Nearly six months ago, a landmark ruling by the Connecticut Supreme Court held that Connecticut’s anti-discrimination laws required employers to provide a reasonable accommodation to disabled workers, much like the federal counterpart, the ADA.

As I noted in an earlier post about the case, Curry v. Allen S. Goodman, Inc., the Court suggested that the employer had a duty to accommodate an employee even after firing.  In the Curry case, a fired warehouse worker’s attorney raised issues about the employee’s disability; the Connecticut Supreme Court suggested that the post-termination letter formed the basis of an employee’s request for a reasonable accommodation.  In doing so, the Court relied on the ADA to provide some further guidance on what the state anti-discrimination law meant.

Now, six months later, the EEOC has released new guidance on the ADA  and performance-related issues that suggests that the Connecticut Supreme Court’s interpretation of the ADA may be inconsistent with the EEOC’s own interpretation. 

How so?  Well, take a look at question 10 of the EEOC’s guidance.  Question 10 poses the hypothetical question: 

What should an employer do if an employee mentions a disability and/or the need for an accommodation for the first time in response to counseling or discipline for unacceptable conduct?

In response, the EEOC says:

If an employee states that her disability is the cause of the conduct problem or requests accommodation, the employer may still discipline the employee for the misconduct. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for reasonable accommodation.

The EEOC guidance adds that "the timing of a request for reasonable accommodation is important because an employer does not have to rescind discipline (including termination) warranted by misconduct."  The EEOC also cites to several federal appellate cases in further support of its interpretation.

This guidance seems to contradict the Curry decision because in Curry the duty to accommodate arose after the employee was terminated.

Where does this leave employers in Connecticut? Perhaps with a split in authorities — at least until this issue is litigated more fully in Connecticut courts.

Until the courts analyze this issue further, employers need to be aware that Connecticut’s anti-discrimination rules may be more stringent than what is required at the federal level.

Ultimately, the legislature should consider some straightforward fixes to these issues. With the ADA about to be amended significantly, having two sets of rules for employers to follow (and for employees to figure out as well) doesn’t serve the public good. It only serves to create confusion and more litigation.  Making state anti-discrimination laws more consistent with federal law will help provide for stability and predictability.