United States: Season 2, Episode 3: A Conversation About The CHRO (Podcast)

Listen as guest speaker and Shipman & Goodwin partner, Peter Murphy and host, Daniel Schwartz chat about what employers should know when it comes to the Connecticut Commission on Human Rights and Opportunities (CHRO).

In October, Peter hosted a webinar with Kimberly Jacobsen and Michelle Dumas Kueler from the CHRO's legal office where they discussed what the commission has been focusing on, weaving in suggestions for employers on beneficial practices to follow when working with the CHRO. This podcast goes beyond the webinar as Dan and Peter discuss in more depth the CHRO as an organization, their case assessment review process, thoughts on position statements and more. After listening, head over to our ⁠website⁠ to watch Peter's webinar with Kimberly Jacobsen and Michelle Dumas Kueler.

Transcript

Daniel Schwartz: Welcome back to From Lawyer to Employer, a podcast about employment law. I'm your host Dan Schwartz, partner in employment law at Shipman and Goodwin. On today's podcast, my colleague Peter Murphy is going to join me as we talk about the Connecticut Commission on Human Rights and Opportunities and what employers should know about it. As part of the Shipman and Goodwin fall employment law webinar series we recently hosted the CHRO's legal office for a discussion about what the commission has been up to of late, what practices employers may want to follow, things like that. I'm hopeful that we can address a question or two that came up at the webinar that we didn't have time to address there.

So welcome, Peter.

Peter Murphy: Welcome, Dan. Thanks for having me.

Daniel Schwartz: So, let's start with the basics. First, what is the Commission on Human Rights and Opportunities and what should employers know about it?

Peter Murphy: That is a good question to start with. And the Commission has a couple of different key areas of focus, all involving eliminating discrimination in Connecticut.

On one hand, they deal with state agencies and state contractors and focus on affirmative action things of that nature. But from employers' perspectives, the most important thing to know is that's where employees go to file claims when they believe they've been discriminated against on the basis of race or sex or any other protected category.

Daniel Schwartz: As employers should know, before an employee can file in court, they need to file at this agency, right?

Peter Murphy: Correct. They can file either with this agency or at the federal level, the EEOC. I find in our experience that most employees file with Connecticut first. And when they file with the CHRO it's automatically dual filed with the EEOC.

But of course, the CHRO takes the lead and is the primary investigating agency that we deal with on behalf of employers.

Daniel Schwartz: So, the legal office that you spoke with, it was great having them. They really shared some terrific insights. What's their role?

Peter Murphy: Yeah. And a lot of thanks to both Kim and Michelle for appearing with us on our recent webinar and the legal department there has several different job tasks or categories.

One - they're involved with the initial processing of all complaints that are filed. There's a, when a complaint is filed, it goes through the case assessment review process, and that is handled by the legal office. I know we'll talk a little bit more down the road. Two- the legal office also at times will hold mediations. It will be mediators. There was a backlog for a while, and so the attorneys in the legal office will do mediations. And then three -they represent the interests of the CHRO, that's in two different areas. Primarily one is before the office of public hearings. They will be the attorneys who can represent a plaintiff before the office of public hearings in that trial like proceeding or over the last five years or so, we've seen a lot of cases in the court systems prosecuted or involving the CHRO and the legal department will represent the CHRO in those proceedings.

Daniel Schwartz: So, I know you talked about a lot and it's unfair to try to summarize a whole hour webinar into a podcast, but I thought there were a number of really good takeaways from that webinar. And one of the things that you started talking about with them was how they're staffed right now and the outreach that they're doing. What did you learn from that?

Peter Murphy: Yeah, those were two interesting takeaways. As a state agency, we learned that they're pretty well staffed up and they have almost a full complement of investigators and attorneys. And I know there are a lot of new faces over there that we keep meeting for the first times. And so they're fully staffed up. And two, even more interesting was to hear that they're doing outreach events. If you went to the Puerto Rican Day Parade, for example, the CHRO had a table there and they're out there essentially advertising what they do as an agency and from an employer's perspective, I would take that to mean they're out there, educating employees and letting people know how to file claims. And that might explain why we've seen a recent uptick in cases at the CHRO over the prior year. Maybe these outreach efforts are leading to that.

Daniel Schwartz: One of the other things that you then delved into was this case assessment review process. And this was something that was instituted now several years ago as a preliminary stage that employees need to get through to get their complaints to an investigation.

So, what were the standards that are leading to dismissal and what's an update on what you learned at the webinar there?

Peter Murphy: Yeah, there were some interesting points on that as well. And a plaintiff will file a complaint. The employer will file an answer, and then, as you said, the CHRO does this initial case assessment review by the legal department, and what we see when we look at the figures, it looks like about, 230 or 240 cases were dismissed at that stage last year.

Overall, there were about 1,700 employment cases filed so it's still a relatively small number, but there are some that are dismissed at that stage and in primary for two reasons - one jurisdictional, including the claims are untimely. A plaintiff has 300 days and we're seeing a lot of cases where, even though that deadline was extended from 180 days to 300 days a few years ago, plaintiffs are still missing that and that's a good reason for it to be dismissed. Or two, no reasonable probability of a cause finding. And so essentially, the lawyers are looking at it and even accepting everything that the plaintiff has alleged is true, they're really just failing the state of claim. And so, the CHRO is dismissing some cases. I think we've seen a decent uptick in that so that's a good thing.

Daniel Schwartz: That's probably a good point. So, the legal division, they're involved in these case assessment decisions, as it turns out.

Peter Murphy: Yes, correct. They're the ones handling it. We found out through the webinar that they're not assigned by region. They're assigned more by number. So if a case is filed in the Norwich office, for example, you don't know which lawyer that's going to. It's assigned based on number but nevertheless you're getting a lawyer to look at it before the investigators who normally are not lawyers. So, another thing we can maybe talk about is, how do employers make their case to these lawyers who are doing the case decision.

And there's two ways to do that, right? And this is another thing we touched on in the webinar was, do you do just an answer? Do you do what we would call a position statement or do some hybrid approach?

Daniel Schwartz: We've gone back and forth. I know you and I have had many discussions. Do you do an answer? Do you do a position statement? Were you able to glean anything from what the legal office said there?

Peter Murphy: Yeah, two things. One, what they're really looking for is some sort of substantive response. When a plaintiff files a complaint, he or she will make a variety of allegations. And what the legal division does not want to see is just an admit, deny, admit, deny. They want to see something from an employer that gives information as to why this case should be dismissed on case assessment review, and some people do that just within the answer, admit an allegation, but provide more of a narrative response. Others will do the admit, deny, admit, deny, and then submit that separate document that we're talking about, the position statement, which is more the employer's chance to frame out what really happened and the legal issues underlying the case.

And so what we heard from the legal division is they're not really in favor of the position statement. They wanted more of a substantive answer. I was a little surprised by that because we've had good success with the position statements. And I think in particular, two areas where they're effective are the things we talked about, why cases are dismissed.

Jurisdictional argument, right. That's, there's not going to be anything in the answer that addresses that, but you might want to frame that out in a position statement. Here's why the case is untimely or here's why -- even if we accept everything is true -- the case fails. For example, we terminate everyone who committed this offense, whether they're male, female, over 40, under 40, whatever it is and here are some examples of doing that.

Daniel Schwartz: Yeah, that was a surprise to me when I heard that the position statements weren't necessarily as helpful. I suppose that goes to the types of position statements that are out there, too. Some are a little more bare bones and some are a little more detailed.

Peter Murphy: Yeah, exactly. I think at the end of the day, if you think you have a good reason for why the case should be dismissed at that early stage, you need to frame it out and you could do that within the answer or you can do that in a separate position statement. I don't think the format really matters. I think what really matters is the substance, right? If you have a good case, make it and you'll have a receptive audience in the legal division.

Daniel Schwartz: What about these Schedule A's? So for those that are listening, anytime a complaint is filed, the CHRO has a list of questions that they want everyone to answer - where you're incorporated, how many employees that you have, et cetera. Did the legal division provide any insights as to whether those Schedule A responses are important or not?

Peter Murphy: They indicated that it could be important. And I think that goes back to maybe the prior example. If you can show that 10 other individuals were fired for that same offense in the last year, well then that really undercuts the complainant's position that it was because of his or her race or his or her age or whatever it was. And yes, I think the legal division does like thoroughly completed Schedule A and it can be helpful at times.

Daniel Schwartz: So, let's skip to another subject that came up that I thought was a fascinating discussion about the fact-finding hearing. Again, the sort of after the case assessment review, after remediation, you have this fact finding that the CHRO does there. What did you learn from the legal office about that discussion?

Peter Murphy: One thing in particular that we wanted to raise because we've heard it from both within our firm and other defense counsel was witnesses being contacted by CHRO investigators without knowledge of the employers. That's a concern from an employer's perspective, right? And what we heard from the legal division is, the expectation is that investigators would be letting you know about interviews, offering you an opportunity to listen in, et cetera. And then two, even if not, they should be recorded so you could get the recording afterwards. So I think both of those are important things for employers to take away.

Daniel Schwartz: Are they doing these still virtually at times? And do we expect that to continue?

Peter Murphy: We do expect that to continue. My understanding is that the CHRO's employees are only working one day a week in the office. So that makes it difficult to schedule things in person. And their intent is to hold things remotely. However, we learned that parties can request to hold fact findings or mediations in person and that they are doing that at the request of the party. So, if you think there's an important reason to do it in person, then you can ask and hopefully the CHRO would accommodate that.

Daniel Schwartz: Yeah, so the last thing that came up that, at least from my perspective, I thought was interesting, and I'm hoping you can shed some light on it, is the Freedom of Information Act and how that applies at the CHRO, because I think some employers are concerned about giving information in a position statement, for example, but there are some limits to the FOIA at the CHRO, right?

Peter Murphy: I think employers are rightfully concerned about submitting documents. In court we would file things, certain things under seal and redact certain things. And so there's a legitimate concern about what you submit to the CHRO and where that might be disclosed. And I think we heard some pretty clear-cut advice from the legal division, which is at the lower level, the fact-finding stage, the only things that would be disclosed in response to a Freedom of Information Act request would be the complaint and the ultimate disposition
--the finding of no reasonable cause, the release of jurisdiction, et cetera. Not the respondents answer, not in any documents submitted by the respondent, which again, goes back to, submitting documents about other employees who have been terminated for the same offense. Those would not be disclosed, the way I understood it from the legal divisions, those would not be disclosed in a Freedom of Information Act request. So that's a good thing for employers.

Daniel Schwartz: Like I said, you covered a lot during that webinar. Was there anything else that came up that you thought that employers should know about the CHRO in general or the legal office?

Peter Murphy: I think one thing, one takeaway from them is just have a little patience with them and be cooperative with them. I think there's a significant number of claims over there. Oftentimes we get frustrated on the employer side about how long things are taking over there, cooperative emails, if there are problems, reaching out to the regional manager first. And then after that, reaching out to the legal division, if you're really not getting the response that you want, I think that can go a long way in terms of helping move things over there. And that was something the legal division suggested in the webinar.

Daniel Schwartz: Yeah, I think one of the things I've had discussions about is that employers should not automatically assume that the CHRO is your enemy, but rather treat them as the government agency that they really are, which is to investigate these complaints and to cooperate, not necessarily be entirely deferential, but to work with them and give them the information they need to hopefully come about to the decision that the employer wants. But we know not every case is the same and not all facts are built the same. Looking at each case differently is a great point.

Peter Murphy: Following up on that, when you go through the process, yes, it can be frustrating having to go to a fact finding and having an investigator ask for certain witnesses to appear or certain documents but the numbers show that employers are prevailing in the vast majority of those cases and employers are receiving findings of no reasonable cause, which puts an end to the case at the CHRO level. I think in the last year there were, 300, almost 350 no cause findings versus only 80 draft findings of reasonable cause in favor of a plaintiff.

So, although there is that perception out there that the CHRO is a plaintiff friendly organization, and we can certainly make a lot of suggestions as to how their processes could be improved, employers are getting good results over there.

Daniel Schwartz: Yeah, and with the changes that were made to state law a number of years ago, getting a no reasonable cause finding actually has some value because it really does limit the employee's opportunities to go to court. They still have the option of the federal side of things, but we're just not seeing that. And in many instances, a finding of no reasonable cause does seem to end some of these matters, particularly where there's a pro se plaintiff on the other side. So, Peter, thank you so much for joining us today, really appreciate the insights, appreciate the webinar as well.

If you haven't checked it out. We will try to put a link to it in our show notes. And again, I want to thank the CHRO legal office for joining us and sharing their insights as well. We are going to continue to recap some of these webinars that we've been doing on an upcoming podcast. So, wherever you get your podcasts, watch for that in your feeds in the upcoming weeks.

And thank you once again for joining us on From Lawyer to Employer. We'll see you soon.

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