U.S. Supreme Court

Back in 1994 (in a case Levy v. Commission on Human Rights & Opportunities, for the lawyers out there) the Appellate Court in Connecticut made a seemingly innocuous pronouncement: “We look to federal employment discrimination law for guidance in enforcing our own antidiscrimination statute.”

Why? Because back then, there did not seem a reason to treat the state statute on anti-discrimination and the federal statute differently.  And indeed, nearly 15 years later, the Connecticut Supreme Court, in Curry v. Allan S. Goodman (which I covered WAY back in 2008 here), held that Connecticut’s anti-discrminiation statute had the same duty to accommodate employees with disabilities, as the federal counterpart.

In doing so, the Connecticut Supreme Court said that an important part of how Connecticut’s statutes should be interpreted is to rely on the interpretation given by state agency (CHRO) responsible for oversight of the law.

Flash forward now to the U.S. Supreme Court’s decision this week in Nassar.  In Nassar, the court said that a “but for” standard has to be proven by employees in Title VII retaliation cases because the statute uses the phrase “because of” (in other words, the employee must show he/she was discriminated “because of” a protected class).  It is the same logic used to apply a “but for” standard in ADEA (age discrimination) cases a few years ago.

An open question now is: Will Connecticut still follow its federal counterpart now or continue to use the lesser standard that had been used in courts within this federal circuit?

The state statute uses the same “because of” language in nearly all of its provisions prohibiting discrimination and retaliation.  Given the U.S. Supreme Court’s pronouncements, does that mean that the “but for” standard should apply in all state law discrimination and retaliation claims? We won’t know this for some time, but I certainly wouldn’t hesitate to argue that to a state court now.

But remember what I said earlier as well; the Connecticut Supreme Court has deferred to the CHRO’s interpretation at times as well.  The CHRO has argued (and agency tribunal officers agreed) that the lesser standard applies.

Indeed, in a decision earlier this month, a CHRO Human Rights Referee said the standard to establish a state law retaliation claim is the lower standard of asking whether retaliation “played a motivating role in, or contributed to, an employer’s decision.”  (In that case, the employer still won under the lesser standard.)

Certainly, it seems that is at least up in the air after the U.S. Supreme Court’s decision whether this should remain the case. Employers who are dealing with CHRO charges and state law discrimination and retaliation claims would be wise to consider challenges to the standard being used to decide their cases.  Our law firm will certainly be on the lookout for such cases as well.

We may not see any changes in the short term, but for employers in Connecticut, state discrimination claims seem open for potential challenges.