OLR Bill Analysis
AN ACT CONCERNING THE COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES.
This bill makes various changes affecting discrimination complaints and other matters within the jurisdiction of the Commission on Human Rights and Opportunities (CHRO).
Among other things, it:
1. sets an 18-month deadline for the presiding officer to render a final decision in discriminatory practice complaints that have proceeded to the public hearing phase, and allows CHRO and the parties to enforce this deadline in court;
2. requires the chief human rights referee to annually report to the Judiciary Committee on the number of cases that miss this deadline;
3. requires the chief court administrator to designate judge trial referees (JTRs) available to hear discriminatory practice complaints and certain other CHRO matters;
4. allows CHRO's executive director to appoint a JTR if there is a specified backlog of pending cases;
5. generally allows a party to a CHRO hearing to inspect documents not in that party's possession, and allows the presiding officer to impose nonmonetary penalties on noncompliant parties;
6. allows CHRO's executive director to assign commission legal counsel to represent the state's interests in any proceeding in which civil or human rights are at issue;
7. allows the executive director, within available appropriations, to assign CHRO legal counsel to bring a civil action instead of an administrative hearing when doing so would be in the public interest; and
8. deems approved the affirmative action plans submitted by contractors for certain state, municipal, or quasi-public agency contracts, if the executive director fails to approve or disapprove the plan within 90 days of its submission.
EFFECTIVE DATE: October 1, 2016
§§ 1 & 2 — CHRO HEARINGS
Deadline for Decision After Hearing; Reporting to Judiciary Committee
The bill sets a specific deadline for the resolution of discriminatory practice complaints that have proceeded to the public hearing stage of the process. This includes complaints of discrimination brought by an individual or CHRO against another person or entity.
By law, if a CHRO investigator finds reasonable cause to believe that discrimination occurred and fails to eliminate it, the investigator must certify the complaint and results of the investigation to the CHRO executive director and attorney general. The complaint then proceeds to the public hearing process. CHRO legal counsel can also send complaints directly to the hearing phase after early legal intervention (an optional step for complaints not resolved after mandatory mediation).
The bill requires the officer presiding over the hearing to issue a final decision no later than 18 months after the complaint was certified or sent directly to a hearing after early legal intervention, as applicable. It retains an existing provision requiring these hearings to comply with specified deadlines for contested cases under the Uniform Administrative Procedure Act (UAPA). The UAPA requires agencies to render a final decision within 90 days after the close of evidence or due date for filing briefs, whichever is later.
The bill allows either party or CHRO (whether or not it is a party) to apply to Hartford Superior Court to request an order requiring the presiding officer to comply with (1) the bill's 18-month deadline and (2) the UAPA's 90-day deadline. After a hearing, the court must issue an appropriate order. These provisions on court enforcement of the 90-day deadline already apply under the UAPA.
The bill requires the chief human rights referee to report annually to the Judiciary Committee, with the first report due by January 1, 2017. She must report, for the prior fiscal year, on the number of:
1. final decisions that exceeded these deadlines and the reasons why and
2. complaints still pending that have exceeded these deadlines and the reasons why.
Judge Trial Referees
Under current law, the chief human rights referee must appoint human rights referees to preside over CHRO hearings on discriminatory practice complaints. She must also appoint another referee or a voluntary attorney to conduct settlement negotiations.
The bill provides an alternative process for judge trial referees (JTRs) to hear such complaints. It requires the chief court administrator to designate JTRs who must be available to act as presiding officers at any CHRO hearing or proceeding on:
1. a discriminatory practice complaint;
2. a complaint brought by CHRO against a contractor or subcontractor for (a) noncompliance with antidiscrimination laws or required contract provisions (e.g., affirmative action requirements) or (b) fraud related to qualifying as a minority business enterprise, in relation to certain state, municipal, and quasi-public agency contracts; or
3. determining remedies following a default order against a respondent.
Under the bill, any such JTR (1) has the same powers and duties as a human rights referee appointed under law and (2) must be compensated at the rate set by existing law, from CHRO funds as available.
The bill also allows such JTRs to hear whistleblower complaints for alleged retaliation against employees of state or quasi-public agencies, large state contractors, or appointing authorities.
The bill allows the CHRO executive director, within available appropriations, to appoint such a JTR to preside at a settlement conference or to hear and issue a final decision on a complaint when there are more than 100 pending (1) discriminatory practice complaints at the public hearing stage or (2) whistleblower retaliation complaints. If she chooses to appoint a JTR for a discriminatory practice complaint, she must do so no later than 15 days after (1) a CHRO investigator certified the complaint or (2) CHRO legal counsel sent the complaint directly to a public hearing after early legal intervention.
Under the bill, if the executive director does not appoint a JTR to conduct a settlement conference, she may appoint a volunteer attorney (as authorized by existing law) to conduct settlement negotiations. If the executive director does neither, the chief human rights referee must appoint a (1) human rights referee to hear the complaint or (2) human rights referee or volunteer attorney to conduct a settlement conference.
Document Inspection and Consequences of Noncompliance
Under the bill, each party to a CHRO hearing must have the opportunity to inspect and copy relevant and material records, papers, and other documents not in the party's possession, unless other state or federal law would prohibit this. The bill allows the presiding officer to (1) order a party to produce these documents and (2) issue a nonmonetary order against a party who fails to comply within 30 days.
The nonmonetary order must be deemed just and appropriate by the officer and may include the following:
1. finding that the matters that are the subject of the order are established as set forth in the other party's claim;
2. prohibiting the noncompliant party from introducing designated matters into evidence;
3. limiting that party's participation as to issues or facts relating to the order; or
4. drawing an adverse inference against that party.
Cases Sent Directly to Hearing After Early Legal Intervention
Under existing law, after a CHRO investigator certifies a discriminatory practice complaint, the hearing conference must occur within 45 days. The hearing is a de novo hearing on the merits and not an appeal of CHRO's processing of the complaint before its certification.
The bill specifies that the 45-day deadline and de novo requirements also apply to complaints sent directly to a public hearing by CHRO legal counsel after early legal intervention.
§ 3 — CHRO LEGAL COUNSEL
Authority to Represent State
The bill allows CHRO's executive director, through the supervising attorney, to assign CHRO legal counsel to represent the state's interests in any suit or other proceeding in which civil or human rights are at issue. It allows CHRO legal counsel to intervene as a matter of right in any such suit or proceeding without permission from the parties, hearing officer, or court.
Civil Action in the Public Interest
The bill also allows the executive director, through the supervising attorney and within available appropriations, to assign CHRO legal counsel to bring a civil action instead of an administrative hearing for a (1) discriminatory practice complaint or (2) CHRO complaint brought against a contractor or subcontractor for noncompliance with antidiscrimination laws or required contract provisions. She may do so if she determines that this would be in the public interest.
The legal counsel must file the civil action within 90 days of notifying the parties of the executive director's determination. The civil action may be served by certified mail. The bill exempts such cases from specified laws setting conditions for civil actions after CHRO has released a case from its jurisdiction.
The bill provides that the court's jurisdiction is limited to the claims, counterclaims, defenses, or other matters that could be presented at a CHRO administrative hearing, had the complaint remained with CHRO. The bill allows the complaining party to intervene as a matter of right without permission from the court, CHRO, or the other party. The case must be tried without a jury.
Under the bill, if CHRO legal counsel determines that the state's interests will not be adversely affected, the complainant or his or her attorney must present all or part of the case in support of the complaint.
The bill allows a court to grant the same relief available in a civil action after a case was released from CHRO jurisdiction. If the court finds that a respondent committed a discriminatory practice, the bill requires the court to order the respondent to pay CHRO its fees and costs, in addition to a civil penalty of up to $10,000. CHRO must use the funds from the penalty to advance the public interest in eliminating discrimination.
§ 4 — AFFIRMATIVE ACTION PLANS
Under existing law, the successful bidder for certain large state, municipal, or quasi-public agency contracts must file with and obtain CHRO's approval for an affirmative action plan before the contract is awarded. If a contractor is not subject to this requirement, it still must file an affirmative action plan with CHRO if it (1) has 50 or more employees and (2) is awarded such a contract for more than $50,000. (The plan does not need to be filed before the contract is awarded.)
For this latter type of contract, the bill shifts authority from the commission itself to the CHRO executive director or her designee for (1) approving the submitted affirmative action plans, including issuing a certificate of compliance, and (2) revoking such certificates from contractors who fail to implement the plan as required by law.
It also requires the executive director or her designee to review and formally approve, conditionally approve, or disapprove each such plan within 90 days of its submission. If this deadline is not met, the plan is deemed approved.
Judge Trial Referees
By law, a judge or senior judge who reaches age 70 becomes a state referee for the remainder of his or her term and can be appointed as a state referee for subsequent terms. The chief justice can also appoint qualified members of the bar who are residents and electors of Connecticut as state referees. The chief justice can designate a state referee as a judge trial referee. A judge trial referee can hear criminal and civil cases and juvenile matters on referral from the Superior Court (CGS §§ 51-50l, 52-434).
Joint Favorable Substitute