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Presentation from the CHRO on 10/20/11 on new law

Presentation from the CHRO on 10/20/11 on new law

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  • Are we trying to take over the agency, or are we the only survivors?????
  • Since we only see a fraction of the total number of dismissals, it’s hard to say the 70% of cases we don’t receive recon requests are equally suspect. But even so the problem is that we have a problem with MAR dismissals and have had a problem with the overuse of MAR for some years.
  • Ok – Are we still awake??? Just checking.
  • What we’re doing is inching closer to the MCAD model, which embeds attorneys in the regional offices. The attorneys are responsible for making sure the correct decisions are being made. Because we will be going from region to region but yet are a single unit, we hope our decisions will be consistent.

Transcript

  • 1. CHRO’S EXPEDITED COMPLAINT PROCESSING CONFERENCE October 18, 2011
  • 2. PROMOTING EQUALITY AND JUSTICE FOR ALL PERSONS
  • 3. DAN SCHWARTZ www.ctemploymentlawblog.com
    • It’s a whole new world starting October 1st.”
  • 4.  
  • 5.  
  • 6.  
  • 7. http://www.ctmirror.com/story/13957/officials-say-chro-complaint-backlog-cant-be-fixed-without-more-staff
    • Sen. Eric Coleman , D-Bloomfield, co-chairman of the Judiciary Committee, and former Rep. Andrew M. Norton, CHRO chairman for the past five years, both said that while the new legislation could be helpful, the commission needs funds to reverse a reduction of nearly 30 in staffing over the last few years.
    • "I think the issues at CHRO are greater than can be addressed just by this legislation."
  • 8. STAFFING LEVELS (source: Administrative Reports to the Governor)
    • FY 1980-01 108
    • FY 1981-82 120
    • FY 1982-83 107
    • FY 1983-84 101
    • FY 1984-85 103
    • FY 1985-86 110
    • FY 1986-8 117
    • FY 1987-88 121
    • FY 1988-89 125 (108)
    • FY 1989-90 112
    • FY 1990-91 99
    • FY 1991-92 97
    • FY 1992-93 93
    • FY 1993-94 96
    • FY 1994-95 105
    • FY 1995-96 105
    • FY 1996-97 89
    • FY 1997-98 100
  • 9. STAFFING LEVELS (source: Administrative Reports to the Governor)
    • FY 1999-00 108
    • FY 2000-01 109
    • FY 2001-02 109
    • FY 2002-03 101
    • FY 2003-04 95
    • FY 2004-05 98
    • FY 2005-06 98
    • FY 2006-07 100
    • FY 2007-08 103
    • FY 2008-09 103 (95)
    • FY 2009-10 80 (74)
    • FY 2010-11 82 (69)
  • 10. FY 1988-89 125 (108) FY 2010-11 82 (69)
  • 11. CENTRAL OFFICE STAFFING
    • GOOD OLD DAYS
    • EXECUTIVE DIRECTOR
    • DEPUTY DIRECTOR
    • CHIEF OF FIELD OPERATIONS
    • MANAGING DIRECTOR
    • PRINCIPAL ATTORNEY
    • ATTORNEY
    • ATTORNEY
    • ATTORNEY
    • ATTORNEY
    • ATTORNEY
    • ATTORNEY
    • ATTORNEY
    • ATTORNEY
    • ATTORNEY
    • ATTORNEY (.6)
    • TODAY
    • EXECUTIVE DIRECTOR
    • -----
    • -----
    • -----
    • PRINCIPAL ATTORNEY
    • ATTORNEY
    • ATTORNEY
    • ATTORNEY
    • ATTORNEY
    • ATTORNEY
    • ATTORNEY
    • ATTORNEY
    • -----
    • -----
    • -----
  • 12. CENTRAL OFFICE STAFFING
    • GOOD OLD DAYS
    • INVESTIGATOR (Ed. & Outreach)
    • INVESTIGATOR (Ed. & Outreach)
    • INVESTIGATOR (Ed. & Outreach)
    • INVESTIGATOR (Ed. & Outreach)
    • TRAINER
    • PARALEGAL
    • BUSINESS OFFICE
    • EXECUTIVE SECRETARY
    • ADMINISTRATIVE ASS’T
    • ADMINISTRATIVE ASS’T
    • LEGAL TYPIST
    • SECRETARY
    • TODAY
    • -----
    • -----
    • -----
    • -----
    • -----
    • PARALEGAL
    • -----
    • -----
    • -----
    • -----
    • -----
    • SECRETARY
  • 13. CENTRAL OFFICE STAFFING
    • GOOD OLD DAYS
    • 26.6
    • TODAY
    • 11
  • 14. LEGAL DIVISION STAFFING
    • GOOD OLD DAYS
    • 15.6
    • TODAY
    • 10
  • 15. History of investigative methods
  • 16. JUNE 29, 1943
  • 17. INTER-RACIAL COMMISSION
  • 18. General Statutes § 470g (1943 Supp.)
    • “The commission shall compile facts concerning discrimination in employment, violations of civil liberties and other related matters. Said commission shall report to the governor biennially the result of its investigations, with its recommendations for the removal of such injustices as it may find to exist.”
  • 19. 1947 P.A. 171 (General Statutes § 1365i)
    • “After the filing of any complaint, the chair-man of the commission shall refer the same to a commissioner or investigator to make prompt preliminary investigation of such complaint….”
  • 20.  
  • 21.  
  • 22.  
  • 23.  
  • 24.  
  • 25.  
  • 26. 1959 P.A. 334
  • 27.  
  • 28.  
  • 29.  
  • 30.  
  • 31.  
  • 32. P.A. 80-422, § 31
  • 33. General Statutes § 1365i “the chairman of the commission shall refer the same to a commissioner or investigator to make prompt preliminary investigation” P.A. 80-422, § 31 “ the chairman of the commission shall refer the same to a commissioner or investigator to investigate”
  • 34. PROMPT
  • 35. Williams v. CHRO , 257 Conn. 258, 286 (2001)
    • “ This bill, Mr. Chairman, would take care of a problem that has faced the agency for several years now. Because again the rather large caseload…approximately, 700 pending com-plaints, approximately 22 full time investigators, we find it difficult to reach the complainant in time to take his or her complaint….”
    • Remarks of Executive Director Arthur L. Green (1974)
  • 36. Legislative attempts to modify CHRO case processing
  • 37. Public acts affecting CHRO case processing (1988-2011)
    • P.A. 88-241
    • P.A. 89-332
    • 91-302
    • 93-313
    • 93-362
    • 94-113
    • AAC Enforcement and Appeal of Decisions of the CHRO
    • AAC the CHRO
    • AAC Complaint Processing and Operational Efficiency of the CHRO
    • AAC…Hearing Officers for the CHRO
    • AAC the Enhancement and Cost Effectiveness of the Hearing Process for the CHRO
    • AAC Alternate Dispute Resolution for Discriminatory Employment Practice Complaints
  • 38. Public acts affecting CHRO case processing (1988-2011)
    • P.A. 94-238
    • P.A. 96-241
    • P.A. 98-245
    • P.A. 00-12
    • P.A. 00-199
    • AAC Discretion Regarding Discriminatory Practice Complaints…
    • AAC the CHRO
    • AAC the Discriminatory Practice Complaint Procedure of the CHRO
    • AAC the Review and Dismissal of Discriminatory Practice Complaints by the CHRO
    • AAC the Reopening of Matters by the CHRO
  • 39. Public acts affecting CHRO case processing (1988-2011)
    • P.A. 01-95
    • P.A. 03-143
    • P.A. 05-201
    • P.A. 11-237
    • AAC Reconsideration Requests and the Reopening of Matters by the CHRO
    • AAC Alternate Dispute Resolution before the CHRO
    • AAC the Supervision of the Legal Staff of the CHRO and the Processing of Housing
    • Discrimination Complaints by the CHRO
    • AAC the CHRO
  • 40. Hartford Courant , May 22, 1988
    • Federal surplus possible
    • Gorbachev seeks unmanned flight to Mars with U.S.
    • Game 7: History is on the Celtics’ side
  • 41. DELAYS, DENIALS MAR RIGHTS COMMISSION’S RECORD
  • 42. Hartford Courant , May 26, 1988
    • Complainants being denied fair hearings
    • CHRO uses a reasonable cause standard far more strict than the law allows
    • Takes a year or more for investigations to begin
  • 43. P.A. 89-332
  • 44. P.A. 89-332
    • 1. Added definition of “reasonable cause”
    • 2. Added right to comment on evidence
    • 3. Added right to review file
    • 4. Set deadlines for investigations
  • 45.  
  • 46. P.A. 94-238
    • 1. Added MAR
    • 2. Reconsideration/Appeal of MARs
    • 3. Fact-Finding as an option to full investigations
    • 4. Added mandatory mediations
    • 5. Default/Dismissal for failure to attend mediation
    • 6. Decertification of reasonable cause findings
  • 47.  
  • 48.  
  • 49. P.A. 11-237: Why?
  • 50. WHY DO WE HAVE LEGISLATION?
  • 51. Legislation is a response to a problem, actual or perceived, by lawmakers.
  • 52. WHAT PROBLEMS?
    • Too many MAR dismissals
    • Too few Reasonable Cause findings
    • Too long to process cases
    • Too little consistency from region to region
  • 53. TOO MANY MAR DISMISSALS
  • 54. MAR DISMISSALS
      • FY 00-01 45%
      • FY 01-02 37%
      • FY 02-03 36%
      • FY 03-04 37%
      • FY 04-05 36%
  • 55. MAR DISMISSALS
    • FY 05-06 27%
    • FY 06-07 29%
    • FY 07-08 28%
    • FY 08-09 30%
    • FY 09-10 30%
  • 56. What % of Reconsiderations of MAR Dismissals Were Granted by Legal?
    • A. 30%
    • B. 40%
    • C. 50%
    • D. 60%
    • E. 70%
  • 57. Reconsiderations of MAR Dismissals by Legal (2007-11)
    • MAR dismissals granted 62% 278
    • MAR dismissals rejected 38% 167
  • 58. RECONSIDERATION REQUESTED (2007-11)
    • About 542 out of about
    • 1,834 MAR dismissals
    • About 30% request
    • reconsideration
  • 59. TOTAL MAR DISMISSALS (FY 2000-01 TO FY 2009-10)
    • 7,315
  • 60. 1999 Program Review and Investigations Committee Report
    • “ MAR activities should be closely monitored to detect unintentional over- or underscreening of complaints and to identify any problems in regional application of standards.”
  • 61. 1999 Program Review and Investigations Committee Report
    • “Raise the bar on qualifications – especially in the MAR unit….The MAR unit needs workers with legal analytical skills .”
  • 62. June 20, 2008 statement to 2008 Advisory Committee by Legal re MAR
    • “The current merit assessment review process should be reviewed…to ensure that merit assessment is only being used to weed out clearly unmeritorious cases. Further, it is imperative that a uniform standard be applied so that closure rates do not fluctuate widely from region to region .”
  • 63.
    • TOO FEW
    • REASONABLE
    • CAUSE
    • FINDINGS
  • 64. REASONABLE CAUSE STANDARD
    • “’ [R]easonable cause’ means a bona fide 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)
  • 65.  
  • 66. Reasonable cause findings (as a % of regional case closures)
    • FY 09-10 4.3%
    • FY 08-09 4.3%
    • FY 07-08 3.7%
    • FY 06-07 4.2%
    • FY 05-06 3.4%
    • NOTE: Fewer than 1 case in 25 results in a finding of reasonable cause.
  • 67. RI Commission for Human Rights FY 09-10 Report http://www.richr.state.ri.us/2010annualreport.pdf
    • Probable Cause was found in over 10% of cases, same as in FY 08-09
  • 68. MONTANA HUMAN RIGHTS BUREAU
    • What % FY10 Closures Were Findings of Reasonable Cause?
    • A. 2%
    • B. 5%
    • C. 8%
    • D. 12%
    • E. 17%
  • 69. TOO LONG TO PROCESS CASES
  • 70. CT Lawyer – Atty. Joshua Hawks-Ladds 2009
    • Unfortunately, the Commission has become an underfunded, understaffed and perpetually backlogged bureaucracy . Along with many valid discrimination complaints, the Commission’s offices are clogged with specious claims that the Commission is required to investigate. This means that the bona fide discrimination claims against landlords and employers get lost in the morass. Some of the valid claims are removed from the CHRO and litigated in the state and federal courts. However, the many of the claims (over 2,000 are filed each year) languish for years in the agency’s offices . The system is unfair to claimants with bona fide claims, as well as employers and landlords with bona fide defenses.
  • 71. RI Commission for Human Rights FY 09-10 Report http://www.richr.state.ri.us/2010annualreport.pdf
    • For the 12th consecutive year , the RI Commission processed more cases than it took in (403 vs. 382).
  • 72. RATIO OF CASES CLOSED TO CASES FILED
    • FY 07-08 109%
    • FY 08-09 106%
    • FY 09-10 89%
    • FY 10-11 84% (est. – 1,600 / 1,900)
  • 73. CHRO Budget in Detail
    • FY 10-11 100%
    • FY 11-12 100%
    • FY 12-13 100%
  • 74. AUDITORS OF PUBLIC ACCOUNTS’S REPORT COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES FOR THE FISCAL YEARS ENDED JUNE 30, 2008, AND 2009 p.6
    • “ During the fiscal years ended June 30, 2008 and 2009, respectively, 738 of 1,326 and 633 of 1,127 complaints closed exceeded the statutory maximum of 370 days.”
    • FY 07-08 56% more than 1 year
    • FY 08-09 56% more than 1 year
  • 75. New York State Division of Human Rights
    • > 181 days:
    • 33%
    • 181-365 days:
      • 41%
    • 1-2 years:
        • 24%
    • 2+ years:
    • 2%
  • 76.  
  • 77. AUDITOR OF PUBLIC ACCOUNTS - FY 07-08/08-09 http://www.cga.ct.gov/apa/pdf2011/CHRO_29010_09.pdf
    • Pre-2006 68 2.5% (oldest 2000)
    • 2007 52 2%
    • 2008 136 5%
    • 2009 433 16.5%
    • 2010 1,160 44%
    • 2011 764 29%
    • TOTAL: 2,613 (As of June 24, 2011)
  • 78. NY v. CT
    • NEW YORK
    • 1 year……65%
    • 1-2 years..29%
    • 2-3 years.. 4%
    • 3+ years… 2%
    • (as of 4-30-11)
    • CONNECTICUT
    • 1 year…...51%
    • 1-2 years..31%
    • 2-3 years..11%
    • 3+ years… 7%
    • (as of 6-24-11)
  • 79. AUDITORS OF PUBLIC ACCOUNTS - FY 07-08/08-09 http://www.cga.ct.gov/apa/pdf2011/CHRO_29010_09.pdf
    • “ The Commission on Human Rights and Opportunities should take steps to fully comply with Section 46a-83…by improving its performance in completing determin-ations of reasonable cause or no reason-able cause in cases of alleged workplace discrimination within the statutory time-frame .”
  • 80. FY 98-99 293 days FY 99-00 286 days
  • 81.  
  • 82. MCAD http://www.mass.gov/mcad/index.html
    • “Partnerships with the US Department of Housing and Urban Development and the federal Equal Employment Opportunity Commission now account for more than half of the Commission's operating budget and partnerships with municipal human rights commissions bring MCAD services to local communities across the state.”
  • 83. WHAT % OF CHRO BUDGET COMES FROM THE FEDS?
      • A. 50%
      • B. 40%
      • C. 30%
      • D. 20%
      • E. < 20%
  • 84. CHRO P.A. 11-06, § 1
    • EEOC and HUD funds account for less than 20% of CHRO’s FY 11-12 budget of $7,057,331
  • 85. PA Human Relations Commission 2009-10 Annual Report, p.10
    • PHRC’s settlement rate far exceeds all other state Fair Employment Practices Agencies and is more than twice that of the federal Equal Employment Opportunity Commission. The 40 percent rate for 2009-2010 is a decrease of one percentage point over the previous year, but is five percentage points higher than in 2007-2008.
    • • PHRC Settlement Rate, 2009-2010 — 40%
    • • Peer agencies’ five-year average — 21.3%
    • • EEOC 5-year average — 17.8%
  • 86. CHRO SETTLEMENT RATE
    • FY 05-06. . . . . . . . . . . .33%
    • FY 06-07. . . . . . . . . . . .31%
    • FY 07-08. . . . . . . . . . . .33%
    • FY 08-09. . . . . . . . . . . .34%
    • FY 09-10. . . . . . . . . . . .33%
    • 5 YEAR AVERAGE: . . .33%
    • NOTE: Does not include settlements that fall within Withdrawal category
  • 87. 2008 CHRO TASK FORCE
    • “ Increase the [CHRO’s] use and imple-mentation of mediation and conciliation procedures….Train and educate Inves-tigators (and Regional Managers) to invoke mediation steps early on in the process.”
  • 88. From a version of 2009 budget implementer
    • “ Pursuant to regulations adopted in accordance with chapter 54, the commis-sion shall institute policies and procedures to identify complaints that are reasonably susceptible to early resolution and shall promote and encourage the closure of complaints through voluntary settlement by the assignment of staff and commit-ment of other necessary resources.”
  • 89. 1999 Program Review and Investigations Committee Report
    • “ [P]rogram review recommends that CHRO separate the mediation and investigations components , and establish clear and consistent policies on mediation activities.”
  • 90. 1989 H.B. 7117, § 4
    • “ Upon a determination that there is rea-sonable cause to believe that a discrim-inatory practice has been or is being committed as alleged in the complaint,
    • the complaint shall be referred to the commission counsel who shall attempt to eliminate the practice complained of by conference, conciliation and persuasion within sixty days of a finding of reasonable cause.”
  • 91. 2008 CHRO TASK FORCE
    • “The Commission Counsel should take responsibility for this area and identify and implement training on a regular basis for staff in investigatory roles.”
  • 92. TOO MUCH INCONSISTENCY FROM REGION TO REGION
  • 93. Testimony of Cynthia Watts Elder, October 19, 1999 – Program Review and Investigations Committee
    • “ My personal observations…indicated that, among other things, employee morale was low, there was an erosion of trust between front-line staff and management, the agen-cy is crippled by inadequate resources, there existed inadequate communication between staff and management, inade-quate training opportunities, little oppor-tunity for upward career mobility, and inconsistent policies and procedures among regional offices .”
  • 94. 1999 Program Review and Investigation Committee Recommendations
    • “ [MAR was] discussed at length at the program review focus group. One concern mentioned to the committee by both complainant and respondent attorneys who attended was the inconsistency of MAR decisions —both sides noted there was no predictability about the conclusion CHRO would reach in any given case….
    • “ [T]he committee concludes CHRO should place more emphasis on this phase and ensure determinations being made at this level are completely sound and consistent .”
  • 95.  
  • 96. P.A. 11-237
    • Legal will decide questions of law.
    • Investigators will decide questions of fact.
    • Managers will manage regional staff.
  • 97. LEGAL REVIEW
    • Removes regional ability to dismiss cases without review by Legal – no longer 4 separate standards
    • One person will do all legal reviews
  • 98.  
  • 99.