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

In reading the Connecticut Judicial Branch's new strategic plan (which overall, is a very thorough and useful document), I was struck by its persistent usage of the term "intellectual disability."  Indeed, section I.3 of the Plan indicates that the judicial branch will work with the legislature to revise laws that hamper participation by those with “intellectual disabilities.” 

Thus, it is not clear what an "intellectual disability" is – especially as used by the Judicial Branch in its report.  As referenced by the Judicial Branch, the term seems to connote some mental deficiency that may be the equivalent to, or a step away from, mental retardation, or dyslexia or some other cognitive deficit (the Report refers to those persons who appear in court who cannot read signs or cannot understand instructions). 

I have to confess that I had not heard that term used in a legal context and it's usage here by our court system struck me as odd. What exactly is an "intellectual disability" and why is the Judicial Branch using that term?  A quick search of Connecticut caselaw reveals no cases where that term is even used by Connecticut courts. So what's going on?

What is an "Intellectual Disability"?

It seems that the judicial branch is using the term "intellectual disability" as a substitute for “mental retardation.” But the only reference that I could find to “intellectual disability” in our state laws is as a modifier of the term "mental retardation," not as a substitute.

"Mental retardation" is defined in Conn. Gen. Stat. 1-1g as "a significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period." 

Interestingly enough, the Connecticut Council on Developmental Disabilities actually suggests using the term "mental retardation" in its media guide. (While the legislature did change the name of the Department of Mental Retardation to the Department of Developmental Services last year in Public Act 07-73, it left the term "mental retardation" alone, only compounding the issue.) 

But this definition does not seem to be equivalent to a mere “intellectual disability” which connotes some lacking in intellectual ability – but without the “deficits in adaptive behavior.”  The State Department of Education released a working draft of a proposal that used the term "intellectual disabilities" and defined it a little differently than "mental retardation." 

After a quick search of the state statutes, I found that in the sole instance where "intellectual disability" is used, it is used to represent something different than what is meant by "mental retardation".  Conn. Gen. Stat. 17a-210b, states that "The absence of a diagnosis of, or reference to, mental retardation, intellectual disability or developmental disability within an individual's school records or medical records shall not preclude the Department of Mental Retardation from making a finding of mental retardation, as defined in section 1-1g." This does not equate to a mental impairment to which the state employment discrimination laws apply (i.e. depression, anxiety, bi-polar disorder, etc.).

Of course, the CHRO, the agency responsible for enforcing the state's disabilities laws, still uses the term "mental retardation" because, presumably, that is its charge under Conn. Gen. Stat. 46a-51.

Compounding the issue further, the federal government has used the term in yet a different context as well.  For example, even though the Americans with Disabilities Act doesn't use the term "intellectual disabilities",  the EEOC released guidance on this issue way back in 2004 and explained its usage of the term in yet another definition.

The EEOC's use of the term "intellectual disabilities" follows the model of the President's Committee on Intellectual Disabilities (formerly known as the President's Committee on Mental Retardation). The Committee adopted this term to "update and improve the image of people with disabilities who were formerly referred to as people with mental retardation and to help reduce discrimination against these citizens." The Committee also "sought to reduce the public's confusion between the terms mental illness and mental retardation and to remove the use of terms which resulted in faulty name-calling."

Even the CDC has a different way of defining "intellectual disability".  So, by now, your guess is as good as mine on what the term really means, and how it should be used in legal matters.

"Intellectual Disability" Needs a Clear Definition Before Courts Start Using It

Why is this important, particularly in the employment context?  Because our state discrimination laws don't talk about "intellectual disabilities" - they talk about providing protection to employees who live with "mental retardation".  And when our court system and others start using terms without a clear definition, it is bound to lead to confusion and fights over what these terms now mean. 

For employers, this is the worst of situations because without clear boundaries of what is proper, you can bet that a lawsuit -- at some point or another -- isn't far behind. (One can imagine a prospective employee who cannot read suing for disability discrimination when refused a job that requires reading and pointing to the Judicial Branch’s report as evidence that Connecticut now protects persons with “intellectual disabilities.”)

I am by no means arguing for the continued usage of the term "mental retardation" if our government folks have decided to begin using the term “intellectual disability" in its stead –especially if the term is stale and pejorative to some.  But by the same token, introducing a phrase like "intellectual disabilities" (particularly in the court system) that has no common meaning and isn't an exact substitute, isn't necessarily the solution either. 

In fact, I would argue that it's downright reckless for the courts and state agencies to start using that term without some guidance from the legislature.

It's certainly time for the government (both state and federal) to come to some sort of understanding about its usage and help define that term.  Creeping usage benefits no one.  And if the General Assembly has eliminated the term from the Department of Mental Retardation, why continue the term elsewhere?

The point here is that if the Judicial Branch is going to incorporate an undefined term in its report (and others start adopting the term), it should explain the term or give some frame of reference for it. If the term “intellectual disability” is something other than “mental impairment” or “mental retardation,” and the Judicial Branch is defining a new class of persons that must be accommodated in some fashion, then that needs to be explained for those of us that deal with hyper-technical definitions of “disability” (mental and physical) day in and day out.

Do you have any ideas on how to fix this issue? Any experience with the term "intellectual disability" Is this actually just another example of the PC word police? What are other states doing?

Feel free to comment below.  I'll try to follow-up on the subject in an upcoming post with ideas and suggestions.

Many thanks to my colleague Joshua Hawks-Ladds for his comments and suggestions for this post.

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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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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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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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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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It has been a pretty light week in Connecticut as far as noteworthy developments in employment law is entailed.  The legislature is out of session and the courts unusually light in issuing anything new (much less noteworthy).

So, I thought I would recommend a few posts that have caught my eye over the last week or so that are both topical and informative:

• Michael Moore, over at Pennsylvania Employment Law Blog, as a post about the limits of customer preferences in employment decisions.  The post discussions a recent appeals court decision.  Ultimately, Michael concludes:
  

The presumption underlying “customer preferences” is that people prefer to interact with those of the same race, gender, religion, or other characteristic. Employment decisions are justified by appealing to a target demographic group. Courts have universally rejected customer preference as a basis for employment decisions except in the narrow case where it is a Bona Fide Occupational Qualification (BFOQ).

• The Workplace Prof blog (as well as the Ohio Employer's Law Blog) has a post about this week's U.S. Supreme Court argument in Kentucky Retirement Systems v. EEOC.  The case is at the intersection of age discrimination law and public pension plans.  I was thinking about writing it myself, but the subject matter is a bit dry -- even for my tastes. Nevertheless, I don't think I could say it better than WorkPlace Prof, so take a look for yourself.
  
• The ABA Journal had a short post about a Massachusetts secretary who had claimed that she had a disability and was fired for it.  Except she didn't. At least that's what an investigator found. Indeed, she :

claimed she had a disabling spinal condition, but the detective videotaped her “working in her yard, repeatedly bending over, carrying heavy bundles, walking up and down stairs without difficulty, and walking without a limp or a cane,” the Massachusetts Appeals Court wrote Monday in an opinion.... "She was also physically able to drive 40 minutes each way to a casino in Lincoln, R.I., and to sit playing slot machines for three hours, while claiming that her back problems would not permit her to sit at her desk and type,” the opinion said.

After the investigation found that she was a fraud, the employer terminated her employment. The court upheld the dismissal. 

• I may get around to posting on it myself, but Michael Fox and others have picked up on whether "maternal profiling" is the new "buzz" discrimination claim. What is it? Essentially, claims against women who have children or may have children.  Will this be a hot claim in 2008? Mike's guess is as good as mine (which I gave a few days ago.)
  
  
• Finally, Frank Roche at KnowHR, has a little post about the Dunning-Krueger Effect and HR.  What is it? The Dunning-Kruger effect is the phenomenon wherein people who have little knowledge think that they know more than others who have much more knowledge.  Frank notes that he views the Dunning-Kruger Effect as “'Everyone with a pen thinks he’s a communicator,' or, 'Everyone is a compensation professional.' In HR we face this a lot — people who think they know more than they do."  Worth checking out. Of course, whether that will ever displace The Peter Principle, remains to be seen.

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