Researcher: JM Page 1 4/11/23
OLR Bill Analysis
HB 6861
AN ACT ADOPTING THE RECOMMENDATIONS OF THE TASK
FORCE TO STUDY THE STATE WORKFORCE AND RETIRING
EMPLOYEES.
SUMMARY
This bill requires most state agencies to take certain steps to address
discrimination, retaliation, and disparities in the workplace, including
requiring them to adopt a zero-tolerance policy against using
managerial authority to discriminate or retaliate against employees who
make discrimination complaints.
The bill also creates two new positions in state government to pursue
equity and racial justice in state agencies:
1. a chief diversity, equity, and inclusion officer to oversee a
transformative hiring process in state government and
2. a racial justice ombudsperson within the Commission on Human
Rights and Opportunities (CHRO), who must be an expert in the
history and persistent effects of racism.
The bill requires the ombudsperson to, among other things, institute
a diverse slate initiative that assures that all state employment
applicants, regardless of their protected class status, are not
disadvantaged in the hiring process.
It also creates an Equity Advisory Committee that, with the General
Assembly’s approval, must appoint the chief diversity, equity and
inclusion officer. Additionally, the bill requires each state agency to
assess its diversity needs and submit the assessment to the chief
diversity officer, the governor, the General Assembly, and the Equity
Advisory Committee. 2023HB-06861-R000490-BA.DOCX
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EFFECTIVE DATE: Upon passage, except that the provisions
requiring a zero-tolerance policy by state agencies and establishing the
Office of Racial Justice Ombudsperson (ORJO) are effective January 1,
2024.
§§ 1 & 2 — DISCRIMINATION AND RETALIATION POLICY
The bill requires all branches and agencies of state government
considered an employer under the state employee collective bargaining
law to adopt a zero-tolerance policy against using managerial authority
to discriminate or retaliate against employees who make discrimination
complaints.
This covers the executive and judicial branches, as well as the
constituent units of higher education, quasi-public agencies, and any
related boards, departments, or commissions. It does not include the
legislative branch, State Board of Labor Relations, or State Board of
Mediation and Arbitration.
Under the bill, “discrimination” is a violation of state government
management and human rights laws that prohibit discrimination in
employment, housing, public accommodation, and credit practices,
among others. These specifically apply to discrimination based on a
person’s race; color; religious creed; age; sex; sexual orientation; gender
identity or expression; marital status; national origin; ancestry; present
or past history of mental disability, intellectual disability, learning
disability, or physical disability, including blindness; status as a veteran;
or status as a domestic violence victim. The laws also (1) prohibit
discrimination in awarding public contracts, certain employer inquiries
about erased criminal records, and denial of employment based on
conviction information and (2) require sexual harassment and diversity
training.
Existing state law prohibits the state as an employer from
discriminating in the workplace and authorizes CHRO to investigate
complaints (CGS § 46a-51 et seq).
Policy Requirements 2023HB-06861-R000490-BA.DOCX
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Under the bill, the zero-tolerance policy must:
1. forbid any manager from taking or threatening to take any
personnel action, retaliating, or discriminating against an
employee who makes a discrimination complaint and
2. include performance and other sanctions against managers who
(a) dissuade or seek to dissuade employees from filing
discrimination complaints or (b) fail to investigate complaints
objectively and fully, consistent with identified procedures after
an incident, including notifying the complainant about the
investigation’s status and outcome.
Violations
The bill requires each state employer to assure employees that it is
safe for them to raise a complaint formally or informally about the
misuse of managerial authority that violates the zero-tolerance policy. It
prohibits state employers from taking or threatening to take any
personnel action or otherwise discriminating against any employee for
formally or informally raising a complaint.
The bill creates a presumption that discharging or terminating an
employee in violation of these provisions creates irreparable harm for
any temporary or permanent injunctive action that may be brought to
redress the violation. The bill establishes an irrebuttable presumption
that there is no adequate remedy at law.
Under the bill, the doctrine of exhaustion of administrative remedies
does not apply in any action to redress a discharge or other employment
termination. Any initial notice required for an action over a violation of
these provisions must include service on CHRO, and the bill allows the
commission to intervene as a matter of right.
Separately, the bill requires that state employees be awarded double
damages in any action brought for a violation of any provision of the
state human rights law (CGS Chap. 814c) in addition to all other
damages available under that chapter. 2023HB-06861-R000490-BA.DOCX
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§ 5 — EQUITY ADVISORY COMM ITTEE
The bill establishes an Equity Advisory Committee to monitor
whether state agencies are (1) implementing the recommendations
issued in the equity in state government programs and actions study
(PA 21-2, June Special Session, § 81) and (2) meeting the bill’s assessment
goals (see § 4 below).
Under the bill, the 18-member committee consists of the following:
1. one member the governor appoints,
2. the executive director of CHRO or her designee,
3. two members the CHRO executive director appoints,
4. seven members that representatives of each constituent union in
the State Employee Bargaining Agent Coalition (SEBAC)
appoint,
5. three members the Black and Puerto Rican Caucus of the General
Assembly appoints, and
6. four members the Task Force to Study the State Workforce and
Retiring Employees appoints. (However, this task force
terminated when it submitted its final report to the legislature on
February 8, 2022.)
Of the four members the task force appoints, one must be appointed
by each chairperson, and one must be appointed by each ranking
member. (It is unclear (1) if former task force members may make the
appointments to the committee and (2) who must make the ranking
member appointments, as the task force did not have ranking members.
By law, its members included the four ranking members of the Labor
and Public Employees and Government Administration and Elections
committees.)
The bill does not (1) indicate how the committee chooses a
chairperson or chairpersons or where it is administratively housed in
state government or (2) set a date by which appointing authorities must 2023HB-06861-R000490-BA.DOCX
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make their appointments.
§§ 3 & 5 — CHIEF DIVERSITY, EQUITY, AND INCLUSION OFFICER
The bill requires the Equity Advisory Committee to appoint a chief
diversity, equity, and inclusion officer within six months after it is
established. The appointment must be made with the Genera l
Assembly’s approval, and the officer must report to the Equity Advisory
Committee. (The bill does not indicate if the chief diversity officer is a
paid state employee or what agency the officer is affiliated with.)
Under the bill, the officer must oversee a transformative hiring
process in state government. The committee must annually evaluate the
benchmarks for success and evaluation in order to evaluate the officer’s
work.
§ 4 — AGENCY DIVERSITY NEE DS ASSESSMENT
The bill requires each state agency commissioner, within 30 days after
the bill becomes effective, to address the agency’s diversity needs by (1)
reviewing “The State of Connecticut Workforce: An Analysis of
Representation and Compensation Equity Across Gender and Race-
Ethnicity” and (2) assessing the agency.
Under the bill, the assessment must include (1) recruitment and
retention rates for women and people of color employed by the agency
during the previous five years and (2) a plan for achieving an
appropriate and fair balance in filling vacancies left by retiring
employees. The assessments must be used to address any racial and
gender disparities, including a review of each agency’s recruitment
strategies. Within three months after starting the assessment, a
commissioner must submit it to the governor, the Labor and Public
Employees Committee, the chief diversity officer, and the Equity
Advisory Committee.
Under existing law and unchanged by the bill, each agency must also
develop an affirmative action plan and submit it to CHRO for review
and approval. CHRO monitors the implementation of the plans and
may issue a certificate of noncompliance, which imposes a hiring freeze 2023HB-06861-R000490-BA.DOCX
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on the agency.
§ 6 — OFFICE OF THE RACIAL JUSTICE OMBUDSMAN ( ORJO)
The bill establishes ORJO within CHRO and gives the office several
duties related to hiring and training state employees. The
ombudsperson (1) is appointed by the CHRO executive director, with
SEBAC’s Racial Justice Committee’s advice and consent, and (2) must
be an expert in matters relating to the history, root causes,
manifestations, and persistent effects of racism.
Under the bill, the ombudsperson serves at the pleasure of the CHRO
executive director and without tenure. The executive director may
remove the ombudsperson with the approval of a majority of the
members of the commission. These same provisions apply to the CHRO
deputy director under existing law.
In addition to reporting to the CHRO executive director, the
ombudsperson must report to a joint committee consisting of (1) the
SEBAC Racial Justice Committee, (2) the governor, or the governor’s
designee, and (3) the Equity Advisory Committee created in the bill.
Duties
Under the bill, the ombudsman must:
1. establish working definitions for all key terms and descriptors to
lay the foundation for the office’s work;
2. institute a diverse slate initiative that assures that all state
employee applicants, regardless of race, creed, color, national
origin, or any other protected class under the general statutes, are
not disadvantaged among those prioritized for interviews for
roles or positions using an external or internal hiring or
promotional process that would require the hiring manager, or
entity, to screen and interview all candidates using a standard
antiracist screening and interview protocol that scores applicant
answers;
3. submit a theory of action and plan for making constant progress 2023HB-06861-R000490-BA.DOCX
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towards eliminating systemic racism in state government and
implementing strategies and structures to maintain a workplace
that (a) affords physical, racial, linguistic, and cultural safety, and
(b) privileges the ability of all employees to challenge racism and
aggressions;
4. ensure that all employees get full and fair grievance hearings,
without fear of retaliation, and ensure fair and racially just
outcomes (the bill does add ORJO to any employee hearing
process);
5. foster a workplace where managerial authorities are accountable
to lead and model antiracist practices and make changes needed
to ensure an antiracist, equitable workplace for all;
6. track and review the performance review processes and
protocols, as well as performance reviews, to identify
discrepancies between white workers and black and brown
workers in terms of education, time in position, job education
provided, opportunities for professional development and
growth to immediately create remediation plans to address racial
disparities (performance reviews are generally confidential and
the bill does not expressly give ORJO access to them);
7. analyze and recommend solutions to hiring, training and
promotion practices that have resulted in pay disparities between
workers on the basis of protected class status;
8. focus on specific and actionable steps that those with supervisory
or managerial authority can implement within their workplace to
eliminate their unconscious or conscious racial biases; and
9. review complaints filed and discipline administered, and
recommend remediation plans where evidence of disparate
discipline, responses to complaints, and manner of investigation
differed by employee race.
The bill does not specify how ORJO’s authority interacts with the 2023HB-06861-R000490-BA.DOCX
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existing statutory authority of (1) the Department of Administrative
Services regarding state hiring practices and (2) CHRO regarding
discrimination investigations.
Reporting
The bill requires the ombudsperson, on a quarterly basis, to meet
with and submit a written report to the SEBAC Racial Justice Committee
and the Equity Advisory Committee to discuss his or her duties and
responsibilities under the bill and as otherwise directed by the
committees. The written report must be posted on CHRO’s website.
COMMITTEE ACTION
Labor and Public Employees Committee
Joint Favorable Substitute
Yea 8 Nay 4 (03/23/2023)