Connecticut Seal

General Assembly

 

Raised Bill No. 468

February Session, 2016

 

LCO No. 2954

 

*02954_______JUD*

Referred to Committee on JUDICIARY

 

Introduced by:

 

(JUD)

 

AN ACT CONCERNING THE COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Subsection (b) of section 46a-84 of the 2016 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

(b) [Upon] Except as provided in this section, upon (1) certification of a complaint filed pursuant to subsection (a) or (b) of section 46a-82, (2) the filing of a complaint pursuant to subsection (c) of said section, or (3) a decision to hear a complaint, which is made pursuant to subsection (e) of section 46a-83, as amended by this act, the Chief Human Rights Referee shall appoint a human rights referee to act as a presiding officer to hear the complaint. The chief referee shall also appoint an individual authorized by subsection (e) of this section or a referee, other than the referee appointed to hear the complaint, to conduct settlement negotiations. The chief referee shall serve in the name of the commission a copy of the complaint, as the same may have been amended, requiring the respondent to answer the charges of the complaint, together with a written notice requiring the respondent to appear at a hearing or settlement conference at a date and time specified in the notice. A hearing on a complaint filed pursuant to subsection (a) or (b) of section 46a-82 shall be commenced by convening a hearing conference not later than forty-five days after (A) the certification of the complaint, or (B) the decision made pursuant to subsection (e) of section 46a-83, as amended by this act, to hear the complaint, as applicable. Such hearing shall be a de novo hearing on the merits of the complaint and not an appeal of the commission's processing of the complaint prior to its certification or of its decision made pursuant to subsection (e) of section 46a-83, as amended by this act, to hear the complaint. A hearing on a complaint filed pursuant to subsection (c) of section 46a-82 shall be commenced by convening a hearing conference not later than twenty days after the date of notice of such complaint. [Hearings shall proceed with reasonable dispatch and be concluded in accordance with the provisions of section 4-180.]

Sec. 2. Section 46a-84 of the 2016 supplement to the general statutes is amended by adding subsections (h), (i) and (j) as follows (Effective October 1, 2016):

(NEW) (h) Each party shall be afforded the opportunity to inspect and copy relevant and material records, papers and documents not in the possession of the party, except as otherwise provided by applicable state or federal law. The presiding officer may order the production of such records, papers and documents, and where a party fails to comply within thirty days of such order, the presiding officer may issue a nonmonetary order deemed just and appropriate, including, but not limited to, an order (1) finding that the matters that are the subject of the production order are established in accordance with the claim of the party requesting such order, (2) prohibiting the party who has failed to comply from introducing designated matters into evidence, (3) limiting the participation of the noncomplying party with regard to issues or facts relating to the production order, or (4) drawing of an adverse inference against the noncomplying party.

(NEW) (i) Hearings shall proceed with all reasonable speed and be concluded in accordance with the provisions of this subsection and section 4-180. The presiding officer shall issue a final order not later than eighteen months from the date (1) the complaint is certified pursuant to subsection (a) of this section, or (2) the decision is made pursuant to subsection (e) of section 46a-83, as amended by this act, to hear the complaint, as applicable. The commission, the complainant or the respondent may apply to the superior court for the judicial district of Hartford for an order requiring the presiding officer to comply with the provisions of this subsection and section 4-180. The court, after hearing, shall issue an appropriate order. Not later than January 1, 2017, and annually thereafter, the Chief Human Rights Referee shall annually report, in accordance with the provisions of section 11-4a, to the joint standing committee of the General Assembly having cognizance of matters relating to the judiciary on: (A) The number of final decisions in the previous fiscal year that exceeded the time frame and the reasons for the failure to comply; and (B) the number of complaints pending final decision in the previous fiscal year that have exceeded the time frame and the reasons for the failure to comply.

(NEW) (j) The Chief Court Administrator shall designate judge trial referees who shall be available to the Commission on Human Rights and Opportunities to act as presiding officers at any hearing or proceeding of the commission conducted pursuant to this section, subsection (l) of section 46a-83, as amended by this act, or subsection (c) or (d) of section 46a-56. Any judge trial referee so designated shall have the same powers and duties as a human rights referee appointed pursuant to section 46a-57. A judge trial referee may also hear complaints filed under subsection (e) of section 4-61dd. Whenever the total number of complaints at public hearings that have not been resolved by final decision pursuant to section 46a-86 exceeds one hundred or subsection (e) of section 4-61dd exceeds one hundred, the executive director of the commission, within available appropriations, may appoint a judge trial referee designated by the Chief Court Administrator to preside at a settlement conference or to hear and decide a complaint. The executive director shall make the appointment of a judge trial referee not later than fifteen days following the date of (1) the certification of the complaint, or (2) the decision made pursuant to subsection (e) of section 46a-83, as amended by this act, to hear the complaint, as applicable. In lieu of appointing a judge trial referee to conduct a settlement conference, the executive director may appoint an individual authorized by subsection (e) of this section to conduct settlement negotiations. If the executive director fails to appoint a judge trial referee or individual authorized by subsection (e) of this subsection, the chief human rights referee, as provided in subsection (b) of this section, shall appoint a human rights referee to hear the complaint, or a human rights referee or an individual authorized by subsection (e) of this section to conduct a settlement conference.

Sec. 3. Section 46a-55 of the 2016 supplement to the general statutes is amended by adding subsections (c) and (d) as follows (Effective October 1, 2016):

(NEW) (c) The executive director, through the supervising attorney, may assign a commission legal counsel to represent the interests of the state in any suit or other proceeding in which civil or human rights are at issue. Commission legal counsel may intervene as a matter of right in any such suit or proceeding without permission of the parties, the presiding officer or the court.

(NEW) (d) The executive director, through the supervising attorney, may, within available appropriations, assign a commission legal counsel to bring a civil action, in accordance with this subsection, in lieu of an administrative hearing pursuant to section 46a-83, as amended by this act, or 46a-84, as amended by this act, when the executive director determines that a civil action is in the public interest. The commission legal counsel shall bring a civil action in the Superior Court not later than ninety days following the date the commission legal counsel notifies the parties of the executive director's determination. Such civil action may be served by certified mail and is not subject to the provisions of section 46a-100, 46a-101, as amended by this act, or 46a-102. The jurisdiction of the Superior Court in an action brought under this subsection shall be limited to such claims, counterclaims, defenses or the like that could be presented at an administrative hearing before the commission, had the complaint remained with the commission for disposition. A complainant may intervene as a matter of right without permission of the court or the parties. The civil action shall be tried to the court without a jury. If the commission legal counsel determines that the interests of the state will not be adversely affected, the complainant or attorney for the complainant shall present all or part of the case in support of the complaint. The court may grant any relief available under section 46a-104. Where the Superior Court finds that a respondent has committed a discriminatory practice, the court shall grant the commission its fees and costs and award the commission a civil penalty, not exceeding ten thousand dollars, which shall be payable to the commission and used by the commission to advance the public interest in eliminating discrimination.

Sec. 4. Section 46a-68c of the 2016 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

In addition to the provisions of section 4a-60, each contractor with fifty or more employees awarded a public works contract, municipal public works contract or contract for a quasi-public agency project in excess of fifty thousand dollars in any fiscal year, but not subject to the provisions of section 46a-68d, shall develop and file with the Commission on Human Rights and Opportunities an affirmative action plan which shall comply with regulations adopted by the commission. Failure to develop an approved affirmative action plan pursuant to this section shall act as a bar to bidding on or the award of future contracts until such requirement has been met. The commission shall review and formally approve, conditionally approve or disapprove the content of the affirmative action plan not later than ninety days following the date of the submission of the plan to the commission. If the executive director or the executive director's designee, fails to approve, conditionally approve or disapprove a plan within such period, the plan shall be deemed to be approved. When the commission approves an affirmative action plan pursuant to this section, it shall issue a certificate of compliance to the contractor. This certificate shall be prima facie proof of the contractor's eligibility to bid or be awarded contracts for a period of two years from the date of the certificate. Such certificate shall not excuse the contractor from monitoring by the commission or from the reporting and record-keeping requirements of sections 46a-68e and 46a-68f. The commission may revoke the certificate of a contractor if the contractor does not implement its affirmative action plan in compliance with this section and sections 4a-60, 4a-60g, 4a-62, 46a-56, 46a-68b, 46a-68d, and 46a-68e to 46a-68k, inclusive.

Sec. 5. Section 46a-83 of the 2016 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

(a) Not later than fifteen days after the date of filing of any discriminatory practice complaint pursuant to subsection (a) or (b) of section 46a-82, or an amendment to such complaint adding an additional respondent, the commission shall serve the respondent as provided in section 46a-86a with the complaint and a notice advising of the procedural rights and obligations of a respondent under this chapter. The respondent shall either (1) file a written answer to the complaint as provided in subsection (b) of this section, or (2) not later than ten days after the date of receipt of the complaint, provide written notice to the complainant and the commission that the respondent has elected to participate in pre-answer conciliation, except that a discriminatory practice complaint alleging a violation of section 46a-64c or 46a-81e shall not be subject to pre-answer conciliation. A complaint sent by first class mail shall be considered to be received not later than two days after the date of mailing, unless the respondent proves otherwise. The commission shall conduct a pre-answer conciliation conference not later than thirty days after the date of receiving the respondent's request for pre-answer conciliation.

(b) Except as provided in this subsection, not later than [thirty] forty-five days after the date (1) of receipt of the complaint, or (2) on which the commission determines that the pre-answer conciliation conference was unsuccessful, the respondent shall file a written answer to the complaint, under oath, with the commission. The respondent may request, and the commission may grant, one extension of time of not more than fifteen days within which to file a written answer to the complaint. An answer to any amendment to a complaint shall be filed within twenty days of the date of receipt to such amendment. The answer to any complaint alleging a violation of section 46a-64c or 46a-81e shall be filed not later than ten days after the date of receipt of the complaint.

(c) Not later than sixty days after the date of the filing of the respondent's answer, the executive director or the executive director's designee shall conduct a case assessment review to determine whether the complaint should be retained for further processing or dismissed because (1) it fails to state a claim for relief or is frivolous on its face, (2) the respondent is exempt from the provisions of this chapter, or (3) [there is no reasonable possibility that investigating the complaint will result in a finding of reasonable cause] the executive director or the executive director's designee is unable to determine whether the information provided by the complainant and the respondent sets forth that a discriminatory practice has occurred, except that any dismissal pursuant to this subdivision shall not be deemed to have conclusively established that the respondent has not engaged in a discriminatory practice. The case assessment review shall include the complaint, the respondent's answer and the responses to the commission's requests for information, and the complainant's comments, if any, to the respondent's answer and information responses. The executive director or the executive director's designee shall send notice of any action taken pursuant to the case assessment review in accordance with section 46a-86a. For any complaint dismissed pursuant to this subsection, the executive director or the executive director's designee shall issue a release of jurisdiction allowing the complainant to bring a civil action under section 46a-100. This subsection and subsection (e) of this section shall not apply to any complaint alleging a violation of section 46a-64c or 46a-81e. The executive director shall report the results of the case assessment reviews made pursuant to this subsection to the commission quarterly during each year.

(d) Not later than sixty days after the date of sending notice that a complaint has been retained after a case assessment review, the executive director or the executive director's designee shall assign an investigator or commission legal counsel to hold a [mandatory] voluntary mediation conference. A mediation conference may but need not be held if the commission has held a pre-answer conciliation conference. The investigator or commission legal counsel assigned to conduct the mediation shall not be assigned to investigate the complaint. The [mandatory] voluntary mediation conference may not be scheduled for the same time as a fact-finding conference held pursuant to subsection (f) of this section. The mediator may hold additional mediation conferences to accommodate settlement discussions.

(e) If the complaint is not resolved after the [mandatory] voluntary mediation conference, the complainant, the respondent or the commission may at any time after such conference request early legal intervention. If a request for early legal intervention is made, a commission legal counsel shall determine not later than ninety days after the date of the request whether the complaint should be (1) heard pursuant to section 46a-84, as amended by this act, (2) processed pursuant to subsection (f) of this section, or (3) released from the jurisdiction of the commission. In making such determination, commission legal counsel may hold additional proceedings and may utilize and direct commission staff. If a commission legal counsel determines that the complaint should be processed pursuant to subsection (f) of this section, the commission legal counsel may recommend that the investigator make a finding of no reasonable cause. The investigator shall make such a finding unless the investigator believes the commission legal counsel made a mistake of fact. If the investigator intends to make a finding of reasonable cause after the commission legal counsel recommends otherwise, the investigator shall consult with the commission legal counsel.

(f) Not later than fifteen days after the date of (1) a [mandatory] voluntary mediation conference that fails to resolve a complaint, or (2) an early legal intervention decision to investigate a complaint, the executive director or the executive director's designee shall assign an investigator to process the complaint. The investigator may process the complaint by any lawful means of finding facts, including, but not limited to, a fact-finding conference, individual witness interviews, requests for voluntary disclosure of information, subpoenas of witnesses or documents, requests for admission of facts, interrogatories, site visits or any combination of these means for the purpose of determining whether there is reasonable cause for believing that a discriminatory practice has been or is being committed as alleged in the complaint. As used in this section and section 46a-84, "reasonable cause" means a bona fide belief that the material issues of fact are such that a person of ordinary caution, prudence and judgment could believe the facts alleged in the complaint.

(g) (1) Before issuing a finding of reasonable cause or no reasonable cause, the investigator shall afford each party and each party's representative an opportunity to provide written or oral comments on all evidence in the commission's file, except as otherwise provided by federal law or the general statutes. The investigator shall consider such comments before making a finding. The investigator shall make a finding of reasonable cause or no reasonable cause in writing and shall list the factual findings on which it is based not later than one hundred ninety days from the date of the case assessment review, except that for good cause shown, the executive director or the executive director's designee may grant no more than two extensions of the investigation of three months each.

(2) If the investigator makes a finding that there is reasonable cause to believe that a violation of section 46a-64c has occurred, the complainant and the respondent shall have twenty days from sending of the reasonable cause finding to elect a civil action in lieu of an administrative hearing pursuant to section 46a-84, as amended by this act. If either the complainant or the respondent requests a civil action, the commission, through the Attorney General or a commission legal counsel, shall commence an action pursuant to subsection (b) of section 46a-89, not later than ninety days after the date of receipt of the notice of election. If the Attorney General or a commission legal counsel believes that injunctive relief, punitive damages or a civil penalty would be appropriate, such relief, damages or penalty may also be sought. The jurisdiction of the Superior Court in an action brought under this subdivision shall be limited to such claims, counterclaims, defenses or the like that could be presented at an administrative hearing before the commission, had the complaint remained with the commission for disposition. A complainant may intervene as a matter of right in a civil action without permission of the court or the parties. If the Attorney General or commission legal counsel, as the case may be, determines that the interests of the state will not be adversely affected, the complainant or attorney for the complainant shall present all or part of the case in support of the complaint. If the Attorney General or a commission legal counsel determines that a material mistake of law or fact has been made in the finding of reasonable cause, the Attorney General or a commission legal counsel may decline to bring a civil action and shall remand the file to the investigator for further action. The investigator shall complete any such action not later than ninety days after receipt of such file.

(h) If the investigator issues a finding of no reasonable cause or if the complaint is dismissed pursuant to subsection (m) of this section, the complainant may file a written request for reconsideration with the executive director or the executive director's designee, not later than fifteen days from the sending of such finding or dismissal. A request for reconsideration shall state specifically the reasons why reconsideration should be granted. A commission legal counsel shall grant or reject reconsideration not later than ninety days after the date of the sending of such finding or dismissal. A commission legal counsel shall conduct such additional proceedings as may be necessary to render a decision on the request.

(i) After finding that there is reasonable cause to believe that a discriminatory practice has been or is being committed as alleged in the complaint, an investigator shall attempt to eliminate the practice complained of by conference, conciliation and persuasion not later than fifty days after the date of the finding. The refusal to accept a settlement shall not be grounds for dismissal of any complaint.

(j) No commissioner or employee of the commission may disclose, except to the parties or their representatives, what has occurred in the course of the commission's processing of a complaint, provided the commission may publish the facts in the case and any complaint that has been dismissed and the terms of conciliation when a complaint has been adjusted. Each party and his or her representative shall have the right to inspect and copy documents, statements of witnesses and other evidence pertaining to the complaint, except as otherwise provided by federal law or the general statutes.

(k) In the investigation of any complaint filed pursuant to this chapter, commission legal counsel may issue subpoenas requiring the production of records and other documents or compelling the attendance of witnesses.

(l) The executive director or the executive director's designee may enter an order of default against a respondent who (1) after notice, fails to answer a complaint in accordance with subsection (a) of this section or within such extension of time as may have been granted; (2) fails to answer interrogatories issued pursuant to subdivision (11) of section 46a-54 or fails to respond to a subpoena issued pursuant to subsection (k) of this section or subdivision (9) of section 46a-54, provided the executive director or the executive director's designee shall consider any timely filed objection; (3) after notice and without good cause, fails to attend a fact-finding conference; or (4) after notice and without good cause, fails to attend a [mandatory] voluntary mediation conference. The respondent may make application to the executive director to vacate the default. Upon entry of an order of default or upon the decision of the executive director not to vacate the default, the executive director or the executive director's designee shall appoint a presiding officer to enter, after notice and hearing, an order eliminating the discriminatory practice complained of and making the complainant whole. The commission or the complainant may petition the Superior Court for enforcement of any order for relief pursuant to section 46a-95.

(m) The executive director or the executive director's designee may enter an order of dismissal against a complainant who (1) after notice and without good cause, fails to attend a fact-finding conference; (2) after notice and without good cause, fails to attend a [mandatory] voluntary mediation conference; or (3) refuses to accept an offer of settlement where the respondent has eliminated the discriminatory practice complained of, taken steps to prevent a like occurrence in the future and offered full relief to the complainant. Unless otherwise agreed to by the complainant and the respondent, no fact-finding conference shall exceed eight hours, nor shall witnesses be sequestered when the complainant is questioned at the fact-finding conference.

Sec. 6. Subsection (a) of section 46a-94a of the 2016 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

(a) The commission, any respondent or any complainant, aggrieved by a final order of a presiding officer, may appeal to the Superior Court in accordance with section 4-183. Any complainant may appeal to the Superior Court in accordance with section 4-183 if the complainant is aggrieved by (1) the dismissal of his or her complaint by the commission for failure to attend a [mandatory] voluntary mediation session as provided in subsection (m) of section 46a-83, as amended by this act, (2) a finding of no reasonable cause as provided in subsection (g) of section 46a-83, as amended by this act, or (3) rejection of reconsideration as provided in subsection (h) of section 46a-83, as amended by this act.

Sec. 7. Subsection (b) of section 46a-101 of the 2016 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

(b) The complainant and the respondent, by themselves or their attorneys, may jointly request that the complainant receive a release from the commission at any time from the date of filing the complaint. The complainant or the complainant's attorney may request a release from the commission if the complaint is still pending after the expiration of one hundred eighty days from the date of its filing or after a case assessment review in accordance with subsection (c) of section 46a-83, as amended by this act, whichever is earlier. The executive director or the executive director's designee shall conduct an expedited case assessment review in accordance with subsection (c) of section 46a-83, as amended by this act, if the commission receives a request for a release of jurisdiction from the complainant prior to one hundred eighty days from the date a complaint is filed. Upon request from the complainant or the respondent, the commission may grant a release of jurisdiction if the commission determines there is a pending civil action or arbitration between the parties.

This act shall take effect as follows and shall amend the following sections:

Section 1

October 1, 2016

46a-84(b)

Sec. 2

October 1, 2016

46a-84

Sec. 3

October 1, 2016

46a-55

Sec. 4

October 1, 2016

46a-68c

Sec. 5

October 1, 2016

46a-83

Sec. 6

October 1, 2016

46a-94a(a)

Sec. 7

October 1, 2016

46a-101(b)

Statement of Purpose:

To (1) revise certain administrative proceedings relating to the filing of discriminatory practice claims with the Commission on Human Rights and Opportunities, and (2) expedite the processing of affirmative action plans filed by contractors with the commission.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]