Current through Register Vol. 48, No. 3, March 22, 2024
A. Hearings.
(1) After a finding of reasonable cause to
credit the allegations of the complaint and if attempts to eliminate or
otherwise resolve the alleged unlawful employment practice fail, the results of
the investigation shall be reported along with the recommendation on scheduling
a hearing to the supervisory commission member.
(2) The Chairman shall thereafter appoint
three (3) members of the Commission to serve as hearing commissioners. The
Chairman shall appoint one of the three as chief hearing commissioner. No
Commission member shall be appointed as a hearing commissioner for a case in
which he/she served as the supervisory commission member.
B. Notice of Hearing. The notice of hearing
shall include:
(1) a statement of the time,
place and nature of the hearing;
(2) a statement of the legal authority and
jurisdiction under which the hearing is to be held;
(3) a reference to the particular section of
the statutes and rules involved;
(4) a short and plain statement of the
matters asserted; and
(5) a
statement notifying the respondent of its right to be represented by an
attorney and that failure to answer the complaint will result in
default.
C. Service of
the Notice of Hearing.
(1) The supervisory
commission member shall within ten (10) days after receiving the recommendation
of the investigator serve the notice of hearing and the complaint by registered
or certified mail or by personal delivery on the respondent at least thirty
(30) days before the date of the hearing, and the complainant, hearing
commissioners and Attorney General shall be furnished a copy of the notice of
hearing and complaint, as amended.
(2) If the respondent is represented by an
attorney, service of the notice of hearing and the complaint on the
respondent's attorney will be deemed proper service on the
respondent.
D. Place of
Hearing.
The place of hearing shall be at the Commission office at 2611
Forest Drive, Suite 200, Columbia, or such other place as the hearing
commissioners may designate.
E. Complaint.
(1) The Commission shall prepare a formal
complaint that must accompany the notice of hearing. The formal complaint shall
be prepared in a form that complies with the rules governing complaints in the
courts of law in this State. All complainants filed under this section shall be
verified by the complainant.
(2)
Contents. The complaint shall state clearly and concisely each allegation
asserted. The complaint must be in writing and signed by the supervisory
commission member.
F.
Answer.
(1) The respondent shall answer the
complaint or amended complaint that is served on it with the notice of hearing.
The answer shall be in writing and signed by the respondent or its
attorney.
(2) Contents. The answer
shall state clearly and concisely the defenses to each claim asserted and shall
admit or deny the allegations in the complaint. The answer shall contain the
mailing address of the respondent or its attorney.
(3) Service of the Answer.
(a) No later than twenty (20) days after
service of the complaint, the respondent shall serve two (2) copies of the
answer on the Commissioner at the Commission office at 2611 Forest Drive, Suite
200, Columbia, and one (1) copy of the answer on the complainant. Extensions of
time for filing the answer may be granted by the Commissioner upon good cause
shown, provided that no request for an extension of time shall be granted
unless such request is received by the Commission at least three (3) days prior
to the date upon which the answer is otherwise due.
(b) The answer shall be served upon the
Commissioner and the complaint by registered or certified mail or by personal
delivery.
(4) Failure to
Deny or Admit. Failure to deny or admit an allegation in the complaint, unless
the respondent shall state in the answer that it is without knowledge or
information sufficient to form a belief, shall be deemed an admission of such
allegation.
(5) Defense and New
Matter. Any allegation of new matter contained in the answer shall be deemed
denied without the necessity of a reply.
(6) Amendment of Answer. The answer or any
part thereof may be amended once as a matter of right at any time before the
hearing and thereafter in the discretion of the chief hearing commissioner. The
amended answer shall be served in the same manner as the original
answer.
(7) Default. Upon
application, the chief hearing commissioner may, for good cause shown, set
aside the default of a respondent to answer a complaint in a timely manner. If
a default is set aside pursuant to this subsection, the respondent shall file
an answer within the time prescribed by the chief hearing commissioner, but in
no case later than ten (10) days from the date on which the default is set
aside.
G. Pre-Hearing
Discovery.
(1) Either party may cause to be
taken the depositions of witnesses within or without the State. Such
depositions shall be taken in accordance with and subject to the same
provisions, conditions and restrictions as apply to the taking of like
depositions in civil actions at law in the courts of common pleas of this
State; and the same rules with respect to the giving of notice to the opposite
party, the taking and transcribing of testimony, the transmission and
certification thereof and matters of practice relating thereto shall
apply.
(2) The chief hearing
commissioner shall on its own behalf or, upon request, on behalf of any other
party to the case, issue in the name of the Commission subpoenas for the
attendance and testimony of witnesses and the production and examination of
books, papers and records.
(3) The
court of common pleas shall, on application of the Commission, enforce by
proper proceedings the attendance and testimony of witnesses and the production
and examination of books, papers and records and shall have the power to punish
as for contempt of court, by a fine or imprisonment or both, the unexcused
failure or refusal to attend and give testimony or produce books, papers and
records as may have been required in any subpoena issued by the Commission. The
Commission may issue to the sheriff of the county in which any hearing is held
a warrant requiring him to produce at the hearing any witness who shall have
ignored or failed to comply with any subpoena issued by the Commission and duly
served upon such witness. Such a warrant shall authorize the sheriff to arrest
and produce at the hearing such witness, and it shall be his duty to do so; but
the failure of a witness to so appear in response to any such subpoena may be
excused on the same grounds as provided by law in the courts of this State as
to the attendance of witnesses and jurors.
H. Hearing Procedures.
(1) Powers and Duties of the Chief Hearing
Commissioner. The chief hearing commissioner shall have full authority to
control procedure of a hearing, to admit or exclude testimony or other
evidence, and to rule upon all motions and objections. The chief hearing
commissioner shall make full inquiry into all the facts in issue and shall
obtain a full and complete record of all facts necessary for a fair
determination of the issues. The chief hearing commissioner may call and
examine witnesses, direct the production of papers or documents, and introduce
the same into the record of the proceedings.
(2) Appearances. The complainant or the party
on whose behalf the complaint was filed shall appear at the hearing, with or
without counsel, and may submit testimony, examine and cross-examine witnesses
and present evidence. If the complainant requests to be represented by his/her
own attorney at the hearing, he/she may file a notice of appearance stating the
wishes to be represented by his/her own attorney and including the name and
address of his/her attorney no later than five (5) days before the hearing. The
respondent may appear at the hearing with or without counsel and if an answer
has been filed may examine and cross-examine witnesses, submit testimony and
present evidence. The Attorney General and, in the discretion of the chief
hearing commissioner, any other person may intervene, examine and cross-examine
witnesses, submit testimony and present evidence.
(3) Conduct of Hearing.
(a) The case in support of the complaint
shall be presented before the hearing commissioners by a Commission attorney or
by the complainant or his attorney.
(b) The case in support of the respondent
shall be presented before the hearing commissioners by the respondent or its
attorney.
(c) Evidentiary matters.
(i) Irrelevant, immaterial or unduly
repetitious evidence shall be excluded. The rules of evidence as applied in
civil cases in the court of common pleas shall be followed. Agencies shall give
effect to the rules of privilege recognized by law. Objections to evidentiary
offers may be made and shall be noted in the record. Subject to these
requirements, when a hearing will be expedited and the interests of the parties
will not be prejudiced substantially, any part of the evidence may be received
in written form;
(ii) Documentary
evidence may be received in the form of copies or excerpts, if the original is
not readily available. Upon request, parties shall be given an opportunity to
compare their copy with the original;
(iii) Notice may be taken of judicially
cognizable facts. In addition, notice may be taken of generally recognized
technical or scientific facts within the Commission's specialized knowledge.
Parties shall be notified either before or during the hearing or by reference
in preliminary reports or otherwise of the material notice including any staff
memoranda or data, and they shall be afforded an opportunity to contest the
material so noticed. The Commission's experience, technical competence and
specialized knowledge may be utilized in the evaluation of the
evidence.
(iv) No testimony or
evidence shall be given or received at any hearing concerning any offers or
counter-offers made in an effort to conciliate any alleged unlawful employment
practice.
(v) All testimony shall
be given under oath or affirmation and records of the proceedings shall be made
and kept.
(vi) Any party may
conduct cross-examination.
(d) Joining Complaints. Two or more
proceedings under the Act involving the same respondent may be joined by the
hearing commissioners in their discretion if such joinder does not deprive any
party of any right otherwise available under this section.
(e) Stipulations. The parties may file
stipulations as to facts, in which event the same shall be numbered and used at
the hearing. In addition, oral stipulations may be made at the hearing and
shall be included in the record of the hearing. Such stipulations shall not
preclude the offering of additional evidence by any party. However, a
stipulation may be withdrawn by any party in the event evidence is presented at
the hearing which is inconsistent with the stipulation.
(f) Motions and Objections. Motions made
during a hearing and objections with respect to the conduct of a hearing,
including objections to the introduction of evidence, shall be stated in
writing or orally and shall be included in the record of the hearing.
(g) Oral Arguments and Briefs. The chief
hearing commissioner shall permit the parties or their attorneys to argue
orally before the hearing commissioners and to file briefs within such time
limits as the chief hearing commissioner may establish. Oral arguments shall
not be included in the record unless the chief hearing commissioner shall so
direct or unless requested by any party.
(h) Sequestration of Witnesses. Witnesses
shall not be in the hearing room except when testifying.
(i) Public Hearings. All Commission hearings
shall be open to the public unless the chief hearing commissioner for good
cause directs a closed hearing.
(j)
Waiver of Hearing. With the consent in writing of the respondent and notice to
all parties, an order may be entered without holding any hearing or the making
of any findings of fact or conclusions of law.
(k) Continuation and Adjournments. The
hearing commissioners may continue a hearing from day to day or adjourn it to a
later date or to a different place by announcement thereof at the hearing or by
appropriate notice to all parties.
(l) Improper Conduct. The chief commissioner
may exclude from the hearing room or from further participation in the
proceeding any person who engages in improper conduct before the hearing
commissioners.
(4)
Record of the Hearing. The record of the hearing shall include:
(a) all pleadings, motions, intermediate
rulings and depositions;
(b) all
evidence received or considered;
(c) a statement of matters officially
noticed;
(d) questions and offers
of proof, objections and rulings thereon;
(e) proposed findings and exceptions;
and
(f) any decision, opinion or
report by the presiding hearing commissioner.
I. Hearing Commissioner's Order.
(1) Issuance of Order.
(a) If upon all the evidence, the hearing
commissioners shall find that a respondent had engaged in any unlawful
employment practice, the hearing commissioners shall state their findings of
fact, conclusions of law and shall make a recommendation on the basis of which
the Commission may issue and cause to be delivered to respondent an order
requiring such respondent to cease and desist from such unlawful employment
practice and to take such affirmative action as in the judgment of the
Commission will carry out the purposes of the Act. Affirmative action orders
may include the remedies enumerated in the Act.
(b) If upon all the evidence, the hearing
commissioners shall find that a respondent has not engaged in any unlawful
employment practice, the hearing commissioners shall state their findings of
fact and conclusions of law and make a recommendation on the basis of which the
Commission may issue an order dismissing the complaint.
(2) Contents of Order. An order of the
Commission shall be in writing or stated in the record and shall separately set
forth the findings of fact and conclusions of law of the hearing commissioners,
the Commission's final decision, and an opinion containing the reasons for said
decision. Such decisions as to whether an unlawful employment practice occurred
shall be reached by a majority vote of the hearing commissioners. Concurring
and dissenting opinions of individual hearing commissioners shall be included
in the order.
(3) Filing of Order.
(a) The parties shall be notified and
provided a copy of the order either by personal delivery or by registered or
certified mail.
(b) All orders
shall be filed in the Commission office at 2611 Forest Drive, Suite 200,
Columbia and a copy of all orders shall be provided to the Attorney
General.
J.
Reconsideration of Order.
(1) Request for
Reconsideration. After a hearing and the issuance of a final order, the hearing
commissioners may, upon their own motion or upon application of any party or
intervenor for good cause shown or whenever justice so requires or where an
order of determination or decision was made upon default of a party affected
thereby, reconsider any closed proceeding upon notice to all parties,
intervenors and the Attorney General, and take such action as it may deem
necessary.
(2) Time Limitation for
Filing Reconsideration Request. No application for reconsideration shall be
considered unless filed within fourteen (14) days from the date the order of
the Commission was rendered.
K. Transcript of the Record. The Commission's
copy of the written transcript of the record shall be available during the
regular office hours of the Commission to the complainant and respondent for
examination without cost, for the purpose of appeal to the circuit court from
the order of the Commission. The Commission's copy of the testimony shall, in
the discretion of the Commissioner or the Chairman, also be available to
intervenors and other persons, for such purposes to such an extent and for such
fee as the Commissioner or the Chairman may determine.
L. Judicial Review.
(1) Who May Apply. A complainant or
respondent aggrieved by an order of the Commission may seek judicial review of
the order.
(2) Forum. A proceeding
for judicial review may be brought within thirty (30) days of issuance of the
order of the Commission in the court of common pleas in the county in which the
alleged unlawful practice which is the subject of the order occurs or the
county in which the hearing was conducted.
(3) Procedures.
(a) A copy of the petition for review shall
be served on the Commission and all parties of record.
(b) If, before the date set for the circuit
court hearing of the petition, application is made to the court for leave to
present additional evidence, and it is shown to the satisfaction of the court
that the additional evidence is material and that there were good reasons for
failure to present it in the proceeding before the Commission, the court may
order that the additional evidence be taken before the Commission upon
conditions determined by the court. The Commission may modify its findings and
decision by reason of the additional evidence and shall file that evidence and
any modifications, new findings, or decisions with the reviewing
court.
(c) Within thirty (30) days
of service of the petition for review, or, within further time allowed by the
court, the Commission shall transmit to the reviewing court the original or a
certified copy of the entire record of the case. By stipulation of all parties
to the review proceedings, the Commission may submit to the court a verified
list of all documents and other materials composing the official record in
place of the record itself. In such cases, the Commission shall submit to the
court those parts of the record designated by any party to the
review.
(d) The review shall be
conducted by the court without a jury and shall be confined to matters in the
record. In cases of alleged irregularities in procedure before the Commission,
not shown in the record, proof thereon may be taken in the court. The court,
upon request, shall hear oral argument and receive written briefs.
M. Petitions for
Enforcement.
(1) After thirty (30) days from
the date the Commission order is issued, the Commission may file a petition for
enforcement of its order in the court of common pleas of the county in which
the hearing occurred or wherein any party subject to the order resides or
transacts business if the Commission believes judicial enforcement is necessary
to ensure compliance with its order.
(2) A petition for review filed pursuant to
Section L above shall operate as a supersedeas for thirty (30) days only,
unless otherwise ordered by the court, and thereafter the respondent shall be
required to comply with the order of the Commission until the appeal is
decided.
(3) If no request for
review is filed, the Commission's petition for enforcement shall be granted
upon a showing that a copy of the petition was served upon the party subject to
the provisions of the Commission's order.