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

The "reasonable accommodation" requirements under the ADA continue to be a source of questions and confusion for employers.

However, on the topic of whose responsibility it is to raise the issue of a reasonable accommodation, the law has been fairly clear in the Second Circuit (which covers Connecticut, New York and Vermont) that it is the employee that bears the burden of making that initial request. 

Indeed, back in 2006, the Second Circuit stated that “[G]enerally, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.” Graves v. Finch Pruyn & Co., 457 F.3d 181, 184  (2d Cir. 2006). 

Yesterday, however, an important decision affirming a jury verdict against Wal-Mart, the Second Circuit clarified that "generally" doesn't mean "always".  The case, Brady v. Wal-Mart Stores (download here), sets forth a whole new range of instances where the employer now has an obligation to reasonably accommodate an employee whose disability is "obvious", even when that disability may only be "perceived":

Indeed, a situation in which an employer perceives an employee to be disabled but the employee does not so perceive himself presents an even stronger case for mitigating the requirement that the employee seek accommodation. In such situations, the disability is obviously known to the employer, while the employee, because he does not consider himself to be disabled, is in no position to ask for an accommodation. A requirement that such an employee ask for accommodation would be tantamount to nullifying the statutory mandate of accommodation for one entire class of disabled (as that term is used in the ADA) employees. We therefore hold that an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled.

So what type of response is actually needed from the employer in that circumstance? The Court states that all that is required is that the employer engage in the "interactive process" to work with the employee to determine of the disability needs to be reasonably accommodated.

What does this mean for employers in Connecticut? It raises a whole host of issues.  What does it mean that a disability is "obvious"? What is obvious to one person may not be obvious to another. For example, one employer could view the employee as exhibiting classic signs of chronic manic depression, while another may not.  Issues such as blindness may be "obvious", but the other categories may not be as "obvious".  In the Brady case, the employee had cerebral palsy -- which wasn't exactly the most "obvious" type of disability (particularly given that there are various presenting symptoms of cerebral palsy). 

Another issue for employers is the risk of bringing of the issue of a "reasonable accommodation" when the employee may not even be disabled. The employer, in such a circumstance, risks being labeled as an employer who "perceives" the employee has a disability.  Thus, the employee could actually be forming the foundation of a disability claim, rather than preventing it in the first place. 

In short, employers in Connecticut (and New York for that matter) may want to consider their approaches to "reasonable accommodation".  There will not be a one-size-fits-all approach to this issues and this decision just raises a whole new set of questions to think about in dealing with employees who may have disabilities.

The case has a few other issues that were discussed by the Wait a Second blog.  It also hasn't been a particularly good week at the courts for Wal-Mart either. 

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During some of the seminars that I teach on sexual harassment prevention, one of the topics that is covered is describing the difference between quid pro quo harassment and hostile work environment harassment.

On Wednesday, the Connecticut Appellate Court taught that same lesson in reviewing a case in which an employee (who lost a trial) claimed that certain jury instructions on quid pro quo harassment should have been given.

The case itself, Griffin v. Yankee Silversmith Ltd (officially released on July 8, 2008), won't set the employment field ablaze like some other decisions this year.   The facts resolve around an employee who claimed that her employment ended in retaliation for complaining about sexual harassment.  On appeal, the employee claimed that the jury should have been told about quid pro quo harassment she endured and instructed on that subject, not simply on a "hostile work environment" theory.

The Appellate Court disagreed noting that the employee didn't raise that issue in the Complaint and the evidence didn't support such a claim of quid pro quo harassment.

In doing so, the court noted that quid pro quo harassment is just different from "hostile work environment" harassment:

Quid pro quo sexual harassment, as its name suggests, conditions employment on the return of sexual favors; hostile environment sexual harassment is conduct that ‘‘has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment."

The court added that these distinctions are also found in Connecticut's anti-harassment statute Conn. Gen. Stat. 46a-60(a)(8). 

So what's the takeaway from this case? I've been trying to think of something groundbreaking, but the fact is that there isn't much to take away from a case like this. 

For employees, it will be making sure a Complaint is plead correctly so that evidence can be submitted at trial to support a theory. For employers, it just emphasizes the fact that state courts are seeing more of these cases. 

Ultimately, perhaps the best "lesson" from this case is to understand the difference in the types of harassment.  For employers, this can also lead to a greater understanding about how to prevent it from occurring in the workplace. 

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Nearly eight months ago, I asked the question: Will the Americans with Disabilities Act Be Amended?  

At that point, I indicated that an ADA Restoration Act Bill of 2007 was not yet a "hot topic" but as election season heated up, we could see some action on some proposed amendments.  There have been some followup posts both in January and again earlier this month.

Now, the answer my prior question, I think the answer is likely "yes". 

Within the last few weeks, a compromise bill (now titled the ADA Amendments Act of 2008) has been fashioned and on Wednesday, it passed the U.S. House of Representatives overwhelmingly (402-17).   All Connecticut representatives voted in favor of it.   The bill (H.R. 3195), can be downloaded here,  

The Workplace Horizons blog and the Ohio Employer's Law Blog have some initial feedback and reaction to the bill, as well as Disability Law 2.0. The New York Times had this mainstream report.  For additional blogs from advocacy groups, see the American Association of People with Disabilities blog and the NAM (National Association of Manufacturers) blog. 

So, what would the ADA Amendment Acts do?

On its face, it strives to overturn various U.S. Supreme Court cases that the bill's sponsors believe narrowed the ADA too much.  Thus, the bill broadens definitions of various terms.  For example, it defines the phrase "substantially limits" to mean "materially restricts".  It also features some aspects seen as "for employers" such as limiting "regarded as" claims as impairs that last or are expected to last for more than six months.

As Jon Hyman notes:

The biggest changes, however, come to the definition of "disability" itself. In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity is to be determined with reference to the effects of mitigating measures on the impairment. For example, a diabetic who has the condition under control with insulin might not meet the definition of "disability." These amendments expressly reverse that ruling:

• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
• The determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative effects of mitigating measures, such as medications, equipment, assistive technology, auxiliary devices, learned behavioral, or adaptive neurological modifications.
• Eyeglasses or contact lenses, however, can still be considered in determining whether an impairment substantially limits a major life activity.

There is no date yet for a vote in the Senate.  As the term continues and it becomes more likely that the bill is going to pass, I'll provide an update with additional details about the proposed provisions.

For now, employers should stay tuned for future legislative developments and take an opportunity now to understand the scope of the ADA. If it is passed, the bill may make it more difficult for employers to get "summary judgment" in ADA cases and is sure to raise a whole new set of issues related to the definition of "disability".  For employers in Connecticut, ADA amendments could be particularly tricky because of the risk that courts in Connecticut (which tend to follow the ADA lead) will use the amendments to interpret our state disability discrimination law, which has developed somewhat differently.

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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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Ed: Updated to reflect newer posts and correct style

There are many employment lawyers who subscribe to the belief that "No Good Deed Goes Unpunished".  A case out of Connecticut and the Second Circuit this month certainly won't change that perception.  Indeed, although the case may have political undertones, it sets up a classic factual case of an employer who apparently tries to do the right thing and STILL gets sued for their actions.  Ultimately, the Second Circuit has affirmed that the employer did not violate the law but the issue still remains far from settled. 

Here's the basic facts and background of Ricci v. DeStefano:

In March 2004, New Haven, Connecticut Fire Department held two promotional exams for the positions of Lieutenant and Captain.  However, the New Haven Civil Service Board (“CSB”) refused to certify the results of those exams because statistically, the test results showed that the test may have had a disparate impact on African-Americans. 

A group of seventeen white candidates and one Hispanic candidates who took the promotional exams sued.  These candidates fared fared very well on the test but did not receive a promotion because without the CSB’s certification of the test results, the promotional process could not proceed.

The Plaintiffs asserted that the refusal to certify the examination results violated their rights under Title VII and the Equal Protection Clause. In 2006, the District Court of Connecticut granted New Haven's motion for summary judgment (decision here) -- effectively dismissing  the case. 

CSB officials said, in their papers, that the reason they refused to certify the results is their desire to comply with the letter and the spirit of Title VII. The District Court noted that "Plaintiffs deride this 'feigned desire to ‘comply’ with Title VII,' arguing that defendants in fact violated that statute, and their actions were a mere pretext for promoting the interests of African-American firefighters and political supporters of the mayor. "

What is noteworthy, as the lower court pointed out, is that the case presents "the opposite
scenario of the usual challenge to an employment or promotional examination, as plaintiffs attack not the use of allegedly racially discriminatory exam results, but defendants’ reason for
their refusal to use the results.  

Ultimately, the District Court said that Plaintiffs' contention that "diversity" is a code word for reverse discrimination did not have merit.  The employer here was trying to do right by not using a test that had a disparate impact and the Court was unwilling to suggest that the employer's decision was incorrect.  The factual circumstances, as I've said before, are much more complex than that and I encourage readers to review the entire decision.

Of course, the Plaintiffs appealed. The Second Circuit last week affirmed the decision in a brief per curiam decision (available here).  The Court noted that the CSB "found itself in the unfortunate position of having no good alternatives."  

And while the court said it was "unsympathetic to the plaintiffs’ expression of frustration", the Court said that CSB was "simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact".   As such, its actions were protected. 

End of story, right?

Well, not quite.  Later in the week, the Second Circuit considered, but ultimately rejected a rehearing "in banc" (meaning a decision in front of all of the Second Circuit judges, not just a three judge panel).  The Wait a Second Blog explains the procedural mess in further detail in a post here.  What is unusual is that the decisions either concurring or dissenting in the decision to rehear the case in banc are lengthy and reveal a deeply divided Second Circuit. 

Indeed, the dissent noted that the Second Circuit has done a disservice by not publishing a full opinion on the subject and instead hiding behind a short "per curiam" opinion.  Ultimately, the dissent views the issue as one of "great importance" and believes that full consideration by the Second Circuit -- or at least a more detailed decision -- is warranted.  Certainly, the next time this issue is before the Second Circuit, we can expect more fireworks depending on the panel makeup.

The Plaintiffs here have petitioned the Supreme Court to grant certiorari in this case. It certainly merits further watching.   I would expect a ruling from the Supreme Court on whether to grant certiorari in fall of 2008. 

For employers, this case demonstrates the problem that companies face all the time. Typically, a decision affecting one employee, will leave another unhappy.  And even when the employer is trying to do the "right" thing by complying with Title VII (even if there is political overtones) they still could face a lawsuit by a group of employees unhappy with the decision.  Strict compliance with the law and getting sound legal advice is the best strategy for avoiding the minefields that continue to exist in this area.

UPDATE: Point of Law was kind enough to pick up on the post and credit should be given to their initial post on the subject late last week (which I was just tipped off to).  There are also other blog posts on the subject here,  here and here as well. 

FURTHER UPDATE 6/17: Wait a Second has an update this afternoon about another dissenting opinion released today by Second Circuit Chief Judge Dennis Jacobs.  From a legal procedural perspective, it's interesting to see the "catfight" going on at the Court of Appeals. But from employment law perspective, it doesn't really affect the underlying decision.

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In discrimination cases, when a plaintiff (which is a fancy legal term for employee) wins he or she is often entitled to have the defendant (typically the employer) pay his or her attorneys' fees.  There are lots of cases out there that discuss formulas for such fees .

But the basic assumption that some employers will make is that these fees will not amount to a significant number.

A new case out of New York (the same federal Circuit as Connecticut) should change that perception. I would expect this case to become the new "gold standard" (pun partially intended) for fee requests both in New York and in Connecticut for employment law cases.

The New York Law Journal (subscription required) reports that in Rozell v. Ross-Holst (download here, the prominent plaintiffs' firm of Outten & Golden received over $1 million in fees following a settlement of a discrimination claim.

What is particular noteworthy is that the Court ultimately granted an hourly fee request of lead partner Kathleen Peratis for $600 per hour (down from her requested rate of $675).  Since 2001, Peratis has headed the sexual harassment group at Outten & Golden, which the magistrate judge said "enjoys a reputation as one of the outstanding firms representing plaintiffs in employment cases."

Why should employers in Connecticut be interested in this? Because this case is likely to be Exhibit A by any plaintiff's attorney as to the "going rate" that experienced plaintiff's attorneys are charging for their services.  The argument will likely be "Well, your honor, if a NY attorney can get $600/hour, my proposed Connecticut rate of $525 is surely reasonable" (never mind the fact that there are few employment law attorneys in Connecticut who charge that rate in "real" life.) 

But, you say, this is a New York firm, not Connecticut, so why should I worry?  However, you would be wrong to make that assumption.   Outten & Golden has a sizable office in Stamford, Connecticut and represents many employees across the state.  (Full disclosure: I have crossed paths with some of their attorneys many times and worked collaboratively with several on bar association projects.)   Thus, it is very much a Connecticut issue.

For employers, the case has two important takeaways:

• First, don't underestimate claims for attorneys fees in employment cases. Settlement of cases early on can help prevent a situation where an attorneys' fee interferes with a way to settle cases.  And for valuing cases at trial, don't just consider "back pay" loses, but consider that the attorney could receive a sizable award in response to a fee request.
  
  
• Second, re-familiarize yourself with the Second Circuit's decision in Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany, 522 F. 3d 182 (2d Cir. 2008). In Arbor Hill, the 2nd Circuit set forth new rules for district judges to follow when determining attorneys fees. The court there suggested that judges use their "considerable discretion, to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate."
  

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Here's an unsettling thought:

Some lawsuits against employers just seem more believable than others.

I'm unsettled by that thought because it suggests that there are built-in stereotypes with companies.  And, working in the employment law area, we all strive to ensure that stereotyping of employees becomes a thing of a past and that employers judge employees fairly.

And yet, with some companies, stereotypes remain.  For example, with the NASCAR circuit, there remains a stereotype that it is mainly geared towards white Southern males, some of whom aren't afraid to wave the confederate flag on occasion (of course, those in New England know that's untrue, based on the fans that flock to the track in Louden, New Hampshire).

So when word spread on Wednesday about a sexual and racial harassment lawsuit against NASCAR, I'm sure there were more than a few people who had the gut reaction that it may at least be possible.  World of Work blog has the details that suggest that the lawsuit -- which seeks $225 MILLION in damages -- may be lacking a bit on merit.  Age discrimination lawsuits against high tech companies play into another stereotype that these companies only want young, energetic employees in their workforce. 

Contrast that with a pregnancy discrimination claim against a maternity store.  Or a race discrimination claim against the CHRO.  Those claims, on their face, just don't seem possible or likely. After all, why would a maternity store have negative views on pregnant women? Why would a state agency whose mission is designed to protect employees against discrimination, then discriminate against its own employees?

Thus, when a company is sued, one of the first questions it should be asking is: Does this lawsuit sound or seem credible?  If so, the company must realize that there is a built-in prejudice that -- fairly or unfairly --it needs to address. 

But interestingly, a one size fits all approach to this issue won't work. Obviously, some companies will choose to show that the stereotype is wrong.  But others may choose to embrace their stereotype - a risky move that can gain success as well.  For example, in a recent sexual harassment claim brought against a casino, the employer said it was important to take into account the context of the employee's employment as a bartender.  The court agreed and concluded that the employee, who made off-color remarks, repeatedly grabbed the rear end of a female coworker, and gave sexually suggestive gifts to a coworker, could not contend that similar actions by a supervisor were harassment.

So what can employer do to combat the stereotyping of certain companies or industries?

• Continue to break down the stereotypes that may exist with your particular industry or business. 
  
• Create and run training programs for employees to show that the Company is concerned about the issue -- before an actual lawsuit occurs.  
  
• Create internal programs or events that play off For example, a financial services company may decide to host an event geared towards women customers -- attempting to break a stereotype of a male-dominated industry.
• Get involved in other community events or a non-profit organization that addresses that stereotype.
• For larger, more sophisticated companies, seek the assistance of a public-relations team to reinforce an image -- not just a brand for selling products, but a brand for attracting employees.
• And similarly, reinforce that image through an aggressive hiring strategy. Good talent attracts more talent.  There's nothing better for a company to show at trial than hiring statistics that match the diversity of the population.  Obviously, I'm not talking about hiring people because of their race; rather, it means making sure that companies draw from as a diverse a group of candidates as they can.

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It's a common observation among employment lawyers that employers can be sued for lots of on-the-job actions that don't lead to termination.  Whether that employee, however, will prevail on the claim is an entirely different question. A case yesterday decided by the United States District Court of Connecticut highlights that distinction.

In Charles v. State of Connecticut, Judicial Branch (download here), an African-American probation officer claimed that she was denied a request to transfer because of her race.  She requested a transfer from the Milford, Connecticut office, where she performed  supervisory functions, to the New Haven office where she would  perform intake functions. It was undisputed that although her responsibilities would change after the transfer, there would be no change in her pay or benefits.  The position was ultimately filled with a white woman whose skills better matched the position description.

On a summary judgment motion by the employer, Senior Judge Dominic Squatrito  found that the employee did not establish a claim for race discrimination because, among other things, she did not suffer an "adverse employment action".

What is an adverse employment action? The Court looked to some other cases in the transfer context to find:

“If a transfer is truly lateral and involves no significant changes in an employee’s conditions of employment, the fact that the employee views the transfer either positively or negatively does not of itself render the denial or receipt of the transfer [an] adverse employment action.’” Nevertheless, “[a] lateral transfer that does not result in a reduction in pay or benefits may be an adverse employment action so long as the transfer alters the terms and conditions of the plaintiff’s employment in a materially negative way.”

Here, the employee admitted that her salary and benefits were unaffected, but argued only that her transfer hurt her chances to be promoted in the future.  The Court rejected that argument saying that there was no evidence that the transfer denial would affect her in the future. Indeed, because she already had experience in the "intake" function (a reason the employee claimed she needed the position), the Court saw no reason why this denial would hurt her in the future.  Ultimately, what was telling to the court is that:

her pay was never adversely affected; she was never demoted, disciplined, suspended or terminated; and her job title was never adversely changed. Indeed, [the employee] admits that not being transferred to the New Haven office did not adversely affect her, and that she has not  experienced any sort of adverse employment action as a result of her not obtaining the transfer.

In short, the Court seems to view this dispute as nothing more than a kerfuffle. Or much ado about nothing. 

So what's the takeaway for employers in other cases? Two things.

• First, this should confirm for employers that a very small number of employees may sue for anything -- no matter how trivial.  Good documentation and support for decisions (that are obviously non-discriminatory) are cruicial to getting these claims defeated.
• Second, a good human resources practice that recognizes employees desire to get ahead and that works with those employees to develop a career path, can help employees see more options than they might otherwise have.  HR should not simply be about discipline and discharge, but working with supervisors and employees to allow employees to work to their fullest potential.

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The U.S. Supreme Court today, in Gomez-Perez v. Potter, ruled 6-3, that the Age Discrimination in Employment Act (ADEA) protects federal workers from retaliation based on age-related complaints. 

The majority decision, written by Justice Alito, essentially grants protection to those federal workers on the same terms that private workers have long had. In doing so, the Court has now made it clear that retaliation against workers, whether they work for the federal government or for private employers, for complaints of age discrimination is prohibited. 

Regardless, for private employers, this case has no real immediate impact because retaliation against their employees on the basis of age has been prohibited under federal law and, in Connecticut, under state law.

For background on the case, see the ScotusWiki or my previous post from February here.

What remains unclear -- and to which I suspect the commentary about this case will focus on -- is whether the court's logic -- by finding retaliation claims can be "read into" claims of discrimination -- will apply to other statute or claims.  

Justice Thomas and Scalia (who dissented on the other retaliation case decided today, CBOCS West v. Humpries) are joined by Chief Justice Roberts, who writes a lengthy dissent. Justice Roberts takes the majority to task for creating a cause of action not found explicitly in the statute:

The Court today holds that the federal-sector provisions of the Age Discrimination in Employment Act encompasses not only claims of age discrimination—which its language expressly provides—but also claims of retaliation for complaining about age discrimination—which its language does not. Protection against discrimination may include protection against retaliation for complaining about discrimination, but that is not always the case. The separate treatment of each in the private-sector provision of the ADEA makes that clear. In my view, the statutory language and structure, as well as the fact that Congress has always protected federal employees from retaliation through the established civil service process, confirm that Congress did not intend those employees to have a separate judicial remedy for retaliation under the ADEA. I respectfully dissent.

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The U.S. Supreme Court today, in CBOCS West Inc. v. Humphries, ruled 7-2 that the Civil Rights Act of 1866 -- now codified at 42 U.S.C. 1981, prohibits retaliation against an individual who complains of discrimination against others, when contracting rights are at stake.  It is an issue that often arises in workplace situations, but potentially reaches much more widely, as the ScotusWiki has noted on its site.

For background, see the ScotusWiki.  I also discussed the case back in February at a post here.  You can download the decision directly from the court here.

For now, the court's holding -- which relies primarily on the idea of stare decisis (or, in essence, we've already decided this in other cases so we're just going to apply it here) -- is found in this quote from Justice Breyer:

We conclude that considerations of stare decisis strongly support our adherence to Sullivan and the long line of  related cases where we interpret §§1981 and 1982 similarly.  CBOCS’ arguments do not convince us to the contrary.  We consequently hold that 42 U. S. C. §1981 encompasses claims of retaliation.

Justice Thomas writes a lengthy dissent with Justice Scalia joining saying, in essence, that the Court hasn't ruled on this before and therefore stare decisis is not applicable:

By crafting its own additional enforcement mechanism, the majority returns this Court to the days in which it  created remedies out of whole cloth to effectuate its vision of congressional purpose.” Ibid. That the Court does so under the guise of stare decisis does not make its decision any more justifiable. Because the text of §1981 provides no basis for implying a private right of action for retaliation, and because no decision of this Court holds to the contrary, I would reverse the judgment below.

For Connecticut employers, the decision is interesting, but because state law already prohibits retaliation on the basis of race (and allows for the recovery of significant damages), it may not have a significant impact on cases here.  Nevertheless, it provides another type of claim that employees may consider when filing suit -- and other claim that employers will need to concern themselves about.

I'll update this post further with some additional feedback and analysis as warranted (and as time permits).

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While I was on trial last month, a Second Circuit decision on Associational Discrimination slipped by.  Fortunately, the Delaware Employment Law Blog picked up the slack here.

The obvious question that arises first is: What is Associational Discrimination?  Well, most discrimination cases arise when the employee has a "protected characteristic" such as his or her race or gender, and has had some type of employment action taken against him or her. But suppose the employer took action not because of the color of the employee's skin, but because of the color of the skin of  the employee's spouse.  That, the Second Circuit, has ruled, may violate federal anti-discrimination laws. 

The case, Holcomb v. Iona College (decided April 1), arises from the firing of the former assistant basketball coach at Iona College.  The school allegedly fired him for performance reasons.  He claimed that various college officials made derogatory comments about his wife -- who is Black. 

The court’s discussion set forth the associational discrimination analysis. Here is the three-part review, as summarized by the Delaware blog:

1. Protected Class. The Court held that Holcomb was a member of a "protected class" under Title VII. Although Holcomb was not Black, his wife was, and there was evidence that his interracial marriage was the reason for his termination.
   
2. Interracial Association. The Court reasoned that, "where an employee is subjected to an adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race." All the district judges in this circuit to consider the question, including the district court in this case, have reached that conclusion."
   
3. Pretext Evidence. As noted above, there was plenty of evidence from which the Court could conclude that the reasons given for Holcomb’s termination were a mere pretext for race-based discrimination. Another piece of evidence to support Holcomb’s claim was that O’Driscoll, the white staff member who replaced Holcomb, was the only white member of the staff without a Black girlfriend or wife.

What's the takeaway from this case? Claims based on associational discrimination represent another type of claim that can be raised.  Is it the start of a trend? It's really much too early to tell, but other circuits have recently ruled on the theory as well. Employers should be sensitive to this type of claim.  With interracial marriages and interfaith marriages becoming increasingly common, derogatory remarks about employees' spouses should be and must remain be off-limits at work.  Maintaining and enforcing sensible human resource policies may be all that's required for most companies, but each company should consider making its own assessment about whether associational discrimination claims are a higher risk to them.. 

(H/T Wait a Second).

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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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While the headlines have been focusing on criminal justice reform and now the state's projected deficit, a new "hate crime" bill  (S.B. 604) got passed and became a public act (P.A. 08-49) yesterday.  You can download it here.

The Act, which is effective October 1, 2008 is not found in Connecticut's penal code per se, but is found with Connecticut's discrimination statutes.  It amends Conn. Gen. Stat. 46a-58 to add new subparagraph (d). This paragraph makes it a "discriminatory practice", punishable as either a misdemeanor or class D felony, to display nooses or simulation of nooses. 

In relevant part, the revisions to the statutes are underlined:

(a) It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the Constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, sexual orientation, blindness or physical disability.

(d) Any person who places a noose or a simulation thereof on any public property, or on any private property without the written consent of the owner, and with intent to intimidate or harass any other person on account of religion, national origin, alienage, color, race, sex, sexual orientation, blindness or physical disability, shall be in violation of subsection (a) of this section.

Why nooses? The Judiciary Committee's report indicates that it would strengthen Connecticut's hate crime laws. And indeed, in light of the Jena 6 incident last year, there seemed to be a greater recognition that nooses are particularly offensive to those in the African-American community, which is also noted in the report.  Indeed, the new law would, in essence, equate noose displays with cross-burning.

But the new act raises questions remains unanswered: Why include other categories that have nothing to do with race, including sexual orientation or blindness or physical disability (and why exclude mental disabilities?)   Isn't the point of nooses is that it has some relation to the historic symbol of racial lynching?

And are there really any incidents were people are using nooses to intimidate people based on their gender? I believe the answer is essentially no. Indeed, even back in 2000, the EEOC noted that workplace noose incidents were related to racial harassment cases, not gender cases. What is also striking about the new law is that it contrasts with the cross-burning section which has no reference to protected categories.

Regardless, I'm sure it also won't be too long before the statute is also used in employment discrimination cases to show Connecticut's strong "public policy" against nooses -- whether in the workplace or otherwise.  

And one point should continue to be emphasized for employers -- these types of incidents should not be tolerated in the workplace.  If an employer in Connecticut does have an incident where a noose is displayed, the employer should seek prompt legal advice as to how to address the situation.

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Last week, while I was out on vacation, Congress acted on a bill that may have some interest in Connecticut. However, because Connecticut already has a similar bill already on the books, it will probably have a minor impact on employers.

The U.S. Senate approved of legislation that would prohibit genetic discrimination in the workplace.   As reported by the Manpower Employment Law Blog, The Genetic Information Nondiscrimination Act (GINA) sailed through the Senate on a 95-0 vote.  A House vote is expected shortly; you can check on the bill status of H.R. 493 here. 
Among other things, GINA would:

• prohibit discrimination based on genetic information in hiring, firing, compensation and other employment decisions;
• prohibit 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);
• prohibit health insurers and plans from requiring genetic testing and from discriminating based on genetic information in enrollment and premium-setting; and
• impose strict workplace confidentiality/disclosure rules on all genetic information.

Senator Christopher Dodd expressed his strong support for the bill and posted his comments to his website, which you can find here. 

However, for employers in Connecticut, this should be old news. Connecticut already has a law that prohibits discrimination based on genetic information so I don't anticipate that GINA, if passed, will a significant impact in Connecticut.  Conn. Gen. Stat. 46a-60(a)(11) states that it is illegal:

     (11) For an employer, by the employer or the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent: (A) To request or require genetic information from an employee, person seeking employment or member, or (B) to discharge, expel or otherwise discriminate against any person on the basis of genetic information. For the purpose of this subdivision, "genetic information" means the information about genes, gene products or inherited characteristics that may derive from an individual or a family member.

To be sure, GINA has some additional provisions that will need to be looked at by employers in Connecticut.  But none of it is all that dramatic; Connecticut employers may want to await final passage of GINA before updating their policies on this issue. 

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Paul Secunda over at the Workplace Prof blog has alerted me to a great discussion that is ongoing on various blogs and law reviews about the Supreme Court's decision in Sprint/United v. Mendelsohn.  (My earlier coverage of the case from February 2008 can be found here.) 

In particular, you can read Paul's review of whether the Supreme Court's decision was the "right" one and its impact on other discrimination cases. For a starting point, check out this post at the Adjunct Prof blog here. As that blog notes: "Scholars and attorneys interested in employment discrimination may find our Colloquy important to review."

I agree.

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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