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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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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The Second Circuit has continued its emphasis on employment law cases this week with a new case today, Salamon v. Our Lady of Victory Hospital, discussing whether a physician with staff privileges at a hospital, is an employee of the hosptial (which would allow the employee to sue under federal discrimination laws.)

The Court today said "Maybe" and has sent the case back to District Court for final resolution of the issue.

Wait a Second blog has the particulars:

The Court of Appeals ruled that a gastroenterologist with staff privileges at Our Lady of Victory Hospital might be an employee for purposes of suing the Hospital under the employment discrimination laws even though she set her own hours and the Hospital did not pay her salary. The trial court has to resolve whether the Hospital exercised sufficient control over her employment to trigger the protections of Title VII of the Civil Rights Act.

The case is Salamon v. Our Lady of Victory Hospital, decided on January 29, 2008. The Court originally resolved this appeal last fall but withdrew the opinion. Today we receive the final opinion.

The Court looked at a variety of factors  . Most important to the Court was the fact that the physician  was subjected to the Hospital's quality assurance department, which included a peer review process.  The Second Circuit said that this factor could tip in the employee's favor and that it was best left to the District Court to decide that issue:

In short, whether the methods that the hospital required of Salamon merely reflect professional standards or demonstrate a greater degree of control sufficient to establish an employee-employer relationship is a factual issue that is not resolved by the current record.

For hospitals in Connecticut, this decision should be reviewed carefully and the multi-factor test that the court applied should be examined closely as well.  The first factor on this list is particularly important. So what are those factors?

[1] the hiring party’s right to control the manner and means by which the product is accomplished[;] . . . . [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party’s discretion over when and how long to work; [8] the method of payment; [9] the hired party’s role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; [13] and the tax treatment of the hired party.

One thing is clear -- hospitals should not rely on outdated systems for classifying who is an employee or not. A re-evaluation of doctors relationships with the hospital would ensure that these types of issues don't occur in the future. 

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