The CHRO Complaint Process

Updated and Revised, with permission, by: Nicole M. RothgebLivingston, Adler, Pulda, Meiklejohn,

& Kelly, P.C. 557 Prospect Ave.Hartford, CT 06105-2922

Presented to the Connecticut Bar AssociationSeptember 2010

Originally Authored by: Mary E. KellyLivingston, Adler, Pulda, Meiklejohn,

& Kelly, P.C. 557 Prospect Ave.Hartford, CT 06105-2922

and

Deborah L. McKennaEmmett and Glander45 Franklin St. Stamford, CT 06901

1. INTRODUCTION

The Connecticut Commission on Human Rights And Opportunities, commonlyknown as the “CHRO” hears a wide variety of discrimination complaints, involvingissues related to employment and housing. For obvious reasons, these materials willfocus exclusively on employment issues, although the procedure for both types ofclaims is very similar.

There are four basic state and federal laws that apply to claims of employmentdiscrimination: the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. 46a-60 et. seq.(CFEPA); Title VII of the Civil Rights Act of 1964 (Title VII), as amended bythe Civil Rights Act of 1991, 42 U.S.C. 2000e, et. seq; the Age Discrimination inEmployment Act (ADEA), 29 U.S.C. 621 et. seq.; and the Americans With DisabilitiesAct, 42 U.S.C. § 12101, et. seq., as amended by the Civil Rights Act of 1991 and bythe Americans with Disabilities Amendments Act of 2008 (ADAAA). The types of claimsthat may be brought to the CHRO include complaints of discrimination in employmentbased upon an individual's race, color, religious creed, age, sex (including pregnancyand sexual harassment), marital status, national origin, ancestry, present or past historyof mental disability, mental disorder, mental retardation, learning disability, physicaldisability and genetic information. Conn. Gen. Stat. § 46a-60. (The full text of thissection is included in Appendix A). The CHRO also hears claims of discriminationbased upon one’s sexual orientation. Conn. Gen. Stat. § 46a-81a. Because the CHROis considered a “deferral agency” it hears claims brought under the correspondingfederal laws if filed in addition to a claim brought under state law.

These complaints can be made against any public or private employer, labororganization, or employment agency with three or more employees. Such claims mustbe filed within 180 days of the alleged discriminatory action. Conn. Gen. Stat. §46a-82(e). The Connecticut Supreme Court recently clarified that the 180 day statute oflimitations runs from the date of the adverse employment action, not from when theemployee receives notice of the action – in other words, where the employee claimsthat a termination was discriminatory, the statute of limitation runs from the date of thetermination, not from the date that the employee was notified that he would beterminated at some future date. Vollemans v. Town of Wallingford, 289 Conn. 57, 61(Oct. 21, 2008).

If a claimant does not file a state complaint with the CHRO, and 180 days havepassed since the act of discrimination, and the claimant’s employer has 15 or moreemployees, then he or she can still file a complaint with the EEOC. However the complaintmust be filed with the EEOC within 300 days of the discriminatory act.

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State and federal discrimination laws also prohibit retaliation against anemployee by his or her employer for opposing discriminatory conduct. CFEPA, Title VII,the ADEA and the ADA all contain anti-retaliation provisions. “Retaliation” means thatan employer penalizes an employee, takes adverse action against an employee orfurther discriminates against him or her because he or she has filed a complaint orotherwise opposed a discriminatory employment practice.

For example, it would be illegal for an employer to retaliate against an employeeby demoting him or her, reducing his or her work assignment or cutting his or her hours,suddenly giving him or her a poor work evaluation or placing him or her on aperformance improvement plan for no apparent reason, or terminating that employeebecause that employee complained about what he or she believed was discriminatoryconduct.

Retaliation cases are processed in the same manner as other discriminationcases and the same statute of limitations apply to retaliation cases as are applied todiscrimination cases.

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2. THE PROCESS

Both Connecticut statutes and regulations address the procedure for filingcomplaints with the CHRO. See, Conn. Gen. Stats. § 46a-60 et. seq. and Conn.Regs. § 46a-54-33a et. seq. These comments detail the regulations.

I. Filing the Complaint: §46a-54-33a through §46a-54-40a

A. The Timely Filing of the Complaint

The Complaint must be received by the Commission within 180 days of thealleged act of discrimination. A complaint may be filed in person or by mail orsimilar delivery to the appropriate CHRO office. The complaint must be received bythe CHRO, not merely postmarked, by the 180th day to be considered timely filed. Indetermining when a discriminatory act occurs, the Commission is to consider:

1. the date on which the discrimination occurred;

2. the date on which the Complainant knew or reasonablyshould have known of the acts alleged to be discriminatoryand

3. the date on which the Complainant knew or reasonablyshould have known that the alleged acts werediscriminatory.

A Complaint alleging a continuing violation is sufficient if at least one of theacts comprising the continuing violation occurs within the 180 days. However,practitioners need to be wary of the continuing violation theory.

B. The Form And Contents of The Complaint

A Complaint must be in writing and under oath, and must contain sufficientinformation to describe the parties and to identify the:

1. name and address of the Complainant;

2. name and address of the Respondent; and

3. a statement of facts, including any pertinent dates.

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A written statement from the Complainant is presumed sufficient if it includesinformation,

sufficiently precise to identify the parties and to describe generally the action

or practices complained of which have occurred, are occurring or are about to

occur, and when.

The use of the Commission’s forms is not required, but is preferred. Whenusing the forms though be careful to double check your work on the cover sheet tomake sure that you have identified all of the statutes that you believe were violated. Some of them will have to be written in. In particular, if claiming that an individualsupervisor (or employer) is liable for aiding or abetting the discriminatory act, besure to identify C.G.S. § 46a-60(a)(5).

There are different schools of thought as to how much information to includein a Complaint. By including a great deal of specific information, rather than ageneral statement, you run the risk of being unable to add other specifics that yourclient may have forgotten to tell you. However, if you include only generalities, youare far more likely to have the case dismissed at the Merit Assessment Review(MAR), and you are likely to get very little useful information from the Respondent’sAnswer.

Generally, my complaints are fairly detailed and are in the form of an affidavitfrom the Complainant. The inclusion of specific dates and the names and titles ofpersons involved can be critical to surviving MAR. When known, this informationshould definitely be included.

In addition, if you intend to bring a class action, or if you think that you havean pattern and practice case, this should be specif ically pled in the Complaint.

C. Amending the Complaint: 46a-54-38a

A Complaint may be amended as a matter of right, at any time before theappointment of a presiding officer. If the Complaint is amended to add newallegations, or a new protected class, the new allegations will be considered timelyfiled if they are “reasonably like or related to or growing out of the allegation of theoriginal Complaint, including those facts discovered during the original investigation.” These new allegations are referred to as “relating back” to the initial Complaint. Anamendment can also add an additional Respondent and still relate back, if theadded Respondent had notice of the original Complaint.

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Practitioners do not take enough advantage of the right to amend. If aComplainant has filed on his or her own it almost always makes sense to amend theComplaint to more clearly state the violations and to add pertinent details oradditional protected classes that the Complainant may not have considered. If theComplainant remembers important new information, or if the Answer changes thecomplexion of the case, amending may also make the difference in surviving theMAR process.

D. Service of the Complaint on the Respondent: §46a-54-42a

Within 20 days of receipt of a Complaint, the Commission is to determinewhether or not the Commission has jurisdiction.

If the Commission finds that it has jurisdiction, it will serve the Complaintupon the Respondent, and inform the Respondent of it’s rights and obligations. TheCommission will generally also serve a Schedule A request for information. If theCommission determines that there is no jurisdiction, it will serve the Complaint uponthe Respondent with a notice that no answer is required. The Respondent andComplainant then have an opportunity to file comments. The Complainant may alsoamend the Complaint to try to cure the alleged jurisdictional defect. If the defect isnot cured, and the Commission- despite the comments- finds that there is nojurisdiction, the Complaint will be dismissed with a no reasonable cause finding.

E. Commission Complaints

The Commission may file a Complaint or amend the Complaint to add theCommission as a party, pursuant to §46a-54-39a and §46a-54-40a.

II. The Answer: §46a-54-43a through §46a-54-47a

A. The Timely Filing of the Answer

The Respondent’s Answer is generally to be filed within 30 days of receipt ofthe Complaint. However, the Respondent, for good cause shown, may receive a 15day extension. Any request must be in writing, and must state the reason for therequested extension. A copy is to be provided to the Complainant. The requestmay be granted or denied in the discretion of the Commission.1 §46a-54-46aprovides for the entry of a default judgement for the Respondent’s failure to Answer.

1 The various offices have different informal practices with respect to theseextensions. Some rarely grant extensions, others generally do so when the formalitiesare followed, and others will even grant verbal requests. Relying on these informalpractices is risky, since they tend to change without notice. Follow the regulations.

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B. The Form and Contents of The Answer

Like the Complaint, the Answer must be filed under oath.2 The Respondentis required to admit, or deny each and every separate allegation or state that it ishas insufficient knowledge to admit or deny. When the Answer is not filed underoath or when the Respondent claims not to have sufficient information to admit ordeny allegations about what it itself did, this should be noted by the Complainant aspart of the comments. In my opinion a claim should not be dismissed at MAR if theAnswer does not comply with the regulations.

While not mentioned by the regulations, most Respondents will file a positionstatement, affidavits, and other documents supporting the Answer at the same timethat they file the Answer. This is usually necessary if the Respondent intends toseek dismissal of the case at MAR. On the other hand, if the allegations in theposition statement or Answer are not supported by affidavits or other sworntestimony or documents, this should be noted by the Complainant as part of his/hercomments. Again, a claim should not be dismissed at MAR unless it is based oncredible, reliable evidence.

C. Requests for Other Information From the Respondent

Under §46a-54-51a, the Commission may request other information from theRespondent. However, the regulations make it clear that the Respondent need notprovide the information. It is purely “voluntary.” If the Respondent refuses toprovide requested information, the Commission may seek to have informationprovided by subpoena, deposition, or interrogatories.

D. No Fault Conciliation

Pursuant to §46a-54-63a, the Respondent may offer full relief within 30 daysof receipt of the Complaint. If accepted, a no fault conciliation agreement shall becreated. An offer of no-fault conciliation does not extend the time to Answer. If aRespondent offers relief under the no-fault conciliation, a Complainant should makecertain that the relief offered truly does make the Complainant whole for all ofhis/her losses.

2 For some reason, this requirement seems to often be ignored by Respondentsand the Commission usually will still consider an unsworn Answer.

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III. The Reply

Conn. Reg. 46a-54-48a governs the Complainant’s right to respond to theAnswer.3 If the Complainant files no response within 15 days of receipt of theAnswer, the Answer, including all special defenses raised, is deemed denied. Thisreply, often referred to as the Complainant’s “comments” is the Complainant’sopportunity to respond to the Answer and position statement and to explain to theCommission why the Complaint should be retained for a full investigation. In myopinion, a Complainant should make the most of this opportunity.

IV. The Complainant’s Duty To Provide Information

A. Timely Filing

§46a-54-48a and §46a-54-50a discuss the Complainant’s obligation toprovide information in response to the Answer. Although the comments are usuallydue to the Commission within 15 days after the Complainant receives theRespondent’s Answer, the Complainant is entitled to a 15 day extension if theComplainant so requests and if the Respondent was granted such an extension insubmitting its Answer. The Commission can also grant such an extension to theComplainant for good cause, even if the Respondent did not receive a similarextension of time.

The regulations do not state that the request for an extension must be inwriting. However, most of the regional offices do require that the request be made,or at least confirmed in writing.

B. The Form and Contents of the Response

The regulations do not discuss the form that the response to the Answer is totake. Nor is there a general discussion of the contents. Instead, the regulationsstate that the Complainant is required to provide,

Any and all information in his or her possession or obtainable by reasonablemeans that relates to any contested allegation of the Complaint or answer. This reply shall include but is not limited to all documentary evidence and thenames, addresses and telephone numbers of persons having knowledge ofthe facts and circumstances alleged to constitute a discriminatory practice. The Commission may require the Complainant to clarify or supplement anysuch information, and the duty to provide such information by the

3 This provision can generally be ignored, unless the Complainant is concedingthe accuracy of a special defense, or some other new matter raised in the Answer.

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Complainant shall be a continuing one. The Complainant shall respond to allCommission requests for information......

A Complainant has a continuing duty to amend, supplement, or correct anyinformation provided within ten (10) days of discovering additional informationrelating to the allegations..... Any supplement to the information providedmust demonstrate why the Complainant was unable to provide suchinformation at an earlier date.

Notwithstanding this language, many times the Complainant may chose towait until the fact-finding hearing to provide witness testimony and other documentaryevidence, and/or to provide more definite information about dates, precise allegations,and witness names. However, enough supporting information should be provided atthe MAR stage so as to convince the Commission that the case must be retained for afull investigation. A decision not to submit comments or supporting information orevidence runs a very real risk that the case will be dismissed without any investigation. In my opinion, submitting compelling comments is nearly as important as drafting theComplaint.

In my comments, which admittedly tend to be very detailed, I usually set outthe legal standard governing the MAR process as well as for each of the legal claims. Ithen identify all of the evidence (in a pretty detailed fashion) that the Complainant hasprovided to support the claims and in particular that make up the prima facie case andconstitute evidence of pretext. Sometimes this requires that the Complainant submit asupplemental affidavit responding to the facts asserted in the Answer or positionstatement. If there is direct evidence, I point this out. If the case involves claims of pretext, I will identify the witnesses, and documentary evidence that is not in theComplainant’s custody and control and which is necessary for a determination ofwhether or not the Respondent’s stated reason is pretextual. For example, in a layoffcase where performance was allegedly the key criteria, I would note that theCommission will have to investigate how the Respondent treated similarly situatedemployees eligible for layoff by reviewing the evaluations and other documents relatedthe performance of such other employees, in order to corroborate or contradict theRespondent’s alleged justification. I will also call particular attention to the facts aboutwhich there is substantial dispute, explaining why such facts could be material, andremind the Commission that such factual disagreements can only be assessed andresolved if the case is retained past the MAR stage for a full investigation.

V. Merit Assessment Review: §46a-54-49a

A. The Timing of the Review

Within 90 days of the Answer (or Amended Answer) the Executive Director orher designee is to review the file, including the Complaint, Answer, Complainant’s

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comments, responses to information requests by the Commission (if any), and anyinformation produced by the Respondent that has been timely filed.4

B. The Standard to be Applied

A case is to be retained and processed pursuant to §46a-54-55a unless:

(1) the Complaint fails to state a claim for relief;

(2) the Complaint is frivolous on it’s face;

(3) the Respondent is exempt from the provisions of 814(c) or

(4) there is no reasonable possibility that investigating the Complaint willresult in a finding of reasonable cause.

See §46a-54-49a(b). The standard, “no reasonable possibility that investigating theComplaint will result in a finding of reasonable cause” is subjective and therefore isarguably subject to abuse. It appears to me that in some cases the reasonablepossibility standard is used to dismiss a case because the Commission simply does notbelieve the Complainant’s allegations. However, dismissing a case based upon suchcredibility considerations, without conducting a full investigation and interviewing theparties, is contrary to the Commission’s regulations since all of the relevant evidencehas not yet been reviewed by the Commission.5

Given this standard, a Complainant’s representative should provide as muchdetailed and reliable evidence as is possible during the MAR process. Complainant’scounsel should also make as complete a record as possible of the relevant evidencewithin the Respondent’s custody and control which could support a finding ofreasonable cause, and should request that such evidence be pursued by theCommission as part of a full investigation.

C. The Effect of a Dismissal at MAR

If the case is dismissed under this standard, the Commission must prepare afinding of no reasonable cause, and must include the supporting factual findings upon

4 In order to be considered as part of the Merit Assessment Review, informationsubmitted by the Respondent must be filed within 30 days of the Answer, and theComplainant must be given 15 days to reply to the submission. See §46a-54-49a TheCommission can consider information filed more than 30 days after the Answer, if goodcause for the delay is shown, the Complainant is given 15 days to respond, and theMAR has not yet been completed.

5Reconsideration is often granted in such cases.

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which the determination was based, as required by §46a-54-61a. A Complainant mayrequest reconsideration of this decision pursuant to §46a-54-62a. The request forreconsideration must be received by the Commission within 15 days of the date ofissuance of the no reasonable cause finding. If the Complainant does not seekreconsideration, the Commission must issue a release of jurisdiction, and theComplainant may file an action in state or federal court pursuant to C.G.S. § 46a-100.

It used to be the case that if the Commission decided to dismiss a case atMAR, the Executive Director or his designee would also prepare an internal form(previously called Form 406) which further explained the reason for dismissal, howeverit is unknown whether this practice is still followed. It may be useful if a Complaint isdismissed at MAR for the Complainant to inquire whether such a form was completedand if so to request the form in writing. Additional details about the Commission’sfindings with respect to the MAR decision can be invaluable when seekingreconsideration.

VI. Investigations

A. The Fact Finding Conference: §46a-54-55a

If the case survives the MAR process the next step, although it often occursmany months after the MAR decision is issued, is usually a fact-finding conference andmandatory mediation session. These are generally, but not always, held at the sametime and are both conducted by the investigator assigned to the case. They are initiallyscheduled by the investigator, and will only be rescheduled for good cause shown. Alltestimony offered during the fact-finding is tape recorded.

Each party is supposed to be present for the conference. If the party is acorporation or partnership, a representative with direct knowledge of the facts alleged inthe Complaint and Answer is supposed to attend. While counsel may be present toconsult with clients and/or to propose questions or areas of inquiry, counsel is usuallynot permitted to cross-examine or to present the case or defense. Rather theinvestigator will typically do all the questioning of witnesses. Sometimes though, aninvestigator will permit counsel to question a witness directly, even the other party’switness if the questioning does not become adversarial.

The investigator will often issue a request prior to the hearing that particulardocuments be provided and/or that witnesses be brought to or made available bytelephone to offer testimony during the conference. The Commission has the authorityto subpoena documents and/or witnesses that are not voluntarily provided, but thisseems to rarely be done.

What actually occurs during a fact-finding conference varies widelydepending on the investigator. Some investigators permit counsel to give opening andclosing statements, to question witnesses, and to make arguments about the relevanceof evidence. Others will require that counsel keep silent during testimony, and write out

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any proposed questions. It is, therefore, important to find out as much as possibleabout the investigator assigned to your case prior to the conference.

In cases where documentary evidence is within the Respondent’s custodyand control and/or where key witnesses are unavailable because they are stillemployed by the Respondent, it is important that a Complainant identify, well inadvance of the conference, to the investigator any documents and/or witnesses thathe/she wants the investigator to request from theRespondent. In making such arequest the Complainant should be sure to explain - in writing- why this information iscritical to the investigation and could support a finding of reasonable cause.

B. Mandatory Mediation

Under §46a-54-56a, cases that survive MAR are subject to mandatorymediation.

Mediation is initially scheduled by the Commission. If a party is unable toattend for good cause, that party is to contact the opposing party and get alternativedates for the investigator’s consideration. A representative of each party - withauthority to negotiate and bind the party- must be present at the mediation. Failure todo so, at least theoretically, can result in a dismissal or default and certainly makes itmuch less likely that the mediation will be productive.

The Commission may require that the parties bring information relevant todamages to the mediation.

Identifying the damages information and providing it prior to the mediationcan make mediation more effective. Complainant’s counsel should ask the investigator to request information about the pay, benefits, and bonuses that the Complainant wouldhave received absent the adverse action, and should be willing to provide W-2s orsubsequent earnings information and other relevant damages information. Sometimes, an investigator or a party will request that the Complainant make asettlement demand prior to the mediation.

In my experience, some issues that repeatedly come up in CHRO mediationare:

the impact of receiving unemployment benefits;

pain and suffering damages;

attorneys’ fees and costs;

allocation of monies;

confidentiality;

non-disparagement;

no reinstatement;

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non-cooperation; and

references.

It is generally my position that the Respondent is not entitled to an of fset indamages in discrimination cases based on unemployment benefits received. Whilethere is no definitive answer to this question, and the courts have the discretion to ruleeither way, most authority indicates that the victim of the discrimination should get thebenefit of the unemployment.

While the Commission takes the position that it cannot generally award painand suffering damages and/or attorneys’ fees, such categories of damages certainlycan and should be considered as part of any settlement considered at the mediation. Ioften come to a mediation with two numbers. The first, which takes into account onlythe economic losses, is the number for which my client will settle the state claims andwithdraw the CHRO charge only. For the other sum, which includes pain and sufferingdamages and fees, my client will settle all claims, including her EEOC claims, and willwithdraw both the CHRO and the EEOC charges.

Allocation of monies, confidentiality, non-disparagement, non-cooperation,reinstatement and reference letter issues should be discussed with the client before themediation, and should be discussed and agreed upon at the mediation. Where theseissues are not discussed during the mediation, and the terms of the settlement aredrafted after the parties have left the mediation, often times strong disagreements arisewhich could jeopardize reaching final agreement on the settlement.

VII. Determination of Reasonable Cause or No Reasonable Cause

A. The Draft Finding: §46a-54-59a

When the investigator has reached a preliminary determination, he or she willissue a draft finding. The parties have 15 days from the mailing of the notice to providecomments.

If there a draft finding of no reasonable cause is issued, and 210 days havepassed since the filing of the Complaint, the Complainant should decide if he she willpursue the case in court, or if reconsideration will be requested. If I know that the casewill be pursued in court, I typically would not bother with responding to the draft nocause finding, but would instead ask for a right to sue letter.

However, if this is a case which will not be taken to court, I usually submit adetailed response to the draft no cause finding. Many times, my concern is the failureto interview relevant witnesses and/or to request relevant documents that wereidentified to the investigator. In such cases, it is usually worth pointing out the legalstandard that the Commission is to follow. Reasonable cause is defined as “a bona fide

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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). The Connecticut Supreme Court has explained,

The power of the Commission, through its investigators, to makefindings of material fact as part of the reasonable causedetermination...is conditional upon the Commission havingconducted a thorough investigation of the claim and having reliedonly upon reliable, probative evidence in making those findings. Inundertaking its investigation, the Commission is obligated to pursueevidence corroborating, as well as contradicting, the plaintiff’sComplaint.

Adriani v. Commission of Human Rights and Opportunities, 220 Conn 307. 319 (1991). That Court has also noted that,

The provisions of §46a-83(c) allow the Commission to issuesubpoenas for the production of all relevant evidence and,therefore, contemplate that the Commission would consider anyreliable information pertinent to a Complaint.

Id. at 317. Thus, I believe that dismissal by the Commission is generally not consistentwith the reasonable cause standard if the Commission has failed to fully investigate theclaim by failing to pursue relevant corroborating evidence that has been identif ied.

B. Finding of Reasonable Cause

If the case is retained with a final written finding of reasonable cause, theparties will go through the conciliation process pursuant to Conn. Gen. Stat. §46a-83fand §46a-54-60a. If conciliation fails the Complaint and findings are certified pursuantto Conn. Gen. Stat. §46a-84(a).

C. Finding Of No Reasonable Cause

If the Commission enters a final written finding of no reasonable cause, theComplainant has 15 days from the date the finding was mailed to requestreconsideration pursuant to §46a-54-61a. If reconsideration is not requested, the finalno cause finding is considered a dismissal for purposes of Conn. Gen. Stat. §46a-94.

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VII. Contested Case Proceedings: §46a-54-78a to §46a-54-98a

A. Parties and Representatives

Contested case proceedings commence once the Complaint has beencertified. The Complainant, the Commission and the Respondent are always parties incontested cases. Other persons can petition to be made a party or to intervene. Anyexisting party may file an objection to such petition pursuant to §46a-54-81a. T hepresiding officer will make a determination using the standards set out in Conn. Gen.Stat. 4-177a.

The Commission may move to amend the Complaint to add or to substituteitself as the complaining party pursuant to §46a-54-40a(b) or §46a-54-84a. W hetheror not the Commission is identified as a complaining party, the case in support of theComplaint is to be presented by the Commission which shall be represented byCommission counsel or the Attorney General. If the Complainant appears throughcounsel, the Commission may, and generally does, permit Complainant’s counsel topresent some or all of the case.

B. Notice of the Hearing Conference

Upon certification of the Complaint, the Chief Human Rights referee appointsa referee to act as the presiding officer and issue a notice of hearing conference. Thenotice includes:

-a statement of date and time of conference;

- a statement of legal authority and jurisdiction;

- a reference to the particular sections of the statutes and regulationsinvolved;

- a statement of the matters asserted;

- deadlines for the filing of the written answer to the Complaint, generally 15 days;

-the address for filing documents related to the contested case proceeding;and

-the address and telephone number of the office of public hearings which isto deal with requests for reasonable accommodations.

A hearing conference is to be held within 45 days of the certification.

However, if the Complaint is amended by motion of the Complainant or theCommission,6 the parties are generally given sufficient time to prepare the case in lightof the amendment.

6 The presiding officer is to permit reasonable amendment.

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C. The Presiding Officer

The presiding officer’s powers are set out in §46a-54-83a. They include theauthority to control the contested case proceeding, to receive motions and otherpapers, to administer oaths, to admit or to exclude testimony or other evidence, to ruleupon all motions and objections, to subpoena witnesses, to exclude witnesses from thehearing room if not testifying, to exclude other persons from the hearing room forimproper conduct, and to determine the time, place, and date of the hearing. Thepresiding officer may also issue a default or dismissal as provided in §46a-54-88a.

D. The Hearing Conference: 46a-54-80a

The parties or representatives are required to attend the hearing conferenceto set dates for the hearing and to address such issues as:

- the discussion of the positions of the parties, and the presentation of issues at then hearing;

- any amendment of Complaint or Answer;

- the disclosure of documents pursuant to §46a-54-89a;

- any motions concerning the pleadings;

- the exchange of witness and exhibit lists, and the exchange of documentslikely to be introduced at the hearing; and

- settlement.7

After the conference, the presiding officer must issue a notice of publichearing.

E. The Answer: 46a-54-86a

46a-54-86a requires that the Respondent file a new Answer to the certifiedComplaint. The procedural requirements for the Answer are largely the same as duringthe MAR process. It must be in writing, under oath and in admit or deny format, unlessthe Respondent lacks information to either admit or deny an allegation. Failure toanswer an allegation is deemed an admission. Any affirmative defenses which are notpled in the Answer, are deemed waived. Reasonable amendment to the Answer isusually permitted.

7 The presiding officer may not be present during settlement discussions. Thepresiding officer may refer the parties to another referee to supervise settlementdiscussions and act as a mediator.

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F. Motions and Discovery

Section 46a-54-87a outlines the procedures for motions and objections. Motions must generally be made in writing. Any objections are also generally to bemade in writing and must usually be filed within 14 days of the motion. The presidingofficer may rule on all motions without oral argument. If the presiding officer permitsargument, and gives notice of the time and place of argument, failure to attend will bedeemed a waiver of the right to participate. Motions and objections made during thehearing may be made orally. Any objection not timely made will be deemed waived.

Discovery is controlled by §46a-54-89a. Depositions and interrogatories arepermitted only if all parties agree, but the regulations permit each party to inspect andcopy relevant documents not in the possession of that party, except as other wiseprohibited by state or federal law. The presiding officer issues orders regarding thedisclosure of documents. If any party fails to comply with such an order, the presidingofficer may issue an order that the matter be established in accordance with the claimof the party seeking the documents and/or may prohibit the party who has failed tocomply from introducing designated documents into evidence.

G. Conduct of Hearings and Final Decision

The regulations regarding the hearing procedure are set out in §46a-54-90ato §46a-54-93a . Hearings are open to the public. They may be bifurcated uponmotion by a party. The presiding officer may require briefs or proposed findings of fact. The final decision must include the names and addresses of all parties, findings of fact,conclusions of law, legal analysis and an order.

The final decision may be reconsidered, reversed or modified in accordancewith Conn. Gen. Stat. §4-181a.

VIII. Reopening Procedures

Pursuant to §46a-54-71a, any party can, for good cause, request that amatter previously closed be re-opened. The application must be made within 2 years ofthe Commission’s final decision. This regulation sets out the process to be followed,the standards that the Commission uses in granting or denying a request and thecircumstances under which a matter cannot be re-opened.

While this is likely not a procedure that arises very often where aComplainant has been represented by counsel throughout the case, it could be usefulwhere the Complainant acted pro-se.

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IX. Miscellaneous

A. Appearances

§46a-54-15a, §46a-54-16a and §46a-54-82a set out the rules g overningappearances at the CHRO. Appearance forms and withdrawals are available at theCHRO’s website. Appearances can also be submitted by way of a letter so long as allcritical information is included.

Counsel who are not admitted to practice law in Connecticut are permitted torepresent a party at the MAR and investigatory stages. Law students may also appearat those stages if the party and a supervising attorney provide written consent to theCommission. In such circumstances, the supervising attorney remains responsible forthe representation.

Student interns and counsel who are not admitted to practice law inConnecticut may only represent a party in contested case proceedings if a supervisingattorney or local counsel is present for all proceedings, signs all pleadings and agreesto remain responsible for the representation.

The Commission requires that notice of the withdrawal of an appearance befiled in writing and served upon all parties. Failure to properly file notice of withdrawalwill result in the Commission treating service upon you as if service had properly beenmade on your client.

B. Service

§ 46a-54-17a- through §46a-54-19 set out the procedures for service at allstages prior to the public hearing. Service may be made in person, by first class orcertified mail or by document delivery service. Leaving a copy at the home or principalplace of business of the person being served is also acceptable. Faxed delivery is notacceptable.8 If a party is represented by counsel, service is complete when servedupon the attorney. Each party or the party’s representative must certify that theopposing party or its representative has been sent a copy of all documents or otherevidence filed with the Commission, unless federal or state law permits non-disclosure. In such circumstances, the party must provide a list and description of all informationthat was produced to the Commission but not to the opposing party, and identify theprovision of federal or state law relied upon in not providing the information to theopposing party.

8 This is important. While many of the CHRO offices will accept faxed pleadings, they may not be treat the pleading as being filed for deadline purposes untila copy is received in the office by hand or mail delivery.

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§46a-54-85a governs filing and service in contested case proceedings at thepublic hearing stage. It provides for electronic filing with the approval of the presidingofficer and agreement of all parties.

C. Discovery

1. Interrogatories §46a-54-52a

Commission attorneys and investigators may issue interrogatories to eitherparty. These are generally to be answered within thirty days, but the Commission canspecify a shorter time, and can grant extensions for good cause. There is a continuingduty to supplement, amend or change the responses to the discovery.

Any objections to the interrogatories must be filed with the Commissioncounsel’s office. A Commission attorney may try to resolve the objection informally. Ifthis fails, or if the party has failed to answer, the Commission attorney may seekenforcement through Conn. Gen. Stat. §46a-88 or may seek an order of default.

2. Subpoenas §46a-54-53a

Commissioners and Commission attorneys may issue subpoenas for theproduction of documents. These are generally to be complied with within the timespecified in the subpoena, but the Commission can grant extensions for good cause. There is a continuing duty to produce additional documents responsive to thesubpoena.

Any objections to the subpoena must be filed with Commission counsel’soffice. A Commission attorney may try to resolve the objection informally. If this fails,or if the party has failed to answer, the Commission attorney may seek enforcementthrough Conn. Gen. Stat. §46a-87 or may seek an order of default.

3. Depositions §46a-54-54a

A Commissioner may issue a notice of deposition for any person. If thedeponent fails to attend or refuses to answer questions under oath a Commissionattorney may seek enforcement through Conn. Gen. Stat. §46a-87.

D. Suspension/ Resumption of Case Processing

Under §46a-54-64a, the Commission may suspend processing a case for certain arbitration proceedings, or if there is a pending action involving the same partiesbefore a federal administrative agency or a federal or state court. Upon recommencing

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the processing of a suspended complaint, the commission may consider or admit inevidence any decision resulting from the proceeding in another forum and accord it theweight it deems appropriate under the facts and circumstances of the case.

E. Information Requests §46a-54-9a

The public may inspect the commission’s public records at its principal officein Hartford during normal business hours. Requests for information shall be directed tothe commission’s principal office. However, open and closed discriminatory practicecase files are not subject to public inspection. Rather, in closed cases, the Commissionshall make available for public inspection copies of complaints, case summaries andconciliation agreements, where applicable. The availability of information in contestedcases is governed by Conn. Gen. Stat. §46 a-83(g). Copying costs will be charged.

F. HIV & Sexual Assault Information: §46a-54-22a & §46a-54-23a

These provisions govern the confidentiality of HIV-related information as wellas information related to pending criminal prosecution of charges of sexual assault, riskof injury, injury or impairing of morals. Under these provisions, a Complaint can bebrought as a Jane or John Doe Complaint.9

G. Requests for Reconsideration

Eligibility for reconsideration, the process and the standard for grantingreconsideration are set out in §46a-54-62a.

H. Complaint Dispositions and Releases

The Complainant’s right to a release of jurisdiction, and the procedures forrequesting such release are set out in detail at §46a-54-66a. Other dispositions andthe impact of conciliation agreements are set out in §46a-54-67a and §46a-54-69a.

9 This can be very useful in cases that are resolved quickly. However, if thecase is contested, complete confidentiality cannot be assured.

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3. COURT FILING

I. Filing in Superior Court

To file a suit against an employer in state court, the following conditions must beadhered to:

The complaint must have been timely filed with the CHRO;

The complaint must have been pending with the CHRO more than 210 days,or if less than 210 days then the Complainant and Respondent must both agree to arelease of jurisdiction;

The Complainant must have requested a release of his or her complaint fromthe CHRO for the purpose of filing a court action (which the CHRO must grant except inlimited circumstances);

The Complainant must file his or her court action within two years of the dateof filing the CHRO complaint (with certain limited exceptions); and,

The Complainant must file the court action within 90 days of receipt of therelease from the CHRO.

In such a court action, available remedies include reinstatement, back pay, restoration ofjob-related benefits, attorneys’ fees, compensatory damages and punitive damages. If the employer has more than 15 employees, the Complainant could file in federal court.

II. Filing In Federal Court

Under federal law, a Complainant may bring a private lawsuit against his orher employer, with his or her own attorney, in federal court. To do so, a complainant must have been pending with the EEOC for at least 180 days after filing. See 42U.S.C. §2000e(5)(f)(1). If the EEOC dismisses a claim, the Complainant willautomatically receive a “right to sue” letter, otherwise, if the case has not beendismissed and 180 days have passed since it was filed, the Complainant can requestthe “right to sue” letter from the EEOC.

Once the Complainant has received the “right to sue” letter, he or she mustfile the lawsuit within 90 days. A Complainant has a right to file a private lawsuitwhether or not the EEOC finds in his or her favor, regardless of whether the EEOC hasbrought suit against the employer, and/or even if the EEOC is still investigating theclaim.

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If bringing a suit in federal court, the employee may seek reinstatement, backpay, restoration of job related benefits, attorneys’ fees, compensatory and punitivedamages and other remedies. However, under the Civil Rights Act of 1991, 42 U.S.C.1981a, certain categories of damages are capped depending on the size of theemployer, these caps range from $50,000 for employers with under 100 employees to amaximum of $300,000 for employers with more than 500 employees. Also, theemployee has the right to request a jury trial if he or she is seeking compensatory orpunitive damages. Punitive damages are not recoverable from the government.

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USEFUL EMPLOYMENT LAW LINKS

Connecticut Commission on Human Rights and Opportunities

www.ct.gov/chro/site/default.asp

Equal Employment Opportunities Commission

www.eeoc.gov

CHRO Regulations regarding Complaint Processing and Contested Case Proceeding

www.ct.gov/chro/lib/chro/pdf/chroregs_complaints.pdf

CHRO Office of Public Hearing Human Rights Referee Discrimination Decisions

www.ct.gov/chro/cwp/view.asp?a=2528&Q=316080&chroPNavCtr=#45580

Connecticut Department of Labor

www.ctdol.state.ct.us

U.S. Department of Labor

www.dol.gov

Connecticut Employment Lawyers Association

www.ctnela.org

National Employment Lawyers Association

www.nela.org

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Appendix A

*** THIS DOCUMENT IS CURRENT THROUGH THE 2009 LEGISLATION

(2010 SUPPLEMENT) ***

Conn. Gen. Stat. § 46a-60 (2010)

Sec. 46a-60. (Formerly Sec. 31-126). Discriminatory employment practices prohibited.

(a) It shall be a discriminatory practice in violation of this section:

(1) For an employer, by the employer or the employer's agent, except in the case of a bonafide occupational qualification or need, to refuse to hire or employ or to bar or to discharge fromemployment any individual or to discriminate against such individual in compensation or interms, conditions or privileges of employment because of the individual's race, color, religiouscreed, age, sex, marital status, national origin, ancestry, present or past history of mentaldisability, mental retardation, learning disability or physical disability, including, but not limitedto, blindness;

(2) For any employment agency, except in the case of a bona fide occupational qualificationor need, to fail or refuse to classify properly or refer for employment or otherwise to discriminateagainst any individual because of such individual's race, color, religious creed, age, sex, maritalstatus, national origin, ancestry, present or past history of mental disability, mental retardation,learning disability or physical disability, including, but not limited to, blindness;

(3) For a labor organization, because of the race, color, religious creed, age, sex, maritalstatus, national origin, ancestry, present or past history of mental disability, mental retardation,learning disability or physical disability, including, but not limited to, blindness of any individualto exclude from full membership rights or to expel from its membership such individual or todiscriminate in any way against any of its members or against any employer or any individualemployed by an employer, unless such action is based on a bona fide occupational qualification;

(4) For any person, employer, labor organization or employment agency to discharge, expelor otherwise discriminate against any person because such person has opposed anydiscriminatory employment practice or because such person has filed a complaint or testified orassisted in any proceeding under section 46a-82, 46a-83 or 46a-84;

(5) For any person, whether an employer or an employee or not, to aid, abet, incite, compel orcoerce the doing of any act declared to be a discriminatory employment practice or to attempt todo so;

(6) For any person, employer, employment agency or labor organization, except in the case ofa bona fide occupational qualification or need, to advertise employment opportunities in such amanner as to restrict such employment so as to discriminate against individuals because of theirrace, color, religious creed, age, sex, marital status, national origin, ancestry, present or pasthistory of mental disability, mental retardation, learning disability or physical disability,including, but not limited to, blindness;

(7) For an employer, by the employer or the employer's agent: (A) To terminate a woman'semployment because of her pregnancy; (B) to refuse to grant to that employee a reasonable leave

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of absence for disability resulting from her pregnancy; (C) to deny to that employee, who isdisabled as a result of pregnancy, any compensation to which she is entitled as a result of theaccumulation of disability or leave benefits accrued pursuant to plans maintained by theemployer; (D) to fail or refuse to reinstate the employee to her original job or to an equivalentposition with equivalent pay and accumulated seniority, retirement, fringe benefits and otherservice credits upon her signifying her intent to return unless, in the case of a private employer,the employer's circumstances have so changed as to make it impossible or unreasonable to do so;(E) to fail or refuse to make a reasonable effort to transfer a pregnant employee to any suitabletemporary position which may be available in any case in which an employee gives written noticeof her pregnancy to her employer and the employer or pregnant employee reasonably believesthat continued employment in the position held by the pregnant employee may cause injury to theemployee or fetus; (F) to fail or refuse to inform the pregnant employee that a transfer pursuant tosubparagraph (E) of this subdivision may be appealed under the provisions of this chapter; or (G)to fail or refuse to inform employees of the employer, by any reasonable means, that they mustgive written notice of their pregnancy in order to be eligible for transfer to a temporary position;

(8) For an employer, by the employer or the employer's agent, for an employment agency, byitself or its agent, or for any labor organization, by itself or its agent, to harass any employee,person seeking employment or member on the basis of sex. "Sexual harassment" shall, for thepurposes of this section, be defined as any unwelcome sexual advances or requests for sexualfavors or any conduct of a sexual nature when (A) submission to such conduct is made eitherexplicitly or implicitly a term or condition of an individual's employment, (B) submission to orrejection of such conduct by an individual is used as the basis for employment decisions affectingsuch individual, or (C) such conduct has the purpose or effect of substantially interfering with anindividual's work performance or creating an intimidating, hostile or offensive workingenvironment;

(9) For an employer, by the employer or the employer's agent, for an employment agency, byitself or its agent, or for any labor organization, by itself or its agent, to request or requireinformation from an employee, person seeking employment or member relating to theindividual's child-bearing age or plans, pregnancy, function of the individual's reproductivesystem, use of birth control methods, or the individual's familial responsibilities, unless suchinformation is directly related to a bona fide occupational qualification or need, provided anemployer, through a physician may request from an employee any such information which isdirectly related to workplace exposure to substances which may cause birth defects or constitutea hazard to an individual's reproductive system or to a fetus if the employer first informs theemployee of the hazards involved in exposure to such substances;

(10) For an employer, by the employer or the employer's agent, after informing an employee,pursuant to subdivision (9) of this subsection, of a workplace exposure to substances which maycause birth defects or constitute a hazard to an employee's reproductive system or to a fetus, tofail or refuse, upon the employee's request, to take reasonable measures to protect the employeefrom the exposure or hazard identified, or to fail or refuse to inform the employee that themeasures taken may be the subject of a complaint filed under the provisions of this chapter.Nothing in this subdivision is intended to prohibit an employer from taking reasonable measuresto protect an employee from exposure to such substances. For the purpose of this subdivision,"reasonable measures" shall be those measures which are consistent with business necessity andare least disruptive of the terms and conditions of the employee's employment;

(11) For an employer, by the employer or the employer's agent, for an employment agency, byitself or its agent, or for any labor organization, by itself or its agent: (A) To request or requiregenetic information from an employee, person seeking employment or member, or (B) to

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discharge, expel or otherwise discriminate against any person on the basis of genetic information.For the purpose of this subdivision, "genetic information" means the information about genes,gene products or inherited characteristics that may derive from an individual or a family member.

(b) (1) The provisions of this section concerning age shall not apply to: (A) The terminationof employment of any person with a contract of unlimited tenure at an independent institution ofhigher education who is mandatorily retired, on or before July 1, 1993, after having attained theage of seventy; (B) the termination of employment of any person who has attained the age ofsixty-five and who, for the two years immediately preceding such termination, is employed in abona fide executive or a high policy-making position, if such person is entitled to an immediatenonforfeitable annual retirement benefit under a pension, profit-sharing, savings or deferredcompensation plan, or any combination of such plans, from such person's employer, whichequals, in aggregate, at least forty-four thousand dollars; (C) the termination of employment ofpersons in occupations, including police work and fire-fighting, in which age is a bona fideoccupational qualification; (D) the operation of any bona fide apprenticeship system or plan; or(E) the observance of the terms of a bona fide seniority system or any bona fide employee benefitplan for retirement, pensions or insurance which is not adopted for the purpose of evading saidprovisions, except that no such plan may excuse the failure to hire any individual and no suchsystem or plan may require or permit the termination of employment on the basis of age. No suchplan which covers less than twenty employees may reduce the group hospital, surgical or medicalinsurance coverage provided under the plan to any employee who has reached the age of sixty-five and is eligible for Medicare benefits or any employee's spouse who has reached age sixty-five and is eligible for Medicare benefits except to the extent such coverage is provided byMedicare. The terms of any such plan which covers twenty or more employees shall entitle anyemployee who has attained the age of sixty-five and any employee's spouse who has attained theage of sixty-five to group hospital, surgical or medical insurance coverage under the sameconditions as any covered employee or spouse who is under the age of sixty-five.

(2) No employee retirement or pension plan may exclude any employee from membership insuch plan or cease or reduce the employee's benefit accruals or allocations under such plan on thebasis of age. The provisions of this subdivision shall be applicable to plan years beginning on orafter January 1, 1988, except that for any collectively bargained plan this subdivision shall beapplicable on the earlier of (A) January 1, 1990, or (B) the later of (i) the expiration date of thecollective bargaining agreement, or (ii) January 1, 1988.

(3) The provisions of this section concerning age shall not prohibit an employer fromrequiring medical examinations for employees for the purpose of determining such employees'physical qualification for continued employment.

(4) Any employee who continues employment beyond the normal retirement age in theapplicable retirement or pension plan shall give notice of intent to retire, in writing, to suchemployee's employer not less than thirty days prior to the date of such retirement.

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Appendix B

Sample Complaint Affidavit of Discrimination by Ms. Complainant

I provide the following particulars:

1. My name is Ms. Complainant, and I reside at Address, Connecticut.

2. I am over 18 years of age and I understand the obligation of an oath.

3. The respondent is Corporation, who has a place of business located at Address, Connecticut.

4. The respondent employs more than 20 employees.

5. I was employed by the respondent from approximately May 1973 until on orabout April 30, 2009.

6. I was informed on February 13, 2009 that my position was being eliminatedeffective March 27, 2009.

7. My date of birth is February 1, 1953 and I am fifty-six (56) years old.

8. At all times relevant to this complaint, I was employed by the respondent as aDirector and Analyst in the Department.

9. At the time my position was eliminated, the Department was co-supervised byMr. Supervisor, Title, who was also my direct supervisor, and Ms. Supervisor,Title.

10. At the time my position was eliminated, in addition to these supervisors therewere twelve and one half (12 ½) employees in the Department (including myself,but not including an executive assistant), ten (10) of whom (including myself)were in the Division.

11. On information and belief, at the time my position was eliminated I was either theoldest or the second oldest employee in the Department (age 56) and I had moreexperience than nearly all of the other employees in the department.

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12. Throughout my thirty-five years of employment with the respondent and/or itspredecessor, I have performed the duties and responsibilities of my job to thebest of my abilities, in a dedicated and competent manner.

13. I received no discipline during my employment with the respondent.

14. In or about January 2009, I received my annual performance review for 2008from Mr. and Ms. Supervisor. My overall performance was rated as“Satisfactory” on this review. When I asked Mr. and Ms. Supervisor what I coulddo to help the department continue its top performance for 2009, I was told tocontinue as I had been and to work with the new people to help get them up tospeed.

15. On or about February 13, 2009, I received a telephone call at my home from Mr.and Ms. Supervisor and Ms. Human Resources, during which I was informedthat my position was being eliminated due to an alleged staff reduction. I wasinformed that my termination was to be effective as of March 27, 2009.

16. During this call I was informed that I had the option of accepting the respondent’sstandard severance package which would be contingent upon my signing ageneral release of all legal claims, or taking early retirement.

17. On information and belief, my position was the only position that was eliminatedin the Department.

18. On or about February 16, 2009, I met with Mr. and Ms. Supervisor to discuss theelimination of my position and my options. In response to questions about whymy position had been eliminated, they informed me that there were too many“senior people” in the Department, and in particular in my division. They furtherstated that they needed to bring younger, less experienced people along in theprivate placement sector in anticipation of older, experienced, senior peopleleaving the group. They did not provide any specific explanation for why I wasselected for termination as opposed to the other individuals who were retained inthe department.

19. In or about early to mid-March 2009, the respondent changed the effective dateof the elimination of my position to April 30, 2009.

20. Because my position had been eliminated, and in order to preserve deferredcompensation pay that was due to me as well as my restricted stock holdings, Ielected to retire as of April 30, 2009 and did not sign the release of legal claimsthat would have been required under the respondent’s Severance Pay Plan. Butfor the elimination of my position and impending termination, I would not haveretired but rather would have continued to work for the respondent.

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21. On information and belief, my former duties and responsibilities have beenreassigned to the remaining Analysts, all of whom are substantially younger thanme and nearly all of whom have less experience than I do.

22. On information and belief, in or about January 2009 the respondent hired and/ortransferred two (2) employees into the Department, Ms. Younger Employee andMr. Younger Employee. Both of these employees are substantially younger(approximately 21 years old and in his early 30's, respectively) and are lessqualified than I am, yet each was retained by the respondent after my positionwas terminated.

23. On information and belief, after I was forced to retire, the respondent hiredand/or transferred another employee, Mr. Another Younger Employee, into theDepartment in or about May or June 2009. Mr. Another Younger is substantiallyyounger (approximately in his early 30's) and less qualified than I am.

24. On information and belief, I am qualified to perform the duties andresponsibilities of every position in the Division.

25. I believe that the reason given for my termination by the respondent waspretextual. I also believe that my age (56) was a motivating factor in therespondent’s decision to eliminate my position and select me for termination, inviolation of the Age Discrimination in Employment Act (“ADEA”) and theConnecticut Fair Employment Practices Act (“CFEPA”).

I request the Connecticut Commission on Human Rights and Opportunitiesinvestigate my complaint, secure for me my rights as guaranteed to me under theabove cited laws and secure for me any remedy to which I may be entitled.

Ms. Complainant being duly sworn, on oath, states that she is the Complainant herein;that she has read the foregoing complaint and knows the contents thereof; that thesame is true of her own knowledge, except as to the matters therein stated oninformation and belief and that as to these matters she believes the same to be true.

Dated at Hartford, Connecticut this ____ day of _______, 2010.

___________________________________

Complainant's Signature

Subscribed and sworn to before me this ____ day of ______, 2010.

___________________________________

Commissioner of the Superior Court

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