Connecticut Commission on Human Rights & Opportunities (CHRO) Discriminatory Complaint Processing

Transcription

1 Connecticut Commission on Human Rights & Opportunities (CHRO) Discriminatory Complaint Processing Presented by CHRO Deputy Director Cheryl Sharp and Human Rights Attorney Kimberly Jacobsen September 2014

2 The CHRO s Mission... To eliminate discrimination through civil and human rights law enforcement and to establish equal opportunity and justice for all persons within the state through advocacy and education.

3 Our Offices... Legal Division, Contract Compliance & Affirmative Action unit and Housing unit are located in the central office in Hartford Four regional offices (employment and public accommodation complaints) - Hartford - Bridgeport - Waterbury - Norwich

4 Where to File a CHRO Complaint in Connecticut To file an employment discrimination complaint, the public can go to the contacting us link at to find the town in which the alleged discriminatory act took place, and the phone number of the regional office that serves that town. (Housing complaints are filed in the central office in Hartford. For information on see

5 Filing a Complaint Make an appointment, staff will draft File using online form yourself File with mail-out form yourself Attorney drafted

6 180-Day Statute of Limitations Generally 180 days - there may be tolling. When in doubt, file!

7 Many Documents Will Be ed to Parties Many documents will be sent through Supply an address to the agency Regularly check for correspondence Change in address, phone, or LET US KNOW

8 CHRO Complaint Process Complainant files a complaint. Respondent files an answer and responses to Schedule A. Complaint Answer and Responses to Document Requests Complainant may file rebuttal. Rebuttal

9 Merit Assessment Review (MAR) A review of the complaint, answer (and related documents) and rebuttal to determine whether the complaint should be retained for a full investigation or dismissed. STANDARD 1 Failure to state a claim for relief STANDARD 2 Frivolous on its face STANDARD 3 Respondent is exempt STANDARD 4 No reasonable possibility of a reasonable cause finding

10 MAR dismissals are reviewed by legal staff if the dismissal is an error we will reinstate the complaint. Legal Review

11 What Happens After MAR if the Case is Dismissed? Release of Jurisdiction from the CHRO (ROJ) issued with MAR dismissals. C.G.S. 46a days to file a complaint in state or federal court after receipt of ROJ. Right to sue from EEOC to file in state or federal court.

12 Focus on Mediation Mediation will take place shortly after MAR or legal review for each case retained or reinstated.

13 An Investigator will be Assigned Cases Shortly After a Failed Mediation If a case is not successfully mediated it will quickly be assigned to an investigator. The investigator will contact the parties to let them know how the case will proceed.

14 Early Legal Intervention (ELI) Initiated by either party or the CHRO. The legal department will review the case and make one of the following decisions: Go directly to public hearing ROJ Further investigation Recommend a finding of no reasonable cause

15 The Investigator will Decide the Best Way to Investigate Each Case Fact-finding conference. Questioning witnesses and reviewing documents. An investigator is not mandated to hold a factfinding conference, but if one is scheduled it is mandated that the parties attend. Document requests, witness interviews and interrogatories.

16 More on the Investigative Process Typically, after the factfinding conference is over, the investigator will send out a draft decision without much further investigation. Duty to cooperate keep in touch, attend conferences. Administrative dismissals or defaults.

17 Determinations Draft finding of reasonable cause or no reasonable cause. 15 days to comment on the draft. Based on comments, the investigator may further investigate or issue a final finding. After a cause-finding the investigator will conduct conciliation.

18 Office of Public Hearings (Located at the CHRO Central Office) Hearing conference Settlement conference Production requests Objections/compliance Motion to compel Witness and exhibit lists Pre-hearing conference Hearing Final decision (full hearing or hearing in damages)

19 OPH Hearings Contested case proceedings governed by the UAPA. Cases heard by the human rights referees who work in the Office of Public Hearings. They also hear whistleblower complaints.

20 The Time to Get an ROJ (Release of Jurisdiction) After 180 days from filing of complaint. Complainant can request expedited MAR for ROJ prior to 180 days. Immediate ROJ with consent of both parties.

21 Employment Discrimination Covers various class bases listed in Conn. Gen. Stat. 46a-60 Examples of discriminatory acts: Refusal to hire Termination Denial of promotion Unequal compensation for same job Denial of equal terms and conditions of employment Retaliation Failure to accommodate Harassment/hostile work environment

22 Are there any exceptions? Independent contractors Ministerial exceptions Under three employees Domestic workers Post office Federal workers Native American reservations Exemptions are interpreted narrowly, when in doubt, file!

23 Disability Discrimination Conn. Law Conn. law differs from ADA CT definitions of disability: Physical disability: Conn. Gen. Stat. 46a-51(15) Mental disability: Conn. Gen. Stat. 46a-51(20) Intellectual disability (formerly mental retardation): Conn. Gen. Stat. 46a-51(13) (refers to Conn. Gen. Stat. 1-1g)

24 Federal Law ADA (Americans with Disability Act) initially focused on effect of condition Impairs major function ADAAA (ADA Amendment Act) Broadened scope Eliminates focus on degree of limitations Keeps more cases in court

25 Major difference between state law and the ADA: Focus is on the condition, rather than effect. Establishing disability easier (generally) in CT. Chronic condition as opposed to physical or mental impairment that substantially limits one or more major life activities.

26 What is Chronic? Of long duration Deep-seated or obstinate Threatening a long continuance Not acute Not permanent, necessarily May wax & wane Sporadic but long-lasting Triggered by certain things

27 Found to Be Disabilities Hypertension High cholesterol History of heart attack Diabetes Carpal tunnel Asthma Back problems Arthritis Parkinson s disease Sinusitis Deformity of hand Anxiety Depression Cancer Poor vision Morbid obesity Alcoholism

28 Not Found to Be Disabilities Broken leg (non-complicated) Viral conjunctivitis Cold

29 Bona Fide Occupational Qualification (BFOQ) No member of excluded class can perform job burden of proof on the employer. Applicant MUST meet certain standards i.e. federal safety standards.

30 Alcohol and Drug Addiction People with past drug and alcohol users are protected under the discrimination laws. Current illegal use of drugs is not protected. An employer should grant an employee reasonable leave to obtain treatment for alcohol abuse. Drug testing is allowed but be careful about false positives which lead to illegally perceiving an individual as a drug user.

31 Perceived disabilities What is perceived disability? Perceived disability is where the person does not actually have the disability, but the discriminator mistakenly thinks they do. Example: Assuming a stuttering employee is not capable of performing intellectual tasks. Clearly covered under the ADA. Not covered by state law - Desrosiers v. Diageo court rejected claim (case is under appeal).

32 Duty to Accommodate Employers are required to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship.

33 How Do I Know an Employee Needs an Accommodation? It might be apparent. The employee needs to ask - verbally or in writing. No magic words.

34 Once the Employee Asks for the Accommodation, What Happens? The parties engage in the interactive process which may include a request for medical documentation if the need for the accommodation is not evident. It doesn t need to be the accommodation of the employee s choice, just one that is reasonable.

35 The Interactive Process The employer may choose an alternative accommodation that serves the same need. The employer may request for medical documentation if the need for the accommodation is not evident.

36 The Employee Still Must Be Ableto Do the Job If the employee can t do the job with an accommodation, he or she may not be qualified.

37 Some Examples of Common Accommodations Making existing facilities accessible Job restructuring Part-time or modified work schedules Acquiring or modifying equipment Changing tests, training materials, or policies Providing qualified readers or interpreters Reassignment to a vacant position

38 What About Unpaid Leave? Yes, unpaid leave can be an accommodation, depending on the circumstances. If employee asks for leave beyond FMLA, the employer should consider that a request for a reasonable accommodation.

39 Undue Hardship Factors (respondent s burden to prove): Excessive cost The overall financial resources of the employer Size of employer Number of employees Type and location of facilities of the employer Type of work The impact on the operations

40 Sexual Harassment What is it? Form of sex discrimination. Unwanted sexual conduct that effects an employment decision. OR Sexual demands in exchange for work benefits (Quid Pro Quo). OR Hostile environment.

41 Examples of Sexual Harassment Sexual propositions or threats Lewd comments or jokes Unwanted or inappropriate touching Sexual gestures Use or display of pornographic materials Obscene noises or leering

42 Sexual Harassment is an Abuse of Power That is Expressed Sexually Supervisor v. subordinate Coworker v. coworker

43 What is the Employer s Responsibility for Coworker Harassment? Use reasonable care to prevent harassment from occurring. * Policy in place * Systematic training Take prompt remedial action to correct harassment. * Take steps to end harassment * Prompt and neutral investigation * Disciplinary policy Use preventative and corrective opportunities.

44 Sexual Harassment Not Limited to Male/Female Patino v. Birken Mfg. Co. CT Supreme Court finds employers liable for anti-gay harassment.

45 Sexual Harassment Law Title VII Conn. Gen. Stat. 46a-60(8) Conn. Gen. Stat. 46a-54(15)

46 We Also Cover Housing Discrimination Class Bases: Listed in Conn. Gen. Stat. 46a-64c No MAR in housing Housing cases all filed at our central office (25 Sigourney Street, Hartford) More investigation via the phone Discriminatory acts: Refusal to rent or sell Otherwise make unavailable or deny Terms and conditions Make print or publish Failure to accommodate

47 And Public Accommodation Discrimination Discrimination in places of public accommodation like restaurants, court houses, stores, etc. May include schools Breastfeeding in public Service animals

48 Our Federal Partners EEOC HUD Dual investigations

49 Questions? Contact us or toll-free