Nearly 15 years ago, the Connecticut Supreme Court came out with a pair of decisions that seemed to put to rest the question of whether the CHRO was authorized to award emotional distress damages to employees who filed suit and prevailed in state law employment discrimination cases.
But, as discussed below, the CHRO has lately been suggesting otherwise. This has important implications to employers in defending against such claims. In order to understand where we are, we need to look back at some of the key cases and issues related to them, so bear with me for a bit.
The Background Cases
- The first case, Bridgeport Hospital v. CHRO, 232 Conn. 91 (1995), held that the CHRO had no authority to award emotional distress damages in state law emplo
yment discrimination claims involving race, gender, physical disability, age and the like. It’s holding was unequivocal: "The issue before the court is whether General Statutes § 46a-86 authorizes the award of damages for emotional distress and attorney’s fees for a violation of General Statutes § 46a-60(a)(1). We conclude that it does not." (Open disclosure: My current firm successfully represented the hospital in that matter.) - In the companion case, Fenn Mfg. Co. v. CHRO, 232 Conn. 117 (1995), the Court held that no emotional distress damages were available to claims of pregnancy discrimination in the employment context. It’s holding was also unequivocal: "The issue before the court is whether…[the CHRO], is authorized pursuant to General Statutes § 46a-86(a) to award damages for emotional distress based upon a violation of General Statutes § 46a-60(a)(7). We hold that CHRO is not so authorized."
- In a followup case the next year, the CHRO argued that another statute, Conn. Gen. Stat. §46a-58 authorized the CHRO to award emotional distress damages in employment discrimination cases. The Connecticut Supreme Court, in CHRO v. Truelove & MacLean, Inc. 238 Conn. 337 rejected that claim as well: "The commission’s argument is that § 46a-58 (a) encompasses claims of discriminatory employment practices and that violations of § 46a-58 (a) entitle a claimant to damages for emotional distress pursuant to § 46a-86 (c). We disagree."
The Supreme Court Reintroduces Such Claims, At Least According to the CHRO
Case closed right? Not according to the CHRO, which has started using another case as the basis for re-introducing emotional distress awards BACK into employment discrimination claims. Specifically, in arguments to CHRO hearing officers and in mediations, CHRO staff refer to CHRO v. Board of Education of Cheshire, 270 Conn. 665 (2004), in which a student claimed discrimination against a public school principal and board of education. The CHRO’s premise is that while Conn. Gen. Stat. 46a-58 can’t be used to bring garden-variety employment discrimination claims, it can be used to piggyback other claims through it.
Because the Court in Cheshire doesn’t overturn its prior cases and is dealing with a student’s discrimination claim, it’s admittedly a bit difficult to parse the logic, but there’s plenty of discussion in Cheshire about how some types of other discrimination claims can allow the complainant to recover emotional distress damages.
CHRO Hearing Officers Now Cite to Cheshire
After the Cheshire case came out, CHRO human rights referees started re-introducing the concept of emotional distress damages in employment discrimination cases claiming that they were merely "converting" federal discrimination claims into state law ones. The case of CHRO No. 0420438, Rosa DiMicco v. Neil Roberts, Inc. is a prime example. ("I find that.jpeg)
as a result of recent judicial developments…that the complainant’s inclusion of General Statutes § 46a-58 (a) in her complaint affidavit allows me to convert her federal claims into claims under Connecticut’s anti-discrimination laws, and to award damages for emotional distress pursuant to General Statutes § 46a-86 (c).") That trend has continued with the recent Doe v. Claywell Electric Co. matter that I discussed in a prior post.
What do the Connecticut courts have to say about this trend since the Cheshire case? Nothing. I could not locate a single reported appellate case or unreported lower court case recently addressing this issue and citing to Cheshire. The summary of all emotional distress cases available on the CHRO website (page 10 for those reading from home) indicates that just two or three cases were appealled but subsequently withdrawn. (I’m sure the CHRO employees who read this blog will be kind enough to provide a cite if I’ve overlooked it in my evening search.)
Why Is This Important For Employers?
If you’re still with me, you might be wondering why is this important for employers? Because in valuing the case for trial and for settlement purposes, the CHRO and the employee will suggest that any discrimination claim being investigated at the CHRO may have emotional distress damages attached to it. So, settlement demands may be increased and awards of damages higher at hearings. As a result, cases that might otherwise settle, might be out of reach with such demands.
It would be nice — and perhaps overly optimistic — to believe the Connecticut Supreme Court will clarify the issue of emotional distress damage claims in employment discrimination matters once and for all. But first, this issue has to get heard by the lower courts.
Until that happens, employers should be prepared to address emotional distress damage claims in dealing with all employment discrimination claims at the CHRO, and be prepared to challenge the CHRO’s interpretation.