(A) Voluntary
Mediation.
(1) The Division may invite the
parties to meet in an attempt to mediate and informally resolve the charge at
any stage of the administrative process prior to the issuance of a
determination of probable cause or no probable cause.
(2) Nothing said or done during endeavors at
mediation shall be disclosed by any party or used as evidence in any subsequent
proceeding, unless the parties agree otherwise.
(3) Upon request, the parties shall provide
copies of settlement agreements entered into pursuant to mediation or private
settlement negotiations to the Division, regardless of confidentiality
provisions contained in such agreements. Settlement agreements received by the
Division shall be treated as confidential pursuant to §
24-34-306(3),
C.R.S.
(B) Requests for
Information.
The Division may request production from the parties; any
witnesses, statements, testimony, information, documents, evidence, or the
inspection of places or things, reasonably calculated to lead to the discovery
of evidence relevant to the allegations or circumstances of the charge.
(1) If a Charging Party fails or refuses to
cooperate with a request for information, or otherwise unduly obstructs or
delays the investigation, the Director may find that the charge lacks probable
cause and dismiss the same.
(2)
Notwithstanding the Division's presumption that the conduct of any Respondent
is fair and not discriminatory pursuant to §
24-34-305(3),
C.R.S., if a Respondent fails or refuses to cooperate with a request for
information, a rebuttable presumption may be created that the particular piece
of information requested is harmful to the Respondent's
position.
(C)
Determinations of Probable Cause and Dismissal.
(1) No Probable Cause Determinations.
If it is determined, based upon the information gathered
during the investigation, that probable cause for crediting the allegations of
a charge does not exist, the Director shall dismiss the charge and notify the
parties of such determination in writing by mail. The notice shall advise the
Charging Party of the right to appeal the no probable cause determination to
the Commission and that if the Charging Party wishes to file a suit in district
court, such lawsuit must be filed within ninety (90) days of the date of
mailing of the determination.
(2) Probable Cause Determinations.
If it is determined based upon the information gathered
during the investigation that probable cause for crediting the allegations of a
charge exists, the Director shall notify the parties of such determination in
writing by mail and order the parties to attempt to resolve the charge through
conciliation (compulsory mediation).
(3) No Probable Cause Dismissal for Other
Reasons.
The Director may, without deciding on the merits of the
alleged acts of discrimination, dismiss a charge for the following reasons:
lack of jurisdiction; voluntary withdrawal of the charge; settlement of the
charge; receipt of a request for issuance of a right to sue notice; referral of
the charge to the Equal Employment Opportunity Commission (EEOC), U.S.
Department of Housing and Urban Development (HUD), or the Colorado State
Personnel Board; failure or refusal by the Charging Party/Complainant to
cooperate in the investigation; and inability of the Division to locate the
Charging Party.
(D) Conciliation.
(1) If the Director determines that probable
cause exists, the Division shall attempt to eliminate or remedy the
discriminatory practice through an agreement reached through compulsory
mediation (conciliation).
(2)
Conciliation entails the negotiation of a mutual agreement between the parties
by a mediator, who may or may not be a staff member of the Division. The
mediator shall contact the parties to initiate the conciliation.
(3) Types of relief sought in conciliation
may include, but are not limited to, the following:
(a) Cease and Desist from a discriminatory
practice;
(b) Back pay;
(c) Hiring of employee(s), with or without
back pay;
(d) Reinstatement of
employee(s), with or without back pay;
(e) Upgrading or promoting of employee(s),
with or without back pay;
(f)
Referring of applicants for employment by an employment agency;
(g) Restoring membership in a labor
organization;
(h) Admission to or
continued enrollment in an apprentice or training program;
(i) Admission to or continued enrollment in a
vocational school;
(j) Public and
private apologies;
(k) Posting of
anti-discrimination notices;
(l)
Remedial affirmative activities to overcome a discriminatory
practice;
(m) Policy and procedure
modifications;
(n) Education and
training of Respondent management and staff;
(o) Reporting to and monitoring by the
Division as to the manner of compliance;
(p) Housing-specific remedies provided Part
5, Title 24, Article 34, C.R.S.; and
(q) Public Accommodations-specific remedies
provided in Parts 6 and 7, Title 24, Article 34, C.R.S.
(4) The assigned mediator shall determine
when conciliation efforts are unsuccessful and a voluntary agreement is not
likely to result. The Division may terminate its efforts to conciliate if the
parties fail or refuse to make a good faith effort to resolve the dispute. The
Division will inform the parties of the failure of conciliation in
writing.
(5) If the Charging Party
fails or refuses to accept conciliation terms that the Director believes are
reasonable, the Director may nevertheless resolve the charge in the public
interest by entering into a conciliation agreement with the Respondent and
dismiss the charge. The Charging Party may appeal the Director's action to the
Commission in the same manner as provided in these Rules for appeals of
determinations of no probable cause. A written notice of the conciliation
agreement shall be mailed to all parties.
(6) The terms of any conciliation or
settlement agreement, regardless of confidentiality provision, shall be made
available to the Division by the parties.
(E) Disclosure.
Without the written consent of all the parties, the
Commission and the Division shall not disclose the filing of a charge, the
information gathered during the investigation, or the efforts to eliminate such
discrimination or unfair practice by mediation or conciliation unless the
disclosure is made in connection with the conduct of the investigation, the
filing of a petition seeking injunctive relief or at a public hearing. In
disclosing information gathered during the investigation to the parties, or for
any other reason, the Division may exercise reasonable discretion to redact
personally identifying information of individuals, proprietary information, or
trade secrets otherwise protected by other provisions of state
law.
(F) Evidence
Examination.
Any of the parties or their counsel may examine any
evidence contained in the investigative file of the charge, excluding documents
or information made confidential by law. Evidence does not include Commission
or Division work product or documents protected by attorney-client
privilege.
(G) Notice of
Right to Sue.
(1) Request for Issuance after
180 days.
If the Charging Party makes a written request for issuance
of a notice of right to sue after the expiration of 180 days following the
filing of the charge, the request shall be granted provided that the Commission
has been given the opportunity to determine if the charge shall be noticed for
hearing, if a probable cause determination has been issued, and has not caused
to be served a written Notice and Complaint pursuant to §
24-34-306(4),
C.R.S.
(2) Effect of
Issuance of a Right to Sue Notice.
Issuance of a notice of right to sue at any time shall
cause jurisdiction of the Division and Commission to cease, shall constitute
final agency action and exhaustion of administrative remedies and proceedings
pursuant to the Law and these Rules, and shall terminate further processing of
the charge by the Division.
(3) Contents of Request.
All requests for issuance of a notice of a right to sue
shall be in writing and signed by the Charging Party or their
attorney.
(4) Contents of
Notice.
The notice of right to sue shall authorize the Charging
Party to bring a civil action in district court, advise as to the appropriate
time period in which to sue as provided by the Law, and include the
determination, decision, or dismissal, as appropriate.
Notes
3 CCR 708-1-10.5
37
CR 22, November 25, 2014, effective
12/15/2014
43
CR 12, June 25, 2020, effective
7/15/2020
45
CR 01, January 10, 2022, effective
1/30/2022
46
CR 04, February 25, 2023, effective
3/30/2023
46
CR 23, December 10, 2023, effective
12/30/2023