Discrimination Claims! Don’t think you needed an Advocate, think again!
Over the last few months, I have attended a few seminars held by the Commission on Human Rights & Opportunities relating to changes that are occurring within the agency and concerns regarding legislative reports on the operation of the Commission. As an employee, how or why does this affect you? Under normal circumstances, it would not and under ideal circumstances, it should not. But unfortunately, many of the changes that are occurring do affect you, the Complaining party.
There is however, one major concern that I think all victims of discrimination should be placed on notice about and to which the CHRO will not tell you. In the past, up until just recently, the CHRO process was one of a “reasonable person” standard in relations to the preponderance of the evidence standard outlined in the Administrative Procedure Act. Ultimately what that means is that a decision on the merits of your complaint was not a legal one, but more a question of what would the “normal person” decide based on the facts/evidence of the case. At the administrative level of any discrimination complaint that is filed, it is supposed to be based strictly on a preponderance of the “facts/evidence” and is not statutorily allowed to be, a matter of law. Actually, it is not supposed to become a matter of law until the matter is considered a contested case and is certified to public hearing and/or released for court.
The CHRO is in place for several reasons, but two reasons as it relates to this article are 1) It is mandated by law that you exhaust all administrative remedies prior to receiving a right to even file your matter in state or federal court. You have no choice you must file your complaint with the CHRO and/or the EEOC, you are stuck with the process. And, 2) One of the primary functions of the CHRO is actually a political function, which is to filter out cases that just don’t reasonably make out a valid claim of discrimination and to either assist in settling those claims, dissuading the Complainant from litigating those claims and/or dismissing those claims in an attempt to filter out the frivolous or no merit cases so that our court system is not overwhelmed litigating such matters.
I truly believe that the CHRO process is not only useful, but necessary for several reasons. First, it provides the Employee with a low cost avenue for resolution that they might not have had otherwise. Second, a large percentage of matters settle well before a question of law even becomes necessary. Lastly, it saves the Complainant tens of thousands of dollars having to litigate the matter in state of federal court. A court system that is already backlogged and it can take you up to three years before trial.
However, here is my concern.
As of this year, the CHRO has been under fire for several reasons. They were just recently evaluated and many of their processes, rules, regulations and performance criteria were well below proficient or effective. That is to be expected, they are a State agency that is understaffed and underfunded. So how does this affect the Complainant? Remember that “reasonable person” standard I mentioned above? I also used the words “based on facts” right? Well, this is no longer the golden rule at the CHRO. It used to be that even a Complainant who filed their discrimination complaint without an advocate or attorney could make out a reasonable person standard just by arguing their facts. They did not have to worry about meeting any definition of law or the legal standards necessary to make out a state/federal worthy claim of discrimination. That however, is no longer the case!
As of this year, the CHRO has now implemented new standards. While it may be true that you may still receive a positive finding from an investigator at the CHRO, that decision however, could just as well be overruled. That is because the CHRO has now decided that the reasonable person standard is no longer sufficient and all investigator decisions are now being reviewed by the CHRO legal division to determine if your matter meets or exceeds the legal requirements necessary be a valid discrimination claim. I personally asked the Deputy Commissioner how the lay person or unrepresented individual would ever know what those standards were. The response received was that the investigators are available to help the Complainant, but are they? An investigator cannot advise a Complainant on the necessary components that need to be included in a Complainant’s CHRO response. They do not help write-it and are not allowed to give advice on how to properly respond. They cannot advise a Complainant on what documents or proof they should or should not submit as evidence. There is a question of if an investigator can even provide a Complainant with advice at all (legal or otherwise). CHRO investigators are available to help file your CHRO complaint by taking your “facts” and putting them into a charge of discrimination and they are able to tell the Complainant how the CHRO process works, but that is about the extent of their help. So, who is advising the Complainant that there is a McDonald Douglas standard under Title VII that needs to be met in discrimination/harassment claims or advising on what those standards even are? In some instances, a Complaint is submitted for legal review based only on the merits of the original filed Complaint, Respondent’s Answer, and the Complainant’s response. So, who is making sure that the record on behalf of the Complainant is sufficient for a legal review? The bottom-line is simple: Nobody!
This leads us right back to the title of this article. If you do not think you needed an advocate at the CHRO, think again! While being unrepresented at the CHRO in the past was a viable avenue, it certainly is not any longer. Employee Rights is strongly opposed to these new CHRO standards (we feel it is a huge disadvantage to the Complainant and we are doing all we can to have these new standards reviewed). However, rest assured that Employee Rights does know how to present the facts of your claims and has years and years of experience and knowledge, to assist you in presenting your facts in the most relevant way to help you be successful at the CHRO. We do not charge a consultation fee and our advocacy fees are more than reasonable. We are always here to listen, help and advocate on your behalf. Give us a call to discuss your matter!