The short session of the Connecticut General Assembly is set to begin on February 5, 2014.

But the jockeying for items to get on the agenda is well under way. The Connecticut Commission on Human Rights and Opportunities is circulating a proposed bill that would followup on a failed bill from last year’s term.

I previously discussed this proposal in a post last May.

At the time, the proposed bill was thought to be close to passage, but time ran out in the session before it could be picked up.  Earlier versions the bill proved quite troublesome; this latest version still has issues that haven’t been addressed and it’s important for employers to speak up now before the changes are put into place.

So what are some of the changes this bill would bring?

Changes to “Mental Disability”

The bill expands the definition of a “mental disability” to not only “mental disorders, as defined in the most recent edition of the American Psychiatric Association’s ‘Diagnostic and Statistical Manual of Mental Disorders’”, but also to including having “a record of or regarding a person as having one or more such disorders”.

Put aside, for the moment whether including everything in the new DSM5 is worthwhile. The more troubling issue is that the proposed law would continue to cover “regarded as” claims for mental disabilities. The references to a “past history” of mental disability in existing law being removed by this bill are less significant because a “record” of disability would now be covered.

Why is that problematic? Becaues that the definition is inconsistent with how a “physical” disability is treated; where is the reference to being “regarded” as having a physical disability?

Rather than continue to treat mental and physical disabilities as distinct from each other, the legislature should take its cues from the ADA and match its definitions accordingly.  Otherwise, we’ll continue to have three different standards to analyze disability claims — one for ADA claims, and two for state disability-related claims.

Moreover, the legislature should use these revisions to remove the reference to DSM5.  No other state uses that book for a definition of mental disability in the employment discrimination context; it is used sparingly for things like insurance coverage. It’s use in the employment discrimination context has been troubling for years. Now is the time for the legislature to simply remove it and do what the federal government has done.

Expansion of “Sexual Harassment”

The bill would make two notable changes to the harassment laws. First, it would expand the scope of liability for employers because employers would be liable not simply for harssment but by “permit[ing]” such harassment too.

What that will mean for claims in Connecticut is unclear in this context.  Given the U.S. Supreme Court’s recent decisions about the limits of liability for employers where a non-supervisor is the alleged harasser, it seems like this revision is designed to expand such coverage back and expand the notion of a hostile work environment.  The legislature ought to consider whether this revision is really necessary in light of the broad coverage that already exists under today’s anti-harassment laws.

Second, it would expand “sexual harassment” to explicitly cover sexual orientation or gender identity or expression.  This change would explicitly add what the Connecticut Supreme Court already ruled a few years ago — namely that harassment based on sexual orientation is included in the notion of “sexual harassment”.

Substantive Change to Damages?

A version of the bill last year would have allowed hearing officers to “make the Complainant whole”, which I argued was a backdoor attempt to introduce emotional distress damages to public hearings.

The amendment eliminates that language but still allows hearing officers to “take such affirmative action as is necessary to achieve the purpose of this chapter.”

The current version of the law merely allows the presiding officer to take such affirmative action that “in the judgment of the presiding officer will effectuate” the purpose of the chapter.

So, the question remains: What is the purpose of this language? Is it still a backdoor attempt to expand damages? Why is the change needed at all? Is it substantive?

We shall see.

What Employers Need To Know

There are many other revisions to the bill — most are technical in nature but some are substantive. Employers should review it closely and contact their representative with any concerns that they might have.

This may be the short session, but don’t let that fool you. There are significant issues that will still be considered this year.