As the state considers allowing worker discrimination cases to bypass the Connecticut Commission on Human Rights & Opportunities (CHRO) and proceed straight to court, employers and labor unions find themselves on the same side of the lobby ”“ for once ”“ in fighting for the status quo.
The Connecticut General Assembly bill would allow workers to waive the current seven-month period that, under current state law, allows CHRO to investigate their discrimination complaint before any lawsuit can be filed in state superior court.
Robert Brothers Jr., the new executive director of CHRO, testified this month in Hartford that the proposed bill “would cut the heart out of a century of administrative law,” which is relied on in a range of settings to mediate or arbitrate disputes outside of the courts, including in workers compensation claims.
For the fiscal year ending June 30, 2009, CHRO handled nearly 450 complaints in southwest Connecticut from among about 2,000 statewide. It was the fifth straight year the agency has reported a decline in its caseload from the area, even as the U.S. Equal Employment Opportunity Commission (EEOC) reported that job bias charges nationally approached a record high in fiscal 2009. Brothers also defended CHRO on grounds it workers with a speedier and less expensive means of resolving a case without having to go to court.
“Often issues between employees and employers (are) a matter of miscommunication,” Brothers said. “The filing of a lawsuit as a first step would be like using a battering ram to open a package of Oreos.”
Brothers estimated that the bill would jeopardize some $800,000 in funding CHRO receives from EEOC for taking on cases that would otherwise spill into the federal agency”™s lap.
“Court is an intimidating process for many, but especially scary for the poor, those who have limited mental facilities, or those who don”™t have proficient English ”“ meaning those who are most likely to be victims of discrimination,” Brothers said. “What is sure to follow is if this bill is passed is that it will set precedent that will either undermine ”“ or at a maximum eliminate ”“ the administrative process.”
The length of that administrative process can vary; Brothers said it takes CHRO 14 months on average to reach a decision at the investigative level in a case, though he said the vast majority of cases reach a resolution before an investigative case is complete. For cases that proceed to the administrative level, he tacks on another 11 months on average, longer for those that go into the appeals process.
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After approximately seven months, a complainant can seek release from the CHRO process to take their case directly to court ”“ a period many critics think is just too long. As the Connecticut Business and Industry Association points out, however, both parties can agree to exit the CHRO process and litigate their dispute in court.
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“CHRO should be fixed and made more functional, not disregarded,” said Kia Murrell, assistant counsel at CBIA. “Like many state agencies that lack funding and resources, the CHRO has been widely criticized by employers and employees alike.”
CBIA”™s position was seconded by the American Federation of State, County and Municipal Employees, but at least one powerful senator who is often on the union side of issues minced no words.
“For a long time I thought that CHRO is nothing but a disaster,” said Sen. Edith Prague, who chairs the legislative labor committee. “I mean, they could perform a very valuable function if it was run right ”“ if people didn”™t have to think they were going to turn 95 before they got any attention.”
The Connecticut Trial Lawyers Association is among the groups pressing the legislature to enact an immediate waiver from CHRO”™s due-process requirements.
“In a simple case where there”™s a minimal wage loss and a person has been re-employed, and there”™s not this horrific emotional reaction, the CHRO is an absolutely fine place ”“ you don”™t need lawyers like me,” said Lewis Chimes, chair of the employment law committee of the Connecticut Trial Lawyers Association, and a partner at Garrison, Levin-Epstein, Chimes, Richardson & Fitzgerald P.C. in New Haven. “But those cases that are serious ”“ and I hope that I”™m only taking serious cases that are meritorious ”“ those cases are all going to go to court.”
Chimes said that under CHRO”™s administrative process, plaintiffs can only recoup back pay and job reinstatement, and cannot seek punitive damages, or those for emotional distress. Workers also lack the legal tools to compel an employer to produce documents or testimony, tools that are part of the court discovery landscape.
“These are very difficult cases,” Chimes said. “Proving discrimination these days may be the most difficult type of claim to bring, and employment lawyers who do this kind of work screen their cases very carefully ”“ otherwise they”™re not in business very long.”
