A bill to improve the processing of discrimination cases in the Commission on Human Rights and Opportunities was given a public hearing by the Connecticut legislature's Judiciary Committee this week.
The hearing on SB 468 allowed the business community both to support the proposal and dispute some misleading case-closure statistics from the commission.
The commission says it has greatly reduced the backlog of cases in its Case Assessment Process through forcing parties to engage in mediation early in the claims process.
Employers, however, say the commission hasn’t reduced its caseload through faster and more equitable outcomes, but by merely shifting most of them to the time-consuming and costly mediation process at the outset.
In fact, despite the fact that the number of claims for discrimination hasn't changed in the last 15 years, the percentage of claims dismissed after an initial review of the case has dropped from 44% to 1%.
CHRO has made the process so difficult, say businesses, that respondents are forced to mediate and settle merit less, often frivolous claims.
Historically plagued with a backlog of cases, CHRO chose several years ago to deal with the problem by arbitrarily changing its case review standards without the legislature’s approval.
More recently, the agency used the legislature to mandate that parties to a claim engage in mediation.
Businesses believe SB 468 could restore fairness and efficiency to the system by:
- Requiring the commission to use the same standard used by the federal Equal Employment Opportunity Commission—as standard that protects claimants by specifically stating that a dismissal of a claim by the CHRO does not mean that the respondent is in compliance with the statute.
Employers have virtually no chance of getting a case dismissed expeditiously under the process, regardless how frivolous the claim.
- Making the initial mediation conference voluntary; these conferences are an unnecessary expense of time and money when the respondent has no intention of settling a meritless claim.
- Limiting the length of time for fact-finding conferences and allowing the respondent to be present while the complainant is questioned. Witnesses are forced to make accommodations to be present for the entirety of a day during fact-finding conferences, an unreasonable burden. And when the respondent is present, they should have the right to hear the accusations against them in order to refute aspects of the complainant's testimony with their counsel.
- Allowing complainants or respondents to request a release of jurisdiction if there is a pending civil action or arbitration between the parties.
How We Got Here
In 1994, amid a mountainous backlog of cases in CHRO, the legislature added a Merit Assessment Review standard to the claim process.
This allowed for the expeditious dismissal of frivolous cases if a complaint “failed to state a claim for relief or is frivolous on its face, the respondent is exempt from the provisions of the chapter, or there is no reasonable possibility that investigating the complaint will result in a finding of reasonable cause.”
Today, employers have virtually no chance of getting a case dismissed expeditiously under the merit (now case) assessment review process, regardless how frivolous the claim.
As a result, the number of Connecticut employers now paying to settle cases has risen dramatically.
Certainly there are many instances where this outcome is warranted, but there are also a significant number of cases where businesses are settling claims simply to avoid the costly and time consuming expense of fact-finding conferences. This is not good public policy.