On “Survivor”, one of my favorite broadcast TV shows (or, as my YouTube/Netflix watching teens might say — “what’s that?”) the notion of “immunity” plays a central role in the outcome of an episode.
And in a decision released last week by the Connecticut Supreme Court, whether or not to grant immunity again plays a pivotal role for religious employers. In its unanimous decision, the court refused to grant outright immunity to a religious institution from an employment discrimination claim. The case, Trinity Christian School v. CHRO, can be downloaded here.
For religious institutions, the case serves as reminder that while the employment discrimination laws may be more limited in their impact (more on that in a second), seeking “immunity” from such claims is a step too far for the courts.
In doing so, it’s helpful to note that the U.S. Supreme Court decided earlier this decade that the “ministerial exception” under federal anti-discrimination law only served as an “affirmative defense” against such claims. That has important implications on the procedural posturing of a case and prevents appeals early on in the case on “jurisdictional grounds”.
Here, the court said that an additional state statute on the subject did not purport to confer on religious institutions immunity from employment discrimination actions. That statute, § 52-571b (d), was intended to operate as a rule of construction for § 52-571b as a whole rather than a grant of immunity. The effect of § 52-571b (d) was to retain the determination of the United States Supreme Court that the ministerial exception to employment discrimination laws, which requires secular institutions to defer to the decisions of religious institutions concerning their employment of religious employees, serves as an affirmative defense to an otherwise cognizable employment discrimination claim.
In doing so, the court notes that its prior decision, Dayner v. Archdiocese of Hartford, has now been explicitly overturned by the U.S. Supreme Court’s pronouncement on the subject. “hat decision, of course, was short-lived in light of the United States Supreme Court’s holding in Hosanna-Tabor that the
exception operates as an affirmative defense to an otherwise cognizable employment discrimination claim rather than a jurisdictional bar.”