{Executive Director Tanya Hughes} Executive Director |
How does the Commission
process a discrimination complaint? The Complaint A phone call, letter or visit to any Commission on Human Rights
Regional Office starts the process. An interview with an Intake Officer will be
scheduled to help you file your sworn complaint. Complaints must usually be
filed within 180 days from the date of the alleged act of discrimination or
from the time that you reasonably became aware of the discrimination. Many discrimination complaints are also jurisdictional under
federal law, which has a longer, 300-day filing period. The Commission can take a complaint under
federal law and send it to the U.S. Equal Employment Opportunity Commission,
even if the complaint would be untimely under state law. The Response The complaint is served on the "respondent," the person
or company charged with discrimination.
The respondent must respond under oath within 30 days, or within 10 days
for a housing case. If the respondent does not answer, the Commission may
default the respondent. In the event of
a default, the complaint will be sent directly to a hearing to determine
appropriate remedies for the alleged discrimination. 60-Day Case Assessment
Review (does not apply to housing complaints) Within sixty (60) days from the date the answer is received, the
Commission must conduct a case assessment review of your complaint. The
purpose of the review is to determine whether the complaint (a) fails to state
a claim for which relief can be granted; (b) is frivolous on its face; (c)
names a respondent that is exempt from coverage; or (d) that the complaint and
documents received indicate no reasonable possibility that further investigation
will result in a finding of reasonable cause. If any of these determinations
are made, the complaint will be dismissed. The case assessment review is based upon: (a) the complaint; (b)
the respondent’s answer and responses to the Commission’s requests for
information; and (c) the complainant’s comments to the respondent’s answer and
information responses, provided that the comments are received by the
Commission within 15 days of the complainant’s receipt of the respondent’s
answer. If the case is dismissed after a case assessment review, the complainant
will be issued a Release of Jurisdiction. The complainant will then be able to bring a civil action in court if they so wish. Mandatory Mediation All complaints not dismissed after a case assessment review will be retained by the
Commission. Most cases are retained
after a case assessment review.
Retaining a case does not mean the Commission believes that the complainant
has been discriminated against. The next step for cases retained by the Commission is a mandatory
mediation. During this process a mediator will be assigned to the case. The mediator
is a neutral person – someone who does not decide whether discrimination has
occurred, but only works with the parties to resolve their dispute. The mediator will try to bridge the differences between the
parties to see whether it is possible to resolve the complaint without a more
formal proceeding like an investigation or public hearing. Usually this involves the respondent’s offer
of some form of compensation like back pay.
The mediator cannot force the complainant or respondent to settle the
case or even to make an offer. If the case is settled during the mediation, a settlement
agreement will be drafted by the parties and the Complainant will sign a
Withdrawal of Complaint. The Commission
will use the Withdrawal of Complaint form to close the case. If the case is not
settled, the Commission will determine the most appropriate method of further
processing the complaint. This may include either a full investigation or Early
Legal Intervention. The Investigation If the Commission
determines a full investigation is warranted following an unsuccessful
mediation, an investigator will be assigned to the case within 15 days. The investigator’s job is to act as a neutral person who will
gather information about the complaint -- from the complainant and from the
person or company charged with discriminating.
As part of the investigation, the investigator may request documents, conduct
witness interviews, issue interrogatories or use other legal means of
investigation. The investigator may also conduct a fact- finding conference. At the fact-finding conference the
complainant and the respondent have an opportunity to prove and defend their
cases through documents or witnesses requested by the investigator. Both parties have the right to review and
comment on any evidence in the Commission’s file. Early Legal
Intervention (does not apply to
housing complaints) Following
an unsuccessful mediation, the parties or Commission can request Early Legal
Intervention. The legal division will review the case and make one of the
following decisions: (a) there is enough evidence for the case to go directly
to public hearing; (b) the Complainant should be given a Release of
Jurisdiction; or (c) there should be further investigation done. If an
investigation is ordered, an investigator will be assigned and the process will
proceed similar to how a full investigation is conducted. The Determination –
Reasonable Cause or No Reasonable Cause The investigator looks at the facts uncovered by the investigation
to determine whether there is "reasonable cause" to believe that a
discriminatory act has been or is being committed as alleged in the
complaint. “Reasonable 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.” It does not mean that a law
has been violated. That can be
determined only after a public hearing. The Commission strives to issue a draft of the finding within 190
days from the completion of the merit assessment review. The law provides for
two, three-month extensions in making this determination. The parties have 15
days to submit comments on the draft finding. After considering these comments,
the investigator will issue a final finding. For housing discrimination cases only where the investigator has
found reasonable cause, the complainant or the respondent has 20 days from when
the Commission sent the finding to elect a civil action instead of a public
hearing before the Commission. Where a
civil action has been elected, the Commission has 90 days to file in Superior
Court. The Commission may request
punitive damages for the complainant and a civil penalty for the Commission to
vindicate the public interest. A "no reasonable cause" determination means a case will
be closed for lack of sufficient evidence. This does not necessarily mean that
the discrimination did not occur, but that the investigator could not find
sufficient evidence to support the complaint. The Determination -
Other Sometimes a case may be closed before an investigation is
completed. Some examples are if both sides agree to a settlement, if the
complainant withdraws the complaint, if the complainant cannot be located or if
the complaint is one the Commission does not have the legal authority to handle. The Commission can also dismiss a complaint if the complainant
fails to attend a mandatory mediation or fact-finding conference without good
cause, or refuses to accept full relief from the respondent. The respondent can be defaulted for failing
to attend a mandatory mediation or fact-finding conference without good cause,
or for failing to answer a complaint, answer interrogatories or respond to a
subpoena. Reconsideration The complainant may request reconsideration of any complaint dismissed
for no reasonable cause, for failure to accept make whole relief or for failure
to attend a mediation or fact-finding conference. A request for reconsideration must be filed
within 15 days of the date the Commission sends notice of the dismissal and
must state specific reasons why reconsideration is requested. Late requests will not be reconsidered. An attorney in the legal division will review the request for
reconsideration and make a recommendation to the principal attorney as to
whether the request should be granted or rejected. The Commission has 90 days from the date of
its original dismissal to decide. The
attorney may conduct additional proceedings such as requesting additional
information or conducting interviews if necessary to make a decision on the
request. Conciliation State law requires the investigator to conciliate a complaint after
reasonable cause is found. The
investigator will try to achieve a voluntary agreement between the parties to
eliminate the illegal discrimination and to make the complainant
"whole" - to restore the complainant, as best as possible, to the
position he or she would have been in if the discrimination had not occurred. In an employment case, a settlement could include an award of back
pay and lost benefits, being hired or promoted, or other remedies. In a housing
case, a settlement could include being able to rent the apartment the
complainant was denied, an award for the difference in rent the complainant had
to pay in finding other lodging, money damages and attorney's fees, or other
remedies. Link here to learn more about your
settlement options. The Public Hearing (Trial) If the parties cannot reach a voluntary agreement, a human rights referee
will decide the case. The process is similar to a case to court, except that
the rules are more relaxed. Witnesses
are examined and cross-examined by the parties or their attorneys. The parties do not have to hire a lawyer, but
may hire and pay an attorney themselves to represent their interests if they so
choose. Prior to the public hearing, a settlement conference will be held
which will be conducted by a referee assigned only for the purpose of
settlement. The settlement referee assists in possibly settling the case, to
prevent the need for a public hearing. If settlement negotiations fail, the
public hearing will be conducted as scheduled by another referee. At the public hearing, a commission attorney will present the
evidence of discrimination the agency has found. The complainant and the respondent may also
present their own evidence. After
hearing the witnesses and evidence, the referee may ask the Commission and the
parties to file briefs stating why they believe they should win. Within 90 days of the end of the hearing, the
referee will issue a decision in writing about the case. If the referee rules that
discrimination occurred, she or he will order the discrimination stopped and
can order one or more of the remedies described above. The Appeal The complainant, the respondent and the Commission may appeal a
public hearing decision to the state courts. Settlements, agreements and
hearing referee orders may be enforced in the state courts by the CHRO or by
you. The complainant may appeal a no
reasonable cause determination or a decision rejecting reconsideration. Reopening and Enforcement The complainant and the respondent, for good cause shown, and the
Commission may apply to the agency’s commissioners to reopen any matter
previously closed in the interest of justice, unless the matter has been
appealed to the Superior Court. The Commission or the complainant may petition the Superior Court to
enforce any order issued by a referee.
The Commission is entitled to attorney’s fees and costs to enforce an
order. Release of Jurisdiction Complainants are no longer required to have their cases heard by
the Commission. The complainant and the
respondent may jointly request a release of jurisdiction at any time after a
complaint is filed with the Commission. After
180 days from the filing of the complaint, the complainant may request a
release of jurisdiction if the complaint is still pending. Prior to 180 days, the complainant may
request that the Commission conduct an expedited case assessment review and
issue a release after case assessment is done.
The Commission has 10 business days to issue the release. After issuing the release, the Commission
will dismiss the complaint and close the case.
Content Last Modified on 2/4/2016 11:28:53 AM |
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