The CHRO Complaint Process Updated and Revised, with permission, by: Nicole M. Rothgeb Livingston, Adler, Pulda, Meiklejohn, & Kelly, P.C. 557 Prospect Ave. Hartford, CT 06105-2922 Presented to the Connecticut Bar Association September 2010 Originally Authored by: Mary E. Kelly Livingston, Adler, Pulda, Meiklejohn, & Kelly, P.C. 557 Prospect Ave. Hartford, CT 06105-2922 and Deborah L. McKenna Emmett and Glander 45 Franklin St. Stamford, CT 06901
1. INTRODUCTION The Connecticut Commission on Human Rights And Opportunities, commonly known as the CHRO hears a wide variety of discrimination complaints, involving issues related to employment and housing. For obvious reasons, these materials will focus exclusively on employment issues, although the procedure for both types of claims is very similar. There are four basic state and federal laws that apply to claims of employment discrimination: the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. 46a- 60 et. seq.(cfepa); Title VII of the Civil Rights Act of 1964 (Title VII), as amended by the Civil Rights Act of 1991, 42 U.S.C. 2000e, et. seq; the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et. seq.; and the Americans With Disabilities Act, 42 U.S.C. 12101, et. seq., as amended by the Civil Rights Act of 1991 and by the Americans with Disabilities Amendments Act of 2008 (ADAAA). The types of claims that may be brought to the CHRO include complaints of discrimination in employment based upon an individual's race, color, religious creed, age, sex (including pregnancy and sexual harassment), marital status, national origin, ancestry, present or past history of mental disability, mental disorder, mental retardation, learning disability, physical disability and genetic information. Conn. Gen. Stat. 46a-60. (The full text of this section is included in Appendix A). The CHRO also hears claims of discrimination based upon one s sexual orientation. Conn. Gen. Stat. 46a-81a. Because the CHRO is considered a deferral agency it hears claims brought under the corresponding federal laws if filed in addition to a claim brought under state law. These complaints can be made against any public or private employer, labor organization, or employment agency with three or more employees. Such claims must be filed within 180 days of the alleged discriminatory action. Conn. Gen. Stat. 46a- 82(e). The Connecticut Supreme Court recently clarified that the 180 day statute of limitations runs from the date of the adverse employment action, not from when the employee receives notice of the action in other words, where the employee claims that a termination was discriminatory, the statute of limitation runs from the date of the termination, not from the date that the employee was notified that he would be terminated at some future date. Vollemans v. Town of Wallingford, 289 Conn. 57, 61 (Oct. 21, 2008). If a claimant does not file a state complaint with the CHRO, and 180 days have passed since the act of discrimination, and the claimant s employer has 15 or more employees, then he or she can still file a complaint with the EEOC. However the complaint must be filed with the EEOC within 300 days of the discriminatory act. - 1 -
State and federal discrimination laws also prohibit retaliation against an employee by his or her employer for opposing discriminatory conduct. CFEPA, Title VII, the ADEA and the ADA all contain anti-retaliation provisions. Retaliation means that an employer penalizes an employee, takes adverse action against an employee or further discriminates against him or her because he or she has filed a complaint or otherwise opposed a discriminatory employment practice. For example, it would be illegal for an employer to retaliate against an employee by demoting him or her, reducing his or her work assignment or cutting his or her hours, suddenly giving him or her a poor work evaluation or placing him or her on a performance improvement plan for no apparent reason, or terminating that employee because that employee complained about what he or she believed was discriminatory conduct. Retaliation cases are processed in the same manner as other discrimination cases and the same statute of limitations apply to retaliation cases as are applied to discrimination cases. - 2 -
2. THE PROCESS Both Connecticut statutes and regulations address the procedure for filing complaints with the CHRO. See, Conn. Gen. Stats. 46a-60 et. seq. and Conn. Regs. 46a-54-33a et. seq. These comments detail the regulations. I. Filing the Complaint: 46a-54-33a through 46a-54-40a A. The Timely Filing of the Complaint The Complaint must be received by the Commission within 180 days of the alleged act of discrimination. A complaint may be filed in person or by mail or similar delivery to the appropriate CHRO office. The complaint must be received by the CHRO, not merely postmarked, by the 180 th day to be considered timely filed. In determining when a discriminatory act occurs, the Commission is to consider: 1. the date on which the discrimination occurred; 2. the date on which the Complainant knew or reasonably should have known of the acts alleged to be discriminatory and 3. the date on which the Complainant knew or reasonably should have known that the alleged acts were discriminatory. A Complaint alleging a continuing violation is sufficient if at least one of the acts comprising the continuing violation occurs within the 180 days. However, practitioners need to be wary of the continuing violation theory. B. The Form And Contents of The Complaint A Complaint must be in writing and under oath, and must contain sufficient information to describe the parties and to identif y the: 1. name and address of the Complainant; 2. name and address of the Respondent; and 3. a statement of facts, including any pertinent dates. - 3 -
A written statement from the Complainant is presumed sufficient if it includes information, sufficiently precise to identify the parties and to describe generally the action or practices complained of which have occurred, are occurring or are about to occur, and when. The use of the Commission s forms is not required, but is preferred. When using the forms though be careful to double check your work on the cover sheet to make sure that you have identified all of the statutes that you believe were violated. Some of them will have to be written in. In particular, if claiming that an individual supervisor (or employer) is liable for aiding or abetting the discriminatory act, be sure to identify C.G.S. 46a-60(a)(5). There are different schools of thought as to how much information to include in a Complaint. By including a great deal of specific information, rather than a general statement, you run the risk of being unable to add other specifics that your client may have forgotten to tell you. However, if you include only generalities, you are far more likely to have the case dismissed at the Merit Assessment Review (MAR), and you are likely to get very little useful information from the Respondent s Answer. Generally, my complaints are fairly detailed and are in the form of an affidavit from the Complainant. The inclusion of specific dates and the names and titles of persons involved can be critical to surviving MAR. When known, this information should definitely be included. In addition, if you intend to bring a class action, or if you think that you have an pattern and practice case, this should be specif ically pled in the Complaint. C. Amending the Complaint: 46a-54-38a A Complaint may be amended as a matter of right, at any time before the appointment of a presiding officer. If the Complaint is amended to add new allegations, or a new protected class, the new allegations will be considered timely filed if they are reasonably like or related to or growing out of the allegation of the original Complaint, including those facts discovered during the original investigation. These new allegations are referred to as relating back to the initial Complaint. An amendment can also add an additional Respondent and still relate back, if the added Respondent had notice of the original Complaint. - 4 -
Practitioners do not take enough advantage of the right to amend. If a Complainant has filed on his or her own it almost always makes sense to amend the Complaint to more clearly state the violations and to add pertinent details or additional protected classes that the Complainant may not have considered. If the Complainant remembers important new information, or if the Answer changes the complexion of the case, amending may also make the difference in surviving the MAR process. D. Service of the Complaint on the Respondent: 46a-54-42a Within 20 days of receipt of a Complaint, the Commission is to determine whether or not the Commission has jurisdiction. If the Commission finds that it has jurisdiction, it will serve the Complaint upon the Respondent, and inform the Respondent of it s rights and obligations. The Commission will generally also serve a Schedule A request for information. If the Commission determines that there is no jurisdiction, it will serve the Complaint upon the Respondent with a notice that no answer is required. The Respondent and Complainant then have an opportunity to file comments. The Complainant may also amend the Complaint to try to cure the alleged jurisdictional defect. If the defect is not cured, and the Commission- despite the comments- finds that there is no jurisdiction, the Complaint will be dismissed with a no reasonable cause finding. E. Commission Complaints The Commission may file a Complaint or amend the Complaint to add the Commission as a party, pursuant to 46a-54-39a and 46a-54-40a. II. The Answer: 46a-54-43a through 46a-54-47a A. The Timely Filing of the Answer The Respondent s Answer is generally to be filed within 30 days of receipt of the Complaint. However, the Respondent, for good cause shown, may receive a 15 day extension. Any request must be in writing, and must state the reason for the requested extension. A copy is to be provided to the Complainant. The request may be granted or denied in the discretion of the Commission. 1 46a-54-46a provides for the entry of a default judgement for the Respondent s failure to Answer. 1 The various offices have different informal practices with respect to these extensions. Some rarely grant extensions, others generally do so when the formalities are followed, and others will even grant verbal requests. Relying on these informal practices is risky, since they tend to change without notice. Follow the regulations. - 5 -
B. The Form and Contents of The Answer Like the Complaint, the Answer must be filed under oath. 2 The Respondent is required to admit, or deny each and every separate allegation or state that it is has insufficient knowledge to admit or deny. When the Answer is not filed under oath or when the Respondent claims not to have sufficient information to admit or deny allegations about what it itself did, this should be noted by the Complainant as part of the comments. In my opinion a claim should not be dismissed at MAR if the Answer does not comply with the regulations. While not mentioned by the regulations, most Respondents will file a position statement, affidavits, and other documents supporting the Answer at the same time that they file the Answer. This is usually necessary if the Respondent intends to seek dismissal of the case at MAR. On the other hand, if the allegations in the position statement or Answer are not supported by affidavits or other sworn testimony or documents, this should be noted by the Complainant as part of his/her comments. Again, a claim should not be dismissed at MAR unless it is based on credible, reliable evidence. C. Requests for Other Information From the Respondent Under 46a-54-51a, the Commission may request other information from the Respondent. However, the regulations make it clear that the Respondent need not provide the information. It is purely voluntary. If the Respondent refuses to provide requested information, the Commission may seek to have information provided by subpoena, deposition, or interrogatories. D. No Fault Conciliation Pursuant to 46a-54-63a, the Respondent m ay offer full relief within 30 days of receipt of the Complaint. If accepted, a no fault conciliation agreement shall be created. An offer of no-fault conciliation does not extend the time to Answer. If a Respondent offers relief under the no-fault conciliation, a Complainant should make certain that the relief offered truly does make the Complainant whole for all of his/her losses. 2 For some reason, this requirement seems to often be ignored by Respondents and the Commission usually will still consider an unsworn Answer. - 6 -
III. The Reply Conn. Reg. 46a-54-48a governs the Complainant s right to respond to the Answer. 3 If the Complainant files no response within 15 days of receipt of the Answer, the Answer, including all special defenses raised, is deemed denied. This reply, often referred to as the Complainant s comments is the Complainant s opportunity to respond to the Answer and position statement and to explain to the Commission why the Complaint should be retained for a full investigation. In my opinion, a Complainant should make the most of this opportunity. IV. The Complainant s Duty To Provide Information A. Timely Filing 46a-54-48a and 46a-54-50a discuss the Com plainant s obligation to provide information in response to the Answer. Although the comments are usually due to the Commission within 15 days after the Complainant receives the Respondent s Answer, the Complainant is entitled to a 15 day extension if the Complainant so requests and if the Respondent was granted such an extension in submitting its Answer. The Commission can also grant such an extension to the Complainant for good cause, even if the Respondent did not receive a similar extension of time. The regulations do not state that the request for an extension must be in writing. However, most of the regional offices do require that the request be made, or at least confirmed in writing. B. The Form and Contents of the Response The regulations do not discuss the form that the response to the Answer is to take. Nor is there a general discussion of the contents. Instead, the regulations state that the Complainant is required to provide, Any and all information in his or her possession or obtainable by reasonable means that relates to any contested allegation of the Complaint or answer. This reply shall include but is not limited to all documentary evidence and the names, addresses and telephone numbers of persons having knowledge of the facts and circumstances alleged to constitute a discriminatory practice. The Commission may require the Complainant to clarify or supplement any such information, and the duty to provide such information by the 3 This provision can generally be ignored, unless the Complainant is conceding the accuracy of a special defense, or some other new matter raised in the Answer. - 7 -
Complainant shall be a continuing one. The Complainant shall respond to all Commission requests for information... A Complainant has a continuing duty to amend, supplement, or correct any information provided within ten (10) days of discovering additional information relating to the allegations... Any supplement to the information provided must demonstrate why the Complainant was unable to provide such information at an earlier date. Notwithstanding this language, many times the Complainant may chose to wait until the fact-finding hearing to provide witness testimony and other documentary evidence, and/or to provide more definite information about dates, precise allegations, and witness names. However, enough supporting information should be provided at the MAR stage so as to convince the Commission that the case must be retained for a full investigation. A decision not to submit comments or supporting information or evidence runs a very real risk that the case will be dismissed without any investigation. In my opinion, submitting compelling comments is nearly as important as drafting the Complaint. In my comments, which admittedly tend to be very detailed, I usually set out the legal standard governing the MAR process as well as for each of the legal claims. I then identify all of the evidence (in a pretty detailed fashion) that the Complainant has provided to support the claims and in particular that make up the prima facie case and constitute evidence of pretext. Sometimes this requires that the Complainant submit a supplemental affidavit responding to the facts asserted in the Answer or position statement. If there is direct evidence, I point this out. If the case involves claims of pretext, I will identify the witnesses, and documentary evidence that is not in the Complainant s custody and control and which is necessary for a determination of whether or not the Respondent s stated reason is pretex tual. For example, in a layoff case where performance was allegedly the key criteria, I would note that the Commission will have to investigate how the Respondent treated similarly situated employees eligible for layoff by reviewing the evaluations and other documents related the performance of such other employees, in order to corroborate or contradict the Respondent s alleged justification. I will also call particular attention to the facts about which there is substantial dispute, explaining why such facts could be material, and remind the Commission that such factual disagreements can only be assessed and resolved if the case is retained past the MAR stage for a full investigation. V. Merit Assessment Review: 46a-54-49a A. The Timing of the Review Within 90 days of the Answer (or Amended Answer) the Executive Director or her designee is to review the file, including the Complaint, Answer, Complainant s - 8 -
comments, responses to information requests by the Commission (if any), and any information produced by the Respondent that has been timely filed. 4 B. The Standard to be Applied A case is to be retained and processed pursuant to 46a-54-55a unless: (1) the Complaint fails to state a claim for relief; (2) the Complaint is frivolous on it s face; (3) the Respondent is exempt from the provisions of 814(c) or (4) there is no reasonable possibility that investigating the Complaint will result in a finding of reasonable cause. See 46a-54-49a(b). The standard, no reasonable possibility that investigating the Complaint will result in a finding of reasonable cause is subjective and therefore is arguably subject to abuse. It appears to me that in some cases the reasonable possibility standard is used to dismiss a case because the Commission simply does not believe the Complainant s allegations. However, dismissing a case based upon such credibility considerations, without conducting a full investigation and interviewing the parties, is contrary to the Commission s regulations since all of the relevant evidence has not yet been reviewed by the Commission. 5 Given this standard, a Complainant s representative should provide as much detailed and reliable evidence as is possible during the MAR process. Complainant s counsel should also make as complete a record as possible of the relevant evidence within the Respondent s custody and control which could support a finding of reasonable cause, and should request that such evidence be pursued by the Commission as part of a full investigation. C. The Effect of a Dismissal at MAR If the case is dismissed under this standard, the Commission must prepare a finding of no reasonable cause, and must include the supporting factual findings upon 4 In order to be considered as part of the Merit Assessment Review, information submitted by the Respondent must be filed within 30 days of the Answer, and the Complainant must be given 15 days to reply to the submission. See 46a-54-49a The Commission can consider information filed more than 30 days after the Answer, if good cause for the delay is shown, the Complainant is given 15 days to respond, and the MAR has not yet been completed. 5 Reconsideration is often granted in such cases. - 9 -
which the determination was based, as required by 46a-54-61a. A Complainant may request reconsideration of this decision pursuant to 46a-54-62a. The request for reconsideration must be received by the Commission within 15 days of the date of issuance of the no reasonable cause finding. If the Complainant does not seek reconsideration, the Commission must issue a release of jurisdiction, and the Complainant may file an action in state or federal court pursuant to C.G.S. 46a-100. It used to be the case that if the Commission decided to dismiss a case at MAR, the Executive Director or his designee would also prepare an internal form (previously called Form 406) which further explained the reason for dismissal, however it is unknown whether this practice is still followed. It may be useful if a Complaint is dismissed at MAR for the Complainant to inquire whether such a form was completed and if so to request the form in writing. Additional details about the Commission s findings with respect to the MAR decision can be invaluable when seeking reconsideration. VI. Investigations A. The Fact Finding Conference: 46a-54-55a If the case survives the MAR process the next step, although it often occurs many months after the MAR decision is issued, is usually a fact-finding conference and mandatory mediation session. These are generally, but not always, held at the same time and are both conducted by the investigator assigned to the case. They are initially scheduled by the investigator, and will only be rescheduled for good cause shown. All testimony offered during the fact-finding is tape recorded. Each party is supposed to be present for the conference. If the party is a corporation or partnership, a representative with direct knowledge of the facts alleged in the Complaint and Answer is supposed to attend. W hile counsel may be present to consult with clients and/or to propose questions or areas of inquiry, counsel is usually not permitted to cross-examine or to present the case or defense. Rather the investigator will typically do all the questioning of witnesses. Sometimes though, an investigator will permit counsel to question a witness directly, even the other party s witness if the questioning does not become adversarial. The investigator will often issue a request prior to the hearing that particular documents be provided and/or that witnesses be brought to or made available by telephone to offer testimony during the conference. The Commission has the authority to subpoena documents and/or witnesses that are not voluntarily provided, but this seems to rarely be done. What actually occurs during a fact-finding conference varies widely depending on the investigator. Some investigators permit counsel to give opening and closing statements, to question witnesses, and to make arguments about the relevance of evidence. Others will require that counsel keep silent during testimony, and write out - 10 -
any proposed questions. It is, therefore, important to find out as much as possible about the investigator assigned to your case prior to the conference. In cases where documentary evidence is within the Respondent s custody and control and/or where key witnesses are unavailable because they are still employed by the Respondent, it is important that a Complainant identify, well in advance of the conference, to the investigator any documents and/or witnesses that he/she wants the investigator to request from therespondent. In making such a request the Complainant should be sure to explain - in writing- why this information is critical to the investigation and could support a finding of reasonable cause. B. Mandatory Mediation Under 46a-54-56a, cases that survive MAR are subject to mandatory mediation. Mediation is initially scheduled by the Commission. If a party is unable to attend for good cause, that party is to contact the opposing party and get alternative dates for the investigator s consideration. A representative of each party - with authority to negotiate and bind the party- must be present at the mediation. Failure to do so, at least theoretically, can result in a dismissal or default and certainly makes it much less likely that the mediation will be productive. The Commission may require that the parties bring information relevant to damages to the mediation. Identifying the damages information and providing it prior to the mediation can make mediation more effective. Complainant s counsel should ask the investigator to request information about the pay, benefits, and bonuses that the Complainant would have received absent the adverse action, and should be willing to provide W-2s or subsequent earnings information and other relevant damages information. Sometimes, an investigator or a party will request that the Complainant make a settlement demand prior to the mediation. are: In my experience, some issues that repeatedly come up in CHRO mediation the impact of receiving unemployment benefits; pain and suffering damages; attorneys fees and costs; allocation of monies; confidentiality; non-disparagement; no reinstatement; - 11 -
non-cooperation; and references. It is generally my position that the Respondent is not entitled to an of fset in damages in discrimination cases based on unemployment benefits received. While there is no definitive answer to this question, and the courts have the discretion to rule either way, most authority indicates that the victim of the discrimination should get the benefit of the unemployment. While the Commission takes the position that it cannot generally award pain and suffering damages and/or attorneys fees, such categories of damages certainly can and should be considered as part of any settlement considered at the mediation. I often come to a mediation with two numbers. The first, which takes into account only the economic losses, is the number for which my client will settle the state claims and withdraw the CHRO charge only. For the other sum, which includes pain and suffering damages and fees, my client will settle all claims, including her EEOC claims, and will withdraw both the CHRO and the EEOC charges. Allocation of monies, confidentiality, non-disparagement, non-cooperation, reinstatement and reference letter issues should be discussed with the client before the mediation, and should be discussed and agreed upon at the mediation. Where these issues are not discussed during the mediation, and the terms of the settlement are drafted after the parties have left the mediation, often times strong disagreements arise which could jeopardize reaching final agreement on the settlement. VII. Determination of Reasonable Cause or No Reasonable Cause A. The Draft Finding: 46a-54-59a When the investigator has reached a preliminary determination, he or she will issue a draft finding. The parties have 15 days from the mailing of the notice to provide comments. If there a draft finding of no reasonable cause is issued, and 210 days have passed since the filing of the Complaint, the Complainant should decide if he she will pursue the case in court, or if reconsideration will be requested. If I know that the case will be pursued in court, I typically would not bother with responding to the draft no cause finding, but would instead ask for a right to sue letter. However, if this is a case which will not be taken to court, I usually submit a detailed response to the draft no cause finding. Many times, my concern is the failure to interview relevant witnesses and/or to request relevant documents that were identified to the investigator. In such cases, it is usually worth pointing out the legal standard that the Commission is to follow. Reasonable cause is defined as a bona fide - 12 -
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. Conn. Gen. Stat. 46a-83(c). The Connecticut Supreme Court has explained, The power of the Commission, through its investigators, to make findings of material fact as part of the reasonable cause determination...is conditional upon the Commission having conducted a thorough investigation of the claim and having relied only upon reliable, probative evidence in making those findings. In undertaking its investigation, the Commission is obligated to pursue evidence corroborating, as well as contradicting, the plaintiff s Complaint. Adriani v. Commission of Human Rights and Opportunities, 220 Conn 307. 319 (1991). That Court has also noted that, The provisions of 46a-83(c) allow the Commission to issue subpoenas for the production of all relevant evidence and, therefore, contemplate that the Commission would consider any reliable information pertinent to a Complaint. Id. at 317. Thus, I believe that dismissal by the Commission is generally not consistent with the reasonable cause standard if the Commission has failed to fully investigate the claim by failing to pursue relevant corroborating evidence that has been identified. B. Finding of Reasonable Cause If the case is retained with a final written finding of reasonable cause, the parties will go through the conciliation process pursuant to Conn. Gen. Stat. 46a-83f and 46a-54-60a. If conciliation fails the Complaint and findings are certified pursuant to Conn. Gen. Stat. 46a-84(a). C. Finding Of No Reasonable Cause If the Commission enters a final written finding of no reasonable cause, the Complainant has 15 days from the date the finding was mailed to request reconsideration pursuant to 46a-54-61a. If reconsideration is not requested, the final no cause finding is considered a dismissal for purposes of Conn. Gen. Stat. 46a-94. - 13 -
VII. Contested Case Proceedings: 46a-54-78a to 46a-54-98a A. Parties and Representatives Contested case proceedings commence once the Complaint has been certified. The Complainant, the Commission and the Respondent are always parties in contested cases. Other persons can petition to be m ade a party or to intervene. Any existing party may file an objection to such petition pursuant to 46a-54-81a. T he presiding officer will make a determination using the standards set out in Conn. Gen. Stat. 4-177a. The Commission may move to amend the Complaint to add or to substitute itself as the complaining party pursuant to 46a-54-40a(b) or 46a-54-84a. W hether or not the Commission is identified as a complaining party, the case in support of the Complaint is to be presented by the Commission which shall be represented by Commission counsel or the Attorney General. If the Complainant appears through counsel, the Commission may, and generally does, permit Complainant s counsel to present some or all of the case. B. Notice of the Hearing Conference Upon certification of the Complaint, the Chief Human Rights referee appoints a referee to act as the presiding officer and issue a notice of hearing conference. The notice includes: -a statement of date and time of conference; - a statement of legal authority and jurisdiction; - a reference to the particular sections of the statutes and regulations involved; - a statement of the matters asserted; - deadlines for the filing of the written answer to the Complaint, generally 15 days; -the address for filing documents related to the contested case proceeding; and -the address and telephone number of the office of public hearings which is to deal with requests for reasonable accommodations. A hearing conference is to be held within 45 days of the certification. However, if the Complaint is amended by motion of the Complainant or the Commission, 6 the parties are generally given sufficient time to prepare the case in light of the amendment. 6 The presiding officer is to permit reasonable amendment. - 14 -
C. The Presiding Officer The presiding officer s powers are set out in 46a-54-83a. They include the authority to control the contested case proceeding, to receive motions and other papers, to administer oaths, to admit or to exclude testimony or other evidence, to rule upon all motions and objections, to subpoena witnesses, to exclude witnesses from the hearing room if not testifying, to exclude other persons from the hearing room for improper conduct, and to determine the time, place, and date of the hearing. The presiding officer may also issue a default or dismissal as provided in 46a-54-88a. D. The Hearing Conference: 46a-54-80a The parties or representatives are required to attend the hearing conference to set dates for the hearing and to address such issues as: - the discussion of the positions of the parties, and the presentation of issues at then hearing; - any amendment of Complaint or Answer; - the disclosure of documents pursuant to 46a-54-89a; - any motions concerning the pleadings; - the exchange of witness and exhibit lists, and the exchange of documents likely to be introduced at the hearing; and - settlement. 7 hearing. After the conference, the presiding officer must issue a notice of public E. The Answer: 46a-54-86a 46a-54-86a requires that the Respondent file a new Answer to the certified Complaint. The procedural requirements for the Answer are largely the same as during the MAR process. It must be in writing, under oath and in admit or deny format, unless the Respondent lacks information to either admit or deny an allegation. Failure to answer an allegation is deemed an admission. Any affirmative defenses which are not pled in the Answer, are deemed waived. Reasonable amendment to the Answer is usually permitted. 7 The presiding officer may not be present during settlement discussions. The presiding officer may refer the parties to another referee to supervise settlement discussions and act as a mediator. - 15 -
F. Motions and Discovery Section 46a-54-87a outlines the procedures for motions and objections. Motions must generally be made in writing. Any objections are also generally to be made in writing and must usually be filed within 14 days of the motion. The presiding officer may rule on all motions without oral argument. If the presiding officer permits argument, and gives notice of the time and place of argument, failure to attend will be deemed a waiver of the right to participate. Motions and objections made during the hearing may be made orally. Any objection not timely made will be deemed waived. Discovery is controlled by 46a-54-89a. Depositions and interrogatories are permitted only if all parties agree, but the regulations permit each party to inspect and copy relevant documents not in the possession of that party, except as other wise prohibited by state or federal law. The presiding officer issues orders regarding the disclosure of documents. If any party fails to comply with such an order, the presiding officer may issue an order that the matter be established in accordance with the claim of the party seeking the documents and/or may prohibit the party who has failed to comply from introducing designated documents into evidence. G. Conduct of Hearings and Final Decision The regulations regarding the hearing procedure are set out in 46a-54-90a to 46a-54-93a. Hearings are open to the public. They may be bifurcated upon motion by a party. The presiding officer may require briefs or proposed findings of fact. The final decision must include the names and addresses of all parties, findings of fact, conclusions of law, legal analysis and an order. The final decision may be reconsidered, reversed or modified in accordance with Conn. Gen. Stat. 4-181a. VIII. Reopening Procedures Pursuant to 46a-54-71a, any party can, for good cause, request that a matter previously closed be re-opened. The application must be made within 2 years of the Commission s final decision. This regulation sets out the process to be followed, the standards that the Commission uses in granting or denying a request and the circumstances under which a matter cannot be re-opened. While this is likely not a procedure that arises very often where a Complainant has been represented by counsel throughout the case, it could be useful where the Complainant acted pro-se. - 16 -
IX. Miscellaneous A. Appearances 46a-54-15a, 46a-54-16a and 46a-54-82a set out the rules g overning appearances at the CHRO. Appearance forms and withdrawals are available at the CHRO s website. Appearances can also be submitted by way of a letter so long as all critical information is included. Counsel who are not admitted to practice law in Connecticut are permitted to represent a party at the MAR and investigatory stages. Law students may also appear at those stages if the party and a supervising attorney provide written consent to the Commission. In such circumstances, the supervising attorney remains responsible for the representation. Student interns and counsel who are not admitted to practice law in Connecticut may only represent a party in contested case proceedings if a supervising attorney or local counsel is present for all proceedings, signs all pleadings and agrees to remain responsible for the representation. The Commission requires that notice of the withdrawal of an appearance be filed in writing and served upon all parties. Failure to properly file notice of withdrawal will result in the Commission treating service upon you as if service had properly been made on your client. B. Service 46a-54-17a- through 46a-54-19 set out the procedures for service at all stages prior to the public hearing. Service may be made in person, by first class or certified mail or by document delivery service. Leaving a copy at the home or principal place of business of the person being served is also acceptable. Faxed delivery is not acceptable. 8 If a party is represented by counsel, service is complete when served upon the attorney. Each party or the party s representative must certify that the opposing party or its representative has been sent a copy of all documents or other evidence filed with the Commission, unless federal or state law permits non-disclosure. In such circumstances, the party must provide a list and description of all information that was produced to the Commission but not to the opposing party, and identify the provision of federal or state law relied upon in not providing the information to the opposing party. 8 This is important. While many of the CHRO offices will accept faxed pleadings, they may not be treat the pleading as being filed for deadline purposes until a copy is received in the office by hand or mail delivery. - 17 -
46a-54-85a governs filing and service in contested case proceedings at the public hearing stage. It provides for electronic filing with the approval of the presiding officer and agreement of all parties. C. Discovery 1. Interrogatories 46a-54-52a Commission attorneys and investigators may issue interrogatories to either party. These are generally to be answered within thirty days, but the Commission can specify a shorter time, and can grant extensions for good cause. There is a continuing duty to supplement, amend or change the responses to the discovery. Any objections to the interrogatories must be filed with the Commission counsel s office. A Commission attorney may try to resolve the objection informally. If this fails, or if the party has failed to answer, the Commission attorney may seek enforcement through Conn. Gen. Stat. 46a-88 or may seek an order of default. 2. Subpoenas 46a-54-53a Commissioners and Commission attorneys may issue subpoenas for the production of documents. These are generally to be complied with within the time specified in the subpoena, but the Commission can grant extensions for good cause. There is a continuing duty to produce additional documents responsive to the subpoena. Any objections to the subpoena must be filed with Commission counsel s office. A Commission attorney may try to resolve the objection informally. If this fails, or if the party has failed to answer, the Commission attorney may seek enforcement through Conn. Gen. Stat. 46a-87 or may seek an order of default. 3. Depositions 46a-54-54a A Commissioner may issue a notice of deposition for any person. If the deponent fails to attend or refuses to answer questions under oath a Commission attorney may seek enforcement through Conn. Gen. Stat. 46a-87. D. Suspension/ Resumption of Case Processing Under 46a-54-64a, the Commission may suspend processing a case for certain arbitration proceedings, or if there is a pending action involving the same parties before a federal administrative agency or a federal or state court. Upon recommencing - 18 -
the processing of a suspended complaint, the commission may consider or admit in evidence any decision resulting from the proceeding in another forum and accord it the weight it deems appropriate under the facts and circumstances of the case. E. Information Requests 46a-54-9a The public may inspect the commission s public records at its principal office in Hartford during normal business hours. Requests for information shall be directed to the commission s principal office. However, open and closed discriminatory practice case files are not subject to public inspection. Rather, in closed cases, the Com mission shall make available for public inspection copies of complaints, case summaries and conciliation agreements, where applicable. The availability of information in contested cases is governed by Conn. Gen. Stat. 46 a-83(g). Copying costs will be charged. F. HIV & Sexual Assault Information: 46a-54-22a & 46a-54-23a These provisions govern the confidentiality of HIV-related information as well as information related to pending criminal prosecution of charges of sexual assault, risk of injury, injury or impairing of morals. Under these provisions, a Complaint can be brought as a Jane or John Doe Complaint. 9 G. Requests for Reconsideration Eligibility for reconsideration, the process and the standard for granting reconsideration are set out in 46a-54-62a. H. Complaint Dispositions and Releases The Complainant s right to a release of jurisdiction, and the procedures for requesting such release are set out in detail at 46a-54-66a. Other dispositions and the impact of conciliation agreements are set out in 46a-54-67a and 46a-54-69a. 9 This can be very useful in cases that are resolved quickly. However, if the case is contested, complete confidentiality cannot be assured. - 19 -
3. COURT FILING I. Filing in Superior Court To file a suit against an employer in state court, the following conditions must be adhered to: The complaint must have been timely filed with the CHRO; The complaint must have been pending with the CHRO more than 210 days, or if less than 210 days then the Complainant and Respondent must both agree to a release of jurisdiction; The Complainant must have requested a release of his or her complaint from the CHRO for the purpose of filing a court action (which the CHRO must grant except in limited circumstances); The Complainant must file his or her court action within two years of the date of filing the CHRO complaint (with certain limited exceptions); and, The Complainant must file the court action within 90 days of receipt of the release from the CHRO. In such a court action, available remedies include reinstatement, back pay, restoration of job-related benefits, attorneys fees, compensatory damages and punitive damages. If the employer has more than 15 employees, the Complainant could file in federal court. II. Filing In Federal Court Under federal law, a Complainant may bring a private lawsuit against his or her employer, with his or her own attorney, in federal court. To do so, a complainant must have been pending with the EEOC for at least 180 days after filing. See 42 U.S.C. 2000e(5)(f)(1). If the EEOC dismisses a claim, the Complainant will automatically receive a right to sue letter, otherwise, if the case has not been dismissed and 180 days have passed since it was filed, the Complainant can request the right to sue letter from the EEOC. Once the Complainant has received the right to sue letter, he or she must file the lawsuit within 90 days. A Complainant has a right to file a private lawsuit whether or not the EEOC finds in his or her favor, regardless of whether the EEOC has brought suit against the employer, and/or even if the EEOC is still investigating the claim. - 20 -
If bringing a suit in federal court, the employee may seek reinstatement, back pay, restoration of job related benefits, attorneys fees, compensatory and punitive damages and other remedies. However, under the Civil Rights Act of 1991, 42 U.S.C. 1981a, certain categories of damages are capped depending on the size of the employer, these caps range from $50,000 for employers with under 100 employees to a maximum of $300,000 for employers with more than 500 employees. Also, the employee has the right to request a jury trial if he or she is seeking compensatory or punitive damages. Punitive damages are not recoverable from the government. - 21 -
USEFUL EMPLOYMENT LAW LINKS Connecticut Commission on Human Rights and Opportunities www.ct.gov/chro/site/default.asp Equal Employment Opportunities Commission www.eeoc.gov CHRO Regulations regarding Complaint Processing and Contested Case Proceeding www.ct.gov/chro/lib/chro/pdf/chroregs_complaints.pdf CHRO Office of Public Hearing Human Rights Referee Discrimination Decisions www.ct.gov/chro/cwp/view.asp?a=2528&q=316080&chropnavctr=#45580 Connecticut Department of Labor www.ctdol.state.ct.us U.S. Department of Labor www.dol.gov Connecticut Employment Lawyers Association www.ctnela.org National Employment Lawyers Association www.nela.org - 22 -
Appendix A *** THIS DOCUMENT IS CURRENT THROUGH THE 2009 LEGISLATION (2010 SUPPLEMENT) *** Conn. Gen. Stat. 46a-60 (2010) Sec. 46a-60. (Formerly Sec. 31-126). Discriminatory employment practices prohibited. (a) It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness; (2) For any employment agency, except in the case of a bona fide occupational qualification or need, to fail or refuse to classify properly or refer for employment or otherwise to discriminate against any individual because of such individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness; (3) For a labor organization, because of the race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness of any individual to exclude from full membership rights or to expel from its membership such individual or to discriminate in any way against any of its members or against any employer or any individual employed by an employer, unless such action is based on a bona fide occupational qualification; (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84; (5) For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so; (6) For any person, employer, employment agency or labor organization, except in the case of a bona fide occupational qualification or need, to advertise employment opportunities in such a manner as to restrict such employment so as to discriminate against individuals because of their race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness; (7) For an employer, by the employer or the employer's agent: (A) To terminate a woman's employment because of her pregnancy; (B) to refuse to grant to that employee a reasonable leave - 1 -
of absence for disability resulting from her pregnancy; (C) to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer; (D) to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer's circumstances have so changed as to make it impossible or unreasonable to do so; (E) to fail or refuse to make a reasonable effort to transfer a pregnant employee to any suitable temporary position which may be available in any case in which an employee gives written notice of her pregnancy to her employer and the employer or pregnant employee reasonably believes that continued employment in the position held by the pregnant employee may cause injury to the employee or fetus; (F) to fail or refuse to inform the pregnant employee that a transfer pursuant to subparagraph (E) of this subdivision may be appealed under the provisions of this chapter; or (G) to fail or refuse to inform employees of the employer, by any reasonable means, that they must give written notice of their pregnancy in order to be eligible for transfer to a temporary position; (8) For an employer, by the employer or the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent, to harass any employee, person seeking employment or member on the basis of sex. "Sexual harassment" shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (C) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment; (9) For an employer, by the employer or the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent, to request or require information from an employee, person seeking employment or member relating to the individual's child-bearing age or plans, pregnancy, function of the individual's reproductive system, use of birth control methods, or the individual's familial responsibilities, unless such information is directly related to a bona fide occupational qualification or need, provided an employer, through a physician may request from an employee any such information which is directly related to workplace exposure to substances which may cause birth defects or constitute a hazard to an individual's reproductive system or to a fetus if the employer first informs the employee of the hazards involved in exposure to such substances; (10) For an employer, by the employer or the employer's agent, after informing an employee, pursuant to subdivision (9) of this subsection, of a workplace exposure to substances which may cause birth defects or constitute a hazard to an employee's reproductive system or to a fetus, to fail or refuse, upon the employee's request, to take reasonable measures to protect the employee from the exposure or hazard identified, or to fail or refuse to inform the employee that the measures taken may be the subject of a complaint filed under the provisions of this chapter. Nothing in this subdivision is intended to prohibit an employer from taking reasonable measures to protect an employee from exposure to such substances. For the purpose of this subdivision, "reasonable measures" shall be those measures which are consistent with business necessity and are least disruptive of the terms and conditions of the employee's employment; (11) For an employer, by the employer or the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent: (A) To request or require genetic information from an employee, person seeking employment or member, or (B) to - 2 -