisdictional or unsupported charges which are immediately closed.

Settlements are encouraged at all stages of process. In fiscal year 1998, EEOC obtained $169.2 million in monetary benefits for charging parties through settlement and conciliation. EEOC also recovered close to $90 million through litigation.

In addition, EEOC has initiated a mediation-based alternative dispute resolution (ADR) program. The program is voluntary and includes confidential deliberation by all parties and uses neutral mediators.

State and local program. The EEOC contracts with approximately 90 fair employment practices agencies (FEPAs) throughout the country to help process discrimination claims. Through the use of workshare agreements, FEPAs oversee charges raising claims under both state and local laws prohibiting employment discrimination as well as the federal laws enforced by the EEOC. The Connecticut Commission on Human Rights and Opportunities is the EEOC designated FEPA for the state.

U.S. Department of Housing and Urban Development (HUD). Established in 1965, the Office of Fair Housing and Equal Opportunity within HUD exercises a broad range of authority in matters related to fair housing. The majority of the agency’s civil rights responsibilities lie in its authority to enforce Title VIII of the Civil Rights Act of 1968. The agency’s enforcement responsibilities dramatically expanded with the passage of the Fair Housing Amendments Act of 1988 which increased the coverage of Title VIII.

HUD process. Individuals alleging housing discrimination may file a complaint at any one of HUD’s 10 regional offices. Upon receipt of the complaint, HUD will notify the alleged violator of the complaint and permit them to submit an answer. HUD will then investigate the complaint and determine whether there is reasonable cause to believe a statutory violation has occurred. An administrative hearing is held if reasonable cause is found.

At the hearing, each party’s legal counsel presents the case before an administrative law judge. HUD will attempt to conciliate all complaints. Judicial action may be taken if conciliation efforts fail or are breached. Parties may file suit even after filing a complaint provided they have not entered a conciliation agreement and an administrative law judge has not started a hearing.

Interagency involvement. When state law substantially parallels federal anti-discrimination laws, federal law requires complaints to be deferred from the respective federal authorities, EEOC and HUD, to the state agency for processing. The details of this deferral process are specified in federal regulations and in worksharing agreements between CHRO and these federal agencies.

The workshare agreement stipulates which agency retains the charge. If a charge is filed with CHRO and is also covered by federal law, it is considered to be "dual filed". The charge usually will be retained by CHRO for handling. If the charge is initially filed with the federal agency and is also covered by state and local law, the federal agency will "dual file" the charge but may retain it for handling. In addition, the EEOC will usually retain charges: 1) alleging a violation of the Equal Pay Act; 2) filed against the FEPA; 3) alleging retaliation for previously filing a charge with EEOC; and 4) referring to federally funded or administered agencies.

Based on its contracts with EEOC and HUD, CHRO must submit a randomly selected portion of its cases for federal review and approval. During this review, the federal agencies determine whether CHRO conducted a proper investigation and drew appropriate conclusions regarding the evidence. If EEOC or HUD agrees with the action taken by the agency, it also closes the case. If the federal agency finds a flaw in either in the work or in the decision rendered, it may send the case back to the CHRO for further investigation.

The first Connecticut agency established to investigate the possibility of affording equal opportunity was the Inter-racial Commission created in 1943. The commission was comprised of ten members appointed by the governor. Its mission was to compile facts concerning discrimination in employment. By 1947, employment discrimination based on race, color, religion, national origin, or ancestry was outlawed with the adoption of the Fair Employment Practices Act. The act was designed to provide legal protection in all phases of employment and made the commission an enforcement agency.

The commission name was changed to the Commission on Civil Rights in 1951 and in 1967 it was again renamed to the Connecticut Commission on Human Rights and Opportunities. Over time several laws were passed adding more "protected classes", categories of people sharing certain characteristics that public policy determines should not be the subject of discrimination. (A more detailed chronology of the agency’s legislative history can be found in Appendix A.)

The Commission on Human Rights and Opportunities (CHRO) is the state’s lead agency established to administer and enforce discrimination laws. It is responsible for monitoring and enforcing the state’s equal opportunity, affirmative action, and contract compliance laws. The agency’s stated mission is "to eliminate discrimination through civil and human rights law enforcement and to establish equal opportunity and justice for all within the state through advocacy and education."

To accomplish this, the commission has several statutorily established powers and duties. Among its statutory responsibilities the commission:

 

• receives, initiates, investigates and mediates discrimination complaints;

   

• by itself, or its hearing officers or human rights referees holds hearings, subpoenas witnesses and compels attendance, administers oaths, takes testimony of any person under oath, and requires the production for examination of any books and papers relating to any matter under investigation or in question;

   

• receives, reviews, and monitors the affirmative action plans of state agencies and certain public works contractors;

   

• investigates the possibilities of affording equal opportunity of profitable employment to all persons, with particular reference to job training and placement;

   

• utilizes voluntary and uncompensated services of private individuals, agencies, and organizations to study the problems of discrimination in all or specific fields of human relationship and foster through education and community efforts or otherwise good will among the groups and elements of the population;

   

• establishes and maintains such offices and employs such commission counsel, investigators, and employees as the commission may deem necessary; and

   

• reports at least annually to the governor recommendations for removal of injustices that exist.

CHRO also has workshare agreements with the federal Equal Employment Opportunities Commission (EEOC) and the U.S. Department of Housing and Urban Development (HUD) to assist in the processing of discrimination complaints bought under both state and federal law.

As shown in Figure II-1, CHRO is governed by a nine-member policy making body. Five commission members are appointed by the governor and four by the legislature. The commission is served by commission counsel and appoints the agency’s executive director to manage day-to- day operations. The agency’s central administrative headquarters consists of the four divisions including: Diversity, Education, and Economic Services; Enforcement/Field Operations; Administrative Services; and Legal Services. The agency also maintains four regional offices in Hartford, Waterbury, Bridgeport, and Norwich, which make up the bulk of the enforcement division.

Commission . The CHRO commission is composed of nine volunteers appointed by the governor and legislature. Of the five gubernatorial appointments, three serve a five-year term and two serve a three-year term. The president pro tempore of the Senate, the minority leader of the Senate, the speaker of the House of Representatives and the minority leader of the House of Representatives each appoints one commissioner who serves for a term of three years. The commission generally meets on a monthly basis. The primary focus of commission meetings is to give final approval to state affirmative action plans and discuss any policy or administrative matters brought by the executive staff or commission counsel.

The commissioners may serve on various CHRO standing committees through either appointment or volunteering. The standing committees are: Administration & Personnel; Office of Diversity Programs; Office of Economic Services; Legislation; Office of Education Programs; and Systemic Enforcement. However, these committees are now inactive. A list of current commissioners is provided in Appendix B.

Office of Commission Counsel. The Office of Commission Counsel provides guidance and assistance to the commission, director, and executive staff in legal matters and the legal implications of policy and management decisions. Commission counsel is also authorized by law to represent the commission at public hearings and in state and federal court. The office also drafts legislation, regulations and other legal documents. In addition, the office provides legal support to the enforcement field operations division.

Division of Diversity, Education, and Economic Services. The Division of Diversity, Education, and Economic Services manages three primary agency functions: reviewing state affirmation action plans; monitoring state contract compliance; and promoting education and outreach activities. It provides training and technical assistance to state agencies regarding their affirmative action plans as well as evaluates their implementation.

Staff of this division also examine employment practices and procedures of state contractors and monitor state agencies’ efforts to solicit the participation of minority business enterprises in state contracts. Another division function is to educate the public regarding human rights issues and organize community outreach activities.

Administrative Services. The Administrative Services Division is composed of the Business Office and Management Information System. The division’s primary duty is to prepare and administer the agency’s budget. It is also responsible for the collection, storage and retrieval of data. It produces regular statistical reports to aid in the internal management of the agency, and provides the commission and executive director with other regular and special reports whenever necessary.

Enforcement/Field Operations. The Enforcement/Field Operations division is responsible for receiving, investigating, and mediating complaints of alleged discrimination filed with the commission. The overall operation of the division is overseen by the commission’s deputy director of enforcement. The division includes four regional offices, in Hartford, Bridgeport, Waterbury, and Norwich. Figure II-2 provides a map of the towns in each CHRO region.

The regional offices process all discrimination complaints (except housing), from intake through disposition. (The full CHRO complaint process is discussed further in Section IV). Each regional office is organized into two units: Merit Assessment Review Unit (MAR) and Full Investigation Unit (FIU). The MAR unit typically consists of three intake workers who file and initially assess the merits of each complaint. If the complaint is retained after MAR, it is sent to FIU where it is assigned for further follow-up. Each regional office has five FIU staff who conduct investigations including some attorneys who also provide legal support. The day-to-day operations of each regional office is supervised by a regional manager who reports directly to the deputy director of enforcement.

The Enforcement Division also maintains a Special Enforcement Unit in the central office. This unit is charged with investigating housing complaints and evaluating reconsiderations of initial determinations made by the regional offices.

Human Rights Referees. Another group associated with CHRO but not part of its administrative structure is the Public Hearing Office. This office houses the seven human rights referees established by P.A. 98-245. The referees must be attorneys and are appointed by the governor for staggered two and three year terms. They serve full time and conduct administrative hearings of all complaints determined to have reasonable cause. Until 1998, this work was done by part-time hearing officers.

The agency’s primary source of funding is derived from the state General Fund. Figure II-3 illustrates CHRO’s total General Fund appropriations and expenditures for the last 10 fiscal years. As the graph illustrates, CHRO appropriations and expenditures have gradually increased since FY90. The agency’s FY99 operating budget was approximately $6 million, up from about $4 million in FY90, an increase of 46 percent. The majority of the commission’s expenditures consists of personal services.

Figure II-4 tracks the commission’s operating budget over the past nine fiscal years in both nominal and constant 1990 dollars. As shown in the figure, expenditures in nominal terms have gradually increased to $5,313,014 in FY 98 from $4,243,942 in FY 90, an increase of about 25 percent. However, an analysis of the commission’s expenditures in constant 1990 dollars suggests that the agency’s operating costs have not increased. The graph shows the agency’s spending power actually declined when adjusted for inflation and remains below its 1990 level.

Federal contributions. CHRO also receives federal contributions from EEOC and HUD. These contributions are outlined under a workshare agreement with the federal agencies. The amount of federal funds received each year depends on the number of employment and housing discrimination complaints CHRO processes. In its contract with EEOC, CHRO and EEOC determine the number of employment complaints that the federal government will pay the state for processing. Currently, EEOC pays the state a fixed fee of $500 per complaint resolved. The total amount available for reimbursement to CHRO is capped by the contract. The contract also includes a small amount of funding for line items such as training. In FY 99, the workshare agreement stipulated CHRO would process and resolve 1,547 charges for a total of $773,500.

CHRO has a similar workshare agreement with HUD which pays CHRO a fixed fee of $1,700 per case resolved. The FY99 HUD contract was for 74 charges for a total of $125,800. All federal revenues from both employment and housing cases are deposited directly into the state’s General Fund. Figure II-5 charts the federal revenues generated by CHRO processing of federal charges for the last five state fiscal years.

As the graph shows, federal revenues increased significantly in the last two fiscal years. Until FY 98, federal revenues for case processing averaged about $550,000. In FY98, federal revenues increased 75 percent from the previous year. CHRO reports this significant increase is due to a change in the contracted number of EEOC cases to be resolved which almost doubled from 938 charges in FY 97 to 1,810 in FY 98. The number of EEOC charges was decreased to 1,547 in the FY 99 contract. There has been little change in the number of HUD contracted number, which averages about 75 a year.

As of June 30, 1999, the commission employed 98 full-time staff. The distribution of staff by division is presented in Table II-1. As the table shows, the enforcement division has the largest percentage of employees consisting of 55 percent of the agency’s total workforce.

Staffing Trends. Figure II-6 presents CHRO staffing since FY 90. The figure shows staffing levels have fluctuated slightly over time. In FY 90, CHRO had 119 permanent full-time employees. By FY 94, the staffing level decreased to 96 and currently stands at 98. A closer examination of staff resources over this time period indicates the loss of staff was mostly clerical support and data processing. Enforcement staff has remained about the same.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

   

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

   

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

   

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

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

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

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

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

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

A general notice outlining the complainant’s and respondent’s rights and responsibilities is included in the mailing. Since 1998, the statute requires that the respondent receive notice of the complaint within 20 days after it is filed (the previous time frame was 10 days).

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

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

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

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

 

• the complaint states no claim for relief;

   

• the complaint is frivolous on its face; or

   

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

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

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

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

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

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

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

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

Figure IV-2 displays the main steps in the second phase of the complaint process. Once a complaint has been merit-reviewed and retained, it is assigned to an investigator in the Full Investigations Unit. The stated purpose of this phase is threefold: 1) to find facts; 2) to promote the voluntary resolution of complaints; or 3) to determine if there is reasonable cause for believing that a discriminatory practice has been committed. Currently, the statutory deadline gives the investigator 190 days (6 months and 10 days) from the MAR decision to make the reasonable cause determination, or otherwise resolve the case. With good cause, the executive director can extend that period for two three-month periods, for an overall available time of 12 months and 5 days for the reasonable cause finding.

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

 

• mandatory mediation sessions;

   

• expedited or extended fact-finding conferences;

   

• complete investigations; or

   

• any combination of the above.

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

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

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

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

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

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

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

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

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

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

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

Figure IV-3 sets out the main steps in the third phase of the complaint process. If there is a finding of reasonable cause, and the investigator certifies that attempts at conciliation failed, the case enters the public hearing stage. The entire case gets transferred from the region to the central office, and falls under the jurisdiction of the Public Hearing Office.

The recent 1998 change from part-time hearing officers, receiving per diem payments to preside over certified discrimination complaints, to full-time human rights referees should significantly change the way this third phase is carried out, at least in terms of timeframes.

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

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

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

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

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

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

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

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

 

• cease and desist from the discriminatory practice;

   

• take "affirmative action as in the judgement of the referee" will carry out the purpose of the anti-discrimination laws;

   

• In employment cases, hire or reinstate employees, pay back pay, or restore union membership, as applicable;

   

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

   

• In credit cases, pay damages resulting from the discriminatory practice.

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

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

 

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

   

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

   

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

   

• If a case is dismissed because the complainant fails to accept a make whole relief offer (since 1998).

   

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

   

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

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

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

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

In 1998, the legislature instituted a new provision regarding CHRO case processing. Now, if a complaint has been pending at CHRO for more than 21 months (630 days), the executive director must send a notice informing the complainant of his or her right to request a release from CHRO in order to bring the case "directly" to court. Per the law, the director is to investigate the cause for the delay, and may schedule a deadline for CHRO to issue a finding.

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

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

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

This section looks at the volume of cases filed and acted upon at CHRO, as well as trends over time. Also presented is information about how cases are closed, at what stage in the complaint process, and what types of cases CHRO handles. Finally, selected performance measures used by CHRO to monitor its complaint enforcement process are discussed.

It should be pointed out the case statistics discussed here are based on activities that occur within a fiscal year. Thus, because of the length of the complaint process, the cases underlying the statistics are not necessarily connected. For example, cases closed due to a finding of no reasonable cause in FY 97 were not all necessarily filed in FY 97. However, committee staff believe the data offer reasonable insights into CHRO outcomes. To follow actual cases through the process for more precise outcome analyses, committee staff is currently reviewing a random sample of cases.

First, to get an idea of the volume of business CHRO handles, Figure V-1 shows how many complaints were filed at CHRO each year over the last nine state fiscal years. From 1991 to 1995, the number of yearly complaints increased from 1533 to 2932, a 91 percent rise. The biggest yearly jump was between 1991 and 1992, when the caseload increased by a third. In the subsequent three years during the overall rise, the yearly increases were 11, 16 and 12 percent respectively.

As the figure shows, the number of incoming complaints dropped in 1996 to 2493, a 15 percent drop. Complaints stayed at that same level through 1998 and fell by eight percent in 1999. As the previous section indicated, enforcement staff levels stayed the same through the increase in caseload.

As mentioned earlier, CHRO has experienced problems with case backlogs. Along with the trend in case filings, Figure V-2 shows the number of cases closed per year along with the cases that were pending action every year. As the figure indicates, from 1992 until 1995, the case closure numbers clearly were not keeping pace with the increasing caseload coming into the agency. As there was already a pending caseload, this gap increased that amount, and as cases aged, added to a case backlog problem. The significant increase in case closures between 1994 and 1995 may be attributed to the introduction of the MAR process discussed earlier, which is an early merit review allowing dismissals of cases deemed meritless under statutory standards.

Regional caseloads . Figure V-3 shows the cases filed over the last nine years by the regions at which they were filed. Each year there are variations in case distribution. For example, in 1996, there was a 263 case difference between the Capitol office case filings(Hartford) and the Eastern office case filings. In 1991, 454 cases were filed in the Eastern region (Norwich), the most in all the regions that year, while the smallest number of cases, 324, came to the West Central office (Waterbury), a 130 case difference. In 1998, the West central office received the most cases, 636, while the Eastern office tied with the Capitol office (Hartford) for the lowest filings at 542 cases, a 94 case difference. In some instances, CHRO management reassigns cases to offices other than where they are filed to even out the workload.

Types of cases . Most complaints filed at CHRO pertain to employment. Figure V-4 shows the breakdown by type for 1998, a typical year. Employment cases accounted for about 92 percent of all the cases filed, with housing second at 4 percent and public accommodations cases third at 3 percent.

The top five factors or bases cited in complaint cases for 1998 were: 1) Race (19.7%); 2) Sex (17.7%); 3) Color (13.9%); 4) Age (12.8%); and 5) Physical disability (12.1%). It is noted that more than one basis can be involved in any given case.

Turning now to when and how cases are resolved, as was described in the previous section, there are many points when a case may be resolved and closed. Figure V-5 displays the types of case closures and the percentage each makes up of all case closures from FY 95 through FY98. What the figure shows is:

 

• Case closures due to MAR dismissals are the most common every year, from a high of 57 percent of all case closures in FY95, to 39, 29, and 38 percent in FYs 96 through 98 respectively.

   

• The second most common case closure type varies from year to year, but for the most part is made up of findings of no reasonable cause., or administrative closures (examples of administrative closures include when a complainant fails to cooperate, does not accept a make whole relief offer, or fails to attend a mandatory mediation.)

   

• Settlements, which primarily include pre-determination conciliations, are a close third in some years, nudging out no reasonable cause findings for second in 1998.

   

• The small number of public hearing closures in part reflects that relatively few cases reach the public hearing stage for resolution.

MAR closures. The MAR step is the first major point where complaints are assessed on the basis of their merits. Thus attention is warranted to the outcomes from that step.

Figure V-6 compares the total cases filed in a year to the number of cases dismissed at the MAR stage and those retained for further investigation. There is no direct connection between the cases filed and the cases in the MAR process because of time delays involved. However, because virtually every case filed must go through MAR, it is a reasonable indicator of what happens to filed cases in MAR. In the first two years, 1995 and 1996, more cases were dismissed under MAR than retained - double in 1995 and 73 percent more in 1996. In 1997 and 1998, the dismissed and retained rates are more similar. As noted earlier, fiscal year 1995 was the first year in which the MAR process was used. A possible explanation for the high and then declining MAR dismissal results over the first four years could reflect a concern to close cases, or evidence a changing application of the process based on increased experience.

To see if there are any regional differences in MAR results, Figure V-7 breaks down by region the number of cases closed after the MAR process from 1995 to 1999. Again, in all the regions, the highest number of MAR closures occurred in the first year the MAR process existed.

Case Resolution Time

Figure V-8 shows the average "age to resolution" results for employment cases closed from 1994 to 1998. CHRO reports these data to EEOC annually. As the figure shows, the average amount of time to close a case has been decreasing at CHRO. Committee staff will continue to review case timeframes in its sample case review.

CHRO is an agency driven by statutory guidelines, processes, and deadlines. One seemingly simple measure of CHRO success is whether it is meeting its deadlines. A more difficult calculation is whether the case resolutions are fairly determined and appropriate. For example, if one region was meeting its merit assessment review deadline in every case, but was dismissing every case, the fact that the deadline was met does not alleviate concerns about the appropriateness of the results.

CHRO has developed its own internal performance benchmarks for both managers and investigators, which are described here. CHRO management has told program review staff that internal agency performance measures are currently under review, and so quite possibly the benchmarks discussed here will soon change.

Manager performance. Each month the regional managers must submit a report on his or her region’s activities that month in comparison to eight standards against which the manager’s annual performance will be assessed. Table V-1 sets out these standards.

The first column obviously identifies the specific standard. The second column states the nature of the standard, while the actual definition is found in the third column. The points mentioned in the final column, which add up to a maximum total of 250, are used for annual evaluation purposes, and show how CHRO weights each standard.

Standard I is a numerical goal of closing 55 full investigation cases a month per regional office. As will be discussed shortly, the goal for each investigator is to close 5 cases a month (six if the investigator is an attorney) (post-MAR). Since there are five investigators in each office, 25 to 30 post-MAR cases are expected to be completed.

Standard II relates to MAR closures exclusively. The goal is numerical, but also expects that no more than 45 percent of all closures in a month be MAR closures. This means that if the 45 MAR closure mark was met as well as the percentage requirement, 55 full investigation cases would have to close as well.

Standard III is based on past experience with cases. CHRO believes at least 40 percent of all the cases closed should be resolved with some benefit going to the complainant. This means that CHRO figures that about 40 percent of the cases that come to it have merit. This standard is an attempt to quantify the quality of outcomes.

Standard IV is another standard that attempts a rough measure of outcome quality. The goal here is that no more than 55 percent of the cases that go through the MAR process (which are all cases filed) should be dismissed. In other words, the expectation is that at least 45 percent of all cases that are filed with CHRO should be retained for a full investigation to determine reasonable cause.

Standard V is based on meeting the statutory deadline for the MAR process. Standard VI involves case reviews of the draft reasonable cause findings by the Office of the Deputy Director, and the number of cases that are rejected at that stage. Standard VII looks at the outcomes of formal administrative reviews of regional investigative work. Here, the standard expects that no reasonable cause findings will be decertified (rejected) by the Office of Commission Counsel or the Office of the Attorney General, and sent back for further investigation.

Finally, Standard VIII uses the incidence of complainants successfully seeking administrative reconsideration of investigator decisions. Here the goal is that no more than 25 percent of all cases where a merit-based finding is made (either at the MAR step or reasonable cause finding stage) is an investigator’s decision overturned.

Investigator performance. The performance of investigators are evaluated against eight elements: Knowledge of work; quantity of work; quality of work; ability to learn new duties; initiative; cooperation; judgment; and attendance. For quantity of work, there are very specific numerical standards. The standard expects investigators to close 60 cases a year, or five a month. Investigators who are also attorneys have a higher standard of 72 case closures a year, or six a month. In terms of performance appraisal with respect to the work quantity element, CHRO uses the following measures:

 

• Unsatisfactory- achieving 70 percent or less of the standard;

   

• Fair – achieving between 71 and 84 percent of the standard;

   

• Satisfactory – achieving between 85 and 115 percent of the standard;

   

• Very Good – achieving between 116 and 129 percent of the standard; and

   

• Excellent – achieving 130 percent or more of the standard.

1943 Inter-Racial Commission founded by law becomes the nation’s first official civil rights agency. Ten Commissioners appointed by the Governor were empowered to investigate equal employment opportunities, and to compile facts on discrimination in employment, violations of civil liberties and other related matters. P.A. 381

1947 Fair Employment Practices Act adopted, making it illegal for employers of five or more persons, employment agencies, unions or individuals to discriminate in terms, conditions or privileges of employment, because of race, color, religious creed, national origin or ancestry. Ten hearing examiners appointed by Governor, three of who would constitute a hearing tribunal (at $25.00 per day) with cease and desist powers. P.A. 171

1949 Public housing projects were specifically included in the Public Accommodation Law. The Inter-Racial Commission was authorized to investigate and adjust complaints under this statute. P.A. 291

1951 The Inter-Racial Commission is renamed Commission on Civil Rights P.A. 21

1953 Definition of public place was broadened to include publicly assisted housing, and all establishments which offer the public goods, services, and facilities. Discrimination, separation, and segregation were prohibited. P.A. 326

1955 Commission authorized to initiate housing discrimination complaints. P.A. 410

1959 Job discrimination on account of age (40-65 inclusive) prohibited. Period for filing complaints reduced to 90 days after the alleged discriminatory act. P.A.145 and P.A. 334

1961 Discrimination in the sale or rent of private housing was prohibited when three or more contiguous units are under the same ownership or control, or have been within one year prior to a discriminatory act. Building lots were also included. P.A. 472

1963 Age provisions were exempted from "unfair employment practices" when part of bona fide apprenticeship programs, group insurance or retirement and pension plans. P.A. 261

1965 Equal access in public accommodations was extended to national origin or ancestry. P.A. 141

1967 All state agencies mandated to include anti-discrimination activities in their annual reports; to comply with Commission requests for information; and to consider Commission recommendations for implementing state anti-discrimination policies. (Executive Orders, February and September, 1967)

1969 The number of Hearing Examiners was increased to 15 and raised to $35, plus reasonable expenses. P.A. 656

1972 Mobile home parks were defined as places of public accommodation P.A. 186

1973 Sex discrimination was added to the prohibitions in the Public Accommodations Statute. Exception granted in rental of segregated sleeping quarters. P.A. 119

1974 CHRO was granted subpoena power to allow investigators access to records and other documents relating to the complaint. P.A. 74-43

1975 Back pay as a remedy for unfair employment practices limited to two years prior to complaint filing with interim earnings, including unemployment compensation and welfare payments, and amounts which could have been earned with reasonable diligence, deducted. P.A. 75-27

1976 Age and Marital Status were added to the law prohibiting discrimination in the performance of state contracts. P.A. 76-8

1977 The law prohibiting deprivation of legal or constitutional rights on account of alienage, color, race, or sex was expanded to cover blindness and physical disability. P.A. 77-278

1978 Statute establishing the Legislative Commission on Human Rights and Opportunities was repealed. P.A. 78-3

1979 Places of public accommodations were ordered to post notices stating that a deaf or blind person accompanied by a harnessed guide dog may enter the premises. P.A. 79-186

1980 The law prohibiting deprivation of legal or constitutional rights was amended to cover religion and national origin. Intentional desecration of public or private property as a demonstration of irreverence or contempt or cross burning is a Class A Misdemeanor. CHRO is authorized to process such complaints. P.A. 80-54

1981 CHRO to process complaints under the Families with Children Law, which prohibit refusal to rent and rental discrimination because of minor children. Exemptions continue for one and two family housing and all owner occupied three and four family dwelling units, as well as those situations where the rental would violate any local, state, or federal law or regulation or condominium by law. P.A. 81-81

1982 Group health insurance plans may not reduce coverage for employees who are age 65 and eligible for Medicare benefits as long as coverage is the same as that provided by the insurance plan. P.A. 82-196

1983 General contractors bidding on state public works projects were required to make a good faith effort to employ minority businesses as subcontractors and suppliers of materials. P.A. 83-496

1984 The time period for CHRO to formally approve or disapprove state agency affirmative action plans was extended from 75 to 90 days. The required majority vote for approval or disapproval was clarified to be a majority of commissioners present and voting. P.A. 84-41

1985 The amount of any deduction for interim unemployment compensation or welfare assistance deducted from back pay awarded by a respondent must be paid by the respondent to the Commission, which will transfer it to the appropriate state or local agency. P.A. 85-179

1986 Maximum double damages which a court may award in housing discrimination cases was increased from $500 to $3,000. P.A. 86-193

1987 The head of each state agency required to be directly responsible for the development, filing, and implementation of the affirmative action plan. P.A. 87-255

1988 Nursing homes permitted to grant preference in admissions on the basis of creed if owned by, operated by, or affiliated with a religious organization, the organization is tax exempt, and the class of people given preference is consistent with the religious mission of the nursing home. P.A. 88-114

1989 In response to the recommendations of the 1988 Governor’s Task Force, significant changes made to CHRO’s procedures for handling complaints and to the terms, duties, and power of the commissioners and its executive director. Specifically, time frames were imposed for conducting an investigation, completing conciliation efforts, and scheduling a hearing once a reasonable cause finding has been made.

1990 A separate fair housing law distinct is created that issubstantially equivalent to the federal law. Specifically prohibited are steering, blockbusting, and other forms of housing discrimination. CHRO to have responsibility for enforcement, but the complainant may go to court to enforce its provisions. A person is allowed to file a housing suit in court, but if the complaint has been filed with CHRO and has held a hearing or entered an agreement, court is no longer an option, except to enforce the agreement or hearing officer’s decision. CHRO is given the express right to join a lawsuit.

1991 Discrimination on the basis of sexual orientation in employment, housing, public accommodations , credit, and in the provision of state services and benefits is prohibited. Generally, the same duties, requirements, enforcement mechanisms, and penalties as already apply to other classes of people who have anti-discrimination protection are imposed. Exempt from these provisions are any religious corporation, entity, association, educational institution, or society. "Sexual orientation" is defined as a preference, or history of a preference, for heterosexuality, homosexuality, or bisexuality. P.A. 91-58

1992 A person accused of housing discrimination is permitted to have CHRO bring an action in Superior Court rather than hold an administrative hearing. This right arises if investigator finds reasonable cause to believe there has been an incident of discrimination. The degree to which sex discrimination is allowed in single-sex rooming houses and the degree to which landlords can discriminate against someone with a guide dog visiting a tenant is limited. P.A. 92-257

1993 The daily compensation for hearing officers was increased from $75 to $125. P. A. 93-313

1994 Procedures and deadlines established for employment cases filed with the CHRO when the parties choose to resolve the complaints through alternative dispute resolution. Commission to inform the parties of the availability of voluntary mediation and binding arbitration. CHRO to dismiss complaints submitted to binding arbitration, after arbitration is completed, and to suspend for up to three months the processing of complaints submitted to voluntary mediation, unless public policy reasons exists for pursuing them.

1996 CHRO to retain jurisdiction until January 1, 1997, over any pending discrimination complaint filed before January 1, 1996, that it would have had jurisdiction if it had complied with statutory time frames. This law, passed to overrule the Supreme Court decision in Angelsea Productions Inc. v. CHRO 236 which ruled that the statutory time frames are mandatory, prevented the immediate dismissal of cases. CHRO must issue a determination on these complaints by January 1, 1997, or its executive director must immediately issue a release allowing complainants to bring their case to court. They must do so within 90 days from the date they receive the release, in accordance with existing standards for taking employment discrimination cases to court, regardless of the two-year statute of limitations.

1997 An authorized trainer working with a guide dog for a blind person or for a deaf or mobility-impaired person is permitted to bring the dog on public transportation or into public accommodation. Denying access to them in any place of public accommodation, or amusement is a discriminatory practice. The penalty is a fine of between $25 and $100, imprisonment for up to 30 days, or both. P.A. 97-141

1998 Employment discrimination based on genetic information is prohibited. Employers are prohibited from requiring employees or people seeking employment to provide genetic information. By law, CHRO is authorized to investigate employment complaints of this nature. P.A. 98-180

1999 CHRO must require state agencies, within available appropriations, to give their existing employees at least three hours of diversity training and education by January 1, 2001 and to give new employees such training within six months of their hiring. Agencies must give priority to training existing and new supervisory employees. An agency only has to train new employees if it trained its existing employees before October 1, 1999. CHRO must assist the Department of Administrative Services commissioner in developing a diversity training program for state agency use. CHRO is authorized to investigate complaints about agencies not complying with the mandated training and must provide annual reports on the status of state agency diversity training programs to the General Assembly. P.A. 99-180

  Appendix B