CHRO: Complaint Processing

THE COMPLAINT PROCESS

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.

 

90-Day Merit Assessment Review (does not apply to housing complaints)

Within ninety (90) days from the date the answer is received, the Commission must conduct a merit 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 merit 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 merit assessment review, the complainant has 15 days to ask for a Release of Jurisdiction to file a civil action in court. If there is no request for a Release of Jurisdiction, the legal division will do a Legal Review of the dismissal to determine whether the complaint should be reinstated. A complaint may be reinstated after a Legal Review for a variety of reasons, including the lack of relevant comparative data, the need to resolve credibility issues, interview witnesses or obtain documents.  If the complaint is reinstated, a letter will be sent to the parties. If the complaint is not reinstated, a letter will be sent to the parties with a Release of Jurisdiction.

               

Mandatory Mediation

 

All complaints not dismissed after a merit assessment review or complaints reinstated following a Legal Review will be retained by the Commission.  Most cases are retained after a merit 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 and determine the best method of mediation. Mediation may take place in person, via email, or on the telephone.  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 remediesLink 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 merit assessment review and issue a release after merit 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 8/20/2014 3:24:58 PM