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

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