One of the quirks of discrimination law in Connecticut concerns sexual orientation. Back in 1991, the General Assembly passed a wide-ranging bill that added sexual orientation as one of the protected classes that employers could not base decisions on.
Rather than add sexual orientation to the key employment law statute that bars discrimination in employment, it created it’s own separate law. While there may have been reasons for such a distinction nearly 30 years ago, it still a bit strange that we still do it this way. Notably, civil unions are still covered here even though same-sex marriages are now legal.
So on to the next law in our Employment Law Checklist Project (#emplawchecklist). You can find this one at Conn. Gen. Stat. Sec. 46a-81c (and related statutes.) It states, in its relevant part:
It shall be a discriminatory practice in violation of this section: (1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s sexual orientation or civil union status, or (4) for any person, employer, employment agency or labor organization, except in the case of a bona fide occupational qualification or need, to advertise employment opportunities in such a manner as to restrict such employment so as to discriminate against individuals because of their sexual orientation or civil union status.
Scope: You’ll actually find that in Conn. Gen. Stat. Sec. 46a-51, which defines an employer as “(the state and all political subdivisions thereof and means any person or employer with three or more persons in such person’s or employer’s employ”. For private employers, this three or more employee rule is fairly common in discrimination law.
Are any employers excluded? Yes! You just have to find it in still another section. Conn. Gen. Stat. 46a-81p says the rules do not apply to “religious corporation, entity, association, educational institution or society with respect to the employment of individuals to perform work connected with the carrying on by such corporation, entity, association, educational institution or society of its activities, or with respect to matters of discipline, faith, internal organization or ecclesiastical rule, custom or law which are established by such corporation, entity, association, educational institution or society.” Oh, and ROTC programs are also excluded.
What is “sexual orientation”? As defined by statute, it means: ““sexual orientation” means having a “preference for heterosexuality, homosexuality or bisexuality, having a history of such preference or being identified with such preference, but excludes any behavior which constitutes a violation of part VI of chapter 952.”
Uh, so what’s a violation of part VI of chapter 952? That would be the state’s penal code. You know, things like murder, rape, telephone fraud, unlawfully using slugs, etc.
What’s Prohibited or Required? The usual for discrimination cases — don’t do it.
Private Right of Action or Other Penalty Allowed? Yes, and with the revisions to state law, expanded time to file etc.
What May Be Recovered? It has typically depended on where the complaint is litigated — at the CHRO or in court. Recently, as I recapped, there have been changes to let Human Rights Referees have more ability to fashion a broader remedy. Moreover, punitive damages may now be allowed. In short, discrimination cases have gotten more expensive.
Any Practical Steps Employers Can Take? Make sure your policy is updated to include sexual orientation among the protected classes. And if you think you may be a “religious corporation”, be sure to consult with an attorney about the application.
Any Other Interesting Information or Background? Last week, the Department of Labor’s Office of Federal Contract Compliance Programs, proposed regulations on the scope of the religious exemption contained in section 204(c) of Executive Order 11246 for federal contractors. The proposal seeks to expand section 204(c) to allow religious organizations with federal contracts to “make employment decisions consistent with their sincerely held religious tenets and beliefs without fear of sanction by the federal government.” But this definition of a religious organization may not be the same as Connecticut has defined it; employers should tread carefully in this area.