Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

The Supreme Court is expected to rule later this month on the controversial case of Ricci v. DeStefano, the case out of New Haven, Connecticut involving a group of white firefighters who have alleged discrimination by the city.

But what will happen after the court rules on the case?

That's the subject of an interesting post by the New Haven Independent today who talked with Linda Greenhouse, a former reporter for The New York Times who covered the U.S. Supreme Court for many years:

When the U.S. Supreme Court finally decides city firefighters’ fate this month, the wait for promotions probably won’t be over. It will likely return to Judge Janet Bond Arterton’s New Haven courtroom.

And it could take a while.

That’s the most likely scenario of several sketched out by a leading Supreme Court expert, Linda Greenhouse, when asked about Ricci v. DeStefano. The court is to issue a decision before its term ends in late June.

Greenhouse predicts that those expecting a quick outcome are going to be disappointed:

“Folks in New Haven who are expecting a clear ruling out of this, may be quite surprised,” said Greenhouse. Greenhouse covered the former Supreme Court for The New York Times for 30 years; she won a Pulitzer Prize doing it. She is now a faculty member at the Yale Law School.

“It may leave them as confused as they’ve been all along,” Greenhouse predicted.

Because the case has also been a lightning rod for criticism for Supreme Court nominee Sonia Sotomayor, expect to hear lots more about it in the weeks to come.

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With all the developments the last week or two with the Connecticut legislative session, it's been difficult to keep up with everything ELSE happening in employment law. 

So, time for a "Quick Hits" post, where I recap some of the stories you might have missed relating to the world of labor and employment law that might be of interest to employers in Connecticut and beyond.

• Michael Moore, of the Pennsylvania Labor & Employment Blog, has a long-awaited followup to his guest post in this blog last year on Body Mass Index being the next type of claim out there under the ADA.  This time, he looks at the effect of the new ADA amendments on such claims.
   
• In what should be a surprise to no one, the U.S. Government has delayed implementation of E-Verify yet again for federal contractors. (My most recent post on E-Verify is here.) The newest date is September 8, 2009.  Don't hold your breath on this one.
   
• The World of Work was among numerous blogs that reported this week on a new case out of California overturning a $105M verdict in favor of baristas who claimed that they shouldn't have had to share the "tip jar" with shift supervisors. (H/T Overlawyered)
   
• As you may know, the NLRB - a five member board - has only had two appointees lately. A recent appellate court called into question the legitimacy of the decisions by the board. The inevitable appeals have now started, reports the Workplace Prof blog. I have a hard time believing that this decision is going to be upheld but we'll see. For employers, however, unless you have a case up at the Board level, this isn't something that will impact them, at least in the short term. 
   
• The intersection between Twitter and employment law -- the subject of an earlier post by me -- gets the scholarly treatment with an interesting seminar article. Some of it states the obvious such as "Users must be careful what they tweet. Twitter is subject to vast potential liability, as is any electronic communication tool." But it's refreshing to see someone looking at the subject from a treetop level.  

 

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Sometime last summer, Connecticut attorney Karen Lee Torre sparked a few fires with her suggestion to eliminate the Connecticut Commission on Human Rights and Opportunities -- the organization charged with, among other duties, investigating and remedying discrimination in the workplace.  (You can find my prior posts on the exchange here, here and here.) 

The crux of Attorney Torre's arguments at the time was as follows:

CHRO was and remains crippled by internal race politics with staffers suing each other and maintaining demographic battle lines. It is Afro-centric, politically correct to a grievous fault and brazenly hostile to the civil rights of white males. It is time to dissolve it or at least gut it with a budget that reflects its worth.

This month, the Connecticut Lawyer published an opinion piece written by my colleague, Joshua Hawks-Ladds, in which he suggests another radical change in the CHRO but for different reasons. You can download the article here. 

First, he highlights what he believes needs fixing at the CHRO:

Unfortunately, the Commission has become an underfunded, understaffed and perpetually backlogged bureaucracy. Along with many valid discrimination complaints, the Commission’s offices are clogged with specious claims that the Commission is required to investigate. This means that the bona fide discrimination claims against landlords and employers get lost in the morass. Some of the valid claims are removed from the CHRO and litigated in the state and federal courts. However, the many of the claims (over 2,000 are filed each year) languish for years in the agency’s offices. The system is unfair to claimants with bona fide claims, as well as employers and landlords with bona fide defenses.

As a result, he proposes a fix:

a complete overhaul of the Commission’s procedures to mirror the state Department of Labor’s Unemployment Compensation system, with one exception: if either party does not agree with an appeal referee’s decision relating to a charge of discrimination, then that party may appeal that decision, de novo, to the superior court.

It's a new approach to an old problem.  He acknowledges up front that his proposal is likely to be met with opposition from some. But with many people (on both sides of cases) unhappy with the status quo, the time may be right to at least consider something new. 

An advisory committee charged with making recommendations about changes to the CHRO has been in the works for many many months now.  It'll be interesting to see what changes they propose to an agency that continues to draw criticism. 

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While the current outbreak of H1N1 Influenza is turning out (for now) to be less lethal than previously thought, the EEOC released guidance this week (available here) to help employers prepare for a possible pandemic and still comply with the ADA.

Some of the guidance is lifted from previous statements of the EEOC but applied to this situation. For example, the EEOC again reminds employers of the limits of making medical-related inquiries to employees:

Among other things, the ADA regulates when and how employers may require a medical examination or request disability-related information from applicants and employees, regardless of whether the individual has a disability. This requirement affects when and how employers may request health information from applicants and employees regarding H1N1 flu virus.

The EEOC also goes out of its way to emphasize that there are ways an employer can legally survey its workforce before a pandemic strikes to allow it to be prepared.  In fact, it provides a model survey for the employer to use.  

Lastly, the EEOC addresses infection control measures and states what should be obvious: "Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal, does not implicate the ADA."

It's a helpful reminder to employers that even in times of crisis, we remain a nation under the rule of law.  Let's hope that this current outbreak wanes and that it does not reoccur in the fall in a more virulent form.

 

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I recently came across a blog post entitled "How to Respond to an EEOC Complaint" that got me thinking about how I would respond if the same question were asked about Connecticut's state discrimination agency, the CHRO (Commission on Human Rights and Opportunities). 

In the particular post, the author sets forth several good, common-sense suggestions that offer a starting point for employers in responding to complaints of discrimination.  Among the offerings:

• Tell the Whole Story
• Use Documentation
• Verify the Response's Accuracy
• Highlight Consistent Past Decisions
• Contact Your Insurer
• Preserve All Documents

In reviewing the list, however, I also find myself disagreeing with the premise of the post that there can be a one-size-fits-all approach to responding to discrimination complaints from a state agency.  Indeed, the scope of the response and the tactics that an employer may use in responding can and should differ depending on various factors.

For example, suppose the employee who is complaining about discrimination is respresented by experienced counsel and the matter is likely to go to court regardless of what the state agency says.  In that situation, the employer may decide to use outside legal counsel to respond and be more circumspect in its responses.

But suppose the employer believes the complaint is frivolous and that a state agency dismissal is likely to be the end of the matter. In that situation, the employer will likely want to provide the agency with enough ammunition to bolster its decision.

Each claim of discrimination has its own nuances and responses should be tailored to fit the particular circumstances.

Perhaps the best takeaway for employers is the understanding that discrimination complaints filed with the EEOC and the CHRO should be taken as seriously as the filing of a lawsuit itself.  Developing a comprehensive strategy (likely through consulting with counsel) and being accurate in a response, can help ensure that the responses won't come back to haunt the employer later on.

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From time to time, I've been fortunate to have several guest bloggers contribute their thoughts on Connecticut employment law. Today, I'm happy to continues that trend with a post from my Pullman & Comley colleague Michael "Mick" Lavelle.  Mick has broad trial experience, both jury and non-jury, before state and federal civil courts and before administrative agencies that regulate employment. He successfully litigated the case of Bridgeport Hospital v. Commission on Human Rights and Opportunities, et al., 232 Conn. 91 (1995), in which the Connecticut Supreme Court curtailed the commission’s ability to award damages against employers. He serves as a special master for the U.S. District Court.

Today, Mick addresses the subject of dress codes and highlights two cases outside Connecticut that highlight the approach of the EEOC in such cases.  It's definitely worth keeping an eye on to see whether the EEOC and private attorneys continue pressing the issue.

Dress code issues have certainly evolved since the days when the controversy was whether women could be required to wear dresses instead of slacks or pant suits. 

Today’s issues involving body piercing and tattoos are for the most part settled in a common-sense way. Employers may impose a professional appearance standard on employees who deal with the public, so that visible body piercings must be removed and visible tattoos must be covered up while at work.

But recently the Equal Employment Opportunity Commission has supported employees who claim that such body decoration has a religious significance. 

In EEOC v. Papin Enterprises, 2009 WL 961108 (M.D. Fla), the employee, a clerk in a sandwich shop, claimed that wearing a nose ring was a practice of her religion. 

Although the concept that an employer has the right to control its public image is usually sufficient to sustain the dress code requirement, the court noted that the shop manager simply told the employee to remove the nose ring when they were visited by a senior official from the franchise headquarters, an approach which contradicted the “public image” argument and resulted in denial of the employer’s motion for summary judgment.

In EEOC v. Red Robin Gourmet Burgers, 2005 WL 2090677 (W.D. Wash.), the employee was a server in a restaurant who had tattoos encircling his wrists. He received the tattoos during a religious ceremony after undergoing a rite of passage in “Kemetecism”, a religion with roots in ancient Egypt. In this belief system, intentionally covering the tattoos is a sin. 

This court also denied summary judgment for the employer, ruling that because of the relatively insignificant appearance of the tattoos, the question of whether it was an undue hardship for the employer to allow the “display” of the tattoos was an issue for a trial.

Employers should note that a ban on facial piercings and visible tattoos remains legally permissible; these are unusual cases which do not require that employers change their dress codes for employees who deal with the public. 

However, these cases reinforce the importance of the basic advice that dress codes, and work rules generally, should be enforced consistently and equally, and that unusual situations call for measured consideration rather than abrupt (and possibly illegal) decision-making. 

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The EEOC issued new technical guidance for employers this week to provide them with some direction on how to deal with workers with caregiving responsibilities.  

The document, "Employer Best Practices for Workers with Caregiving Responsibilities," is available online here supplements previous guidance entitled "Unlawful Disparate Treatment of Workers with Caregiving Responsibilities".

As stated by the EEOC:

The best practices document provides recommendations for workplace policies aimed at removing barriers to equal employment opportunity for workers with caregiving responsibilities. Examples include personal or sick leave policies that allow employees to use leave to care for ill family members, flexible work arrangements, part-time opportunities with proportional compensation and benefits, and equal-opportunity policies that address unlawful discrimination against caregivers.

The examples that the EEOC provides are not earth-shattering. Indeed, most employers are likely following many of these practices. Nevertheless, the document should give employers some additional assurance that they will have the backing of the government in implementing certain programs.  

Among the best practice examples given:

• Be aware of, and train managers about, the legal obligations that may impact decisions about treatment of workers with caregiving responsibilities.
• Develop, disseminate, and enforce a strong EEO policy.
• Ensure that managers at all levels are aware of, and comply with, the organization’s work-life policies.
• Respond to complaints of caregiver discrimination efficiently and effectively.
• Protect against retaliation.

Several other blogs have provided some additional thoughts on the subject this week including the Delaware Employment Law Blog and the Ohio Employer's Law Blog.  

For employers, add this to the seemingly never-ending list of areas for human resources to keep a close eye on.  

 

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Record numbers of discrimination complaints were filed with the Equal Employment Opportunity Commission, according to a MSNBC column:

Discrimination claims filed with the Equal Employment Opportunity Commission jumped 15 percent in fiscal 2008 to 95,402 — the highest level since the agency opened in 1965, said spokesman David Grinberg. That is up from 82,792 claims filed the year before by workers who believe they were discriminated against because of age, race, religion, gender or other reasons.

Those are truly stunning statistics because the unemployment numbers for 2008 didn't even start to spike until the last few months and this is for the fiscal year ending September 30, 2008.  If you were to extrapolate that trend for 2009, it's entirely plausible that we could hit 100,000 claims filed during 2009. 

The formal numbers will be released later this week, but already, the EEOC spokesman has his interpretation: "It's possible we have yet to see the full impact of the recession on discrimination charge filings as the economy continues to spiral downward since fiscal year 2008,” Grinberg said.

What is the makeup of these increases? Well, according to the MSNBC report, retaliation claims are up nearly 23%, age claims up nearly 29% and gender and religion claims up 14%.  By contrast, race claims are up only 11%, while disability claims are up a mere 10%.  Interestingly, Equal Pay Act claims -- which will get a boost from the Lilly Ledbetter Fair Pay Act -- were already up nearly 17% last year, before the passage of that bill.

What Does This Mean For Employers?

While the CHRO has yet to release its statistics for Connecticut, the EEOC numbers indicate that claims are on the rise..and in a big way.  Every decision to terminate an employee carries an even greater risk of a complaint.  With jobs becoming scarcer by the day, laid-off or terminated employees may view a complaint as their own way to stay afloat and their only option. 

These numbers emphasize the point that decisions to terminate employees should be made cautiously and carefully.  What are the consequences? You could end up being part of next year's statistics.

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UPDATED 3/2/09 with New Link to Proposed Regulations

The text of the proposed new regulations on GINA have finally trickled out (you can download a copy here). 

Ross Runkel (whose stakes a claim to being "First in Employment Law") finally tracked it down earlier today.

It's a 58-page document though much of what it contains has been discussed in previous posts here and here. Here are a few items that haven't been touched on before

• The definition of "employee" also covers former employees; this allows individuals who have been fired to raise discrimination and retaliation claims.  (Section 1635.2)
• The EEOC seems particularly interested in comment on six terms that have not been used previously in employment law context (at least not with any frequency). These include: "Family member", "Family medical history", "Genetic information", "Genetic Monitoring", "Genetic Services", and "Genetic Test".  (Section 1635.3)
• The regulations emphasize that although employers have 5 exceptions to the general rule that they may not acquire genetic information, these exceptions still do not allow an employer to discriminate by using such genetic information. (Section 1635.8)

Expect there to be more analysis in weeks to come. The comment period will end at the end of April 2009.  After that, expect the EEOC to release final regulations in the summer of 2009.

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UPDATED 3/1/09

The EEOC released proposed regulations regarding the Genetic Information Nondiscrimination Act on February 25, 2009.  The Washington Labor & Employment Wire (H/T) received and advance copy; the regulations are expected to be published later on Thursday or Friday and the 60-day comment period will begin then. (UPDATED: The text of the proposed regulations can be found here.)

With all the new employment laws, GINA might have been overlooked; it was passed last year and it:

* prohibits discrimination based on genetic information in hiring, firing, compensation and other employment decisions;
* prohibits employers from collecting genetic information through workplace genetic testing or other means, with very narrow exceptions (e.g., monitoring the effects of hazardous workplace exposures);
* prohibits health insurers and plans from requiring genetic testing and from discriminating based on genetic information in enrollment and premium-setting; and
* imposes strict workplace confidentiality/disclosure rules on all genetic information.

The Wire's early take on the regulations is that they clarify some terms and provide some guidance on GINA's six exceptions to the general provisions that employers are prohibited from acquiring genetic information from employees:

The proposed regulations provide additional guidance regarding some of the terms used in the Act. For example, the regulations define “employee” to cover not just current employees, but also applicants and former employees. The proposed rule also clarifies that drug and alcohol tests are not “genetic tests,” and invites comments on the scope of the term “genetic test,” specifically, “how the term should be applied, whether the proposed regulation should be more or less expansive, and whether it or the preamble should provide examples of what should be included or excluded.”

Employers in Connecticut should be wary about just following GINA however. Connecticut has long had a separate state law on the subject in Conn. Gen. Stat. 46a-60(a)(11).

In any event, the proposed regulations should be available from the government website shortly. Expect to hear more in the upcoming days about these proposed regulations.

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Nearly 15 years ago, the Connecticut Supreme Court came out with a pair of decisions that seemed to put to rest the question of whether the CHRO was authorized to award emotional distress damages to employees who filed suit and prevailed in state law employment discrimination cases. 

But, as discussed below, the CHRO has lately been suggesting otherwise.  This has important implications to employers in defending against such claims.  In order to understand where we are, we need to look back at some of the key cases and issues related to them, so bear with me for a bit.

The Background Cases

• The first case, Bridgeport Hospital v. CHRO, 232 Conn. 91 (1995), held that the CHRO had no authority to award emotional distress damages in state law employment discrimination claims involving race, gender, physical disability, age and the like. It's holding was unequivocal: "The issue before the court is whether General Statutes § 46a-86 authorizes the award of damages for emotional distress and attorney's fees for a violation of General Statutes § 46a-60(a)(1). We conclude that it does not." (Open disclosure: My current firm successfully represented the hospital in that matter.)
• In the companion case, Fenn Mfg. Co. v. CHRO, 232 Conn. 117 (1995), the Court held that no emotional distress damages were available to claims of pregnancy discrimination in the employment context. It's holding was also unequivocal:  "The issue before the court is whether...[the CHRO], is authorized pursuant to General Statutes § 46a-86(a) to award damages for emotional distress based upon a violation of General Statutes § 46a-60(a)(7).  We hold that CHRO is not so authorized."
• In a followup case the next year, the CHRO argued that another statute, Conn. Gen. Stat. §46a-58 authorized the CHRO to award emotional distress damages in employment discrimination cases. The Connecticut Supreme Court, in CHRO v. Truelove & MacLean, Inc. 238 Conn. 337 rejected that claim as well: "The commission's argument is that § 46a-58 (a) encompasses claims of discriminatory employment practices and that violations of § 46a-58 (a) entitle a claimant to damages for emotional distress pursuant to § 46a-86 (c). We disagree."

The Supreme Court Reintroduces Such Claims, At Least According to the CHRO

Case closed right? Not according to the CHRO, which has started using another case as the basis for re-introducing emotional distress awards BACK into employment discrimination claims. Specifically, in arguments to CHRO hearing officers and in mediations, CHRO staff refer to CHRO v. Board of Education of Cheshire, 270 Conn. 665 (2004), in which a student claimed discrimination against a public school principal and board of education.  The CHRO's premise is that while Conn. Gen. Stat. 46a-58 can't be used to bring garden-variety employment discrimination claims, it can be used to piggyback other claims through it.

Because the Court in Cheshire doesn't overturn its prior cases and is dealing with a student's discrimination claim, it's admittedly a bit difficult to parse the logic, but there's plenty of discussion in Cheshire about how some types of other discrimination claims can allow the complainant to recover emotional distress damages. 

Continue Reading...

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To bring state law employment discrimination claims to court, it is well-known that an employee has to first file the claim with the state agency responsible for investigating the claim (the CHRO) (Conn. Gen. Stat. Sec. 46a-101(a)).  And most people believe that all the employee has to do is then wait for the CHRO to issue a "release of jurisdiction" to the employee, and then file a claim in Superior Court within 90 days of receipt of the release (Conn. Gen. Stat. Sec. 46a-101(e)).

But a recent Superior Court case reminds us of another limitation on the ability of individuals to bring claims in Superior Court that is found in another section, Conn. Gen. Stat. Sec. 46a-102.  That statute states that: 

Any action brought in accordance with section 46a-100 shall be brought within two years of the date of filing of the complaint with the commission.

Thus, even if the individual gets a release of jurisdiction, the employee must STILL file a claim of discrimination in Superior court within two years of the original filing of the claim with the CHRO.

In Wright v. Teamsters Local 559 (2009 WL 242401) (available via Westlaw only), the labor union challenged the subject matter jurisdiction of a member to bring a discrimination claim against it on these grounds. 

The procedural history of that case is straightforward: The plaintiff filed an administrative complaint with the CHRO on October 12, 2004, alleging he was the victim of race and color discrimination. Over seventeen months later, on or about April 4, 2006, the plaintiff amended his administrative complaint to add a new claim of age discrimination. On August 28, 2006, the plaintiff received a release of jurisdiction from the CCHRO and, thereafter, on November 28, 2006, he filed a claim in Superior Court

The employee did not dispute the timeliness of the underlying discrimination claim, but claimed that the filing of an amended complaint should restart the statute of limitations period. The Superior Court held that the age discrimination claim related back to the other discrimination claims:

The court finds that the plaintiff's age discrimination claim in the amended complaint relates back to the original complaint: it involves the very same set of alleged facts and actors as the race and color claims; it involves the same claims of harm and injury; and it is based on the very same statutory subsection. It is in effect, the same cause of action.

The case is a strong reminder to employers that the procedural requirements for filing claims must be strictly followed by individuals bringing discrimination claims against it.  And with the delays at the CHRO investigative stage as long as they are, this statute is one that should not be overlooked in defending claims of discrimination.

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There's a relatively new children's book out now entitled, "The Wolf Who Cried Boy". It's a humorous take on the old fable and I read it outloud one evening this week at home.  

I can't help but be reminded of both the classic and new story, reading all of the hyperbole and hype of the last 24 hours regarding the new Ledbetter Fair Pay Act and those who are quick to predict that the floodgates of employment litigation are now open. 

Let's clarify a few issues up front: 

• Is the Ledbetter Fair Pay Act important for employers to understand? Sure, just as all changes to employment laws are important. 
  .
• Does it dramatically change the law? Not really.  Before this law, employers still weren't allowed to engage in pay discrimination; it's just that the time frames for bringing suit under some pay discrimination claims had been defined narrowly by the U.S. Supreme Court in 2007.   This Act extends the time frame for bringing suit by treating each new paycheck as a basis for a discrimination lawsuit, rather than just the original decision to discriminate. 
   
• Will this lead to a dramatic upturn in pay discrimination lawsuits? The jury is definitely still out on this one.  

Here's the greater perspective.  Before the U.S. Supreme Court decision in 2007, women could bring pay discrimination lawsuits under both Title VII's overall scheme, or the Equal Pay Act.  For reasons that are still not fully known (though discussed by National Journal's Stuart Taylor here (H/T Point of Law)) , Ms. Ledbetter did not pursue her Equal Pay Act claim on appeal after it was dismissed on the merits (effectively forfeiting it).  The U.S. Supreme Court ruled only that for pay discrimination claims brought under Title VII, a 180-day statute of limitations applied to pay discrimination decisions.. 

Thus, after Ledbetter, if the employer's discriminatory pay decision occurred in 2007, the employee was out of luck now to sue under Title VII.  Each new paycheck was not an "act" of discrimination. 

The new law treats each paycheck as a new "act" of discrimination, effectively re-starting the statute of limitations each time a paycheck is issued.

But here's why the fuss about the new act is overblown. The employee still could sue under the Equal Pay Act. Indeed, employers should be much more concerned about the Equal Pay Act -- which was unaffected by the Fair Pay Act --  when it comes to pay discrimination claims.  

Unlike Title VII pay discrimination claims, employees do not need to file their Equal Pay Act claims with the EEOC, and claimants have two years in which to file their claim under the Act (three years if the violation is willful).

But here's the kicker for Equal Pay Act claims: The employee does not need to prove discriminatory intent, unlike Title VII.  In fact, the Equal Pay Act focuses on disparity in pay for substantially similar work; contrast that with Title VII which focuses on a discriminatory action that causes a disparity in pay.  So, when the employee is paid less than similarly situated employees of the opposite sex, an Equal Pay Act claim can arise without showing that the employer intended to discriminate. 

Does this mean that employers have no reason to be concerned about the Ledbetter Fair Pay Act? Of course not. The act has the potential of opening of employers to older claims of discrimination against managers and supervisors who have long since gone. But remember, employees will still need to show that the employer intended to discriminate -- a burden that is not insignificant.  And former employees are not going to be able to revive a claim of pay discrimination without a recent "paycheck" to go along with it. 

It's difficult to get exact numbers of pay discrimination claims and look at the numbers of claims filed both before and after the Ledbetter decision came out, but a cursory review of the statistics published by federal agencies under the No Fear Act doesn't seem to reflect a big downturn in the numbers of pay discrimination claims after Ledbetter.  In fact, the United States Postal Service reports more pay discrimination claims being made in 2008 (after Ledbetter), than 2007.  Thus, with Ledbetter effectively being overturned, it's hard to believe that the Act will impact the numbers of claims significantly. 

There is another bill that would change the underlying law that employers should follow closely -- the Paycheck Fairness Act (H.R. 12). The Paycheck Fairness Act would limit an employer’s ability to justify paying different salaries to workers based in different locations with different costs of living. The bill would lift the caps on compensatory or punitive damages for which employers would be liable, in addition to current liability for back pay. These damage penalties would apply to even unintentional pay disparities.

The House passed that bill as part of the Ledbetter Fair Pay Act bill, but the U.S. Senate did not take that up.  Backers of that bill, including Rep. Rosa DeLauro of Connecticut, will continue to press on. 

For employers, the Ledbetter Fair Pay Act should just be another reminder to be vigilant in the monitoring of your compensation practices.  The EEOC's Compliance Manual (H/T Moore) gives some suggestions on the issues that employers can review to determine their compliance with the applicable laws.  

There's little reason for employers to cry "wolf" or "boy" over this latest Act. Stay focused and use this current annual review season to ensure that your pay practices are supported by accurate data and are fair. 

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UPDATED 1/26/09

A part-time secretary who worked for three weeks before resigning is entitled to $15,000 in emotional distress damages and six months back pay, according to a recent CHRO Hearing Officer decision.  The case is particularly notable because the company was Claywell Electric, run by the now-jailed Kurt Claywell.

The employer in the case, CHRO ex rel. Doe v. Claywell Electric (available here), didn't put up a fight on the discrimination charges as well, taking a "default" against it.

Nevertheless, the employee still had to prove that she suffered damages as a result of the alleged discrimination. Here, the hearing officer suggests that the employee may have been hired because she could be sexually harassed by Mr. Claywell:

It would not be an unwarranted stretch to conclude that the complainant was hired for the singular reason that she was deemed by Mr. Claywell to be a suitable target for sexual harassment.

And what constituted the discrimination? According to the hearing officer:

The most disturbing characteristic of Mr. Claywell's] workplace actions (fully attributable to the respondent entity) is that they appear to have been designed to intimidate and humiliate. He would uniformly wait until the complainant was virtually defenseless before engaging in his groping, fondling and propositioning. The tactics included (previously recounted in part):
• pinning the complainant between his chair and his desk rendering her virtually immobile;
• confronting her while she was seated on the floor and confined to a space measuring perhaps no more than eighteen square feet and throwing books at her while so immobilized;
• dumping documents in her arms which were already full of documents to be copied and thus defenseless, and
• surprising and pinning the complainant in a closet as a prelude to an assault.

From a purely legal perspective, what is also interesting about the case is that the Hearing Officer allowed the employee to bring her claim under a pseudonym. (For background on the subject of pseudonyms, I've found a very interesting law review article here.)  Its entirely unclear from this particular decision why such a practice is being allowed here, but the Hearing Officer cites to Conn. Gen. Stat. Sec. 19a-581 et seq -- which is a section dealing with "AIDS Testing and Medical Information" -- to support the proposition that confidentiality is needed here.

UPDATE: Since my original post, I have been able to confirm through several sources that the Complainant was allowed to bring the claim under a pseudonym because the CHRO regulations (which are based on the above statute) allow for its use for sexual assault victims.  In this matter, Mr. Claywell had been formally charged and prosecuted for an assault.   Thus, although the decision from the hearing officer cited to the "AIDS Testing and Medical Information" statute, the decision in this matter was based on the Complainant's status as a sexual assault victim only.

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Recently released minutes from a December 2008 meeting (available here) of the CHRO commissioners reveal that an outside search firm is in the process of being retained to assist with an search for a new Executive Director.

The minutes -- which are released approximately one month after the original meeting -- discuss the status of the Executive Director search here:

Ms. [Michelle] Provost, [Fiscal Administrative Supervisor] also provided a brief overview regarding the status of the contract with Recruitment Enhancement Services for the Executive Director search. The contract has moved through two offices of review within the company. It is now before the final office for review and signature and they anticipate having that accomplished before the next Commission meeting. Ms. Provost added that she will need to determine when their next board meeting will be held so the company can apply for an exemption if needed.

RES is a Houston, Texas-based firm that specializes in effective recruiting for employers. There is no reference in the minutes on how much the contract is for or the expected time frame for completion of the search.

The minutes also reveal some progress on the advisory committee making recommendations to improve the CHRO. The minutes indicate that a draft set of recommendation have been made and are presently being circulated for review and comment:

There was a short discussion regarding the status of the Governor’s Task Force on CHRO. [A speaker] indicated that the last meeting was held in September. A final set of draft recommendations was reviewed by the Office of Policy and Management, who made some minor revisions to them. [A speaker] agreed to forward a copy of the most recent set of draft recommendations to the Commissioners.

 

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In a post yesterday, I indicated that the CHRO's website filters (and some other state agencies) were still blocking access to, among other websites, Findlaw.  Although that fact had been confirmed through multiple reliable sources, it appears that the information from those sources may have been out of date.

I have since learned that, although the CHRO has blocked Findlaw in the past, the CHRO recently started allowing its employees' access to FIndlaw.  (The remaining filters to blogs and other types of websites still exist.) I have updated the original post to reflect this fact.

This post is also a reminder that, although this blog strives for accuracy and perfection, please contact me directly if you notice something that is inaccurate, incomplete or confusing.  If warranted, I will update the original post and post a correction or clarification.

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UPDATED 1/13/09

It started as an observation a few months ago when I noticed that although the visits to the blog were up, visits from state computers were down.

Then later, it was confirmed through off-the-cuff remarks by various state workers (including those at the CHRO -- the state equivalent to the EEOC) that they could not access my blog anymore because the state blocked access to the site.

How curious, I thought, though I knew I was probably from unique. But I wondered what else the state was blocking.

Through some more digging, here's what I've confirmed: First, any website that describes itself as a blog is apparently blocked through the state's filters for the CHRO and some (but not all) state agencies.  

What does this mean in practical terms? The "news" side of the New York Times is not blocked but any article by a NYT columnist, such as Nobel Prize Winner Paul Krugman, is -- along with any article in the Times that allows for comment (such as the breaking news "blogs", called The Lede) .  

And this site -- which has blogged about CHRO topics, such as the CHRO's own affirmative action plan that was recommended for disapproval, or about the trends found in the CHRO's annual report -- is also blocked. 

Of course, the filter isn't just focused on blogs or the law. It also blocks items about personal health. So suppose a CHRO investigator needs to research whether diabetes could be considered a "chronic condition" in all cases -- that too would be blocked.  (And don't even ask about trying to access paid legal research sites such as Westlaw or LEXIS.)

Of course, rare exceptions can be sought, but CHRO workers and others first need to find a supervisor that has a password, and then worry about whether or not they are being tracked. As a practical matter, it's an option that very few people seek or can use.

What I can't determine is why the state filters out legitimate sites when it already has an acceptable use policy for its employees to follow.  In other words, why have a policy that allows for access to these sites if you are going to spend time and money creating filters that prevent access to it?  (The policy, in case you're wondering, allows for "research...[into] state and federal legislation and regulations as they pertain to the user’s State position; obtaining information useful to users in their official capacity.)

While I am certainly one to preach employer oversight in allowing employees to access the internet , this is prime example of overkill by an employer.  Blogs, for example, today represent a primary source of information for many -- particularly with mainstream newspapers being put up for sale or shrinking.  And lumping the SCOTUSblog in with Gawker, treats all blogs as if they were no more than gossip pages.  (And since when should the New York Times blogs be blocked?)  Moreover, blocking useful websites such as Findlaw should offend taxpayers in the state. Why would the state block access to a site that contains helpful information? 

The CHRO and other state agencies should re-evaluate their internet filters.  Making sure that state resources aren't being used to allow access to pornography is laudable; having those same filters prevent employees from accessing useful information is not.  And if you don't trust your employees to follow an acceptable use policy, why have one to begin with?

For private employers, take heed. In the quest to protect the company from liability for sexual harassment claims and to improve productivity, are you taking away the very tools that the internet can provide to your employees to succeed? If so, you've just made your competitors very happy. 

(For state workers and others who still want to access this site but are blocked at work, you can subscribe via e-mail or use RSS feeds, through a link here.)

[Ed. Note: An earlier version of this post indicated that the state also filtered Findlaw.  Although that fact had been confirmed through multiple sources, it appears that the ban on Findlaw was recently lifted and employees may access that site. This post has been updated to correct that information.]

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About a year ago, I recapped a lawsuit brought by two former employees at the CHRO who claimed their employment was terminated improperly.  

At the time, I said that the complaint, brought by Valerie Kennedy and Paula Ross, "paints a picture of an organization run-a-muck with those who are charged with protecting against discrimination, as being those who allegedly did the discrimination."  The CHRO denied the allegations and the case was scheduled to be done with discovery by June 2008.

So, what's happened since then?

Publicly, not a lot.  The parties filed a status update with the court in June 2008 indicating that discovery was proceeding but that further extensions of time may be needed.  The case was then set down for a settlement conference with Magistrate Judge Garfinkel; that conference is now scheduled for November 12, 2008.  In light of that settlement conference schedule, the parties extended the discovery dates further and it is now scheduled to be complete in mid-December 2008.

(The papers reveal that further extensions may be needed to some some complications, so don't hold your breath on this date).  

So, if nothing significant (at least publicly) as occurred in a year, why is this matter still significant? Because it is a prime example at the relative speed that discrimination cases proceed in federal court.  For employers looking for quick resolution of such cases, that resolution is more likely to be found in a early settlement or mediation of a dispute.  

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In this blog, I often focus on the substantive law prohibiting discrimination cases, such as those under ADEA.  But a case decided late last week demonstrates the importance of making sure that employees follow the procedural requirements required by law under anti-discrimination provisions..

In Cassotto v. Potter (D.Conn, Oct. 21, 2008) (Hall, J.) (download here), a terminated employee sued for his employer (the U.S. Postal Service) for age discrimination under ADEA without having filed with the Equal Employment Opportunity Commission (EEOC).  The employer moved for summary judgment arguing that the employee never exhausted his administrative remedies.

What does that mean? Well, according the Court, ADEA has two options for employees to sue: Either exhaust the EEOC administrative procedures and, if not satisfied with the outcome, bring suit in federal court; or, bypass the administrative procedures by giving the EEOC a "notice of intent" to sue and waiting 30 days.

Here, the court said, the employee did neither and instead tried to rely on other discrimination claims that he filed in the past with the EEOC. The court rejected that argument and said that Second Circuit law puts the burden squarely on the employee to show that he or she has complied.  

For employers, the case is a simple reminder that defending cases of discrimination is often a two-front battle.  Ensuring that employees meet both the procedural requirements and substantive requirements to prove their case may increase the employer's likelihood of successfully defending such claims. 

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The sword fight (rather, word fight) between a Connecticut Law Tribune columnist and the CHRO shows no signs of abating (for the previous rounds see my earlier post here). 

Round Three comes in today's paper with a further response from Karen Lee Torre to the letter posted by CHRO Acting Executive Director Robert Brothers.  Let's just say that she shows no sign of backing down from her earlier criticisms:

...I irked an agency over-populated by people invested in imaginary discrimination and stirred an agency stakeholder to employ an overused smear tactic against critics of his taxpayer-funded widget factory -- the canard of bigotry. Brothers asserts that I made “generalizations about persons of a different race or ethnicity.” Rubbish. I did no such thing. I cited the numerous frivolous complaints filed with CHRO, an agency that wastefully duplicates the federal Equal Employment Opportunity Commission. Brothers further interpolates into my column an attack on the “intellectual” gifts of his staff. More garbage. I said many were unproductive, not stupid.

Brothers insists my comments had “ugly overtones” that show his agency is still needed. Having already dispensed with Brothers’ bigot-baiting and redirected it to the trash heap where it belongs, let us consider what is truly ugly -- judicial records and CHRO’s annual report.

Then, Attorney Torre cites to this blog for support referring to a prior post where I note that the CHRO's human rights referees issued just six decisions over the last year.  While I'm flattered for the reference, the point I was making was not to show that the hearing officers were unproductive or incompetent -- only that it did not seem like an effective use of taxpower dollars to have so many.  

How can the back and forth stop?

Here's an novel idea: Attorney Torre and like-minded individuals should be appointed immediately to a task force or working group helping to improve the CHRO.

Will this ever happen? Probably not.  The CHRO and Ms. Torre will probably scoff and laugh at the idea for one reason or another.

But, if both could move beyond the rhetoric, they would realize that Connecticut's too small to have experienced practitioners like Ms. Torre stand on the sidelines, when a state agency can use help and advice on how to improve.  

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Yesterday, I highlighted the Acting Executive Director's letter defending his agency from stinging criticism by a Connecticut attorney in the Connecticut Law Tribune.   In that post, I indicated that if the CHRO was going to change its image, it needed to get its own house in order.  For employers, this is important because a fully-functioning CHRO can save time and effort in cases before that agency.

First on the agenda should be ensuring that the CHRO meets all legally required deadlines.  Case in point -- the CHRO missed a deadline this summer that it is actually responsible for overseeing.

Here's the background: the CHRO is responsible for overseeing the affirmative action plans of agencies from across the state.  In July 2008, the CHRO submitted its own  affirmative action plan for review at a meeting of various CHRO Commissioners (who sit much like a Board of Directors for a corporation). Amazingly, the CHRO's staff recommended "disapproval" of the plan because it was filed more than 90 days late and in violation of various laws and regulations.

Let that sink in for a minute:  One CHRO staff member submitted an affirmative action plan to the CHRO Commissioners to vote on while the person reviewing the plan itself recommended rejecting the plan because it was not in compliance with the law. 

More background:  Minutes from the July 2008 meeting of the CHRO reflect a lengthy discussion of the issue and significant criticism by the CHRO commissioners; ultimately, the commission voted to reject the recommendation of the CHRO staff to disapprove the plan and the issue of the plan was put on the agenda to discuss again at the August 2008 commission meeting.

The minutes from the August 2008 Commission meeting discuss the fact that the CHRO's plan was submitted 127 days late.  At that meeting, Mr. Brothers is quoted as saying that he was "embarrassed" by this.  The minutes reflect that there were disagreements about the plan as well. Ultimately, the Commissioners only "conditionally approved" of the CHRO's own affirmative action plan.

If this were an isolated incident, you could write this off.  But last year, the CHRO's AAP was also recommended for "disapproval" by CHRO staff members. According to the minutes of the May 2007 meeting, the CHRO recommended disapproval of the plan based:

on non-compliance with the following: the workforce is not in
parity with the relevant labor market area, the agency has not met all or
substantially all of its hiring, promotion and program goals and the agency has
not demonstrated every good faith effort to achieve its unmet goals. 

If the CHRO is indeed serious about improving its image (as I believe, from Mr. Brothers' remarks that it is), then events like these must stop.  After all, how can the CHRO claim the moral high ground in enforcing anti-discrimination laws when it has trouble following them too?

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Earlier this month, the Connecticut Law Tribune published a column by attorney Karen Lee Torre that was -- how do I put this gently -- stinging in its criticism of the CHRO and called for its elimination (you can find a link to it in an earlier post .)

Acting CHRO Executive Director Robert J. Brothers Jr. has responded forcefully to the column in a letter published in the Tribune this week:

...[C]olumnist Karen Lee Torre’s suggestion of eliminating or eviscerating the agency is far from constructive. Other agencies with significant responsibilities, such as the Department of Correction, Department of Public Safety, Department of Children and Families, and Department of Motor Vehicles, also suffer from criticism; similarly, it is not in our interest to eliminate any of them.

Unfortunately, whatever points Ms. Torre makes are covered by the mud she slings. What is unnecessary is not the CHRO, as she writes, but unfounded and malicious ill will, which can only hurt, not help. Her generalizations about persons of a different race or ethnicity drive home the reason this agency was created and support the need for our continued existence.

The point Mr. Brothers makes is an eminently reasonable one; there are certainly a number of quite capable people at the CHRO and it is unfair to paint the agency with a single brush.  However, the problem for the CHRO is that the perception remains among some that the agency is either incompetent or incapable of fixing its affairs.  Mr. Brothers seems to recognize this.  Whether the agency is actually incompetent isn't the issue; it's fixing the perception that is.

Because eliminating the agency is not, in my view, a productive way to handle the issue, what else can be done?

Well, nearly a year ago, there were reports on a working group that was devised to propose fixes and strategies to the CHRO. But that group has worked out of sight.  Thus, in the short term, the CHRO should consider publicizing that group and letting the public know that it is working on solutions.  Solicit input from the public and post the results on its website.

Ultimately, regardless of the working group's findings or proposals, the CHRO has to address the perceptions that people have -- rightly or wrongly -- head on and prove those perceptions wrong with real and verifiable results.  Consider a strategic plan of action with defined goals and results -- much like the judicial branch proposed earlier this year.  Better yet, publicize the plan and get input from groups that have a stake in the future of the CHRO. 

In a post tomorrow, I'll discuss one example of how the CHRO has failed to comply with its own rules; it's an issue that even Mr. Brothers' called "embarassing".  If the CHRO is ever going to clean up its' image, it's going to need to make sure that issues like that one don't repeat themselves. 

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Nearly six months ago, a landmark ruling by the Connecticut Supreme Court held that Connecticut's anti-discrimination laws required employers to provide a reasonable accommodation to disabled workers, much like the federal counterpart, the ADA.

As I noted in an earlier post about the case, Curry v. Allen S. Goodman, Inc., the Court suggested that the employer had a duty to accommodate an employee even after firing.  In the Curry case, a fired warehouse worker's attorney raised issues about the employee's disability; the Connecticut Supreme Court suggested that the post-termination letter formed the basis of an employee's request for a reasonable accommodation.  In doing so, the Court relied on the ADA to provide some further guidance on what the state anti-discrimination law meant.

Now, six months later, the EEOC has released new guidance on the ADA  and performance-related issues that suggests that the Connecticut Supreme Court's interpretation of the ADA may be inconsistent with the EEOC's own interpretation. 

How so?  Well, take a look at question 10 of the EEOC's guidance.  Question 10 poses the hypothetical question: 

What should an employer do if an employee mentions a disability and/or the need for an accommodation for the first time in response to counseling or discipline for unacceptable conduct?

In response, the EEOC says:

If an employee states that her disability is the cause of the conduct problem or requests accommodation, the employer may still discipline the employee for the misconduct. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for reasonable accommodation.

The EEOC guidance adds that "the timing of a request for reasonable accommodation is important because an employer does not have to rescind discipline (including termination) warranted by misconduct."  The EEOC also cites to several federal appellate cases in further support of its interpretation.

This guidance seems to contradict the Curry decision because in Curry the duty to accommodate arose after the employee was terminated.

Where does this leave employers in Connecticut? Perhaps with a split in authorities -- at least until this issue is litigated more fully in Connecticut courts.

Until the courts analyze this issue further, employers need to be aware that Connecticut's anti-discrimination rules may be more stringent than what is required at the federal level.

Ultimately, the legislature should consider some straightforward fixes to these issues. With the ADA about to be amended significantly, having two sets of rules for employers to follow (and for employees to figure out as well) doesn't serve the public good. It only serves to create confusion and more litigation.  Making state anti-discrimination laws more consistent with federal law will help provide for stability and predictability.

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Late last week, the Senate finally passed the compromise version of the ADA Amendments Act, (S.3406, which is available here) which I’ve covered before. The bill needs to be reconciled with the House version, but final passage and approval by President Bush is now expected this month.

Other blogs have very adeptly recapped the significant changes such as World of Work, and Manpower Employment Blog . And there is this ABA Journal article recap too.

As Workplace Horizons recapped:

The bill, set to become effective January 1, 2009, if enacted, would define the term "disability" as "a physical or mental impairment, a record of such impairment, or being regarded as having such impairment." It would provide that employees are protected against discrimination because of a disability. It would provide, however, that while an individual regarded as having a disability is protected against discrimination, the "regarded as" provision would not apply to an individual with a condition that is minor, or that is a "transitory" condition lasting or expected to last six months or less.

Some have lamented the changes as far-reaching and I’m sure others think that they don’t go far enough.

 

But at the ABA Labor & Employment Conference in Denver on Friday, EEOC Associate General Counsel Peggy Mastroianni shared her thoughts on the compromise bill in the midst of a presentation on leaves of absences. 

 

Mastroianni said that both management-side representative and plaintiff and union groups worked hard with senators to “craft something that both sides could live with."

 

She added, “You know that when U.S. Chamber of Commerce and the American Diabetes Association agree on a bill, it’s a good compromise."

 

Mastroianni predicted that one consequence of the ADA Amendments Act will be more analysis of the actual disability and condition that persons have. As she remarked, this analysis will “go to the heart” of the ADA, something that she believed had been lacking in recent years.

 

Lastly, Mastroianni emphasized the usefulness of the guidance released last week on addressing performance-related issues under the ADA. In an upcoming post, I’ll discuss a specific provision that some may overlooked in their initial review of the guidance. 

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AS UPDATED (9/9)

Last week, I posted about the statistics released by the Connecticut Commission on Human Rights and Opportunities.  (You can view the CHRO's Annual Report here.)  Today, I continue to take a look behind the numbers and the implications for employers in Connecticut.

Among the most striking of the statistics is this fact: Human Rights Referees issued only six referee decisions for the entire fiscal year (2007-2008) that closed cases after public hearings. 48 other cases were closed through a stipulated agreement. 

Why is this number significant? Because there are seven human rights referees that are employed full-time by the State of Connecticut to handle these cases. (UPDATE: Although the statute does provide for seven, a reader noted that only five or six have actually been appointed -- which may be a post for another day).   And yes, for those doing the math, that works out to about  one referee decision for each human rights referee for the entire year. 

Now you may be asking if 6 referee decisions is actually a lot when compared with past years. The answer is unequivocally no.  In 2000-2001, there were 87 public hearing referee decisions.  In 2002-2003, there were still 67 referee decisions.  Even for the year ending 2004-2005, 30 referee decisions were issued.  That's a drop of over 90 percent since 2001.

Despite the decreasing numbers, effective July 1, 2004, the legislature approved of seven human rights referees to serve for three year terms (Conn. Gen. Stat. Sec. 46a-57.)  Unlike their predecessors (who served part-time), these human rights referees serve on a full-time basis.  (46a-57(b)). 

It's obvious from the most recent numbers that a review of the staffing levels of the human rights referees is in order by the General Assembly -- which is where the blame clearly lies for its passage of the statute requiring certain staffing levels.   Perhaps the General Assembly, which is looking for ways to trim the budget, can review the CHRO's staffing levels and determine whether having five to seven full-time human rights referees who issue a total of six decisions in a year on public hearings is the best use of taxpayer funds.  (For a fairly scathing review of the CHRO, the Law Tribune has a column this week by Karen Lee Torre.)

Continue Reading...

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The EEOC today released a "comprehensive question-and-answer guide" (but not regulations)  addressing how the Americans with Disabilities Act (ADA) should be applied to a wide variety of performance and conduct issues. You can download the FAQs at their website here. 

In a press release accompanying the document, the EEOC noted that it released the guide in response to questions from employers and employees.  According to the EEOC:

The new guide makes clear that employers can apply the same performance standards to all employees, including those with disabilities, and emphasizes that the ADA does not affect an employer’s right to hold all employees to basic conduct standards. At the same time, however, employers must make reasonable accommodations that enable individuals with disabilities to meet performance and conduct standards.

The guide reviews relevant ADA requirements and explains how they govern performance and conduct standards as applied to employees with disabilities. Through examples based on actual cases and specific scenarios that the EEOC has learned about from employers and individuals with disabilities, this guide explains when and how performance and conduct standards should be applied and the appropriate role of reasonable accommodation. The guide explains how and when employees should request accommodations to help them meet performance requirements and comply with conduct rules, and how an employer should handle such requests.

What's notable about this particular Q&A is that the EEOC also offers a "practical guidance" section regarding each topic. Most of it is common sense (or should be) but it is helpful for employers to actually here it from a government agency as well.  For example, among the suggestions:

•  It is advisable for employers to give clear guidance to an employee with a disability (as well as all other employees) regarding the quantity and quality of work that must be produced and the timetables for producing it.
   
• If an employee states that her disability is the cause of the performance problem, the employer could follow up by making clear what level of performance is required and asking why the employee believes the disability is affecting performance. If the employee does not ask for an accommodation (the obligation generally rests with the employee to ask), the employer may ask whether there is an accommodation that may help raise the employee’s performance level.
   
• Ideally, employees will request reasonable accommodation before performance problems arise, or at least before they become too serious.24 Although the ADA does not require employees to ask for an accommodation at a specific time, the timing of a request for reasonable accommodation is important because an employer does not have to rescind discipline (including a termination) or an evaluation warranted by poor performance.25

As I've stated before, any guidance that the EEOC can offer on these topics will give employers (and employees) one more piece of the ADA puzzle. 

But employers should be cautious about applying the guidance too matter-of-factly. Each situation will still require its own fact-intensive inquiry and Connecticut, in particular, will have its own rules on what is appropriate that may differ from federal rules. Because the EEOC's guidance is not binding, courts are still free to analyze the ADA as they see fit and do not need to "defer" to the agencies suggestions. . And as the EEOC also notes, the guidance may also be tweaked if the ADA Amendments Act of 2008 is passed by the Senate this fall.

However, even with these concerns, the EEOC's guidance today is well worth reading.  As I continue to digest it, I'll followup in the upcoming days with any additional nuggets worth noting.

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Last week, I publicized the release of federal court statistics; that story has now been picked up by the American Lawyer which crunches the numbers in more detail. 

But now you can break out your abacus again. The Connecticut Commission on Human Rights and Opportunities has also just released their annual report (available for download here) which contains all sorts of notable numbers, statistics and factoids. Over the next few days, we'll slice and dice some of the numbers to see what trends can be glistened.  For some background, you can view my post analyzing last year's numbers here. 

Here are some of the top-level observations:

• Consistent with the trend at the EEOC this year, employment claims filed with the CHRO are up for the 2007-2008 fiscal year ending June 30, 2008.  Specifically, claims are up to 1814, from 1743 for the year ending June 30, 2007 - an increase of about 5 percent.  Not a huge jump, but still notable. However, claims are still way down compared with 5 years ago (when they topped out at 2211).
• Retaliation claims are up substantially over the last year. Specifically, claims for 2007-2008 were 618, compared with 507 in 2006-2007 -- an increase of over 20 percent.  Also notable, retaliation claims continue to make up a large percentage of the claims being filed.
• "Harassment" and "Sexual Harassment" claims are also up substantially from last year's numbers. For sexual harassment claims, this reverses a trend of decreased numbers that had existed for the last several years.

For employers, what is the immediate takeaway from these statistics? 

These statistics show that after years of decreases in the numbers of employment claims, those decreases have come to an end.  Being vigilant about human resources policies and procedures, and sensitive to the issues relating to various employment laws will be one way to reduce the risk that a claim filed will turn into a substantial issue down the road.

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The EEOC today released a new compliance manual section on religious discrimination in the workplace.  A press release from the EEOC is available here while you can download the actual section directly here.   

What is useful about the compliance manual section, according to the EEOC, is that it "includes a comprehensive review of the relevant provisions of Title VII of the Civil Rights Act of 1964 and the EEOC’s policies regarding religious discrimination, harassment and accommodation. The EEOC also issued a companion question-and-answer fact sheet and best practices booklet."

So, what sorts of issues does the compliance manual section cover?

The Section addresses what constitutes “religion” within the meaning of Title VII; disparate treatment based on religion; the requirement to reasonably accommodate religious beliefs and practices; religion-based harassment; and retaliation. The Section also provides guidance on the sometimes complex workplace issues involved in balancing employees’ rights regarding religious expression with employers’ need to maintain efficient, productive workplaces.

For employers, the most helpful section is probably the "best practices" booklet, available here. There are a number of common-sense suggestions that are posted. Nothing is ground-breaking, but it's a good resource, particularly coming from an agency responsible for enforcing anti-discrimination laws.

Among the suggestions:

• Employers should have a well-publicized and consistently applied anti-harassment policy that: (1) covers religious harassment; (2) clearly explains what is prohibited; (3) describes procedures for bringing harassment to management’s attention; and, (4) contains an assurance that complainants will be protected against retaliation. The procedures should include a complaint mechanism that includes multiple avenues for complaint; prompt, thorough, and impartial investigations; and prompt and appropriate corrective action.
  
• Employers should allow religious expression among employees to the same extent that they allow other types of personal expression that are not harassing or disruptive.
  
• Once an employer is on notice that an employee objects to religious conduct that is directed at him or her, the employer should take steps to end the conduct because even conduct that the employer does not regard as abusive can become sufficiently severe or pervasive to affect the conditions of employment if allowed to persist in the face of the employee’s objection.

Overall, it's a welcome addition for employers, and for employees who want to understand their rights better.

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It's always interesting when the state agency responsible for enforcing discrimination claims is sued for discrimination itself. It's even more interesting when the agency takes a position that is opposite of the view of the EEOC.  But a case decided on July 7th by the Second Circuit Court of Appeals sets up that scenario. 

The case is Richardson v. CHRO (download here) and it resolves (at least in the Second Circuit) an important question for employers who have collective bargaining agreements with unions.  Namely, does Title VII (the federal anti-discrimination law on gender and race, among other protected categories) prohibit clauses that allow an employee to choose their remedy for discrimination complaints in a collective bargaining agreement or does such a clause constitute "discrimination". 

The Second Circuit, creating a split among the Courts of Appeals, agreed with the CHRO (and rejected the EEOC's interpretation).  In doing so, the Court said that such a clause is not prohibited by Title VII and is not discrimination.  

The Court's main holding is here:  

While there are limits on what a union may agree to in collective bargaining, Plaintiff’s union has not transgressed them by contracting to limit an employee’s legal recourse under certain circumstances. The collective bargaining agreement about which Plaintiff complains simply stipulates that an aggrieved employee may either arbitrate her grievance or file a charge with the CHRO describing that grievance.

Nor did the union discriminate against Plaintiff by adhering to the election-of-remedies provision after Plaintiff chose to file a charge with the CHRO. The union’s choice to adhere to its collective bargaining agreement in this case was indubitably non-discriminatory: the collective bargaining agreement does not constitute a waiver of any statutory rights under Gardner-Denver, and the defendants’ withdrawal from arbitration did not constitute retaliation because the forum-selection clause was a reasonable defensive measure to avoid duplicative proceedings in the two fora Richardson’s employer maintained for addressing discrimination complaints.

Here was the clause that the court approved of:

[D]isputes over claimed unlawful discrimination shall be subject to the grievance procedure but shall not be arbitrable if a complaint is filed with the Commission on Human Rights and Opportunities arising from the same common nucleus of operative fact.

In other words, the employee can aribtrate a discrimination complaint or file a charge with the state agency responsible for investigating discrimination complaints, but not both.  In so ruling, the Second Circuit upheld the lower court's granting of summary judgment to the CHRO and the union. 

As the Workplace Horizons blog is quick to note, (and as the decision acknowledges), this now creates a split in the circuits, meaning that at some point, the issue will be ripe for U.S. Supreme Court involvement.

In the short run, for employers this type of clause may be an important bargaining chip in negotiations with unions. Until now, some unions might balk at such a provision because they might believe it was unenforceable. This decision now gives both employers and unions some room to manuever in this area.  For employers looking to reduce costs, inserting such provisions may also help to avoid discrimination lawsuits by having employees use the grievance procedure instead.

Interesting footnote: The case was argued in February 2007 and decided in July 2008. Thus, for those that think the justice system always moves quickly, think again.

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The Equal Employment Opportunity Commission, like most federal agencies, is typically thought of as an enforcement agency, and nothing more. However, the EEOC also has a wide-ranging training program that it rolls out to various cities across the country "to help employers understand, prevent and correct discrimination in the workplace."

These seminars, which fall within the aptly-named EEOC Training Institute, are typically one- or two-day affairs and involve both local practitioners and national reprsesentatives.  A full training schedule nationwide is available here.

The EEOC's Hartford program is now set for July 7, 2008 at the Hartford Marriott Downtown.  Registration is available online.  The keynote speaker will be EEOC Commissioner Christine Griffin.

Among the topics to be covered:

• Practical Tips on Disability Questions;
• Caregiver Guidance;
• Unfair Practices Related to Immigration and Citizenship;
• Supreme Court and State Court Update;
• Best Practices in Conducting Internal Investigations & Tips on Responding to the EEOC;
• and a Sexual Harassment Refresher in the form of a interactive, team based game.

One of my colleagues, Joshua Hawks-Ladds, will be among the presenters.  Overall, the agenda of the program looks worthwhile.  And for those on the fence, it never hurts to hear from the people actually enforcing federal employment laws. 

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Updated 6/25 to add additional information. 

It's been several months since I last updated readers on the ups and downs of the CHRO, the state agency responsible for overseeing discrimination complaints in Connecticut.  And for the last several months longtime employee Raymond Pech filled in as Executive Director without getting the sorts of headlines that have plagued some of his predecessors.

A review of the minutes of the CHRO's May meeting reveals that a search for an full-time executive director was continuing in light of Pech's impending retirement. The CHRO has thus appointed Robert Brothers, Jr. as the new Acting Executive Director, effective June 1, 2008.   Mr. Brothers continues to serve as Managing Attorney for the CHRO as well, as this organization chart reveals.

Notably, the vote on the appointment of Mr. Brothers was not unanimous, according to the meeting minutes.  Mr. Brothers was appointed 4-1, with one abstention.  The minutes of the meeting note: 

The Chair stated that while he may not be called upon to vote on the motion, he believes Mr. Brothers is a dedicated, hardworking and bright individual who is also dedicated to the agency and its mission and the agency will be in good hands for the period of time he will be serving as Acting Executive Director. There was no further discussion on the motion. The motion carried with Commissioners Conaway, Cruz, Griffin and Mambruno voting in favor of themotion. Commissioner Lobon opposed the motion and Commissioner Mengual abstained.

Commissioner Mengual explained that she has chosen to abstain on the motion because her recommendation was to appoint an acting director who is from outside of the agency. She stated she feels someone with strong organizational expertise and experience as an executive director would be the ideal appointment for this acting director position. She further clarified that her abstention is no reflection of her opinion of Mr. Brothers’ capabilities, but rather, her concern about the growing demand within the legal department and her already expressed interests about having a fresh, outside perspective brought in during this interim period, which would be very productive. Chairperson Norton thanked Mr. Brothers in advance for the good services the Commission expects and hopes for.

In the interim, for employers this likely means that there probably won't be any big changes in the way the CHRO handles matters.  Without a permanent Executive Director (and with the Assistant Director position still vacant), I believe the expectations are that Attorney Brothers will hold the fort until the "calvary" comes. Of course, he may have different plans.

On a related note, late last year there was word of an advisory group that had been formed to look at the workings of the CHRO.  It appears that a report is expected from that group this summer, according to the minutes:

Chairperson Norton reported he spoke to some individuals in the Governor’s Office regarding the Advisory Group on CHRO, as well as Jeffrey Beckham, Undersecretary at the Office of the Policy Management, who now serves as Chair of the Advisory Group. Although there is not a lot to report at this point in time, they are looking at diversity issues in state agencies and they are inviting all of the Commissioners to come and speak to them at their next meeting scheduled for May 19. They hope to have a report to the Governor some time this summer.

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A very big day in labor & employment law and ERISA cases at the U.S. Supreme Court this morning  I'll post more detailed updates as warranted (and when time allows), but for now, here are the brief highlights (H/T ScotusBlog) .

• In Meacham v. Knolls Atomic Power Laboratory (06-1505), the court was asked to decide, in an ADEA disparate impact suit, whether workers or employers bear the burden of persuasion in determining whether the employment decision was based on “reasonable factors other than age.” The Court concluded that an employer defending a disparate-impact claim under the ADEA bears both the burden of production and the burden of persuasion for the “reasonable factors other than age” (RFOA) affirmative defense under §623(f)(1). The court also rejects a "business necessity" defense for the employer, saying it has no place under ADEA.  For more background on the case, see the ScotusWiki . 
  
• In MetLife v. Glenn (06-923), the Court was asked to whether a claim administrator of an ERISA plan who also funds the plan benefits constitutes a “conflict of interest” that must be weighed in a judicial review of the administrator’s benefit determination. The Supreme Court concluded that it does.  In the court's view, a plan administrator’s dual role of both evaluating and paying benefits claims creates the kind of conflict of interest referred to in the Firestone case.   That conclusion is clear where it is the employer itself that both funds the plan and evaluates the claim, but a conflict also exists where, as here, the plan administrator is an insurance company.  Again, for more background, see the ScotusWiki.
  
• In Kentucky Retirement Systems v. EEOC (06-1037), the Court was asked to decide on the relevance of age as a potential factor in the distribution of retirement benefits to disabled workers establishes a prima facie case of discrimination under the ADEA. In other words, could "pension status" been seen as a proxy for "age". The Court held, under the circumstances of the case, that pension status was not a proxy for age.  in other words, where an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a claim under the ADEA, must adduce sufficient evidence to show that the differential treatment was “actually motivated” by age, not pension status.  As usual, the ScotusWiki has the detailed background on the case.  
  
• In Chamber of Commerce v. Brown (06-939), the Court was asked to decide whether federal labor law preempted a California state law that barred employers from using state money to influence union organizing campaigns. The Court found that the California law was pre-empted by federal law, meaning, in essence, that the state law cannot be enforced.  Although Connecticut does not have a similar law, it provides a framework for looking at any other proposed legislation that would place limits on the effect of the NLRA.  Background on that case is available from the ScotusWiki here.
  

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One of the underlying fears that many employers have is that anti-discrimination laws will eventually be interpreted so broadly, that they will be open to litigation even for the most remote possibilities.   Thus, the idea of "standing" (in essence, who has the "right" to sue another party) is one that can sometimes be used to prevent overreaching in employment law cases.

The Connecticut Supreme Court, in a decision to be officially released next week, has held that only employees (and not surviving spouses of employees) have standing to sue under the state's anti-discrimination laws. In McWeeny v. City of Hartford, the Court fairly readily disposes of the claims by saying, in essence, the employment anti-discrimination laws cover, well, employees.

By its plain and unambiguous terms, § 46a-60 (a) (1) prohibits an employer from firing or refusing to hire or discriminating against any employee or prospective employee in the terms, conditions or privileges of employment. Thus, § 46a-60 (a) (1) pertains only to those persons who have sought or obtained an employment relationship with the employer alleged to have engaged in a discriminatory employment practice. The plaintiff does not fall within either of those categories.

In this case, a state court judge, Robert F. McWeeny sought various benefits as the surviving spouse of another state court judge.  The Supreme Court drops these facts to footnotes and discards the relevance of it : "The plaintiff is a judge of the Superior Court. His judicial position, however, is not relevant to this appeal."  That said, it's certainly not everyday that a group of judges dismisses an appeal of one of their colleagues.

For employers, the case demonstrates an important rule of thumb: Not everyone who complains about discrimination is even covered by a state statute.    That is not to give employers a free pass to treat people unfairly, but it also means that to not overlook the obvious argument of standing when defending against a claim like this.

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Last month, I addressed the Connecticut Supreme Court's decision in Curry v. Allan S. Goodman, which expanded state disability laws to match (or in some cases, exceed) the scope of the federal Americans with Disabilities Act (ADA).

The employer has moved, on limited grounds, to have the court reconsider its decision.  You can download a copy of the motion here.  

One of the grounds raised by the employer is something that I touched on before  -- namely that the court is expanding the duty to provide reasonable accommodation to former employees who request reinstatement and an accommodation. 

The employer has also requested reconsideration on the grounds that the court's ruling could also be interpreted to require an employer to convert a temporary light duty position into a permanent one, contrary to the general rule cited by the court. Because the case's procedural status was that of a summary judgment, the employer also expressed its concern that the court's rulings could be seen as determinations of fact in case that still has issues of disputed facts.

The brief's relevant portion is as follows:

In this case this court has ruled, for the first time, that the disability provisions of General Statutes § 45a-60(a)(1) require an employer to make the same kind of reasonable accommodation required under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12112(b)(5)(A).  However, in the course of applying this principle to the facts of this case, this court addressed issues other than the application of the reasonable accommodation requirement itself. In this regard, the opinion identifies two actions that “satisfy the plaintiff’s burden of initiating the interactive process.” 286 Conn. at 417.

The first is the plaintiff’s “affirmative request to continue working the warehouse night shift in March, 2001.” Id. The second is plaintiff’s counsel’s letter of April 19, 2001 requesting that the defendant “(1) reconsider its decision; (2) provide a cost-benefit analysis supporting its decision to terminate the plaintiff; and (3) continue to grant the plaintiff the accommodation of having another worker assist him when it became necessary to retrieve boxes that weighed more than the plaintiff’s lifting restrictions.” Id. 

However, as the opinion notes, the defendant did not contest the claim that the statute required it, prior to the defendant’s termination, to make some accommodation and to engage in an interactive process with the employee to determine if a reasonable accommodation existed. Rather, the focus of the parties below was on the adequacy of the employer’s efforts at reasonable accommodation, not on whether the two actions cited by the court constituted new requests for accommodation requiring a new interactive process.  There are, at the very least, serious questions whether either of the actions cited by the court is sufficient to trigger this obligation.

It's too easy for some to state that all employers are the "evil empire" and that all arguments that they raise are frivolous.

But as I've noted before, the grounds the employer raises here are sensible ones.   The Court went beyond what it needed to to make its decision and, in doing so, created some rules that could have significant implications in all disability cases in Connecticut.

Here's hoping that the Connecticut Supreme Court takes the time to review  them; otherwise, there may be a lot of busy employment law lawyers later this year.

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A few weeks ago, I pondered the impact that the Connecticut Supreme Court's decision in Curry v. Allan S. Goodman would have on cases involving learning and mental disabilities. Turns out, I didn't need to wait long at all. A CHRO Hearing Officer has already used that decision to chime in and indicate that  must be accommodated.  (Big H/T: Overlawyered). 

In CHRO ex. rel. Lenotti v. City of Stamford, (download here) a firefighter claimed that the City's refusal to give him additional time on a promotional exam violated the state's disability discrimination laws.  The firefighter, who had Attention Deficit Order, claimed that state law required the the City' to provide him with a reasonable accommodation.  A CHRO Hearing Officer agreed.

The city argued that a fire captain, the position Lenotti sought, must be able to read and process information quickly at a fire scene. But the CHRO Hearing Office concluded that the city never supported its position and never showed that it would be a "direct threat" to public safety if he were promoted under such conditions.

The case is a long read but there are a few quick bullet points of note:

• Because Connecticut's definition of a mental disorder is anything listed in the Diagnostic and Statistical Manual, there was not a real dispute that the firefighter's ADD qualified as a "mental disorder".  Although some employers view such claims with proper skepticism, this decision demonstrates that broad application of state law to these types of claims.
  
• The Hearing Officer seemed troubled that although the City claimed it was "implicit" that a fire captain must be able to read quickly, that requirement was not in the written job description. Thus, a takeaway from the case is that employers should be sure their written job descriptions contain sufficient details and match what the requirements of the position really are.
  
• Lastly, the case reinforces what I said earlier: After the Curry case, we may start to see more and more disability discrimination cases being brought under state law. With the state laws being interpreted in a broad manner, like they are here, employers in the state ought to start paying attention.

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I've returned from vacation today with hundreds of e-mails to dig through and about 3000 posts in various RSS feeds.

But one e-mail I received relating to the Connecticut Supreme Court's decision earlier this month in Curry v. Allan S. Goodman, bears some immediate discussion. The comments are from Attorney Richard Hayber, the attorney representing the employee in that matter.  He has authorized me to re-publish his comments in part here, which I'm pleased to do so and I thank Richard for taking the time to comment. 

[Y]our coverage of this case has failed to point out the most disturbing fact of the case. The employer had a policy of only permitting injured workers to return to work if they had been cleared to "full duty." When asked at a deposition how the company applied this policy, it stated that it would not return an employee to work even if the only restriction he had was to take a 60 second break during the day to stretch his back!!! The Supreme Court held this policy, which foreclosed an individualized analysis of each disabled worker's request for accommodation, to be illegal.

I greatly appreciate Richard's comments and as I've suggested before, readers should read the lengthy decision to get a full appreciation for the contested facts.  Because the case is at the summary judgment stage, however, many of the facts remain disputed.

In my defense, reading the decision again, I do not see the deposition referenced, nor do I believe that the Court placed a particular emphasis on the "full duty" clearance requirement.  In fairness to Richard, however, the Connecticut Supreme Court, in footnote 23, did say that the Court's newly imposed "interactive process" requirement  creates a parallel requirement that assessments of a disability be done on an individualized basis. 

A policy—whether express or by application—that eliminates the individualized assessment of each disabled employee for purposes of reasonable accommodations is for all the reasons articulated in this opinion necessarily illegal. ... Whether the plaintiff ultimately will prevail after an individualized assessment will depend on the interactive reasonable accommodation process.

Ultimately, I agree with Richard that with the Connecticut Supreme Court's imposition of an interactive process for small employers will require those employers to conduct an individualized assessment of an employee's capabilities and abilities.  Because each case is unique and may also have some relationship to workers compensation injuries, employers may want to seek legal assistance in these types of determinations, at least until Connecticut law becomes more settled.

Richard also notes that "most superior court judges had already interpreted our Fair Employment Practices Act to require reasonable accommodations. Employers reading your Blog should not
be as alarmed as you would have them be."  A fair enough point, though there were hardly a significant number of cases in this area to begin with and I don't believe the law was as settled as Richard suggests.  In any event, I think the Curry decision's broad application to employment law warrants the concern that I have sounded.

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Is putting a toilet training book, such as one allegedly called "The Book of Poop", on a disabled co-worker's desk sufficient to create a Hostile Work Environment?

Not according to a decision this week by Judge Dominic Squatrito in federal court in Connecticut (download here). 

Thus begins another fine chapter in American Jurisprudence.

I thought about a serious review of the case because, obvious humor aside, this case is probably very important to the parties involved. And indeed, reading the decision, you will see that there are serious issues addressed.

But my thoughts turned to the following instead: can you imagine if confirmation hearings for federal court judges, instead of asking questions about stare decisis or the First Amendment, asked judges this: Would you be comfortable deciding a case where human excrement is a focus?

How many judges would really sign up for that?

But I digress. The court, in Murphy v. Beavex, Inc. (download here) had to decide whether an employee, who had several "bowel incidents" (allegedly arising from MS - though it is unclear whether he ever informed the employer of that), had raised a claim that he had experienced a hostile work environment when his co-workers left "The Book of Poop" at his desk and where his co-workers then called him: “Mr. Sh___y,” “The Sh___meister,” and “Poopy.”  The court found that this was not enough to create a hostile work environment:

In considering the remaining alleged incidents in a light most favorable to [the Plaintiff], the court concludes that a reasonable jury could not find such conduct so severe and pervasive as to have altered his working conditions. While it was insensitive for [the Plaintiff]’s coworkers to call him names and leave a scatological children’s book near his workspace, such teasing does not rise to the level of severity and pervasiveness required to defeat a motion for summary judgment.

But aside from the legal analysis, and as a father of three, one thing about the decision has troubled me the most about the case: I have never heard of "The Book of Poop" before. Indeed, while there are such classics as "The Truth About Poop" and "Everybody Poops" (not to be confused with "The Gas We Pass"), a quick search of Amazon reveals no such book.  A similar search on Google revealed the same. 

So, on this Friday afternoon before many schools take vacation, feel free to add your recommendations on toilet-training books and if you know about "The Book of Poop", please let me know.  While toilet puns are encouraged, I only ask that the comments be as clean as possible before sending them. Purell if necessary.

UPDATE: The Wall St. Journal Law Blog was kind enough to pick up this post. If you haven't checked out Dan Slater and Company's take on the legal world, you're truly missing out.

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Reading the Connecticut Supreme Court case of Curry v. Allan S. Goodman, Inc. decided last week,  I'm struck by how many questions the decision seems to raise -- and how many are left unanswered. I've discussed the case and some questions it raises before, most recently here. 

The case appears to stand for the proposition that an employer must engage in an interactive process with a disabled employee who requests some type of reasonable accommodation.  But another question that arises is: What types of "disabilities" are within the scope of this reasonable accommodation duty under state law? 

The Americans with Disabilities Act has a plain definition of "disability" that reviews the person's condition in relation to a major life activity.  Connecticut's anti-discrimination scheme, however, is different.

In many ways, Connecticut's anti-discrimination provision of Conn. Gen. Stat. Sec. 46a-60(a)(1) is broader in scope because it includes "present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness." Broadening the scope even further are the definitions of these categories in Conn. Gen. Stat. Sec. 46a-51.

So what answer does the Supreme Court say about what types of "disabilities" are covered? It appears to say: All of the above (with emphasis noted below):

Because the text and legislative history illustrate that the intent of the legislature is to stamp out discrimination on the basis of physical disability and a wide range of other disabilities (mental disability, learning disability, and mental retardation), we must not interpret the statute in a way that would thwart this purpose. ....

Accordingly, we adopt the commission’s time-tested interpretation construing § 46a-60 (a) (1) to require employers to make a reasonable accommodation for an employee’s
disability.

This leads to more issues.  For example, the definition of a "mental disability" in Connecticut is essentially anything that is defined as a disorder within the Diagnostic & Statistical Manual IV, which includes diagnoses such as "Pathological Gambling" and "Exhibitionism". 

Some strange questions then arise.  Do employers now need to accommodate "Pathological Gambling" because it falls within the definition of a "mental disability" and perhaps provide an employee with a "break" to play online poker or take a visit to Foxwoods?   Or even more bizarre, does an employer need to provide a "reasonable accommodation" to someone who suffers from Exhibitionism and what would that entail?

As for providing reasonable accommodations to people with "learning disabilities", suppose an employee suffers from dyslexia.  Suppose that this employee is computer programmer, but can't read all the instruction manuals. Must the employer provide an audio version of the same manuals as a "reasonable accommodation" or how about a person who must be available to read those manuals to them? How must an employer provide a reasonable accommodation for others who suffer from similar types of learning disabilities?

While the analysis of the Curry case thus far has noted that it now applies the reasonable accommodation provisions normally found in the ADA to small employers (who were not covered by the ADA),  there is a flip side too: Employers who were covered by the ADA, might need to contemplate reasonable accommodations to disabilities that are much broader than covered by the ADA. 

Is this settled? No.  And it may be that Superior Courts reviewing this case will take a narrow approach to the decision.

But after reading the Curry case over several times, I'm convinced that the importance of this case and its potential scope cannot be understated.   Absent some legislative intervention and oversight, this case has the potential to create lots of work for employment law attorneys in the years to come.

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It keeps going and going and going.....

When I learned of a new lawsuit filed in federal court yesterday by former CHRO Regional Manager Femi Bogle-Assegai arising from her termination back in April 2001, I couldn't help but think of the cliched advertisement of the Energizer Bunny.

First, the quick background as described by the U.S. Court of Appeals - Second Circuit in a November 2006 decision:

Ms. Bogle Assegai served as Regional Manager at the CHRO for several years before her termination in the spring of 2001. In September 2001 -- 186 days after she was notified of her termination -- she filed a claim with the Equal Employment Opportunity Commission alleging, among other things, race discrimination.  There is no reference to her filing a similar claim at the CHRO.  She received a right to sue letter from the EEOC and in December 2002, she filed a lawsuit in federal court.

The State moved for summary judgment on a variety of grounds including the fact that Ms. Bogle-Assegai missed the statute of limitations (or the deadline) for filing race discrimination claims, which was 180 days.  The District Court granted the motion in a decision available here.  Ms. Bogle-Assegai appealed.

At the Second Circuit, she claimed that a work-sharing agreement existed between the CHRO and the EEOC that should have extended the time period for filing discrimination claims (why a CHRO Regional Manager would not know about the existence or non-existence of the agreement is an unanswered question of the case).   The EEOC denied the existence of such an agreement.  The Second Circuit rejected such claims in a November 2006 decision found that Ms. Bogle-Assegai had not raised that issue before:

In sum, faced with a summary judgment motion expressly asserting that her charge had not been dually filed with the state agency and that the 300-day filing period therefore did not apply to her claims, Bogle-Assegai had every incentive and opportunity to contest that argument. She made no argument to the district court in opposition. And in arguing to this Court that the 300-day period is applicable, she has proffered no reason for her failure to make that argument in the district court and has pointed to no evidence that would support her factual premises. In the circumstances, appellate consideration of her unpreserved argument is unwarranted. We affirm the district court's dismissal of Bogle-Assegai's Title VII claims on the ground that her administrative charge was not timely filed.

She then filed a petition for certiorari with the United States Supreme Court.  That petition was rejected earlier this year.

Under normal circumstances, that would end matter. But this story does not end there.  Yesterday, Ms. Bogle-Assegai brought a new lawsuit against the state contending that her equal protection rights were violated. How so?

She contends first that the Second Circuit actually denied her first claim based on the state's "affirmative statement that no work sharing agreement was in existence at the time of Plaintiff's filing of her EEOC complaint". (Paragraph 16) Readers can decide whether this is accurate.

She then contends that based on a Freedom of Information Act request, she learned in November 2007 that the CHRO "continued to accept complaints and forward them to the EEOC with the notation that their action was 'pursuant to the work sharing agreement'." (Paragraph 18.)  She contends that she was "singled" out because her complaint was also not filed pursuant to the "work-sharing agreement".

It appears on first glance that the situation she alleges is different than the facts of her case. Here, Ms. Bogle-Assegai only filed with the EEOC, not the CHRO, at least according to the court decisions, so her analogy may fall flat.  She also doesn't actually provide a copy of an alleged agreement, only that there was a notation on a document about such an agreement.

Regardless, however, don't be surprised if she ends up running up against another issue she had to address before: statute of limitations.  Add to that the theories of collateral estoppel and res judicata grounds (which prevent parties from retrying the same claims or issues) and the outlook for this lawsuit remains cloudy indeed.

How long will it keep going? Stay tuned.  But even Energizer batteries eventually run out of energy.

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The blog and press coverage of the Connecticut Supreme Court's case of Curry v. Allan S. Goodman, Inc. continues this week with two additional shout-outs to this blog.  In addition, another resource cited to the decision that is worth mentioning.

First up, the well-run and informative Point of Law blog, edited by Walter Olsen, discusses the case today with a references to this blog.  There are lots of other employment law issues discussed at the site so I would recommend it for a different perspective on the legal system.    

In addition, the Connecticut Law Tribune (subscription required) has a detailed article in this morning's paper on the Curry decision.  The reporter contacted me last week and I provided him with some additional insights in the case. The reporter was also kind enough to quote this blog as well.

"This is a very significant decision," said Daniel A. Schwartz, an employment lawyer at the Hartford office of Pullman & Comley, who writes ctemploymentlawblog.com. He is not personally involved in this case, but said the ruling is "mandatory reading" for all employment law practitioners.

"There have been attempts in recent years to create this reasonable accommodation language with legislative changes, but those bills did not pass," Schwartz said.

The decision — officially released April 15 — puts employers on notice to be responsive to needs of disabled employees and to actively engage in communication once a problem is identified. "They can't just take a hear-no-evil, see-no-evil, speak-no-evil attitude," Schwartz said in an interview.

Lastly, as part of the press coverage, I also stumbled on to a very good site today that I'm sure others have known about for years: the Connecticut Judicial Branch Law Libraries Newslog.  The site keeps readers updated on  "Connecticut legislative developments, new court decisions, online legal research tools, new law library resources, and other topics of interest to the Connecticut legal community."  I would definitely check the site out.

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Like the television show, Lost, reading the Connecticut Supreme Court's decision in Curry v. Allan S. Goodman, Inc. will leave readers with more questions than answers at the end of the day.  (For more background on the case, see this prior post.)

Those unanswered and indeed, troubling questions arise from the suggestion by the Connecticut Supreme Court that an employer's duty to accommodate an employee (and engage in the interactive process) may arise even after the employer has already terminated the employee. 

For example, if the employee makes a request for reasonable accommodation after the employee has already been terminated, does the employer have to listen to this request? And more importantly, does the employer then have to reinstate the employee with the new accommodations in place?  And what if the request for accommodation comes a month after the employee has already been terminated, must the employer still consider the request? The decision appears to say "yes" to these questions.

In order to understand this, some background facts on the case are needed as described by the Court:

The plaintiff  began working as a driver for the defendant, a distributor of wines and liquors, in September, 1986. In that position, the plaintiff had to lift cases of liquor  weighing between forty and seventy pounds on and off his truck. On or about August 26, 1998, the plaintiff  injured his back during work when lifting a case of liquor. ... [He] returned to work in September, 2000, but was restricted by his physician, Charles B. Kime, to working four hours a day, lifting a maximum of fifteen pounds at a time, and avoiding prolonged periods (more than thirty minutes) of sitting or standing. ...

When the plaintiff returned to work, the defendant negotiated with the plaintiff’s union and placed him in a night shift position, working the ‘‘split line’’ in the  warehouse. Although employees normally bid on these positions every six months on the basis of their seniority, because he was injured, the plaintiff temporarily was given the split line warehouse job pursuant to the agreement between the plaintiff’s union and the defendant. ..
When the defendant first placed the plaintiff on the split line, he was required to do only light duty tasks and was not required to replace empty cases with full cases [part of the job of a night-shift position]. ...

[By] March 7, 2001, however, [Plaintiff's physician] indicated that the plaintiff had not improved as expected and that his light duty restriction— ten hours a day with no repetitive bending or lifting of objects more than twenty-five pounds—likely would be ‘‘permanent.’’ ...

Subsequently, the plaintiff placed his name on the bid list for a night shift warehouse position. Although the plaintiff attests that he was high enough on the seniority list to qualify for this position, he did not receive the position. The defendant terminated the plaintiff’s employment, informing him by letter dated April 17, 2001, that it had determined that there was no suitable position for him. Approximately two days later, the plaintiff’s attorney sent a letter to one of the defendant’s managers, Richard Conroy, advising him of the defendant’s obligation to provide reasonable accommodation under the law, asking to be provided with a cost-benefit analysis of the decision to terminate the plaintiff, and requesting that the defendant reconsider its termination decision. The record does not reveal that the defendant took further action or reconsidered its decision.

As the Supreme Court recognized, it is up to the employee to initiate the request for a reasonable accommodation, not the employer.  Here, the Court found that the employee's placing his name on a "bid list" for a warehouse position and the letter from the employee's attorney after the employee was terminated was sufficient to start the request for reasonable accommodation. 

In the present case, the plaintiff made an affirmative request to continue working the warehouse night shift in March, 2001. In addition, the plaintiff’s counsel, in his April 19, 2001 letter to the defendant, requested that the defendant: (1) reconsider its decision; (2) provide a cost-benefit analysis supporting its decision to terminate the plaintiff; and (3) continue to grant the plaintiff the accommodation of having another worker assist him when it became necessary to retrieve boxes that weighed more than the plaintiff’s lifting restrictions. These actions satisfy the plaintiff’s burden of initiating the interactive process.

The defendant’s response to this request was merely to reject it. Conroy, the defendant’s manager, stated during his deposition that, upon receiving the letter from the plaintiff’s counsel, he did not reconsider his decision, confer with anyone else, review any records, or conduct any investigation or cost-benefit analysis of the hardship that the proposed accommodation would cause the defendant. The record reflects no effort by Conroy or any other representative of the defendant to contact the plaintiff or his counsel to engage in any additional, meaningful discussion. We conclude that this response is clearly not the dialogue envisioned by the interactive reasonable accommodation process and the defendant’s duty of good faith compliance.

From an employer's perspective, this is a disturbing because it seems to suggest that an employer's obligations to provide a reasonable accommodation continues after an employee has already been terminated.  Moreover, it suggests that "demand letters" (in which an attorney demands that the employer take certain action, like paying severance or reinstating the employee) can also be a requests for reasonable accommodation.

In addition, this decision suggests that even though the employee may not make a reasonable accommodation while employed (and only applies to be considered for a position with the company without explanation), the employer must still consider any request by the employee made after the employee was terminated.

It is unclear whether the employer will be filing a motion for rehearing in the case to rule on this issue. But if left unchallenged, this part of the Court's decision could be the real legacy of the case and set the stage for lots of demand letters for disabled workers even after they've already been fired.

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In prior posts here and here, I've discussed an important new Connecticut Supreme Court case released this week, Curry v. Allan S. Goodman, Inc. and the effect it has on providing disabled employees with "reasonable accommodation".

However, the Supreme Court's decision goes beyond that. The Court also find that state law imposes a duty on employers to engage in an "interactive process" -- a term of art found in the Americans with Disabilities Act regulations.

What does it mean?  According to the Connecticut Supreme Court, state law now requires:

that the employer and the employee engage in an ‘‘informal, interactive process with the qualified individual with a disability in need of the accommodation . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. In this effort, the employee must come forward with some suggestion of accommodation, and the employer must make a good faith effort to participate in that discussion.

The Supreme Court found in Curry that the employer -- although it provided some initial temporary accommodations -- did not followup further on such issues.  For this reason, the court said that the failure to engage in the interactive process could be "some" evidence of discrimination -- enough to defeat summary judgment.

So, for employers in Connecticut -- now of all sizes -- the Curry decision makes plain that once an employee raises an issue regarding a disability and suggests, even informally, for assistance about it, the employer has a duty to delve deeper into the issue.  Just saying "no" may not be good enough.

The EEOC has provided some guidance on this issue available here.  The Department of Labor also provides the Job Accommodation Network with additional support information available here.

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Yesterday, I provided some highlights about the important case of Curry v. Allan S. Goodman, Inc. (can we all just agree to call it Curry v. Goodman?)   The case is the first appellate decision in Connecticut that applies the reasonable accommodation provisions found in federal law, to state law. The effect is that small employers in the state (3-14 employees) will now have an obligation to provide a reasonable accommodation to physically disabled employees.

So, how did the court get there? I'll explore in detail in today's post.  It's a little technical but for employment lawyers in Connecticut, the logic is key to understanding the result. 

Before I get there, though, I urge you to review the comments of yesterday's post in which Charles Krich, who submitted an amicus brief in the case, provided some further insights into the case. Very informative and I hope to address it further shortly.

First, the Supreme Court relied in an "agency deference" doctrine, similar to the U.S. Supreme Court's Chevron deference rulings. 

[T]he question has been addressed by the commission on human rights and opportunities (commission), which, pursuant to General Statutes §§ 46a-54 and 46a- 56, is charged with effectuating the provisions of the act. We traditionally have accorded deference to the time-tested interpretation of an agency charged with enforcing the provisions of a statute, provided that ‘‘the agency’s interpretation has been formally articulated and applied for an extended period of time, and that interpretation is reasonable.

The Court goes on to note that the Connecticut Commission on Human Rights and Opportunities (CHRO) has "consistently interpreted" Conn. Gen. Stat. 46a-60 to include a duty to provide a reasonable accommodation for 12 years.  The Court then notes that various Superior Court cases have also followed this rule.

However, the Court then adds that this does not end the inquiry. Rather, the Court must then determine if the CHRO's interpretation is "reasonable".  In doing so, the Court applied its rules of statutory construction.

Now, those who have been in Connecticut for a while, know that in 2003 the legislature passed Conn. Gen. Stat. 1-2z to make sure that the language of the statute is examined first. That statute states:

The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.

But, even though the statute contains no duty to provide reasonable accommodation, the Court does not find that to be an impediment.

When . . . a statutory provision is silent with respect to [the issue at hand], our analysis is not limited by . . . § 1-2z, which provides that the meaning of statutes shall be ascertained from only their text and their relationship to other statutes if those sources reveal an unambiguous meaning that is not absurd or unworkable. ...  In addition to the words of the statute itself, ‘we look to . . . the legislative history and circumstances surrounding its enactment, to the legislative policy it was  designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.

The Court also notes that federal anti-discrimination statute (and cases interpreting them) are also a proper resource for it. Although the statute "admits" that there is no reference to reasonable accommodation in the statute, the Court looks further to see if this would be an unworkable result.  The court first looks at language regarding a BFOQ.

[The statute] does include a bona fide occupational qualification (BFOQ) defense to discrimination—i.e., ‘‘except in the case of a [BFOQ] or need . . . .’’ General Statutes § 46a-60 (a) (1)... We therefore first consider the meaning of a BFOQ, namely, whether such qualification may be interpreted as either coextensive, or inconsistent, with a reasonable accommodation requirement for individuals with physical disabilities. As the court previously has recognized, a BFOQ is an all or nothing proposition that legitimately links the qualifications of the job directly to a protected traitunder the statute, thereby categorically excluding individuals in the protected class. ...

We determine then that the BFOQ defense and the duty of reasonable accommodation for employers of individuals with disabilities are neither
coextensive nor inconsistent. The statutory text does not speak to a duty of reasonable accommodation or other similar requirement. Nothing in the previous discussion, however, demonstrates that, by including a BFOQ defense, the legislature disclaimed a duty of reasonable accommodation.

Given its discounting of the BFOQ defense, the court then notes that it should look to other sources to determine the "intent" of the legislature.  The court notes some discussion in 1973 that suggests that the statute was intended to be broad and protect disabled people who are otherwise qualified for a job.  And the Court looks to other statutes passed by the legislature over the years that show its strong concern for protecting those with disabilities. 

And last, the court notes -- perhaps in an effort to justify its broad reading of the statute -- that other states have also imposed a reasonable accommodation, including some by "judicial gloss".  The Court therefore finds that the CHRO's interpretation is a reasonable one.

In upcoming posts, I'll look at the facts of the case, and the effect of this case on other disabilities. An interesting unanswered question is whether this would also apply to those with learning disabilities (which is a protected class in Connecticut).  Stay tuned.

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In a case that automatically vaults to the top of important disability discrimination cases in Connecticut, the Connecticut Supreme Court today held, in an issue of first impression, that employers have a duty to provide a reasonable accommodation to disabled workers under state law, even though the law does not explicitly say so. 

While the Americans with Disabilities Act applied this rule to employers under federal law for employers of 15 or more employees, small employers have been exempt from it, leaving workers only with the protection of a vague state law (Conn. Gen. Stat. 46a-60(a)(1)) prohibiting "physical disability" discrimination. 

The case, Curry v. Allan S. Goodman, Inc., was released earlier today, although practitioners are cautioned that it is not "officially" released until April 15, 2008. 

Although the Connecticut Commission on Human Rights and Opportunities has applied this rule for years to their view of cases, the Connecticut Supreme Court had yet to decide the issue, leaving employers (to which the Americans with Disabilities Act did not apply) with the thorny question of whether or not they had an obligation to provide a reasonable accommodation.  Certainly, some did; but others may not. 

The court's rationale is fascinating and I'll explore it more in upcoming posts.  Although the Connecticut statute was put in place almost two decades, the court said it was appropriate to still look to federal law for guidance. Since the reasonable accommodation requirement appeared in federal law, it was appropriate -- in part -- to add it here. There's more to the decision, of course, and I'll recap more later.

While the decision itself should be one that employers can follow, what's fascinating is that the Court has ignored various bills that have been proposed over the years at the legislature to add reasonable accommodation language to the statute.  After all, if the legislature "thought" such a requirement was already there and that was its "intent", why are there bills proposing adding such language?

For example, a 2004 bill would have changed the definition of "physical disability" to mirror the language.  A 2002 Senate bill called "the Preservation of Disability Rights" would have introduced language of a "qualified individual with a disability" that would have required reasonable accommodation. 

I'm not suggesting that its bad policy to add this; that's up to the legislature and/or the courts. But it seems a stretch to add a "reasonable accommodation" requirement to state law, when legislature never thought it important enough to do so itself. 

The Court then applies federal reasonable accommodation provisions (such as the interactive process) to the case at hand.  It also addresses the issue regarding light duty accommodation and what an undue hardship is.  I'll explore these provisions in future posts as well.

Until then, the case should be required reading for small employers in the state and their attorneys. 

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While I'm busy with my trial (it's state court, I could be awhile), here are a few recent posts that I recommend to keep up to speed on the latest developments, particularly as they relate to Connecticut issues.

• EEOC Reports Increases in the Number of Charges Filed.  (Courtesy PA Employment Law Blog.)  Compare that to the numbers in Connecticut which have dropped in recent years. 
  
  
• New FMLA Supplement Poster on FMLA.  (Courtesy Manpower Blog)
  
  
• Notable ADA/FMLA Decision in Favor Employer (Courtesy Pileggi Blog)
  
  
• NLRB Proposes New Election Option (Courtesy Workplace Horizons)
  
  
• Mental Health Parity Bill Passes House of Representatives (Courtesy CT News Junkie)
  
  
• Court Strikes Down UAW Union Dues Policy (Courtesy Hartford Business Journal)
  
  
• 9 Disastrous Mistakes Supervisors Make (Courtesy HR Daily Advisor)
  

And my personal favorite:

• Dr. Seuss: Enabler of Everything That's Wrong in the Workplace (Courtesy The HR Capitalist)

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The Equal Employment Opportunity Commission (EEOC) issued guidance today for employers and veterans on workplace issues affecting veterans with service-connected disabilities.   You can download the guide for the employer here, and the guide for veterans here.

According to the EEOC press release:

The new guide for employers explains how protections for veterans with service-connected disabilities differ under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA). The document further describes how the ADA in particular applies to recruiting, hiring, and accommodating veterans with service-connected disabilities. The EEOC enforces Title I of the ADA, which prohibits employment discrimination against people with disabilities in the private sector and state and local governments. The U.S. Department of Labor enforces USERRA, which applies to the reemployment of veterans with and without service-connected disabilities.

The guides contain a list of resources on USERRA and the ADA as well as information on organizations that can assist employers who want to recruit and hire veterans. 

I previously posted about USERRA and the protections it offers to veterans last Veteran's Day. 

 

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Attorney John Williams is well-known in this state for his avid representation of various state workers -- particularly state police officials -- in discrimination matters.  Yesterday, he held a press conference to announce that he will be filing a class action lawsuit in a few weeks challenging the hiring procedures of the Connecticut State Police.

The Hartford Courant has the details in an article this morning:

Racism is so entrenched in the Connecticut State Police that basic hiring practices ensure only a few minority troopers will even enter a training class, never mind be promoted in the ranks, an attorney representing a black troopers' coalition said Thursday.  ...

Only candidates who score at least 85 out of 100 on a written test are chosen to continue training, even though the passing score is 65. That practice discriminates against members of minority groups, Williams said.

Public Safety Commissioner John A. Danaher III vehemently denied Williams' accusations and defended the department's hiring practices, saying they are fair and blind to race. He also said he has taken steps since becoming commissioner to recruit more members of minority groups, including reaching out to more colleges and forming a selections unit that is largely minority.

WTNH has this report on the subject, as does the AP.  Because the complaint hasn't be filed yet, it is too early to tell the exact legal theories and arguments that will be used in the case, but it appears to be following a well-worn path of what are known as "disparate impact" cases.

So what is "disparate impact"? Well, when most of us hear of discrimination cases, they are known as "disparate treatment" cases, not "disparate impact" cases. These cases allege that someone intentionally discriminated against them because of a protected class (race, gender, etc.)

"Disparate Impact" cases are something different.  LawMemo has a nice little summary in its blog:

Disparate impact is the idea that some employer practices, as matter of statistics, have a greater impact on one group than on another.

A good example, taken from the first US Supreme Court Title VII case on the topic: When hiring laborers, the employer required applicants to have a high school diploma. The diploma requirement screened out vastly more blacks than it did whites. Therefore, there was a disparate impact based on race, even though there was no intentional discrimination.

The Supreme Court said that once the employees proved a significant disparate impact, the burden shifted to the employer to prove that the diploma requirement had "a manifest relationship to the employment in question."

Federal legislation enacted in 1991 says that if the employees prove that a practice causes a disparate impact, then the employer must demonstrate that the practice "is job related for the position in question and consistent with business necessity."

The allegations being raised by Attorney Williams are similar. He appears to be saying that the decision to screen applicants based on their score of a written test has a disparate impact on black applicants.  The EEOC has issued some guidance on employment tests that shed further light on the subject:

Moreover, as the EEOC notes, in 1978, the EEOC adopted the Uniform Guidelines on Employee Selection Procedures or “UGESP” under Title VII.  UGESP provided uniform guidance for employers about how to determine if their tests and selection procedures were lawful for purposes of Title VII disparate impact theory:

UGESP outlines three different ways employers can show that their employment tests and other selection criteria are job-related and consistent with business necessity. These methods of demonstrating job-relatedness are called “test validation.” UGESP provides detailed guidance about each method of test validation.  

In general, disparate impact cases are typically long drawn out cases that rely, in good measure on statistical analyses by experts.  They are costly and time-consuming affairs.  Thus, don't expect a quick resolution to the claims raised in this new lawsuit.  Indeed, the State Police will likely spend lots of time arguing that the standards it uses are "job related" and "consistent with business necessity".   Who will prevail? Stay tuned....

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A few weeks ago, I posted about various issues that I believed the CHRO had and how they were being addressed (including a working group established by Governor Rell).  I've also posted on some lawsuits involving CHRO employees and claims of discrimination within the agency,

But the issues regarding the CHRO have been around for many years; they just seem to ebb and flow with the times.

For some historical perspective, there is a fascinating hearing in May 2006 by the Connecticut legislature on the CHRO.  Connecticut's Network, CT-N, keeps these hearings "on-demand" for viewing anytime (if only I could embed the video here, I'd be in heaven, but you'll have to settle for a link here to the video or you can download it directly here). 

State Senator Edith Prague presides over the hearing as Chair of the Labor & Public Employee Committee  As with any such hearing, there are moments of pure tedium (and its a bit long, so feel free to browse), but it also provides a different perspective on what some people have viewed as an issue with the CHRO.

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Although I've touched on the issue of personality tests before here and here, I was recently interviewed in the December 2007 issue of Law Office Administrator (published by Ardmore Publishing) about some further specifics. 

In it, I highlight two important points that employers should consider before using them:

1. Why Is the Test Being Used? and,
2. Does the Test Exclude Certain Categories of People?

If you don't know why you are using the test, the obvious followup is how can you possibly use the test effectively if you don't know why you are using it.  Is it to screen out certain applicants? Is it to look for certain intangibles (like team building)?

In addition, you need to understand if the test affects certain classes of people differently. Some differences are okay (you're trying to distinguish lazy employees from driven employees), but if the test results exclude categories of people in protected classes (older workers, for example), then they should not be used.

Personality tests have been around for a while. I would suggest that one reason why they haven't become commonplace is that there are too many variables with them for many employers comfort.  If you do decide to use them, understand the risks ahead of time. 

My colleagues, Ana Salper and Rebecca Brandman, also wrote an article on the EEOC's recent guidance on personality tests, which I covered a few weeks ago .  It's worth a read. 

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Last week, I posted about a working group that Governor Rell had formed to review the workings of the Connecticut Commission on Human Rights and Opportunities (CHRO).

Today, Hartford Courant columnist Stan Simpson has an interesting column on the same subject.  It's worth a read.  It discussed the ongoing backlog of complaint and the issues that the agency has had with its leadership. 

He also quotes from the current Connecticut NAACP head who laments the fact that the CHRO's top positions are held by white males. 

Now, there's grumbling that the current key leaders — chairman, executive director, legal director, field operations and chief human rights referee — are all white males. The preferred candidate for the deputy director's job also appears to be a white male.

"It's the civil rights community that brought that whole agency into fruition," said Scot X. Esdaile, president of the state NAACP, which supports a thorough review of the agency. "For the [upper leadership] ranks to turn all white is criminal."

Executive Director Raymond Peck points out that about 40 percent of the 100 staffers are non-white, and that about half of the middle managers, including regional directors, are people of color.

"Would it be better if we looked more diverse at the very top? Yes," Peck said. "We want to be as diverse as we can at all levels."

However, credit Simpson with pointing out that, although the CHRO may have been built from the civil rights era, the CHRO's functions of investigating discrimination go far beyond race discrimination today.   Indeed, I pointed out in October that the Annual Report for the CHRO shows decreases in the numbers of employment law claims over the last five years, while some claims (such as harassment) have increased.

According to the report of the types of claims filed in 2006-2007, the statistics show that race discrimiantion employment claims running about equal with gender discrimination claims and not far ahead of age and disability discrimination claims.  Here are some partial statistics on the numbers of claims being filed.

Number of Employment Claims Filed 2006-2007

Age	411
Color	449
Mental Disability	71
National Origin	260
Physical Disability	401
Race	571
Sex	557

Simpson concludes that the best solution may be to "tear it down — [and] rebuild CHRO into an independent, apolitical watchdog that ferrets out discrimination of all kinds and promotes inclusion in state hiring."  Given the numerous attempts to fix the CHRO over the years, you can't blame him for suggesting that the agency work from a clean slate.   

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In Connecticut, it's well known that the state agency responsible for investigating complaints, the Connecticut Commission on Human Rights and Opportunities (CHRO) has been the subject  of lots of discussion and criticism for over a decade, dating back to the years under Executive Director Louis Martin.

Recently, a new series of criticisms have been heard about the agency, and the agency appears to be having difficulty keeping up with the caseload.  As such, Governor Jodi Rell has quietly formed a working group to review the agency and its ability to carry out its stated goals.

A recent article by the Waterbury Republican-American picks up the story from here:

The review is expected to take several months, said Christopher Cooper, the governor's chief spokesman. He said the assessment grew out of contacts between the state NAACP and the governor's office this summer.

There are well-documented problems at the human rights commission, including a backlog of complaints, high caseloads for investigators, and allegations of discrimination within the agency itself. Additionally, three executive directors have left under questionable circumstances in the last 10 years.

Cooper said the commission's troubles entered into Rell's decision to look into its possible restructuring....

The governor's working group initially met last month; its second meeting is scheduled for Dec. 13.

Ann Noble, the governor's deputy counsel, is heading the working group. It also includes representatives from the Connecticut Women's Education and Legal Fund, the Connecticut Business and Industry Association, the NAACP, the state's African-American Affairs Commission, Latino, Puerto Rican Affairs Commission and Commission on Aging, and the University of Connecticut's Asian American Cultural Center.

In the article, I was asked to comment on the issues facing the CHRO.  I'll let you read the article (in part, to give the intrepid reporter, Paul Hughes, credit for the article) but suffice to say that I indicated that more needs to be done to speed up the resolution of cases.  Indeed, cases are falling further and further behind, while the caseloads of the investigators increase.

This is an issue that affect both the employee and the employer.  Neither side can be happy with the delays that are plaguing the agency right now.  It increases the cost of litigation to both sides -- which can only serve to make settlement more difficult down the road.

For an agency that has had its share of difficulties over the years, a working group to review it is certainly a welcome addition.   There will be no shortage of issues for the group to address.  Hopefully, the group will reach out to practitioners from both sides of the cases to provide the group with additional feedback and suggestions. 

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In one of my first  posts, I highlighted an article regarding the legality of personality tests.  In it, I noted that the EEOC had held a fact-finding session and was likely going to issue some further guidance.  Well, that day has arrived.

The EEOC issued a fact sheet on employment testing today, announced in this press release.  The fact sheet, which can be accessed here, contains all sorts of helpful information for employers, including a best practices approach and a primer on the applicable federal laws.  Suffice to say that some of the suggestions are fairly obvious, but here they are:

• Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
• Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under [applicable procedures].
• If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.
• To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.
• Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.
  

As I noted previously, Connecticut does not have any major caselaw on this topic. Moreover, courts here will typically mimic federal law anyways, so it is certainly a good idea to familiarize yourself with the topic and implement the best practices recommended by the EEOC for these types of tests. As the year comes to a close, it's a good idea anyways to audit your personnel policies and procedures to ensure that they are compliant with current law.

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Last week, lots of virtual ink was spilled on the U.S. Supreme Court's arguments in Federal Express v. Holowecki which has been labeled as a noteworthy age discrimination claim, following in the shoes of the Supreme Court's ruling in Ledbetter in the spring.  Several blogs have good summaries of what happened, including: LawMemo, Ohio Employer's Law Blog, and the New Jersey Employment Law Blog. 

What's the issue before the Supreme Court? The issue is what constitutes a "charge" of discrimination submitted to the Equal Employment Opportunity Commission under the Age Discrimination in Employment Act before plaintiff can institute a private lawsuit.   From the oral argument and the reports on the case, it appears likely that the court will find that the EEO's use of an intake questionnaire may be a "charge". 

All very well and good, but for employers and HR professionals, there is a remaining question that has not yet been answered so far: "Should we worry about this employment law case?" The answer is: Not that much.

For Title VII and ADA cases, this case will have no real impact. In those types of cases, an employee who wants to sue in federal court must first get a right to sue letter from the EEOC. For those cases, an employee's charge must be processed in a meaningful fashion.

ADEA (age discrimination) plaintiffs do not face a similar hurdle; rather the charge must simply be filed and the employee must simply wait 60 days before filing a federal claim; no right to sue letter is needed. Thus, the concern expressed by FedEx and by the U.S. Chamber of Commerce in their amicus brief,  that employers may not receive the same type notice of ADEA claims, is certainly possible. In Holowecki, FedEx's problems were compounded by the EEOC's admitted failure to follow statutorily mandated procedures to notify the the employer of the complaint.  

As a practical matter, nearly all of the ADEA claims filed, particularly in Connecticut, are handled in the normal course of business -- that is, that the employee files a discrimination charge, and the employer is notified of that charge.  Even if the EEOC only fills out an intake questionnaire, the EEOC is mandated to followup on it typically. 

Connecticut, which has a work-sharing agreement with the EEOC to process EEOC charges that are cross-filed in the state, goes one step further. The CHRO will send out notices to employers upon receipt and initial processing of an age discrimination suit.  Thus, as a practical matter, it is highly unlikely that an employer in Connecticut will not get notice of the charge.  Because virtually all discrimination charges are filed in the normal course of business, the situation that arises in Holowecki is simply not likely to repeat itself with any frequency, particularly within Connecticut. 

For that reason, a Supreme Court's decision in Holowecki -- while perhaps interesting in a "technical" way -- is not likely to have any significant impact for employers in Connecticut.  Unless the Supreme Court deviates from its typical path and sets forth new criteria for handling such claims, the case ultimately may be newsworthy only to employment law bloggers such as myself.

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For retaliation cases, an employee's active participation in another person's discrimination case has been viewed, in the past, as the threshold to be a "protected activity" under Title VII's retaliation clause.  That has been watered down in the Second Circuit in recent years.  A new District Court decision today has concluded that simply expressing a reluctance to testify in another employee's case, without actually testifying, could also be a protected activity.

In Tucker v. Journal Register East, (known more commonly as The New Haven Register), the Plaintiff -- a former employee, alleged that the Register terminated her employment because she was opposed to testifying as a favorable witness in the Register’s defense of another employee against whom a sexual harassment complaint had been filed.  The Employer filed for summary judgment claiming that the employee never opposed a discriminatory practice.

The Court rejected that argument finding that a different section of Title VII analysis -- the participation clause -- may apply.   Notably it follows the "it would leave the employee 'wholly unprotected' language used by the Second Circuit in recent years. 

The court believes that, in accordance with the principles set forth by the Supreme Court..., and by the Second Circuit..., [the employee]’s conduct is sufficient to qualify as a “protected activity” under Title VII. To hold otherwise would permit an employer involved in a Title VII proceeding to retaliate against an employee based upon that employee’s decision as to what her participation in the Title VII would be. Indeed, [the employee- would be “wholly unprotected” if the court were to find that the Register could terminate her because she had changed her mind about testifying on the Register’s behalf in the CHRO proceeding.

While the court's broad reading of Title VII is disputable, it appears the court was simply troubled by the timing of the employee's termination; it occurred two days after the employee allegedly expressed reluctance.  Moreover, the employer's reasons for terminating the employee (she allegedly accepted a collect call at work from a felon at a state correctional facility) seemed, to the court, excessively harsh.

Because this case involved a local newspaper, it'll be curious to see the media's reaction to this case. Obviously, this is only a denial of summary judgment; the employer may ultimately prevail at trial. But newspapers have a tendency to gloss over these facts in reporting about the case.

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In recent years, some employers have turned to EPLI (or employment practices liability insurance) to help control their costs. Some find it useful, others do not. But one important part of having the insurance is making sure it applies when you actually have a claim.

A recent federal court case highlights the importance of notifying the insurer of the claims at the time they are filed with an administrative agency such as the EEOC or CHRO -- not when those charges become a lawsuit.  As a colleague of mine once said, "Just pick up the phone and make the call." 

In American Ctr. for Int'l Labor Solidarity v. Federal Ins. Co., (D.D.C., Oct. 15, 2007), a federal district court held that, where the employer failed to notify the insurance company of the employment discrimination claim when it was filed at the EEOC, the employer cannot recover the costs of settlement an defense from the insurer. 

In doing so, the court concluded that a charge before the U.S. Equal Employment Opportunity Commission constituted a "formal" administrative proceeding requiring notice under the insurance policy. The court reviewed the policy's definition of a "claim" which was included a "formal administrative or regulatory proceeding commenced by the filing of a notice of charges, formal investigative order, or similar document."

The Background

In American Ctr., the employer (a non-profit) twice received Notices of Charges from the EEOC in August 2002 and November 2002.  While the first charge indicated that no action was required by the employer, the second notice contained a  "perfected" Charge of Discrimination outlining the allegations in greater detail. The EEOC requested that the employer either participate in mediation or submit a position statement. The employer rejected mediation and submitted a position statement instead.  The EEOC ultimately dismissed the charge.

In December 2003, a race discrimination lawsuit against the employer was filed by the employee.
In January 2004, the employer notified the insurer of the lawsuit for the first time. In March 2004, the insurance company declined to cover the claim because of the untimely notice. 

The employer argued that the EEOC proceedings were not "formal" administrative proceedings.  The District Court rejected that argument and reviewed the scope of EEOC administrative proceedings, which includes charges, position statements, evidence, mediation, investigation fact-finding, subpoena powers, settlements and determinations on the merits.  Moreover, statements made by parties at the EEOC can be deemed to be admissions in later court proceedings. 

Ultimately, the court rule that the most "natural reading" of the liability policy was that an EEOC proceeding constituted a "formal administrative proceeding."

What should employers take away from this decision?

• While each EPLI policy may differ, overall, insurance companies must be notified immediately whenever a charge or notice is received from an administrative agency, such as the EEOC and CHRO.  This should be done even if the employer is unsure the notice constitutes an actual "claim" under their liability policy.   While this case arises out of the District of Columbia, the facts presented in that case are likely to arise in many other jurisdictions, including Connecticut.
  
• Employers should also have internal procedures as to how to handle the receipt of such administrative complaints and designate a person who will be responsible for notifying the insurance company and determining how the claim should be processed internally.
  
• Lastly, management personnel should be notified that if they receive any notices from any governmental agencies, they should notify the appropriate company-designated personnel for handling the charges.

EEOC and CHRO charges typically have very short time frames for responding (30 days in many cases).  Ignoring them or shielding them from insurance companies will not make them go away and such actions will only compound issues later on.

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The Hartford Courant is reporting that Thomas Meskill, Connecticut Governor from 1971 to 1975, and a judge on the Second Circuit U.S. Court of Appeals from 1975 to 1993 (he took senior status after that date), passed away earlier today. 

Former Gov. and U.S. Rep. Thomas J. Meskill died early Monday in Florida, his wife said. He was 78. Meskill went to the Bethesda Memorial Hospital in Boynton Beach, Fla., to have blood drawn and died of a heart attack around 4 a.m., said his wife, Mary.

Thomas Meskill, a Republican, was governor from 1971 to 1975. ...

In 1975, President Gerald Ford named him a judge on the U.S. Court of Appeals for the 2nd Circuit, and he served until 1993. During his last year on the bench, Meskill was chief judge.

The state library has a biography of him available here. 

Despite his other accomplishments, including establishing the Department of Environmental Protection, his impact on employment laws and civil rights legislation in the early 1970s, should not be minimized.

According to a summary of significant developments posted by the CHRO, Governor Meskill's Executive Orders and involvement in other projects had a major role in shaping the state's policies and laws on a variety of employment and civil rights issues.

• In 1971, by Executive Order, Governor Meskill required state contractors and subcontractors to file compliance reports on their equal employment opportunity practices, prescribed by state law. He authorized the labor commissioner to administer and enforce these regulations, including the right to cancel violators' contracts; ordered all state agencies to name their own compliance officers; and outlined procedures whereby other state agencies can recommend that CHRO bring appropriate enforcement proceedings in cases where substantial violation may exist. (Executive Order #3, June 16, 1971)
• In 1973, an independent Permanent Commission on the Status of Women was established, to oversee women's rights and needs, with discrimination complaints to be referred to CHRO. (Chapter 812)
• Also in 1973, by Executive Order, Governor Meskill required the State Personnel Department to assume primary responsibility for assuring that equal employment opportunities exist within all state agencies and departments. The State Personnel Department was also ordered to develop and administer a statewide affirmative action plan. (Executive Order #18, May 8, 1973)
• Also that year, the legislature approved of significant changes to the discrimination laws.  Physical disability added as a protected class. (P.A. 73-279, P.A. 74-57) Persons with a criminal record was added as a limited protected class. (P.A. 73-347)  Pregnancy leave benefits and job rights were specified under employment discrimination law. (P.A. 73-647)
• The next year, the State Constitution's Declaration of Rights was amended to prohibit the denial of equal protection of the law and segregation or discrimination in the exercise of civil or political rights because of sex. (Article I, Sec. 20)

To be sure, some will remember him as the Governor who failed to lead during a terrible ice storm of 1973 (an event that many in Connecticut will still remember -- I can recall as a child the ice-covered trees bent outside the kitchen windows and our staying at home for several days until the ice cleared). 

And, obviously, a number of people far beyond Governor Meskill played a significant role in all of these changes noted above. But as his legacy is recounted in the upcoming days, Governor Meskill's role in the middle of all of these changes, and his willingness to execute Executive Orders on issues he believed in, should not be overlooked.

 UPDATE 11:30 a.m.:  Judge Meskill's work on the 2d circuit continued to the very end of his passing. The Second Circuit issued a decision today in which Meskill participated; the oral argument was held earlier this month. 

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The CHRO has issued its Annual report ending for the fiscal year June 30, 2007, and made it available for public viewing. Its full of statistics that show trends in the workplace; such information is particularly useful for human resources personnel and in-house counsel. 

What does it show?

• Employment claims are down nearly 20 percent from a peak in FY 2002/2003.  (1743 for FY ending 6/07 vs. 2211 ending 6/03). 
  
• Notably, despite the theory that retaliation claims are being filed more frequently, that number is virtually identical (507 for 6/07 vs. 516 in 6/03).  However, because the overall employment claims are down, retaliation cases certainly appear to make up a greater percentage of the cases filed.  Perhaps that's why many perceive retaliation cases to be on the "rise". 
  

A few other trends are worth noting as well.

• Sexual harassment cases filed are down substantially by over 30 percent in the last 6 years.  In 2000, 271 cases were filed, while in 2006, just 188 cases were filed. 
  
• General "harassment" cases, however, are up over 100 percent.  In 2002/03, 175 claims were filed, while in 2006/07, 428 complaints were filed. It is unclear whether this is due to a reclassification of the term "harassment" or whether the actual claims are up.
  
• Claims for "terms and conditions" discrimination (in other words, something other than hiring/firing), are up over 10 percent (from 411 to 461, in the last 4 years). 
  
• The numbers of decisions from the Public Hearing Officers is WAY down. In 2002/2003, they issued 67 decisions, compared with just 10 in 2006/2007.  (Most cases are now being resolved at this level by settlement.)
• Yet the number of reasonable cause findings is remarkably consistent (88 in 2002/2003 compared with 92 in 2006/2007) -- again making up a bigger percentage of overall cases filed. 
  

What does this mean? It means that discrimination cases in general are slowing down in recent years.  This can be attributed to multiple factors, including a steady economy and increasing education among employers. Given the other increase in wage and hour claims, it may be that some plaintiff's attorneys are encouraging those claims (where the need to prove intent is not necessary, in some instances) rather than the traditional discrimination claims.

One cautionary note, at the EEOC, the overall number of claims filed INCREASED last year reversing a multi-year decrease on the national level.  Whether this reversal continues or is just a blip, remains to be seen.  Certainly, in Connecticut, we have not yet seen the decline in discrimination claims end just yet. 

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Only a handful of CHRO Human Rights Referee Decisions are issued each year -- a number that has seemed to slow to a trickle recently.   But this month, the CHRO issued a lengthy decision in an age discrimination case.  In that case, CHRO Referee concluded that the Town of Bloomfield, Connecticut discriminated against a police officer because of his age when it terminated him.   (The officer was later reinstated as a result of an arbitration so his damages have been limited.)

In CHRO ex. rel. Donald Rajtar v. Town of Bloomfield, the Town was ordered to pay over $100,000 in backpay, lost benefits and interest.  The facts of the case are detailed and too lengthy to summarize, but suffice to say that the police officer relied heavily on alleged ageist comments made by co-workers and non-decisionmakers and on the theory that the investigation and decision into whether his employment should be determinated was deficient. 

The Town had contended that it terminated the Complainant because of the way he conducted a criminal investigation.  The Town further argued that the Complainant was dishonest in his work product; the CHRO Referee discounted that saying that "The charge that the complainant had lied was never pursued with sufficient objectivity so as to allow it to be fairly established." 

Notably, the CHRO Referee doesn't dismiss the town's defense entirely but simply found that the town's explanation was far from bullet-proof (couldn't avoid the pun here).  

A review of [the] detailed written explanation of why [the decision-maker] ultimately concluded the complainant had lied reveals a “house of cards”, which could easily (although admittedly not with certainty) have been toppled if the complainant had been extended the degree of animus free evenhandedness the law requires.

It is easy to question now whether the Town's investigation into the Complainant before it terminated his employment was thorough. Certainly, in reading the opinion, it is clear that the town did more than a minimal investigation into such facts and from an outsider's perspective, you have to applaud an employer that takes steps to support their employment decision beforehand. 

However, the case reinforces the notion that in order for an employment decision to hold up -- you must be able to answer one question clearly: Was the employee treated fairly? The CHRO Referee here found "The complainant was entitled to more than a career ending 'surmise'"; it is not a stretch to say that he did not believe the decision was "fair" since there is nothing in the law that requires that something "more".  This may not necessarily be "right" (and it's probably not enough to appeal on) but appealling to a factfinder's sense of fairness, is always critical to litigation success. 

One other noteworthy aspect of the case is the CHRO Referee's decision to follow the "cat's paw" theory of discrimination.  What is this theory? In essence, a court will find an employer liable based on a subordinate’s discriminatory animus, even where the person who actually made the adverse employment decision admittedly harbored no discriminatory motive toward the impacted employee.  Here, the CHRO found that allegedly ageist comments and actions made by lower-level supervisors and co-workers "influenced" the actual decision-makers here.

The issue of the "cat's paw" theory's application was up for review by the U.S. Supreme Court earlier this year, but the case settled before the issue was ruled upon by the court.  Nevertheless, the theory has been previously supported by the Connecticut Appellate court five years ago in United Technologies v. CHRO (a case that has some parallels to this case).  Until the appellate courts see fit to revisit the issue, it is likely to remain the dominant theory in Connecticut state courts and at the CHRO. 

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Yesterday, I noted that Norwalk Community College had been sanctioned over the summer  in a federal district court case for its apparent failure to preserve electronic data.  I've always believed that these types of compliance issues -- if they exist -- do not exist in a vacuum. Indeed, companies that have trouble keeping track of their data and their compliance obligations often run into problems in more areas than just this one. 

Reading the minutes of the most recent Board meeting of the CHRO confirmed this theory for me.  It turns out that Norwalk Community College has had issues with compliance with its affirmative action plans and keeping track of them. According to the minutes, the College allegedly never received notice of a disapproval of its affirmative action plan from a prior year (and thus did not appear to address the deficiencies noted in it).  Indeed, when the College submitted its affirmative action plan this year, the CHRO originally recommended disapproving it.  Notably, the College achieved (according to the minutes) only 3 out of 16 goals that were set in the plan.  The CHRO chair stated that this seemed "low".  Ultimately, the CHRO approved the plan noting the College's "good faith efforts". 

The relevant portion of minutes is as follows:

The following individuals were present representing Norwalk Community College: President David Levinson, Human Resources Director Ginny Dellamura and Affirmative Action Officer Natasha Maynard. The plan is being recommended for approval based on compliance with the good faith effort standard. Short-term goal achievement was 3 out of 16 or 19% and total goal achievement was 3 out of 16 or 19%. Promotion goals were not set in the prior plan. The plan was approved in 2002, 2003 and 2004, disapproved in 2005 and approved in 2006.

Commissioner Lobon asked if the plan’s status would not have changed if they were notified of their deficiencies from last year. Staff confirmed that is correct. The original recommendation of disapproval was based on the fact that the College did not address prior deficiencies and CHRO staff subsequently found out that they never were informed of them in the first instance. The Chair commented that the attainment of contract goals is low. Mr. Bingham stated his intent to meet with representatives of the College after the meeting to discuss this issue.

Ultimately, it appears that the College is addressing these issues and it would unfair to single the College out for its oversight here.  Documents get lost and people sometimes overlook issues, with no evil intent.  But when multiple issues arise regarding compliance (either with state laws or federal discovery requirements), it can be a sign that a company needs to take a step back and make sure that these occurrences aren't symptomatic of something larger.

For Connecticut employers, always take issues of compliance seriously and take this example to heart.  If you find an issue in one area, make sure that the same issues do not arise in other areas.

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The headlines of the week nationally have certainly surrounded sexual harassment allegations both old and new.  (Note: Due to my firm's involvement in one of those cases, I will not be blogging on it). 

But with the issue back in the forefront, I've been surprised lately in my discussions by how some small to mid-size employers are overlooking the basics in Connecticut.   Do they believe that such conduct just doesn't exist anymore or do they believe that their employees "know it all" about the subject? While claims of sex discrimination filed with the EEOC are down nearly 10 percentt from their peak in 2002, the numbers hardly show such a pronounced drop off that would indicate we've "solved' the problem of sexual harassment in the workplace.  Indeed over 20,000 complaints were still filed with the EEOC as of 2006.

What do I mean by the basics? In Connecticut, its training and posting.  These requirements are found in the administrative regulations , Conn. Regs 46a-54-200 et seq. set up by the CHRO regarding sexual harassment prevention. 

• For posting: All employers who have 3 or more employees must notices that say sexual harassment is illegal and address what the remedies are for such harassment.  The regulations all spell out in specifics that the notices must contain certain elements. Fortunately, the CHRO has also prepared a model poster that complies with the statute and is available for free download. 

Of course, there are other laws as well that require postings to be set up.  Rather than address each law separately, consider using a company that specializes in such posters, like G.Neil. 

• For training: The training requirements only apply to employers who have 50 or more employees and apply only to supervisory employees.  (This does not mean that employers who have less than 50 should NOT provide the training; instead, it means that they are not required to conduct such training.) 

Specifically, within 6 months of a new supervisor being hired or an employee being promoted to a supervisory position, the employee must receive at least two hours of training.  The format of the training is fairly rigid; according to the regulations:

Such training and education shall be conducted in a classroom-like setting, using clear and understandable language and in a format that allows participants to ask questions and receive answers.

Since that time, the CHRO has indicated, in an informal opinion, that some e-learning training may satisfy this requirement.  Regardless, the training must also include discussion of six discrete topics such as what the state and federal laws say, what types of conduct could be considered sexual harassment, and discussing strategies for preventing such harassment.

Here the kicker: The regulations suggest (but do not mandate) that such training be updated for ALL supervisory employees every three years.   What does this mean? It means that if an employer wants to project an image that it has a strong policy against sexual harassment, it should follow this advisory regulation to show that it is doing above and beyond what is required.

The regulations also suggest (but do not mandate) that records be kept of the training. Again, the regulations suggest a course of action that employers would be wise to follow.

Certainly, the workplace has changed in the 16 years since the issues surrounding Supreme Court Justice Clarence Thomas and Professor Anita Hill became so widely publicized. But for employers in Connecticut, sustained vigilance is needed to make sure these changes and the progress that has been made, stick.

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Last year, the CHRO was mired in a media mess.  Then Executive Director R. Hamisi Ingram was under attack by both employees and through legislative hearings regarding his leadership.  Eventually, he was let go.

But at the time, there was talk that several employees might bring a complaint or lawsuit regarding the way that they were allegedly treated.  So what happened?

Well, for starters, two employees did file suit in federal court earlier this summer. The Complaint, by Paula Ross and Valerie Kennedy, paints a picture of an organization run amuk with those who are charged with protecting against discrimination, as being those who allegedly did the discrimination.   Other prior workers at the CHRO have tried similar allegations regarding prior administrations without much success, so it remains to be seen what will happen here. 

Not surprisingly, the State denied the allegations in its response and set forth several affirmative defenses, including a statute of limitations defense.  It filed its answer last month.  Last week, the parties filed their planning report.  In it, the parties indicate that they anticipate discovery to continue through June 2008. 

Thus, the case seems -- at least from a review of the docket -- to be destined to drift on.  The administration of Hamisi Ingram may have ended last year, but his legacy lives on in a lawsuit. 

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Since the Ledbetter decision issued by the U.S. Supreme Court last month, issues of the timeliness of employment discrimination claims have come to the forefront. An interesting decision by a CHRO Human Rights Referee recently suggests that complaints that do not specify the timeliness of certain claims may still survive a motion to dismiss. 

CHRO Human Rights Referee David S. Knishkowy late last month rejected an employer's motion to dismiss on timeliness grounds, even though the complaint did not contain sufficient details to determine whether the alleged discrimination practice occurred within the applicable time frame.

In Salvatore Feroleto v. State of Connecticut, Department of Mental Retardation, CHRO No. 0510140 (decided August 27, 2007), the employer, the Connecticut Department of Mental Retardation moved to dismiss a claim that had been certified to a public hearing on the grounds that most of the alleged acts occurred more than 180 days prior to filing of the complaint. 

Referee Knishkowy rejected that assertion, even though the complaint itself was vague as to whether certain acts fell within or outside the 180 day period.

In the present case, because of the exceedingly general nature of the allegations, I cannot ascertain when most of the discriminatory acts, discrete or otherwise, occurred. Denial of the motion to dismiss will afford the complainant an opportunity to present evidence, subject to the aforesaid rule, on each of his vaguely worded claims of unequal pay, denied promotions, denied accommodations (for his disability), lack of training and termination.

This decision raises a troubling prospect for employers.  According to the CHRO's own administrative regulations on complaints, Conn. Regs. 46a-54-35a, a Complaint -- when filed with the CHRO, "shall contain the following...(3) A plain and concise statement of the facts, including any pertinent dates, constituting the alleged discriminatory practices."  Thus, a complaint that does not have such dates, as appears to be the case here, appears to be violating the CHRO's implementing  regulations. Yet according to this decision, the employer is without recourse to move to dismiss the complaint because the Complaint should be allowed an "opportunity to present evidence". 

I should note that it is not clear whether the employer raised this particular argument or just challenged the timeliness of the complaint in general.  What this decision does make clear, however, is that employers will likely need to engage in discovery and motion practice at the CHRO hearing stage on timeliness grounds, because a motion to dismiss on such grounds is unlikely to succeed even against vague allegations.

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The Connecticut Lawyer has an interesting article in the last month on the Legality of Personality Tests under the ADA. The article, written by Connecticut Bar Association member Joshua Hawks-Ladds, "explores the ADA's impact on personality testing in the workplace, and discusses what type of assessment tools will withstand ADA scrutiny and when these tools can lawfully be implemented." As Joshua notes, the ADA prohibits employers from "using tests or questionnaires that are meant to, or that incidentally, result in discrimination against disabled individuals."

What remains unanswered from the article (and outside its scope) is how prevalent testing really is, particularly in Connecticut. The article does not cite any Connecticut cases or Second Circuit cases.

An EEOC meeting on May 16, 2007, shows however that this is a topic of increasing interest. As noted in their press release:

The U.S. Equal Employment Opportunity Commission (EEOC) today held a public meeting to gather information and address emerging trends in workplace testing and selection procedures, as employers seek lawful and efficient ways to screen large numbers of applicants. Discriminatory employment tests and selection procedures violate EEOC-enforced federal laws, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act.

“Today employers commonly use a range of employment tests and other screening tools to make hiring, promotion, termination or other employment decisions,” said EEOC Chair Naomi C. Earp. “With the growth of technology, buttressed by post-9/11 security concerns, it is important that employers review their applicant selection procedures to ensure they are non-discriminatory.”

If employees and employers are looking for topics that have yet to be fully litigated or explored, the use of personality tests seems ripe for consideration.

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