Many charges filed with the Ohio Civil Rights Commission are resolved at an early stage, but in some cases, the commission issues an administrative complaint and a hearing is held. As part of our ongoing efforts to assist small businesses, we’re outlining what happens in this stage of the process.
Re-capping tips from the last issue
In the last issue of the “Civil Rights Reporter,” we discussed what happens when a charge of discrimination is filed against your small business. In short, you have the opportunity to explain what happened through a written position statement. During a typical investigation, you also will have the chance to provide the commission with witness testimony and documents. As underscored in the last issue, throughout the entire investigatory process, the parties are encouraged to reach a resolution either through informal mediation or (if a probable cause determination is made) through conciliation.
Moving forward
What happens, though, if the matter cannot be resolved after conciliation? Quite simply, the case progresses to the next phase of the process. The commission issues an administrative complaint and schedules the matter for an evidentiary hearing. Once this formal complaint is issued, the commission refers the matter to its legal counsel, the Ohio Attorney General’s Office, and an assistant attorney general is assigned the case.
Answering the complaint
Your own attorney will be of great assistance to you when responding to the commission’s complaint. As the responding party, or “respondent,” you have 28 days from the time the complaint is served to file your response, which is called an answer. It is not uncommon to get an extension of time to file an answer, but state rules prohibit extensions within 30 days of the hearing. Be careful. Failure to file an answer could result in default in which all the allegations in the administrative complaint are deemed admitted. (See Ohio Administrative Code (OAC) Section
4112-3-06(F))
Your attorney must file a written notice of appearance with the Ohio Civil Rights Commission. The person who files the notice of appearance may not withdraw from the proceedings without permission from the administrative law judge who will oversee the proceedings and issue a final report and recommendation. The person who filed the charge of discrimination, the “complainant,” is a separate party, who may be represented by his or her own attorney.
Preparing for the hearing
To prepare for the hearing, the parties may gather evidence from each other through a process called discovery. The administrative law judge has the ability to control the scope of discovery, and both the commission and the respondent have the same rights of discovery. Through the discovery process, the parties often issue interrogatories, requests for production of documents, and requests for admissions. Depositions are also very common. In many ways, the type of discovery conducted is similar to that conducted in common pleas court, though generally the administrative forum is designed to be less formal than court.
The person who filed the charge also must receive copies of all discovery and other items filed with the administrative law judge. If a party fails to respond to discovery requests, the administrative law judge may issue an order for sanctions against that party, such as ordering a claim to be taken as established, prohibiting the sanctioned party from introducing evidence, striking a portion of the pleading, or recommending the dismissal of the complaint. The role of the administrative law judge is to make a record for the commission, so that the commissioners, who must ultimately decide the case, will have a record developed through sworn testimony.
Before a hearing is held, the administrative law judge will conduct a pre-hearing conference. These conferences generally are held by telephone a month or two before the scheduled hearing date. The purpose of the pre-hearing conference is to clarify the issues; address matters that may expedite the hearing or avoid unnecessary repetition of evidence; acknowledge certain facts; authenticate and exchange documents; disclose witnesses; establish a discovery cut-off; and determine whether settlement is possible. (See OAC
4112-3-07(E))
What to expect at the hearing
Hearings are not as formal as jury trials, but they are conducted in a similar manner to trials in common pleas court. (This is true even though the administrative law judge is not bound by Ohio’s Rules of Evidence.) Witnesses are sworn under oath, and they testify under direct and cross examination. They also may be questioned by the administrative law judge. Additionally, the administrative law judge will rule on objections. At the hearings, which are open to the public, everyone is expected to conform to the same standards of ethical conduct as in court. Although rarely a problem, the administrative law judge has the authority to bar someone who engages in inappropriate behavior. (See OAC
4112-3-07(H))
After the hearing is complete, the recorded testimony is transcribed, and the administrative law judge encourages the parties to submit post-hearing briefs. The briefs provide the parties an opportunity to summarize the evidence in their favor and cite other cases that support their position. The commission’s brief is due 21 days after receiving the transcript. The respondent’s and complainant’s briefs are due 21 days after being served with the commission’s brief. (See OAC
4112-3-07(H)(7))
After the arguments have been fully briefed, the administrative law judge will submit a written report to the panel of commissioners. The report will include the administrative law judge’s findings of facts, conclusions of law, and recommended course of action (either to issue a dismissal order or to issue a cease and desist order). Because the report is a recommendation, the commission reviews it before adopting a course of action. (See OAC
4112-3-09(A))
If one of the parties disagrees with the administrative law judge’s report, he or she can submit written objections to the commission’s central office within 20 days from the date of the report. The other parties may file responses to those objections within 14 days from the date the objections were served. The commission will consider objections before it approves, modifies, or disapproves the report. (See
OAC 4112-3-09(B)) If the recommendation is adopted, the commission issues a final order.
Beyond the hearing phase
For complainants and small business owners alike, the entire process from investigation to litigation can be time consuming and, at times, stressful. It is not uncommon for several years to lapse from the time a charge of discrimination is filed until a final decision is issued. Of course, not all cases go through the entire process. Like many lawsuits, cases before the Ohio Civil Rights Commission settle. Your best course of action is to make sure you consult with your legal counsel to navigate the different procedural steps and develop the best case strategy.
Curious to know more about this phase of the process? Check out the next issue of the “Civil Rights Reporter” when we discuss the nuances of appealing a commission decision.