A new lawsuit filed last Thursday in Connecticut state court by an employer alleges that the employer’s due process rights are being violated by “inherently conflicted and irreparably unfair proceedings” at the Commission on Human Rights and Opportunities (CHRO) — the state agency responsible for investigating and enforcing the state’s anti-discrimination laws.
In the lawsuit, NERAC v. Krich, a copy of which can be downloaded here, the employer alleges (among other things) that that the administrative law judge (a human rights referee) is a client of the presenting attorney (Commission Counsel) in a federal court lawsuit that has similiar issues to the ones that the employer is facing.
Because of that attorney-client relationship and other due process violations, the employer alleges that the five cases it has before the ALJ must be dismissed.
There are lots of details to this lawsuit that can’t be neatly summarized in one short blog post, but several allegations jump out upon a quick review:
First, for those employers, that think the CHRO hearing process is quick and cheap, the lawsuit shows that the employer in this case has been dealing with allegations for over five years and many weeks’ worth of hearings in five consolidated cases.
Moreover, the employer sought to recuse the human rights referee (Michele Mount) on the grounds that she had applied for an associate position at the employer’s lawfirm (Jackson Lewis LLP) and was denied a position from the employer’s specific counsel (Victoria Woodin Chavey) in January 2012. Ms. Mount denied the recusal motion, the lawsuit alleges, on the ground that “‘administrative adjudicators”‘are not required to meet the same standards of impartiality as judges.”
On the date that the motion for recusal was denied, the lawsuit also alleges that Ms. Mount “had reviewed the LinkedIn profile of a senior officer of [the employer] whose alleged remarks had been the subject of a motion in limine” that had been denied. When the employer sought to preclude reliance on information outside the evidence admitted at the hearing, the referee also denied that motion as well.
The lawsuit alleges that the CHRO is also pursuing an agenda of allowing attorney’s fees or emotional distress damages despite “no statutory authority to award such damages pursuant to Conn. Gen. Stat. Sec. 46a-58(a).” It cites to the City of Shelton lawsuit that I covered back in August 2012.
The employer sought an ex-parte injunction, which was denied, but the court did schedule a hearing on the motion shortly. The CHRO — through the attorney general’s office — has not yet filed a response and just filed an appearance in the matter on Friday.
For employers, the lawsuit should be carefully watched. Some employers have been suspicious of whether they are able to get a “fair shake” at the CHRO and this lawsuit will certainly bolster those suspicions. Whether a court will ultimately intervene, however, is an entirely different question that is simply impossible to answer at this early stage.
Regardless, if employers have any hearings at the CHRO where the agency is seeking emotional distress damages on behalf of a complainant, they should continue to monitor this case and the Shelton case previously mentioned.
(Disclosure: I previously worked with the employer’s counsel, Ms. Chavey, at our former firm, Day, Berry & Howard up to 2005 or so. I have no involvement, however, in the above proceeding.)
NERAC v. CHRO