It’s a busy week in employment law. Yesterday, the U.S. Supreme Court case decided Young v. UPS — a case about pregnancy discrimination. I’ll have more on that case in an upcoming post (in the meantime, check out Jon Hyman’s post on the subject). But in today’s post, my colleague Chris Engler talks about a new Connecticut Supreme Court case that discusses both harassment and discrimination claims in Connecticut. These issues are not frequently before the court and, as Chris explains, the case has some useful materials for employers in defending such claims.

englerAs the Madness of March season (“March Madness” is a trademarked name) continues, how many times will we hear a commentator repeat the old refrain that “the best defense is a good offense”?

In a new Connecticut Supreme Court case, a former employee tried flipping this adage on its head. Her motto seemed to be that “the best offense is a lousy employer defense.” Fortunately for Connecticut employers, the Supreme Court didn’t think much of this novel approach.

The case is Feliciano v. Autozone, Inc., and it will be officially released on March 31. Ms. Feliciano worked in the sales department of an Autozone store until she was fired by a regional manager for violating the company’s loss prevention policy. Her termination came after a computer program indicated that Ms. Feliciano was improperly using a customer’s rewards card for her own use and an internal investigation substantiated it.

Ms. Feliciano apparently disagreed, because she filed suit in state court. Her complaint listed five grounds: a failure to accommodate her claimed disability (which the court didn’t discuss); sexual harassment (which will be the subject of another post); and unlawful termination on the basis of her national origin (U.S. Virgin Islands), religion (Rastafarianism), and race (black). The lower courts granted summary judgment to Autozone.

At the Supreme Court, Ms. Feliciano relied on evidence that the store manager had repeatedly insulted her nationality and religion. He allegedly referred to her as “f’ing Jamaican” and stated that Jamaicans live in huts and eat cats and dogs, among other things. He also allegedly mocked Ms. Feliciano by wearing a dreadlocks wig and stated that all Rastafarians are thieves. The Court described his alleged behavior as “despicable.”

In its defense, Autozone pointed to the investigation of wrongdoing and also emphasized that the store manager had nothing to do with her termination, which was effected by a regional manager. Ms. Feliciano did not rebut this defense. Instead, she simply insisted that a jury could “disbelieve” Autozone’s claim that the store manager wasn’t involved.

If the Court had adopted this reasoning, it would have significantly altered the balance of responsibilities in discrimination claims. Instead of affirmatively proving that discrimination occurred, all a plaintiff would have to do would be to suggest that someone might not trust the employer’s denial of discrimination.

However, the Court wasn’t satisfied. In a fairly concise analysis, it reaffirmed the concept that a plaintiff bears the burden of proving intentional discrimination before the employer’s arguments even come into play. In other words, Ms. Feliciano couldn’t bypass her burden and jump straight to challenging Autozone’s defense.

Of course, that does not mean the Court sanctioned behavior such as that alleged of Ms. Feliciano’s store manager. As noted above, the Court called the conduct “despicable,” and it hinted that it would have held the conduct to constitute a hostile environment on the bases of religion and national origin. However, because Ms. Feliciano did not assert these claims, the Court did not consider them.

Although the outcome in this case should reassure employers, it shouldn’t change any employer’s best practices. Supervisors should still be coached on what is appropriate and inappropriate conduct. Complaints of discrimination should still be promptly and fairly investigated, and substantiated complaints should be acted on decisively.  And the employer should document all of its actions contemporaneously.

After all, in employment litigation, the best defense is, well, a good defense.