The Human Rights Bureau offers several options for voluntary resolution of discrimination complaints. Settlement is attempted throughout the investigation process; and Conciliation is offered if the investigation results in a reasonable cause finding.
There are many reasons to participate in voluntary resolution negotiations. Voluntary resolutions can save the parties time and money. The negotiations are confidential and a majority of parties who choose to participate have their cases successfully resolved.
Before or during the informal investigation, if the parties are able to resolve the matter on their own, then the Human Rights Bureau would ask that the parties provide the Bureau with a copy of the settlement agreement and a signed withdrawal form. (The signed withdrawal form will withdraw the complaint from the administrative process.) The Human Rights Bureau reserves the right to redesignate the complaint. Mont. Code Ann. 49-2-210.
If the matter voluntarily resolves after there has been a cause finding, the Human Rights Bureau may seek affirmative relief to correct or prevent discrimination. Consequently, if the parties reach a voluntary resolution without the participation of the Human Rights Bureau, the Bureau may seek a separate agreement with the Respondent.
When facilitating resolution, the Human Rights Bureau cannot be a party to an agreement that contains a provision that the Respondent will not “rehire” the Charging Party. These “no rehire” provisions could be interpreted as retaliatory. Further, the Human Rights Bureau cannot be a party to an agreement that violates the statutory rights of a party (e.g. Charging Party agrees not to seek Unemployment Insurance, Charging Party agrees not to file a workers’ compensation claim). Finally, the Human Rights Bureau discourages the use of global releases in voluntary resolution agreements, such releases go beyond the scope of the complaint before the Human Rights Bureau.
The Human Rights Bureau will work with the parties on reaching a settlement throughout the informal investigation process. A settlement agreement can be facilitated through the Human Rights Investigator assigned to investigate the complaint.
During the course of an investigation, you may be contacted about attending a Fact Finding Conference. The Fact Finding Conference is not a hearing. It is a voluntary, informal conversational conference conducted by the Investigator in a neutral setting. During the Fact Finding Conference, the parties meet with the investigator to define and clarify issues, and present and dispute evidence in a respectful manner. The advantage to participating in the fact-finding conference is that the parties get an opportunity to hear what the other party has to say and respond to those statements. After this completion of this fact finding conference, if the parties are both interested, the Investigator can make him or herself available to discuss resolution of the case.
If you are currently participating in an open complaint and would like to schedule a Fact Finding Conference, or you have questions about it, please contact your Investigator.
If the Human Rights Bureau concludes the informal investigation and finds reasonable cause to believe unlawful discrimination occurred, then the Bureau is required to attempt to resolve the case through conciliation. Conciliation, similar to mediation and settlement, is a process by which the Human Rights Bureau assigns a Conciliator (a neutral third party) to attempt to resolve the complaint and avoid further legal proceedings. The conciliation period lasts 30 days from the investigation closure date. The Conciliator will contact the parties to determine if conciliation is possible. The Conciliator does not represent either party, but will assist in putting together a conciliation agreement for the parties to sign. (This conciliation agreement must also be signed by the HRB Bureau Chief.)
A worksheet identifying the types of damages usually awarded in employment discrimination cases is available here. Charging parties may use this worksheet to assist in calculating a conciliation proposal.
In addition to any individual relief sought by the charging party, the Bureau will also require affirmative relief, to ensure any discrimination practices identified do not continue, before it will approve any conciliation agreement.
If the case cannot be resolved through conciliation within 30 days, the case is certified for a formal contested case hearing before the Department of Labor and Industry’s Hearings Bureau. If the parties intend on negotiating a conciliation agreement without the assistance of the HRB conciliator, it is still in the parties’ best interest to contact the Human Rights Bureau prior to finalizing that agreement. Once the Bureau has made a determination of discrimination, it is obligated to seek conditions that eliminate the discriminatory practice. Mont. Code Ann. 49-2-504(2)(b). And, when the Department is aware of a possible violation of the Montana Human Rights Act, it the Commissioner of Labor has the option of redesignating that complaint (as a Department complaint) in order to secure such conditions. See Mont. Code Ann. 49-2-210.