It would be easy to say that the Supreme Court’s decision on Friday has nothing to do with the workplace and therefore presents no employment law issues.

But such an approach would not only be foolish, it would be wrong.

The full impact of the decision will be felt for an entire generation while a full analysis of the decision’s impact will take some more time too (though my partners have done a great job with one here).  But it’s apparent from the first few reads of the Court’s decision in Dobbs v. Jackson Women’s Health Organization is that it presents a real challenge for employers and is so disruptive in so many ways both for employers and employees.

First, the decision minimizes (at best) or ignores (at worst) the concept of “stare decisis” which is that the Court’s prior decisions become binding precedent — and therefore have meaning.  People can rely on those decisions to predict what will happen next and respect the decision once it gets made.  If the Court undermines that concept, it risks becoming exactly like the much maligned National Labor Relations Board. The NLRB is a federal agency that, some would argue, changes its mind depending on how the Board is composed (whether Democrat majority or Republican).  For example of such a flip flop, see one of my prior posts about the NLRB here.

This is not a good thing; the Rule of Law depends on people having some faith in the institution itself.  If people think the system is rigged to whatever party is in power, then the more likely they will be to minimize its importance or keep fighting until they think the system is in their favor.  Stare Decisis provided some measure of comfort to parties and gave employers the opportunity to plan for the future.

Continue Reading Dobbs and the Impact of the Court’s Decision for Employers

It’s Wednesday afternoon and you get an email from a service that receives lawsuits on your behalf.

“Congratulations! You are the recipient of a new lawsuit!”

No, it doesn’t really say that.

Rather, it’ll basically attach a copy of the lawsuit and remind you that the clock is ticking for a response.

It might as

In January 2021, I wrote about the potential for a new wave of lawsuits that employers needed to pay attention to — lawsuits (and criminal charges) based on antitrust law.  In that post, I highlighted a little-noticed case in which the U.S. Department of Justice had indicted a Texas company for its no poaching agreements

Today I want to talk about a housing discrimination claim.  But wait! It has significant relevance to employment discrimination claims so bear with me for a second.

As an additional incentive, if you’ve been following the Marvel movies, this case will ALSO have elements of a multi-verse with multiple versions of the CHRO in play, so consider this case to be “Loki” for legal geeks. (If you don’t understand, your kids will.)

Ok, back to the law.

The story first starts in 2012 when the Connecticut Supreme Court upheld an award of $95,000 in noneconomic damages to an employee in an harassment claim, even though the employee did not offer any expert or medical testimony on the subject and provided very little to no evidence on it, according to the court’s opinion.

The case, Patino v. Birken Mfg, has often been cited for the proposition that noneconomic damages will not be overturned unless they are excessive or shocking.  The Court’s decision cited several other cases to compare the verdicts in those cases with that one.  These types of cases are also what is known as “garden variety” emotional distress damages.

Flash forward to 2015 and a case of housing discrimination filed at the CHRO.  The condominium never appeared in the case to defend itself, which resulted in a default judgment.  A hearing in damages was then held. At the hearing, the CHRO requested $75,000 in noneconomic damages on behalf of the individual. However, the referee awarded $15,000 in compensatory damages for emotional distress. Victory and case closed, right?

Nope. Then things get interesting. The CHRO appealed the decision of its own referee, contending the damages were insufficient.  The Superior Court remanded the case for further decision and on remand, the referee did not change the damages award.  The CHRO then appealed again to the Superior Court which affirmed the decision.

Which led to an appeal to the Connecticut Appellate with the CHRO representing the CHRO (Plaintiff) and the CHRO representing the CHRO (Defendant).

(Don’t try to think too much about it; your head will spin but you can read footnote 1 for an explanation where the court notes “The present case thus presents us with the unusual situation of both parties on appeal advocating for the same
interests; specifically, asking this court to reverse the decision of the Superior Court, vacate the referee’s award of damages and remand the case for a new calculation of damages.”)

For good measure, the State of Connecticut filed a brief as amicus curiae.   (That’s a lot of tax dollars hard at work, as they say.)

On appeal in CHRO v. Cantillon, both versions of the CHRO asked the court to reverse, claiming a misapplication of prior case law.  Both argued that Patino stands for the proposition that in “garden variety” emotional distress claims, “there is a presumptive monetary range of damages between $30,000 and $125,000.”

Continue Reading CHRO vs. CHRO: How Much is “Garden Variety” Emotional Distress Really Worth

In a decision released on Tuesday, the Connecticut Appellate Court affirmed the dismissal of a state law gender discrimination claim on the grounds that it was barred by the doctrine of res judicata. 

The procedural background of Fernandez v. Mac Motors, Inc. illustrates an important mechanism for employers to use to avoid fighting a

In a decision that will be officially released on Tuesday, the Connecticut Appellate Court has upheld the dismissal of a wrongful discharge claim against Marvelwood School, an independent school in Kent, Connecticut. In doing so, the Court turned back an attempt to limit the employment-at-will doctrine and provided employers in Connecticut with reassurance that wrongful discharge claims will be appropriately limited.

The case, Zweig v. Marvelwood School, can be viewed here.

(An upfront disclosure: My firm represented the employer here and I represented the school on the successful appeal.) 

The facts of the case are relatively straightforward and are summarized in the court’s decision. The plaintiff Aaron Zweig was employed by the defendant Marvelwood School as a history teacher and school’s Director of Food Studies. That role required him to establish and maintain a garden on campus and use it to teach a class on food studies.

In May, 2015, Mr. Zweig allegedly objected to the school’s suggestion that telephone poles that had been treated with creosote, a pesticide and wood preservative, be used to make raised beds in the garden because he believed that the chemical posed a health risk to himself and his students.

Continue Reading Connecticut Appellate Court Rejects Challenge to At-Will Employment Doctrine