JThe following article was first published on Berchem Moses PC Journal of labor and employment law. It is reposted here with permission.
In any given year, approximately 2,000 employment discrimination complaints are filed with the Connecticut Commission on Human Rights and Opportunity.
For some employers, receiving a CHRO charge is their first exposure to the legal system (other than unemployment).
The employer has only 30 days to respond to the charge and only 10 days to choose whether or not to participate in a conciliation process before responding.
Employers must be prepared to respond whenever a CHRO charge is filed.
The following is an employer’s roadmap for the CHRO process.
1. First, breathe
Many employers (and virtually all large employers) in Connecticut face a CHRO charge at some point.
Filing a charge doesn’t mean you or your employees are bad people, going to jail, or going to have to pay a massive verdict.
Accusations without factual or legal basis are unfortunately quite common. Although using a lawyer may seem like an expensive proposition, in many cases a lawyer can help resolve the issue quickly and efficiently so that it doesn’t weigh on your head.
2. Determine insurance coverage
The next step is to determine if there is insurance coverage that could cover the costs and notify the carrier.
Generally, the appropriate carrier is the employment practices liability insurance carrier.
It is possible that a general insurance policy or another insurance policy covers this type of loss.
Failure to promptly notify the insurance company may result in loss of coverage for that charge or reassignment of the case to another attorney once work has already begun.
If the company does not have an EPLI, it is worth considering purchasing such coverage for the future.
3. Legal representation
If the company has insurance coverage, the carrier will likely appoint an attorney. Otherwise, you will have to choose a lawyer.
It is a good idea to choose attorneys who have substantial experience in the area of Connecticut labor law and who appear regularly before CHRO.
General attorneys are often unfamiliar with the specifics of practicing before CHRO and the nuances of Connecticut employment law.
Even though the CHRO process is somewhat informal, the case may go to state or federal court, so it is important to prepare the ground at the agency with a company prepared to litigate in court if necessary.
A company can represent itself before CHRO, but not before a court.
4. Attempt a settlement
If you believe the matter can be resolved quickly and efficiently and wish to attempt a settlement before responding to the allegations, you must request pre-response conciliation within 10 days (not business days) of receipt of the accusation.
This is a very short window and no extensions are available.
If the company does not yet have a lawyer, it may be difficult to get advice on this matter before an answer is expected.
One option is to request conciliation before the response to preserve the option, then find a lawyer to help you, or even attend the conciliation before the response before getting a lawyer.
Of course, a lawyer can be invaluable in drafting a settlement agreement that best meets the needs of the business.
5. Load Response
If the company does not engage in pre-response conciliation or if a settlement is not reached, it will have to respond to the charge.
This involves responding to the employee’s claims from a factual and legal perspective and offering the employer’s own explanation of what happened.
For example, an employee may claim that she was terminated for complaining of sexual harassment, but the employer may be able to prove that the person who terminated her was never aware of the complaint at when the dismissal decision was made.
This is where having good documentation of the employer’s decision-making process is ideal. The employer can make submissions to try to have the case dismissed at the case assessment review stage.
If the case is retained, the next step is mandatory mediation, which can be skipped if there has been a pre-response conciliation.
6. Compulsory mediation
Mandatory mediation is an attempt to settle the case. Although CHRO encourages settlement, it is up to the parties to decide whether to settle and on what terms.
If the employee’s expectations are reasonable, a settlement is often achievable on terms that make financial sense to the employer, especially if insurance is available.
Unfortunately, some employees demand million-dollar settlements and ignore the mediator’s advice that the case is actually worth much less.
7. Investigation
After the mandatory mediation, if the file is not settled, it will be entrusted to an investigator. It is also possible to seek early judicial intervention to try to have the case dismissed by the CHRO without investigation.
A request for early judicial intervention may also result in the case being promptly referred to a public hearing, although this is rare.
When the CHRO dismisses a case, it issues a “jurisdiction waiver” allowing the employee to pursue the matter in court.
The employee can also apply for a discharge of jurisdiction if he prefers not to wait for the CHRO to make his investigation and prefers to go directly to the court.
Whether to seek a discharge of jurisdiction is a strategic decision, as going to court may be less desirable than proceeding with the CHRO.
8. Finding Facts
If the case is not made public, the investigator will hold an investigative conference at which evidence and testimony will be presented on the case.
It usually takes several months after the conference before the investigation report is published.
First, a draft report is released and parties have an opportunity to comment before a final report is released.
This report indicates whether the investigator has determined that there is a reasonable ground to believe that discrimination has occurred or if there is no reasonable ground and the matter will be dismissed.
9. Reconciliation
If there is reasonable cause, the matter is taken to the Public Hearings Office, which initiates a conciliation process and a hearing.
After this hearing, the CHRO could appeal a decision in favor of the employer in court.
It’s rare.
CHRO statistics
In fiscal year 2020-2021, out of 2,149 complaints filed with the CHRO (most of which were employment-related), only 62 were certified for a public hearing and only 35 resulted in closure at a hearing. a public hearing or court. (The statistics do not indicate which side won in these cases and, if the employer won, whether the CHRO appealed to court.)
It is not easy to determine how many CHRO cases end up in court.
About a third of CHRO files are withdrawn following a settlement.
Of 2,149 CHRO complaints in fiscal year 2021, only 35 were closed in a public hearing or court.
Many of the remaining cases are dismissed from the agency, with the employee retaining the ability to sue the employer, but many employees do not pursue their cases in court.
While an employer can represent themselves at the CHRO, an experienced labor lawyer can take much of the stress and anxiety out of the process by providing perspective on the likelihood of an adverse finding, advising on the value and terms of a good settlement, writing compelling factual and legal arguments for CHRO officials and being prepared to engage in legal action should the employee ever go to court.
The attorney can even advise on policies and procedures to prevent future litigation.
About the Author: Rebecca Goldberg is an associate of Berchem Moses PC, specializing in labor and employment issues. The Berchem Moses PC Labor and Employment Service has over 100 years of collective experience in navigating the CHRO process and in discrimination litigation.