Section 4612 - Procedure on complaints1. Predetermination resolution; investigation. Upon receipt of such a complaint, the commission or its delegated single commissioner or investigator shall take the following actions. A. The commission or its delegated single commissioner or investigator shall provide an opportunity for the complainant and respondent to resolve the matter by settlement agreement prior to a determination of whether there are reasonable grounds to believe that unlawful discrimination has occurred. Evidence of conduct or statements made in compromise settlement negotiations, offers of settlement and any final agreement are confidential and may not be disclosed without the written consent of the parties to the proceeding nor used as evidence in any subsequent proceeding, civil or criminal, except in a civil action alleging a breach of agreement filed by the commission or a party. Notwithstanding this paragraph, the commission and its employees have discretion to disclose such information to a party as is reasonably necessary to facilitate settlement. The commission may adopt rules providing for a 3rd-party neutral mediation program. The rules may permit one or more parties to a proceeding to agree to pay the costs of mediation. The commission may receive funds from any source for the purposes of implementing a 3rd-party neutral mediation program, and such funds are not subject to any statewide cost allocation plan. [2019, c. 465, §6(AMD).]B. The commission or its delegated commissioner or investigator shall conduct such preliminary investigation as it determines necessary to determine whether there are reasonable grounds to believe that unlawful discrimination has occurred. In conducting an investigation, the commission, or its designated representative, must have access at all reasonable times to premises, records, documents, individuals and other evidence or possible sources of evidence and may examine, record and copy those materials and take and record the testimony or statements of such persons as are reasonably necessary for the furtherance of the investigation. The commission may issue subpoenas to compel access to or production of those materials or the appearance of those persons, subject to section 4566, subsections 4-A and 4-B, and may serve interrogatories on a respondent to the same extent as interrogatories served in aid of a civil action in the Superior Court. The commission may administer oaths. The complaint and evidence collected during the investigation of the complaint, other than data identifying persons not parties to the complaint and other information designated as confidential in subsection 1-A, is a matter of public record at the conclusion of the investigation of the complaint prior to a determination by the commission. An investigation is concluded upon issuance of a letter of dismissal or upon listing of the complaint on a published commission meeting agenda, whichever first occurs. Prior to the conclusion of an investigation, all information possessed by the commission relating to the investigation is confidential and may not be disclosed, except that the commission and its employees have discretion to disclose such information as is reasonably necessary to further the investigation. Notwithstanding any other provision of this section, the complaint and evidence collected during the investigation of the complaint may be used as evidence in any subsequent proceeding, civil or criminal. The commission must conclude an investigation under this paragraph within 2 years after the complaint is filed with the commission. [1991, c. 99, §30(AMD).] [2019, c. 465, §6(AMD).]
1-A.Confidential documents. The following information collected during the investigation of a complaint pursuant to this section is confidential and may not be disclosed except to the parties to a complaint, the commission and its federal partner agencies or in a subsequent civil or criminal legal action:A. Medical, counseling, psychiatric and other confidential health records; [2019, c. 465, §6(NEW).]B. Social security numbers; [2019, c. 465, §6(NEW).]C. Evidence of conduct or statements made in compromise settlement negotiations, offers of settlement and final agreements made prior to the conclusion of the investigative process; [2019, c. 465, §6(NEW).]D. Names of minor children; [2019, c. 465, §6(NEW).]E. Any information the commission is required to keep confidential pursuant to work-sharing agreements with the United States Equal Employment Opportunity Commission, the United States Department of Housing and Urban Development or any other federal partner agencies; [2019, c. 465, §6(NEW).]F. Criminal history record information that is not otherwise made public by law; [2019, c. 465, §6(NEW).]G. Personnel records and personal information that has been made confidential by law; [2019, c. 465, §6(NEW).]H. Notes made by the investigator for the investigator's private use in assessing evidence gathered during an investigation; and [2019, c. 465, §6(NEW).]I. Any other records that are not public records in accordance with Title 1, section 402. [2019, c. 465, §6(NEW).] Documents containing information set forth in this subsection are not "public records," as defined in Title 1, section 402, subsection 3, and do not become a matter of public record under this section.
[2019, c. 465, §6(NEW).]
2.Order of dismissal. If the commission does not find reasonable grounds to believe that unlawful discrimination has occurred, it shall enter an order so finding, and dismiss the proceeding. [1971, c. 501, §1(NEW).]
2-A.Administrative dismissal. The executive director of the commission may administratively dismiss a complaint for reasons including, but not limited to: A. Lack of jurisdiction; [2019, c. 465, §6(NEW).]B. Failure to substantiate the complaint of discrimination; [2019, c. 465, §6(NEW).]C. Failure to file a complaint of discrimination within 300 days of the date of alleged discrimination; [2019, c. 465, §6(NEW).]D. Failure by complainant to proceed or cooperate with the investigation, including but not limited to a complainant's repeated or egregious failure to abide by the commission's confidentiality requirements; [2019, c. 465, §6(NEW).]E. Bankruptcy filing by respondent; or [2019, c. 465, §6(NEW).]F. Death of a complainant, if no person with legal authority to continue the case appears on that person's own behalf or on behalf of the complainant's estate within a reasonable time. [2019, c. 465, §6(NEW).] An administrative dismissal operates as an order of dismissal and has the same effect as a finding by the commission that no reasonable grounds exist to believe that unlawful discrimination has occurred, except that an administrative dismissal pursuant to paragraph C does not entitle the complainant to an award of attorney's fees, civil penal damages or compensatory and punitive damages.
[2021, c. 366, §20(AMD).]
3.Informal methods, conciliation. If the commission finds reasonable grounds to believe that unlawful discrimination has occurred, but finds no emergency of the sort contemplated in subsection 4, paragraph B, it shall endeavor to eliminate such discrimination by informal means such as conference, conciliation and persuasion. Everything said or done as part of such endeavors is confidential and may not be disclosed without the written consent of the parties to the proceeding, nor used as evidence in any subsequent proceeding, civil or criminal, except in a civil action alleging a breach of agreement filed by the commission or a party. Any post-finding conciliation agreement that includes the commission as a signatory is a public record. Notwithstanding this subsection, the commission and its employees have discretion to disclose such information to a party as is reasonably necessary to facilitate conciliation. If the case is disposed of by such informal means in a manner satisfactory to a majority of the commission, it shall dismiss the proceeding. [2019, c. 465, §6(AMD).]
4.Civil action by commission. The commission may file a civil action in accordance with this subsection. A. If the commission finds reasonable grounds to believe that unlawful discrimination has occurred, and further believes that irreparable injury or great inconvenience will be caused the victim of such discrimination or to members of a protected class group if relief is not immediately granted, or if conciliation efforts under subsection 3 have not succeeded, the commission may file in the Superior Court a civil action seeking such relief as is appropriate, including temporary restraining orders. In a complaint investigated pursuant to a memorandum of understanding between the commission and the United States Department of Housing and Urban Development that results in a reasonable grounds determination, the commission shall file a civil action for the use of complainant if conciliation efforts under subsection 3 are unsuccessful. [2019, c. 465, §6(AMD).]B. Grounds for the filing of such an action before attempting conciliation include, but are not limited to: (1) In unlawful housing discrimination, that the housing accommodation sought is likely to be sold or rented to another during the pendency of proceedings, or that an unlawful eviction is about to occur;(2) In unlawful employment discrimination, that the victim of the discrimination has lost or is threatened with the loss of job and income as a result of such discrimination;(3) In unlawful public accommodations discrimination, that such discrimination is causing inconvenience to many persons;(4) In any unlawful discrimination, that the victim of the discrimination is suffering or is in danger of suffering severe financial loss in relation to circumstances, severe hardship or personal danger as a result of such discrimination. [1991, c. 99, §30(AMD).] [2019, c. 465, §6(AMD).]
5.Confidentiality of 3rd-party records. The Legislature finds that persons who are not parties to a complaint under this chapter as a complainant or a respondent have a right to privacy. Any records of the commission that are open to the public under Title 1, chapter 13, must be kept in such a manner as to ensure that data identifying these 3rd parties is not reflected in the record. [2019, c. 465, §6(AMD).]
6.Issuance of right-to-sue letter. The commission may issue a right-to-sue letter only in accordance with this subsection.A. If, later than the 180th day after the date a complaint is filed with the commission, the commission has not filed a civil action in the case or has not entered into a conciliation agreement in the case, the complainant may submit a written request for a right-to-sue letter and the commission shall issue the requested right-to-sue letter. [2023, c. 255, §1(NEW).]B. If a complainant submits a written request for a right-to-sue letter before the 180th day after the date a complaint is filed with the commission, the commission shall issue a right-to-sue letter if: (1) The executive director of the commission determines that the complainant has demonstrated good cause for requesting the right-to-sue letter before the expiration of the 180-day period after the filing of the complaint; and(2) The executive director of the commission certifies that it is probable that the commission will not be able to conclude its investigation before the 180-day period after the filing of the complaint. [2023, c. 255, §1(NEW).] If the commission issues a right-to-sue letter in accordance with this subsection, it shall end its investigation of the complaint unless the executive director of the commission and legal counsel to the commission determine that proceeding with the investigation would achieve the purposes of this chapter, in which case the commission shall continue to investigate the complaint as if it had been filed by an employee of the commission under section 4611.
[2023, c. 255, §1(RPR).]
Amended by 2023SP1, c. 255,§ 1, eff. 10/25/2023.Amended by 2021SP1, c. 366,§ 20, eff. 10/18/2021.Amended by 2019, c. 465,§ 6, eff. 9/19/2019.Amended by 2012, c. 613,§§ 19, 20, eff. 9/1/2012.1971, c. 501, § 1 (NEW) . 1973, c. 347, § 13 (AMD) . 1973, c. 415, § 2 (AMD) . 1973, c. 625, § 37 (AMD) . 1973, c. 705, § 11 (AMD) . 1973, c. 788, § 28 (AMD) . 1975, c. 358, § 15 (AMD) . 1977, c. 648, § 2 (AMD) . 1981, c. 6, (AMD) . 1983, c. 281, §§1,2 (AMD) . 1985, c. 585, §§1,2 (AMD) . 1991, c. 99, §§29,30 (AMD) . 1993, c. 303, § 2 (AMD) . 1993, c. 327, § 2 (AMD) . 1993, c. 578, § 1 (AMD) . 1995, c. 462, §A7 (AMD) . 2005, c. 10, § 22 (AMD) . 2007, c. 243, §§5-7 (AMD) . 2009, c. 235, § 2 (AMD) .