Audit Cites Long-standing Vacancy for Backlog in Discrimination Hearings

Referee position remains unfilled since 2014

HARTFORD — A years-long vacancy in a key position at the Commission on Human Rights and Opportunities appears to be delaying hearings on some of the most difficult to resolve cases alleging discrimination, a state audit released this week highlighted.

State statute requires the commission to have three “human rights referees” who conduct hearings on contested cases alleging discrimination in the workplace, housing or public accommodations. Since June 2014, the commission has had only two referees, with one position sitting vacant. 

The state audit released on Tuesday found that, as of April 21, there were 269 cases awaiting a hearing before the referees, with some hearings not scheduled until August 2021.

Commission on Human Rights and Opportunities Executive Director Tanya Hughes said the commission had seven referees prior to her time, but that number was pared down to three under Gov. Dannel Malloy.

There were two referees when she took over seven years ago, said Hughes. The commission hired one and lost another, and hasn’t had a full complement of three referees for her entire tenure as executive director. 

According to Hughes, there were a “significant number” of cases in regional offices when she took over that were “aged” and had gone unresolved beyond the commission’s statutory time limits. 

“I would say probably 80 percent of our inventory was aged in that it had gone beyond the statutory timeframes for the investigation,” she said.

That backlog has shifted, according to Hughes.

“We were able to pretty much eliminate the inventory on the regional level,” explained Hughes. “However, now that the cases have been going on to public hearing, because of the lack of a full complement of hearing referees, they’ve been able to build up, and COVID-19 hasn’t helped the situation.”

Hughes said that the commission has halted hearings during the pandemic, and is working with the court system to establish health and safety guidelines that will get them running again.

The commission highlighted the referee vacancy, along with a record 161 cases still pending at the end of the 2018-19 fiscal year, in an annual report to Lamont, as well as in annual reports to Malloy going back to the 2014-15 fiscal year.

Hughes also said that the commission — which has met with the previous and current governor about the issue — has been “aggressively pursuing filling” the vacancy.

“Not being able to fill that position is extremely critical because of that backlog,” Hughes said.

The Office of Public Hearings within the commission said in a response to the audit that, in addition to a third referee, it also needs funding for a separate case management system and a law clerk or paralegal. The audit found that the case tracking system was limited and couldn’t reliably support the commission’s role, especially without a staff member with appropriate technology skills.

A lingering issue

According to Hughes, the problem with filling the position is two-fold.

Hughes said that salaries at the commission aren’t comparable to those in other state agencies, and the referee salary isn’t enough to attract people to do the job. According to the state’s open payroll the chief referee earned $96,133 in 2019, and the second referee earned $85,974 according to the state’s open payroll website.

The other challenge, according to Hughes, is that a referee is an appointed position, and has probably fallen off the radar.

Previous requests for a salary increase for the position have been denied by lawmakers regularly facing tight budgets. This year, the commission will “wait and see,” said Hughes, but given the state’s current budget issues she admitted that it will be a tough sell.

A lengthy process

Hughes said that just 5 percent of cases actually go to a public hearing before the referees.

An administrative review process must first find “reasonable cause,” and the bulk of cases meeting that threshold are then resolved in mediation and early intervention, said Hughes. Cases that end up in a public hearing require more investigation and mediation, she said.

For anyone alleging discrimination, they must first “exhaust their administrative remedy” in a hearing with the commission, before they can file a lawsuit in court, Hughes explained.

In the 2018-19 fiscal year, the commission received 2,625 complaints, 48 of which were certified for a public hearing, according to the commission’s most recent annual report. More than three-quarters of the cases filed were allegations of employment discrimination.

According to Hughes, the 2019 “Time’s Up Act” that imposed sexual harassment training requirements on employers has increased the commission’s caseload.

The commission’s overall funding increased from $5.44 million to $6.52 million from 2012 to 2016, and it remained at $6.42 million in 2020.

Contacted on Thursday, the Office of the Governor has not responded to a request for comment.

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