Effective October 1, 2011, the Connecticut Commission on Human Rights and Opportunities ("CHRO") will implement changes to the procedures for processing complaints as required by Public Act No. 11-237. While certain changes may provide for early resolution of some complaints, for instance, by adding mandatory mediation earlier in the process, some may actually result in further delay and uncertainty for employers. It remains to be seen how the CHRO will implement the new procedures during a time of cost cutting in state government.
The Initial Complaint Process Remains Unchanged
When a complaint is filed with the CHRO, it is served on the employer. The employer then files a response to the complaint and provides additional information as requested. After the employer files its response, the CHRO has 90 days to conduct its merit assessment review ("MAR"). A complaint will be dismissed after the MAR if it is determined that the complaint fails to state a claim for relief or is frivolous on its face, the respondent is exempt from the provisions of the statute, or there is no reasonable possibility that investigating the complaint will result in a finding of reasonable cause.
New Automatic Legal Review
The old rules permitted a complainant to seek reconsideration of a MAR that dismissed the complaint. The new rules require automatic legal review when a complaint is dismissed after the MAR. If the complainant does not request a release of jurisdiction within 15 days of the notice of dismissal following the MAR, the CHRO's counsel will conduct a legal review of the complaint and within 60 days either reinstate or deny reinstatement of the complaint and notify the parties. Employers will no longer be able to rely on a dismissal at the MAR stage (or the complainant's failure to seek reconsideration) but instead must wait for the outcome of the legal review.
Mandatory Mediation Conference
When a complaint is retained after the MAR, the current CHRO procedure is to assign the complaint to an investigator, who then schedules a joint mediation conference and fact finding. The new rules contemplate that the mediation and fact finding conferences will be separate and require that a mandatory mediation conference be held within 60 days of the MAR decision or after a legal review that results in the reinstatement of a complaint.
Scheduling mediation early may provide an opportunity for early settlement before employers spend time prepping witnesses and preparing for a fact finding. For parties who have no desire to pursue early settlement, however, it is an additional procedural step and expense. Moreover, it remains to be seen if the CHRO can indeed meet the 60-day timeline. Finally, the new rules provide that either party may request additional mediation conferences, which may further delay the processing of complaints and unnecessarily increase the cost of defending CHRO actions.
The CHRO may dismiss a complaint if the complainant fails to attend a mandatory mediation conference or if the respondent has eliminated the alleged discriminatory practice complained of and offered the complainant full relief.
Early Legal Intervention
If the complaint is not resolved after the mandatory mediation conference, either party or the CHRO itself may request "early legal intervention." This is a new procedure, and if a request is made for early legal intervention, the executive director of the CHRO shall within 90 days decide if (1) the complaint should be certified for public hearing pursuant to Conn. Gen. Stat. 46a-84 without first conducting a fact finding conference or investigation; (2) the complaint should proceed to the fact finding stage of the investigation; or (3) the CHRO should issue a release of jurisdiction permitting the complainant to proceed to court.
Fact Finding Investigation Expanded
Under the new rules, within 15 days following a mandatory mediation conference, the executive director is required to assign the complaint to an investigator to conduct a fact finding conference, a complete investigation, or a combination of the two. The complete investigation may now include individual witness interviews, requests for admissions of facts, interrogatories, and site visits. If either the complainant or the respondent, after notice and without good cause, fails to attend a fact finding, the CHRO may dismiss the complaint or enter a default as appropriate.
Delivery of Notices
The new rules expand the method the CHRO may use to deliver notices, which was previously limited to mail. The acceptable methods now include first-class mail, fax, and electronic mail.