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 employment 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 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.

  • Michael LaVelle

    The CHRO’s theory was in fact addressed by the Supreme Court in the Cheshire Board of Education case, citing Truelove and MacLean: “The question in that case [Truelove] was whether the specific claims of employment discrimination covered by 46a-60 were also covered by the general terms of of 46a-58(a)…We held that the separate sets of remedies provided by 46a-86(b) and (c) indicated that the specific, narrowly tailored cause of action embodied in 46a-60 supersedes the general cause of action embodied in 46a-58(a)” 270 Conn. 665 at 723.
    The CHRO theory would mean that the Supreme Court got it wrong; 46a-58(a) doesn’t embody a general Connecticut-law cause of action, it grants jurisdiction to the CHRO to enforce Title VII, ADEA, ADA etc. It also makes 46a-60 and 46a-86 superfluous. And 46a-58(a) is not superseded by 46a-60; rather, the CHRO jurisdiction over Title VII etc supersedes 46a-60. It is little wonder that the trial referees who continue to award emotional distress damages don’t actually try to explain their reasoning.

  • Charles Krich

    The State court case you missed in your discussion is Trimachi. I’m not saying Cheshire Bd. of Ed. is not a significant case–it is–but you can’t really overestimate the influence Trimachi has had on CHRO referee decisions. Trimachi basically holds that a plaintiff may assert a C.G.S. Sec. 46a-58 cause of action based on a claimed violation of the ADA. Implied in Trimachi is that emotional distress damages would be available if a violation were found, because a violation of C.G.S. Sec. 46a-58 allows a CHRO referee to award damages under C.G.S. Sec. 46a-86(c), which includes emotional distress damages. CHRO legal staff have long believed and argued this, but CHRO referees did not really buy into this position until Trimachi was decided. Compare the September 30, 1999 pre-Trimachi decision dismissing C.G.S. Sec. 46a-58 claims with the September 27, 2000 post-Trimachi reversal of that decision in CHRO ex rel. Scarfo v. Hamilton Sundstrand, CHRO No. 9610577.
    C.G.S. Sec. 46a-58 is Connecticut’s version of 42 U.S.C. Sec. 1983. C.G.S. Sec. 46a-58 contains some very broad language. That it has been overlooked by plaintiffs for 100 years is not the fault of the statute. If you doubt the influence of Trimachi, read referee decisions like CHRO ex rel. Robinson v. DMHAS, CHRO No. 0630292 (March 26, 2008)(citing decisions) and CHRO ex rel. Collette v. UCHC, CHRO No. 0610446 (July 22, 2008). I think you can make a strong claim that the movement toward emotional distress damages was begun with Trimachi and has only gained momentum with Cheshire Bd. of Ed. It did not wholly originate with Cheshire Bd. of Ed. This has been an evolutionary process.
    I do not see any deep conflict between Bridgeport Hospital and Trimachi, because I read Bridgeport Hospital to say only that emotional distress damages are not available under C.G.S. Sec. 46a-86(a). It is silent on the question of their availability under C.G.S.Sec. 46a-86(c), which is where they would be awarded under the C.G.S. Sec. 46a-58 claim recognized by Trimachi. Nor do I see any special tension between Truelove and Maclean and Trimachi, because Truelove only addresses the question of a C.G.S. Sec. 46a-60 claim brought through C.G.S. Sec. 46a-58. It says nothing about bringing a federal employment discrimination claim through C.G.S. Sec. 46a-58.
    The vast majority of CHRO claims involve a parallel federal violation – Title VII, ADEA, ADA. The CHRO is a 706 deferral agency. Translated from the bureaucratese, that means the CHRO is charged with investigating and concilating these federal claims in addition to whatever State law claims may be found in the complaint. All three federal statutes permit awards of attorney’s fees and emotional distress damages, so there is going to be exposure for these types of damages for any federal claim and the CHRO may make some effort to collect them, or at least put them on the table for discussion.
    For successful claims, attorney’s fees for time at the CHRO will be compensable in a Title VII, ADEA or ADA action. That is basically the holding of the U.S. Supreme Court in New York Gaslight. Alternatively, because federal rights are being vindicated in CHRO proceedings, a successful complainant in a case at public hearing before the CHRO can then bring an action under title VII to collect damages that would not be awarded due to Bridgeport Hospital. That is the holding of the Second Circuit in Ames Dept. Stores, if I am remembering correctly. So I guess my final point is that liability for emotional distress damages has not vanished just beacuse of Bridgport Hospital or Truelove and Maclean. It exists on the federal level in any event as well as in any civil action brought under state law pursuant to a release of jurisdiction. The only possible question is whether it exists at the CHRO for a violation of federal law asserted through C.G.S. Sec. 46a-58, and even if our Supreme Court eventually says it doesn’t, an Ames-type of action could be brought to collect attorney’s fees and maybe emotional distress damages in a subsequent federal action. Because of the interrelationship and overlap of state and federal law, I don’t think it is realistic to believe that Bridgport Hospital or Truelove and Maclean spoke the final word on the subject.