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

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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The U.S. House of Representatives, as expected, passed the Genetic Information Nondiscrimination Act this afternoon.  The bill, which had already been approved by the Senate, now moves on to the White House, where the President is expected to sign the bill.  The bill's summary and status can be found here.The roll call vote at 12:40 p.m. can be found here.   It passed overwhelmingly.  (Guess which Representative opposed it.)

The New York Times, through an AP report, has the immediate coverage:

Companies would no longer be able to use genetic information like a person's predisposition for breast cancer, sickle cell or diabetes to make insurance or job decisions under a bill passed by Congress on Thursday.

The House voted 414-1 for the legislation a week after it passed the Senate on a 95-0 vote. The bill would bar health insurance companies from using genetic information to set premiums or determine enrollment eligibility. Similarly, employers could not use genetic information in hiring, firing or promotion decisions.

As I noted earlier this week, this bill is not expected to have a significant impact in Connecticut where there is already legislation on the books prohibiting discrmination based on genetic information.

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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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While jury selection continues with individual voir dire (which is guaranteed by the Connecticut Constitution -- the only state in the nation to provide such a guarantee), its time to introduce our next guest blogger. 

Today, he discusses Body Mass Index as a possible new frontier  for obesity discrimination.  It's a topic not often discussed but it should not be overlooked.  Again, thanks to Michael for his contribution and I encourage you to visit Mike's site.

What is Body Mass Index (BMI)? BMI has become the unofficial scientific measure for assessing obesity. BMI is a function of height and weight (BMI calculator).   The Center for Disease Control classifies a person who has a BMI of less than 18.5 as underweight; normal is 18.5-24.9; overweight is 25-29.9; obese is over 30; and extremely obese is over 40.

What is the BMI analysis telling us about our weight?   A Report by the Trust for America's Health recently disclosed statistics about obesity trends.  In the Report, Pennsylvania had the 23^rd highest rate of adult obesity with 24.5 percent of its population having a BMI over 30.   Connecticut was 47^th with 20.1 percent rate of obesity.  The Report also correlated obesity figures with other factors like Diabetes and Hypertension rates. It also noted levels of admitted physical activity (or inactivity). Twenty-Four percent of Pennsylvanians admit no physical activity.

How good is BMI as a measure of obesity?   Martica Heaner points out the limitations of BMI in her posts BMI Blues and Is Body Mass Index a Bad Measure?:

The BMI works well for research purposes, but doesn’t necessarily translate precisely to the individual. Unfortunately, it tends to convey that people that exercise regularly, for example, are overweight, when they are not actually overfat.  A fit person tends to have more muscle, so their body weight is a reflection of body fat as well as muscle and other lean tissue. 

Since the problem with being overfat is that health risks are increased, a BMI in the overweight range is probably not a negative indicator for a fit person. Regular exercise, low body fat and increased muscle mass are all factors that tend to outweigh any health risks suggested by a higher BMI.

Is there correlation between high BMI and bad health? According to the CDC, the BMI ranges were established based on the health consequences associated with obesity as determined by different BMIs. Some challenge this conclusion saying that the obesity/health correlation is a myth. However, this correlation between high BMI and bad health is quickly becoming an assumption.   Others have even gone as far as implying that there is a "conspiracy" perpetuated by those who are making fortunes in weight loss products.  There is always the genetic explanation for both obesity and poor health

Other than being incorrectly labeled "overweight" or "obese", why should we care whether BMI is an accurate health status predictor? BMI is fast becoming the legal standard for determining whether someone is "obese" and therefore a "health risk". With this label comes a whole host of employment and benefit consequences:

• Cost of and Eligibility for Certain Employee Benefits

BMI is becoming a big concern for the insurance industry.  Individual insurance policies for life, disability and medical insurance almost universally use underwriting procedures that take into account BMI as a basis for determining insurability and premium.  A survey by the Texas Office of Public Insurance Counsel found that insurance company individual health plan underwriting guidelines used BMI as a basis to deny coverage, charge a higher premium, and offer less coverage. The California Insurance Commission has made comments alerting consumers about BMI as a basis for insurance denial.

Some group health plans are community rated and not subject to medical underwriting. These plans calculate premium based on the expected claims of the community not the individual employer group.  Other group health insurance programs can be subject to medical underwriting in which BMI analysis and other factors will be used to price the coverage for the group.  An employer with a compliment of employees with potential for high claims (including high BMI) will face higher premiums or denial. Likewise, self-insured medical plans that utilize stop loss coverage may undergo medical underwriting where BMI will be factored into the rate for reinsurance.

Group health plan wellness program incentives may be keyed to BMI targets for premium discounts and other incentives.  The availability of incentives to those with high BMI is subject to limitations including situations when it is "unreasonably difficult" or "medically inadvisable" for a participant to attempt to achieve the BMI standard.

Employment Discrimination

Under the rationale in EEOC v. Watkins Motor Lines, Inc., being overweight and even obese is not generally considered a "disability".    On the other hand, severe obesity, which has been defined as BMI greater than 40, is clearly impairment.   In addition, a person with obesity may have an underlying or resultant physiological disorder, such as hypertension or a thyroid disorder. A physiological disorder is impairment. See 29 C.F.R. § 1630.2(h). Employees who are regarded as disabled due to obesity are also protected under the ADA.

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Lawyers representing the class of retirees from CIGNA will argue that their clients are entitled to "hundreds of millions" of dollars in retirement benefits as a result of misrepresentations made by CIGNA, according to a report in yesterday's Hartford Courant. 

The Courant -- which finally reported on the decision 5 days after it came out and well after we posted on it  -- barely mentions the argument of whether the new cash balance plan is age discriminatory (which the court found it wasn't). Instead, it focuses on the fact that CIGNA failed to mention that the benefits could be subject to "wear-away". 

Eager to claim victory, the class representative attorneys now say that the disclosure argument is vitally important to the case:

Friday's ruling will serve as "an excellent blueprint for other courts to scrutinize these disclosures" that companies make concerning conversion to cash balance plans, said Tom Moukawsher in Hartford, co-counsel representing the CIGNA employees. "This court decision is a precedent for looking at the underbelly of the disclosures for basic honesty."

Certainly the court was disturbed by communications by CIGNA. For example, in a Newsletter discussing the changes, the Court found that: "nothing in the Newsletter indicated to plan participants that their rate of benefit accrual might decrease, much less by a significant margin. And yet that is exactly what happened." (Decision at 80.) Indeed, as the Court said later:

Taking all of this information into consideration, the Court concludes that CIGNA was aware of the significant reduction in the rate of future benefit accrual that would affect at least a substantial proportion of its employees as a result of the transition to Part B, that CIGNA wished to avoid the employee backlash likely to result from a thorough discussion of these aspects of Part B, and that CIGNA sought to negate the risk of backlash by producing affirmatively and materially misleading notices regarding Part B. As a result, its § 204(h) notice failed to meet ERISA's stringent standards.

As I indicated previously, both parties have until March 17th to brief the issue of what the appropriate remedy would be in this situation. 

Although the lawyers for the class have reason to be pleased with the decision, certainly CIGNA and other companies nationwide must be relieved that the underlying conversion from a defined benefit plan to a cash balance plan itself has been upheld.  If the court had found that the conversion was discriminatory, it could have had an impact nationwide; the decision here may have a more modest impact given the evidentiary findings of the court that are particular to this case.

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On this Valentine's Day, it seems appropriate to provide a quick update on the lawsuit brought by former DJ Wendell "JD" Houston against Hot 93.7 and its related entities.  Will Houston be left in the cold by Hot and a jury of his peers?

If you don't remember the story, you can read this post for a quick reminder. 

After about a day and half of deliberation, the jury returned a full defense verdict earlier this month for Hot 93.7 and its related entities.  I will resist the urge to issue the quote: "Houston, we have a problem." 

But if you read an article about the trial beforehand, you would think the evidence was clear-cut in favor of Houston.  Just recall this: "Wendell "JD" Houston, the show's black host, says a figure depicting the lynching of a black man was left dangling from his microphone and racist posters were hung at the station."

But often times, such evidence is diluted or even excluded at trial. Thus, what makes for good headlines, may not make for a good piece of evidence.

And sadly, through a search of news articles online through Google News, I haven't found a followup on the trial, even though there was a lengthy piece before.  (I'd be happy to update this post with links if anyone is aware of them)  This leaves readers with the impression that Houston may have been successful on his claims -- or at least taints an employer who has been accused of discrimination.

Its a classic case of the mainstream press hyping allegations, and failing to follow-through on the results. 

UPDATE: If the lawsuit's results are printed in the Courant's daily celebrity gossip column, Java (which, in the interests of full disclosure, I did appear about 7 years ago here and here ), does that actually count as reporting news? 

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With the General Assembly back in session this month, one group is hoping to place additional protection against transsexual and transgender discrimination on the top of the "to do" list for employment law revisions.

According to a Hartford Business Journal article, the Connecticut TransAdvocacy Coalition group is now lobbying for a bill about that issue.

Now, you might be asking, doesn't Connecticut already have laws about this? Although laws have certainly been amended in recent years to cover categories such as sexual orientation or civil union status, the laws have not been revised to include the phrase "gender identity or expression" -- a broader category and certainly different than what is already written into the statutes. 

According to the HBJ:

The bill first made its way to the state capitol in 2006 and received a public hearing before being successfully passed through the judiciary committee. In 2007, the bill had more success as it passed the state senate but failed to receive a formal vote from state representatives before the 2007 session closed.
...
That push will continue later this month as Feb. 20 has been set aside for Trans Educational Forum and Lobby Day at the state capitol. Between 11 a.m. and 1:30 p.m., the coalition will have a forum at the legislative office building and some of its members will meet with legislators, in addition to rallying.

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After over a week of testimony, the jury began deliberations in the discrimination trial of Wendell "JD" Houston versus his former employer, Hot 93.7 (WZMX).  According to the court docket, the jury began deliberations on Thursday, January 31st and was set to continue with deliberations on Friday, February 1st. No word yet on a verdict, but one can be expected soon.

Those who are familiar with litigation should also understand one particular thing: Decisions by juries are, in many cases, just a stop in the road of litigation. Both sides will, no doubt, consider grounds for an appeal.

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Workplace Prof has the lowdown on a new bill that's been introduced in both the Senate and House called the Civil Rights Act of 2008.  Senator Chris Dodd (D-Conn.) is a sponsor of the Senate bill.  As the Workplace Prof said, it looks like an "employee discrimination wish-list".  As drafted, it would: 

• eliminate the 1991 Civil Rights Act damage caps under Title VII and the Americans with Disabilities Act (ADA),
• amend the Equal Pay Act (EPA) to allow the "bona fide factor other than sex" defense only if an employer shows that the factor was job-related was actually used and further legitimate business purposes,
• add compensatory and punitive damages to the Fair Labor Standards Act's (FLSA) remedial framework (which includes the EPA),
• amend the Federal Arbitration Act (FAA) to prohibit clauses requiring arbitration of federal constitution or statutory claims, unless parties knowingly and voluntarily consented after the dispute arises, or as part of a collective bargaining agreement,
• allow winning plaintiffs to recover expert fees and expand the definition of prevailing party,
• give the NLRB authority to award backpay to undocumented workers.

The Profs believe that the bill likely won't go anywhere unless there is a "President Clinton or Obama" but it will certainly provide fodder for the campaign trail.  Given that the Ledbetter Fair Pay bill didn't go very far last year, I would tend to agree here.

For those who are curious, Senator Dodd issued a statement regarding his support for the bill here:

“The best way to honor the memory of Dr. Martin Luther King, Jr. is to continue his work to ensure that America lives up to its promise of treating all citizens equally,” said Dodd. “The fight for civil rights will not be won or lost in a single battle, but instead is an ongoing struggle taking place in our workplaces, schools, and communities across the nation. I am honored to join Senator Kennedy and my colleagues in the Senate and Congressman John Lewis in the House of Representatives in introducing a bill that will give Americans the tools and support they need to defend themselves and others when their civil rights have been violated.” 

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In 2003, a local Connecticut radio station, Hot 93.7 (WZMX) fired its prominent DJ - Wendell (JD) Houston.  Five years later, a federal court trial regarding Houston's claims that his termination was due to discrimination have just started.

As with all such matters, the allegations are complicated and contested. Thus, as always, a word of caution to the readers that allegations are not facts.   Both sides are presenting their case now and it will be that evidence that the jury will consider -- not what the parties tell the media.

The Associated Press takes a shot at trying to summarize a five-year old case into several paragraphs in this story, reprinted in the Hartford Courant today.

Ratings soared when WZMX-FM Hot 93.7 switched from "dancing oldies" to an edgier hip hop, but behind the on-air banter racial tensions were rising among the stars at the Farmington radio station.

Wendell "JD" Houston, the show's black host, says a figure depicting the lynching of a black man was left dangling from his microphone and racist posters were hung at the station. He says the station hired him in 2000 under pressure to diversify, but denied him promotional appearances and favored his white co-host when the pair clashed.

"The defendants wanted an Uncle Tom, a black person who would remain behind the radio microphone and be heard but not seen," Houston's attorneys wrote in a federal racial discrimination lawsuit that heads to trial Tuesday in Hartford.

CBS Radio, which owns the station, says Houston has no direct evidence of discrimination and the Connecticut Commission on Human Rights and Opportunities dismissed a complaint he filed in 2002.

Houston was let go in 2003 after he was accused of cursing at his co-host, sexually harassing another colleague and constantly fighting with his supervisors and others at the station, the station says. They say he sent a note to the woman who accused him of sexual harassment titled "vengeance upon adversaries" that quoted the Bible.

Articles like this, although well meaning, do a disservice to the readers because they are unable to provide readers with the full context of the case.  Evidence that may never be presented to the jury is treated as "fact", which -- as highlighted above -- it is not. 

Thus, as a service and as background to the key points likely to be made by both sides in this trial, I'd suggest first reviewing the papers submitted to the court on a motion for summary judgment.  Infinity Radio's Motion for Summary Judgment is here, Houston's brief opposing it is here, and Infinity Radio's reply is here. Two years after the motion for summary judgment was filed in 2004, the Court denied the motion in a summary order here.  However, its fair to say that both sides will be relying on much of the same evidence at trial and letting a jury decide.

Where things get interesting is actually in the parties' joint trial memorandum filed in the fall of 2006.  Both sides have indicated that they may put on witnesses that are quite clearly in the public eye, including other radio personalities ("DJ Buck",  "Kid Fresh" and Jeanine Jersey, for example) and community leaders (like former Hartford School Board Chair, Rev. Wayne Carter).

The court records indicate that they were only able to get barely started yesterday on the trial so, according to the parties' own statements, this trial (presided by Judge Alvin Thompson) should last at least another week or two.  Houston is being represented by Frances Miniter and Infinity Radio has brought in Proskauer Rose out of their Boston office.

I won't pretend that I've listened to the station that much -- I'm a bit more attached to XM Radio these days -- but it is not often that radio and television stations make their own headlines.   "Stay tuned" for further developments.

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

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

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

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

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

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A few days ago, I noted that the new District Court of Connecticut website now posts the federal judge's Chambers Practices online.  For employment law practitioners, two of the judge's chambers practices refer to the judge's views on discrimination cases and the use or overuse of dispositive motions on such claims.

Judge Alvin Thompson and Judge Christopher F. Droney each take a different perspective that is useful to keep in mind when practicing before that judge.

Judge Thompson believes that:

dispositive motions are overused. In discrimination cases, he rarely grants motions for summary judgment that dispose of the entire case. Judge Thompson has been experimenting with pre-argument conferences for dispositive motions. He finds that conferences of this sort encourage discussion regarding the handling of a particular case. He uses the conferences when he sees something in a case that needs to be resolved to move the case forward and promote efficiency. For example, when he receives a motion to amend a complaint he may call in the parties to try to reach an agreement on how to simplify the complaint and then rule orally on the motion. If a motion to dismiss is filed, Judge Thompson may call in the parties for a conference to see if the issues can be resolved by an amended complaint.

 Judge Droney, on the other hand, takes a differing view:

Judge Droney does not require pre-filing conferences. He believes that there has been an increase in the number of dispositive motions because of the nature of the cases filed in federal court. In employment cases, for example, many summary judgment motions and motions to dismiss are being filed. He believes that most of these motions have merit and need to be considered by the court.

(For the record, the chambers practices of other district court judges are silent on this topic.) 

Obviously, each judge considers each case on the merits and practitioners shouldn't read too much into these comments. Lawyers have long known which judges might be more receptive to summary judgment motions than others. 

But for employment law practitioners, this example confirms that even in a small state like Connecticut, judges comes from different perspectives when deciding such cases.  For clients with cases in the courts, finding lawyers who are familiar with the judges' perspectives can help shape the strategy of the case as well.

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Two years ago, when Connecticut passed a civil union law, there was ample amount of press on the changes to the various laws. But on July 10, a change to Connecticut's employment laws took place with virtually no coverage.

Specifically, Public Act 07-245 amended the state's employment laws to preclude discrimination in the workplace based on a person's civil union status. These sections went into effect upon passage. Governor Jodi Rell signed the act on July 10, 2007, making these changes effective immediately.

The change itself should be relatively easy to incorporate. Employers in Connecticut might consider updating their EEO policies to include this new protected class.

What is odd about the new law is not the result, but the legislature's method for doing so. Connecticut has long-separated out prohibitions on sexual orientation discrimination with its own statutory scheme in C.G.S. 46a-81c, separate and apart from its normal laundry list of protected categories present in C.G.S. 46a-60. Thus, "Marital Status" has always been listed in the laundry list but sexual orientation has not. The legislature added "civil union status" as a category under 46a-81c, not 46a-60, thus making it comparable to sexual orientation. 

The legislature also explicitly wrote that marital status is to be defined the same as civil union status for all other Connecticut laws, except when used in the laws regarding employment and housing discrimination.

Is this a distinction without a difference? Perhaps. But it is a convoluted way to write statutes and gives voice to the argument that the government is not treating civil unions the same as marriage. 

And if that were the end of the legislature's maneuvers, that would be enough.

But effective October 1, 2007, a different public act will also impact discrimination claims. In Public Act 07-62, the legislature amended Conn. Gen. Stat. Sec. 46a-58 to make it a discriminatory practice for any person to subject any other person to the deprivation of any rights, privileges or immunities secured by the Constitution or laws of this state on account of sexual orientation.

The bill's analysis suggests that this statute:

gives the Commission on Human Rights and Opportunities (CHRO) jurisdiction to investigate complaints of deprivations of rights, privileges, and immunities secured or protected by any state or federal law or constitution on the basis of sexual orientation. Thus, for example, it gives CHRO jurisdiction to investigate complaints of discrimination on the basis of sexual orientation against students by public schools.

That may be true, but given that sexual orientation (and now civil unions) are decided under a different statutory scheme that other types of discrimination, the legislature has only made the hodgepodge of laws in the area more confusing by amending the statutes in different ways and inconsistently.

It's time to revise Connecticut's discriminatory practice laws to make them easy to understand and in one place. Otherwise, the legislature it just making more work for employment lawyers like myself.

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