In a given year, about 2,000 complaints of employment discrimination are filed with the Connecticut Commission on Human Rights and Opportunities (CHRO). For some employers, the receipt of a CHRO charge is their first exposure to the legal system (other than Unemployment). The employer has only thirty days to respond to the charge, and only ten days to choose whether to participate in a pre-answer conciliation process. Employers need to be prepared to respond whenever a CHRO charge is filed. The following is an employer’s roadmap to the CHRO process.
- First, breathe. Many employers (and virtually all large employers) in Connecticut face a CHRO charge at some time. The filing of a charge does not mean that you or your employees are bad people, are going to jail, or are going to have to pay out a massive verdict. Factually or legally baseless charges are, unfortunately, quite common. While using an attorney may seem like a costly proposition, in many cases, an attorney can help resolve the matter quickly and efficiently so that it does not hang over your head.
- The next step is to determine whether there is insurance coverage that might cover the charge and to notify the carrier. Typically, the appropriate carrier is the Employment Practices Liability Insurance (EPLI) carrier. It is possible for a general business policy or other insurance policy to cover this kind of claim. Failing to notify the insurance carrier promptly can result in a loss of coverage for that charge or the reassignment of the case to a different attorney once work has already commenced. If the company does not have EPLI, it is worth considering purchasing such coverage for the future.
- If the company has insurance coverage, the carrier will likely assign an attorney. Otherwise, you will need to select an attorney. It is a good idea to choose attorneys who have substantial experience in the area of Connecticut employment law and who regularly appear before the CHRO. General practice attorneys are often unfamiliar with the specifics of practice before the CHRO and the nuances of employment law in Connecticut. Even though the CHRO process is somewhat informal, the case can make its way to state or federal court, so it is important to set the groundwork at the agency with a firm prepared to litigate in court if necessary. A company can represent itself at the CHRO, but not in court.
- If you think the case can be settled quickly and efficiently and want to attempt settlement prior to responding to the allegations, you must request pre-answer conciliation within ten days (not business days) after receiving the charge. This is a very short window and no extensions are available. If the company does not have an attorney already, it may be difficult to get advice on this question before a response is due. One option is to request pre-answer conciliation to preserve the option and then find an attorney to assist, or even attend the pre-answer conciliation prior to obtaining counsel. Of course, an attorney can be invaluable in drafting a settlement agreement that best meets the company’s needs.
- If the company does not engage in pre-answer conciliation or a settlement is not reached, it will need to respond to the charge. This involves responding to the employee’s claims from a factual and legal standpoint and offering the employer’s own explanation for what happened. For example, an employee may claim she was fired for complaining about sexual harassment, but the employer may be able to show that the person who fired her never knew about the complaint at the time the termination decision was made. This is where it is ideal to have good documentation of the employer’s decision making process. The employer can make arguments to try to have the case dismissed at the Case Assessment Review stage. If the case is retained, the next step is a mandatory mediation, which may be skipped if there was a pre-answer conciliation.
- The mandatory mediation is an attempt to settle the case. While the CHRO encourages settlement, it is up to the parties 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 for the employer, especially if there is insurance. Unfortunately, some employees demand million-dollar settlements and ignore the opinion of the mediator that the case is actually worth substantially less.
- After the mandatory mediation, if the case has not settled, it will be assigned to an investigator. It is also possible to request early legal intervention to try to have the CHRO dismiss the case without an investigation. A request for early legal intervention may also result in the case being fast-tracked to a public hearing, although this is rare. When the CHRO dismisses a case, it issues a “release of jurisdiction” allowing the employee to proceed to court on the case. The employee may also request a release of jurisdiction if he or she would rather not wait around for the CHRO to do its investigation and would rather go straight to court. Whether to request a release of jurisdiction is a strategic decision, because going to court may be less desirable than proceeding in the CHRO.
- If the case is not released, the investigator will set up a fact-finding hearing where evidence and testimony are presented on the case. It is usually several months after the hearing before the fact-finding report is issued. First, a draft report is issued and the parties have an opportunity to comment before a final report is issued. That report determines whether there is reasonable cause to believe discrimination occurred or whether there is no reasonable cause and the case will be dismissed.
- If there is a finding of reasonable cause, the matter proceeds to the Office of Public Hearings, which engages in a conciliation process and a hearing. After that hearing, the CHRO could appeal a decision in favor of the employer to court. This is rare. In fiscal year 2016-2017, out of 2376 complaints at the CHRO (most of which were employment-related), only 78 were certified to a public hearing and only 5 proceeded to the end of the public hearing process to result in a referee decision. (The statistics do not indicate which party won in those cases and, if the employer won, whether the CHRO appealed in court.)
Just how many CHRO cases end up in court is not easily determined. More than a third of CHRO cases are withdrawn due to a settlement. Many of the remaining cases are dismissed from the agency with the employee retaining the ability to sue the employer in court, but many employees do not pursue their cases in court.
While an employer can represent itself at the CHRO, an experienced employment attorney can remove a great deal of the stress and anxiety from the process by giving perspective on the likelihood of an unfavorable finding, advising on the value and terms of a good settlement, drafting factual and legal arguments that are persuasive to CHRO officials, and being ready to jump into litigation should the employee proceed to court. The attorney can even give advice on policies and procedures to prevent future disputes.
The labor and employment department at Berchem Moses PC has more than 100 years of collective experience navigating the CHRO process and litigating discrimination claims. We would be happy to partner with your business to address any labor and employment concern, including CHRO charges.