Recently, I had the opportunity to see Rags, a new revival now running at the classic Goodspeed Opera House.

I don’t often do theater reviews on this site, but I give it a thumbs up.

The musical tells the story of Jewish immigrants coming to the Lower East Side just after the turn of the century.

They experience outright discrimination and difficult working conditions.

So much so, that they end up even participating in a labor strike asking for better working conditions.

Of course, as an employment lawyer, I’m always looking for a good story to relate.

The musical obviously has undertones of today’s political environment, where refugees are facing barriers to entry from certain countries.

Workplace laws actually limit what employers should be asking in the interview process about immigration status.  And even when a Form I-9 is being process, an employer cannot reject valid documents or insist on additional documentation too.

And it can’t target certain people either.

The EEOC recaps it here:

For example, an employer cannot require only those who the employer perceives as “foreign” to produce specific documents, such as Permanent Resident (“green”) cards or Employment Authorization Documents. Employees are allowed to choose which documents to show for employment eligibility verification from the Form I-9 Lists of Acceptable Documents. Employers should accept any unexpired document from the Lists of Acceptable Documents so long as the document appears reasonably genuine on its face and relates to the employee.

Federal law also prohibits employers from conducting the Form I-9 and E-Verify processes before the employee has accepted an offer of employment.

According to the EEOC, “applicants may be informed of these requirements in the pre-employment setting by adding the following statement on the employment application”:

In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification form upon hire.”

I’ve always been a fan of learning from history. With a musical like Rags, you can get many employment law lessons in one.

Probably not the endorsement you will see from other theater critics, but you work with what you have.

With a new wave of sex harassment complaints making headlines, there is also a bit of reflection that should happen at workplaces and the lawfirms that counsel them.

One area that we can evaluate is whether the training that is provided is effective.

A report yesterday from NPR concluded that training is just not working at many workplaces. 

The primary reason most harassment training fails is that both managers and workers regard it as a pro forma exercise aimed at limiting the employer’s legal liability.

For those of us who have been paying attention, this isn’t new.  I know that for the trainings I give, I try to have them be engaging with discussions of different fact scenarios being discussed.

But I’ve wondered whether we could be doing more.

Indeed, the EEOC issued a report last year highlighting the problems with existing training programs.

In its executive summary, it noted two big issues with the current model of training:

  • Training Must Change. Much of the training done over the last 30 years has not worked as a prevention tool – it’s been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum – it must be part of a holistic culture of non-harassment that starts at the top. Similarly, one size does not fit all: Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees. Finally, when trained correctly, middle-managers and first-line supervisors in particular can be an employer’s most valuable resource in preventing and stopping harassment.
  • New and Different Approaches to Training Should Be Explored. We heard of several new models of training that may show promise for harassment training. “Bystander intervention training” – increasingly used to combat sexual violence on school campuses – empowers co-workers and gives them the tools to intervene when they witness harassing behavior, and may show promise for harassment prevention. Workplace “civility training” that does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment non-discrimination laws, but rather on promoting respect and civility in the workplace generally, likewise may offer solutions.”

Connecticut requires harassment training; I’ve talked about the requirements in some prior posts (check this one out from 2010, for example.)  But employers who have just gone through the motions, aren’t doing enough as we’ve now seen.

As we continue to work to eliminate sexual harassment in the workplace, having an effective policy is only part of the solution.

Making sure the training we provide to employees is helpful is obviously a part as well — and something that may have been overlooked in the past.

But finding that perfect solution to training still seems elusive.

So a few weeks back, I suggested that we were entering into a new era of sexual harassment cases and wondered out loud when the statistics would back up my observations.

We now have our first signs.  Maybe.

In my exclusive continued look at the case statistics from the Connecticut Commission on Human Rights and Opportunities, we can see the first signs of an increase.

But as I’ll explain below, it’s difficult to know if this is a statistical anomaly.

Despite significant drops in most types of discrimination complaints, the number of sexual harassment complaints in Connecticut went up last fiscal year to 145, up from 135 the year before.

As a percentage of overall claims, sex harassment employment claims are just 3 percent of the overall claims filed, up from 2.5 percent the prior year.

But here’s the issue: When you look back at prior fiscal years in 2014 and 2015, the number of sex harassment claims is still below those years.

In other words, is it a trend up? Or overall down? Indeed, the numbers from FY 2012 are comparable to FY 2017’s numbers. Except that as a percentage, there were more sex harassment claims made 5 years ago, then now (3.6% to 3.0).

What else do we see? Well, as expected with an overall drop in cases is an drop in claims of wrongful discharge, refusal to provide reasonable accommodations, terms and conditions, and even demotions.

Remaining constant were claims for failure to promote, termination of employment due to pregnancy, and aiding & abetting discrimination.

When you review the basis for claims filed, we see drops in claims for age (FY 2017 451 vs FY 2016 518), race (551 vs 616), sex (507 vs 532) and physical disability (445 vs 520).

Some other bases hold steady or even slightly increase: ancestry claims (200 vs 188) and mental disability claims (103 vs. 110).

For employers, watch the trends. Will sex harassment claims continue to increase? And will overall claims decline?

There’s more that we can glean from these numbers too. I’ll have more in an upcoming post.

 

 

Through a recent FOI request, I was able to take a peek at the latest case statistics coming out of the Commission on Human Rights and Opportunities. (The CHRO has since added them to the website as well.)

I’ve done these recaps in years before (here’s 2016 for example) and I think you can learn a lot not just on the latest statistics but when you compare them to prior years.

So, what do the numbers from July 1, 2016 to June 30, 2017 show?

Well, for the first time in several years, we’ve seen a noticeable decrease in the numbers of complaints filed.

In FY 16-17, 2376 total complaints were filed, down from 2616 the prior year – a 9 percent decrease.  Of course, it’s still up from FY 11-12 when just 1838 total complaints were filed.

And what about employment discrimination complaints in particular?

The report also shows a drop in the number of complaints being filed, 1936, as compared to 2160 in the prior fiscal year.  That represents over a 10 percent drop. Again, however, it’s still up from FY 2012 when just 1559 employment claims were filed.

After years of marked increases, it’s nice to confirm what we have been seeing internally — that discrimination claims seems to be on the decline.

It’s difficult to know exactly why; we had seen increases the last few years at a national EEOC level too, but these new statistics from the CHRO show that the trendline up has finally broken.

Certainly the improved economy seems one factor but it’ll be interesting to see if this trend continues.

I’ll have a deeper dive into the statistics in an upcoming post.

So, a couple of months back, I talked about how separation agreements for small employers might not be covered by the federal law that covers such agreements.

After all, since the Age Discrimination in Employment Act only applied to employers that have 20 or more employees, the requirements for a “knowing and voluntary waiver” of claims under separation agreements only applied to those larger employers.

Because this is a federal law, it applies in Connecticut though states are free to craft additional laws if they wish.

Recently, though, I’ve heard of an employee spouting off about “advice” he received that  Connecticut state law had the same requirements as federal law did.

And since Connecticut’s anti-discrimination laws apply to employers of 3 or more employees, the employee argued that he should be provided with 21 days to consider the agreement.

When I heard this, I scratched my, well, proverbial head about this one.  Did I miss something?

The short answer is no, I didn’t miss something.  Connecticut law doesn’t say this.  You can see for yourself in Conn. Gen. Stat. 46a-60.

But how did the employee get such advice?

The first answer may be the simplest one: The attorney he spoke with doesn’t routinely practice in the area.  Sometimes, well-meaning lawyers just overstep their knowledge basis.

Another obvious answer is that the employee’s so-called advice was from “Attorney” Google.  Google is really good at finding things that might apply to your situation — not as good yet at telling you whether it actually applies to your situation.

And if you Google a topic like this, you might actually find a state court decision that looks — at first blush — like it might be on point.

State courts often use the following language in their decisions:

Although this case is based solely on Connecticut law, we review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes.

What does THAT mean?

Typically for the same types of disparate treatment claims for, say, gender discrimination claims, courts in Connecticut don’t have as much as experience as federal law. So where the law is the SAME, it makes sense to look to federal laws that are similar.

The problem in the age discrimination statute context is that Connecticut law is DIFFERENT than federal law at times. There is no state equivalent. So looking to federal law makes no sense whatsoever.  And sure enough a quick search of Google Scholar reveals NO state law case applying that federal law to a review of separation agreements.

So how ARE separation agreements to be reviewed in Connecticut? In essence, you would most likely look at the agreement under state laws dealing with contracts.  Typically, this is also done through the “common law’ – that is precedent from the courts.  And Connecticut courts haven’t said much about separation agreements.

Employers are sometimes caught in the middle of receiving advice from their counsel (hopefully correct) and what the employee believes is true whether through an attorney or otherwise.  Employers should understand the misinformation that exists out there and, when confronted with these issues, try to explain them to employees.

Otherwise, a seemingly innocuous situation could turn much more stressful when the employee thinks (and worse, is being told) that the employer is violating a non-existent state law.

There’s an old(?) Bonnie Raitt song that my parents used to listen to when I was in college called “Let’s Give Them Something to Talk About”.  It’s about a crush, but the intro could be just as applicable to a new court decision. The lyrics start: “People are talkin’, talkin’ ’bout people, I hear them whisper, you won’t believe it.”

The short lesson? Don’t give your employees something to talk about — namely when a lawsuit is filed, caution is strongly advised in distributing information about that lawsuit.  Interested in more? My colleague, Gary Starr, shares more:

A recent Connecticut district court decision (EEOC v. Day & Zimmerman NPS) is a cautionary tale for in-house lawyers and human resource managers who want to tell employees about an investigation into discrimination claim brought by a former employee, and that investigation may involve those employees.

Following a disability discrimination charge, the EEOC sought contact information about other employees as well as information about their employment.

Rather than simply advise the employees that the EEOC was being provided with their job title, dates of employment, home address, and phone number, the company also described the accommodation that was requested and information that the former employee’s doctor had indicated that without the accommodation, the employee could not perform the essential functions of the job.

The EEOC viewed this as retaliation against the former employee by disclosing the information and interference with the rights of the employees receiving the letter as the agency thought it would discourage others from making claims in the future out of concern that their personal information would be shared widely.

The Company’s efforts to justify the letter were rejected by the court, which decided that a jury will have to decide whether the letter was retaliation and/or interference.

In communicating with potential witnesses in an agency investigation or lawsuit, employers must be clear on why the notice is being sent.  And employers should exercise caution on deciding what information is being shared.  What the decision suggests is that employees do not need to know what the medical condition another employee may have, what accommodation has been requested by that employee, or what recommendation a doctor has made about the employee.

Letting employees know that their contact information has been given to the EEOC and that they may be contacted would likely have have been sufficient and not opened up the employer to criticism.  And the decision does suggest that offering them the choice of having a lawyer present should not interfere with their rights.

In this instance, less information is better than more.

In any case, in the unlikely event you do need to inform employees about a lawsuit, check with your counsel about the details you should (and should not) be sending.

numbersThis week, the Yankee Institute for Public Policy, a self-described “free market” think tank, issued an article suggesting that Connecticut had nearly the same number of discrimination complaints as our neighboring state, Massachusetts.

(This isn’t the first time it’s been critical of the CHRO.)

In doing so, the Yankee Institute claimed that these statistics raise “questions as to whether Connecticut is simply more litigious or if the policies at the Commission on Human Rights and Opportunities are encouraging more claims.”

The basis for its analysis is a raw look at the statistics of claims filed — something I covered way back in December 2016 in two posts here and here.

I noted back then that the statistics only told part of the story and unfortunately here, the Yankee Institute’s arguments fall into this trap of relying too heavily on just a few statistics.

For example, yes, discrimination complaints have risen in the last few years as the Yankee Institute argues, but the types of complaints being filed are changing.  The Yankee Institute’s article lumps them all together as if they are fungible.

For example, as I noted in December: If you look at the claims involving termination of employment, there were 1216 filed in FY 2016, which is actually down from historical peaks in 2003, when there were 1385 such claims.

Instead, a different type of claim is being filed over the last 15 years — with huge increases in the “terms and conditions” area.

That is, employees who claim that they are being discriminated against in the “terms and conditions” of their employment when it comes to things like hiring, promotions and pay.  It could also mean an employer is not approving leaves, or granting breaks or any other term or condition of employment, however small.

In 2003, there were 411 such claims filed.  In 2014, there were 782.  By FY 2016, however, that number has skyrocketed to 1056!

In my mind, that likely means that more current employees are bringing discrimination claims against their employers.

chro99This is bolstered by a look at the “harassment” statistics. Notably, I’m not talking about sexual harassment claims, which continue to trend noticeably downward.  Just 135 such claims were filed in FY 2016, down from 185 the prior year and the lowest number by far in the 15+ years of available data.

Instead, this is a catch all claim for “I’m harassed” because of some other reason.  Just 175 such claims were filed in 2003, though that number was up to 380 in 2014.  For FY 2016, that number is up to 545.

That’s a more than 210% increase in over a decade!

Is the CHRO to blame for this trend? Without more critical analysis, I am hesitant to place the blame on the Connecticut Commission on Human Rights and Opportunities.

Anecdotally, I hear more arguments that employees are throwing around the phrase “hostile work environment” — not understanding that having a difficult boss is not illegal harassment.

The Yankee Institute’s article is also critical of the CHRO’s closure rate for “No Reasonable Cause” at 54 percent, compared to 87 percent of the Massachusetts claims closed for a lack of probable cause.

The CHRO issued a statement of their own on Facebook this week, with its own explanation for the discrepancy:

Many companies in Connecticut choose to resolve those matters prior to going through the full investigation process, by mediating those claims. Mediation works to the benefit of both parties, allowing for faster resolution and less time and money spent on investigations. These cases are frequently closed in fewer than six months from filing.

Here too, I think there is a danger than just looking at the numbers.  Both sides have some merit to their arguments.

As the Yankee Institute correctly notes, complaints ARE more costly and employers sometimes feel that they should pay something on even meritless claims to avoid the cost of litigation.

But the CHRO can also point to the fact that it has been dismissing more cases of late on Early Legal Intervention, giving employers more opportunities to avoid the cost of the CHRO process.  And the CHRO has been using mediation more effectively in the past — even if cases are getting through Case Assessment Review that probably shouldn’t.

Statistics are helpful; but when a state agency or a think tank starts using the numbers without providing context, reader beware.

U.S. Supreme Court
U.S. Supreme Court

Over the last week or so, there have been two prominent Circuit Court decisions addressing whether Title VII (the federal law prohibiting employment discrimination on the basis of race, color, sex, religion and national origin) can be interpreted to also protect employees from being discriminated against because of their sexual orientation.

The Second Circuit, which covers Connecticut, basically said no in a decision last week in Christiansen v. Omnicom Group.  The court did open the door a bit to a claim that an employee was discriminated against because of sex stereotyping.

Yesterday, the Seventh Circuit created the first split at the appellate level, finding that Title VII does cover such claims in the Hivley v. Ivy Tech Community College case.   Jon Hyman, of the Ohio Employer’s Law Blog, does a good job addressing the historic nature of the case here.

Back in 2016, I wrote that it was somewhat disappointing that we were still having these battles at the federal level, considering that Connecticut already had state laws prohibiting discrimination on the basis of sexual orientation.  “Those who are gay, lesbian, bisexual or transgender frankly deserve better, in my view. They deserve their own federal law giving them the workplace protections that Connecticut has given.  Until then, the battles over the scope of Title VII will continue.”

Indeed, the battles are now going to get bigger. One or more of these cases are now likely to get heard at the U.S. Supreme Court level where it is far from certain whether Title VII can really be read so broadly.

Of course, Congress could end these debates once and for all by passing a bill prohibiting employment discrimination on the basis of sexual orientation as I discussed way back in 2008.

But unfortunately, we seem to be no closer to passage of a bill than we were a decade ago.

Connecticut employers should largely ignore the press reports about Title VII and instead focus on their obligations to comply with state law.  Eventually the federal courts will work these issues out, but the issue is mainly moot in Connecticut.

Connecticut Supreme Court
Connecticut Supreme Court

In a decision that will be officially released next week, the Connecticut Supreme Court has, at last, ruled that punitive damages are not an available remedy for state law employment discrimination claims.

You may recall that I discussed the Appellate Court’s decision that had originally found the same thing back in 2015.  The case, Tomick v. United Parcel Services, has been one I’ve also discussed in other places too.

The decision itself is one for the lawyers to get. The court was more interested in dealing with issues of “statutory construction over which [the court] exercise[s] plenary review.”

So, the court started with the statute itself. It states that a court “may grant a complainant… such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorney’s fees and court costs… ”

Notably, the court says that this language could be considered ambiguous, so the court had to dig a little deeper.  Ultimately, the court says that “To construe this language as encompassing punitive damages without expressly stating as much, as the plaintiff advocates, would be inconsistent with our approach to the statutory construction in [a prior case], in which we required, at least as a default rule, express statutory authorization for statutory punitive damages as a form of relief.”

From there, it’s a fairly easy path forward for the court.  It notes that the legislature used the term “punitive damages” in other human rights statutes, so it knew how to craft such language and remedies.  For example, public accommodation discrimination has punitive damages as a possible remedy.

Ultimately, the court says it is not for it to read punitive damages into the statute.

But it suggests one final avenue: The General Assembly.  “Had the legislature intended for § 46a-104 to provide for statutory punitive damages, it could have amended the state statute to reflect the changes to its federal counterpart, and remains free to do so.”

However, given the split in the state senate and other pressing state business, it seems unlikely we’ll see this change for a while.

What does this mean for employers? Well, it means that state law discrimination claims became worth a little less than they used to — though the Appellate Court’s decision had been factored in for a while now.  It doesn’t mean that such claims are dead — but it does mean that employees bringing claims will have one more reason to try to pursue the claim in federal court, than state court.

 

chro99Last week, the Legislative Program Review and Investigations Committee released a 129-page report on the Commission on Human Rights and Opportunities, with a focus on Discrimination Complaint Processing.  You can download it here.

The report is worth a deep dive at another time, and a final report from the Committee is due in January 2017.

Fortunately, for those of us that prefer the “Executive Summary” there is also a key staff findings sheet that recaps the main findings.

Many of these are not a real surprise given my observations and others on the CHRO over this past year.

But still, there are a number of items worth consideration:

  • Additional data collection and reporting are needed — noting that information to fully track performance is lacking in some instances and the CHRO has not fulfilled its reporting requirements in recent years.
  • Budget and staffing resources have generally decreased — noting that investigative staff within regions was at a six-year low as of July 1, 2016.
  • Written policies and procedures are outdated — noting that the manual for processing complaints was developed in the 1990s.
  • The workload of all units processing cases is not fully accounted for in overall performance — noting that the commission’s Legal Division is not required to report in its entire performance.

As a result, staff has listed several recommendations:

  • Address data limitations
  • Begin reporting on the performance of all units for greater accountability
  • Focus on meeting statutory case processing timeframes
  • Develop uniform case processing procedures
  • Make technical changes to the housing statutes to separate out the housing discrimination complaint process from the non-housing process

There are additional recommendations as well.  Overall, the report is another useful tool to help update the CHRO, as I discussed in a post earlier this month.  I’ll try to take a deeper look into the report in an upcoming report, but the report itself is worth a read for those who deal with the agency on a frequent basis.