Yesterday I had the opportunity (along with my fellow Shipman & Goodwin partner Peter Murphy) to speak as part of the Commission on Human Rights and Opportunities’ (CHRO) 75th Anniversary celebration.

The panel — The Barriers to Employment Legal Update and Panel Discussion  — was chock full of the types of insights, data and analyses that is so often overlooked in this Twitter generation.

We spent a good 90 minutes talking about the changes that have been going on at the CHRO and talked about what types of changes could be made in the future.

Frankly, it’s far too much for one blog post.

So I’m going to tackle them in a few posts.  Today’s post: The re-emergence of the Case Assessment Review.

Indeed, if you haven’t been before the CHRO in the last year, you may be unaware that this is perhaps one of the biggest changes to the agency procedure over the last year.

Hyperbole? Actually no. At least not when you look at the statistics regarding CAR. (I did a deep dive into CAR last December which I’d strongly recommend if you want to learn more.)

Since the Legal Division has taken over this task — which is, in essence, a gatekeeping function — the dismissal rate has increased to 23% (up from just 5%).  Or, put another way, just 77% of cases are getting retained for mediation and investigation, down from 95% just a year ago.

This has big implications on how employers should view the CHRO process.  No longer is it the case that nearly all cases will get retained for investigation; as a result, position statements should play a greater role in telling the story.

The panel discussed other strategic implications of the numbers as well. Suffice to say, employers who are still viewing the CHRO in terms of 2015 (where I humbly suggested the CHRO Complaint process needed a reboot) are missing out on the changes happening right now.  Attorneys and their clients need to definitely stay up to speed with the latest developments.

What else is new? More on that 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.

starrMy colleague Gary Starr sits next to my office and sometimes we bounce ideas off each other. One of the things we were talking about recently was a new case that discussed an employer’s obligations to enter into the interactive process.  

This often comes up in ADA cases where the employee may need a reasonable accommodation.  As we discuss in this joint post below, there are no magic words needed — and sometimes no words needed at all.  

Both federal law (ADA) and state law (CFEPA) require employees and management to meet and discuss what might be a reasonable accommodation when an employee with a disability seeks an accommodation.

This interactive process was envisioned as a way to work collaboratively to find a reasonable accommodation.  Certainly when an employee asks for an accommodation, an employer must engage in the process.

But here are a few questions to ponder:

  • What should happen when the employee does not quite use the right words to start the process?
  • Can the employer be liable for failing to engage in the interactive process after terminating an employee who has not been accommodated?
  • While there are no magic words that must be uttered to start the interactive process,  what will trigger the obligation?

A recent federal appeals court case (Kowitz v. Trinity Health) discussed this situation, where the employer apparently ignored the signs requiring it to explore possible accommodations.  As a result, the employee will get her day in court.

The basic facts:

  • A respiratory therapist was diagnosed with a degenerative disease.
  • She requested and was granted time off for surgery under the Family and Medical Leave Act (FMLA).  After she exhausted her FMLA leave, she returned to work with restrictions.
  • During her leave, management reminded the department’s employees that they needed to submit proof of their certification in CPR, an essential job function.  Employees who needed to get recertified were required to say when they were going to take the course and the written and physical tests.
  • Having discussed the matter with her doctor, the therapist left a voice mail message for her supervisor that she would take the course and the written exam, but needed to complete 4 more months of physical therapy before she could do the physical portion of the test.
  • The next day, the respiratory therapist was terminated because  she was unable to perform CPR.

She sued, claiming that her employer did not engage in the interactive process.  The court found that while the therapist did not expressly ask for an accommodation, she provided sufficient information to start discussions.

The court pointed out that the employer was aware of the disability.  It approved the FMLA leave.  It received the Return to Work form from her doctor with work restrictions.  And there was evidence that the employee had told her supervisor about her problems completing the CPR certification and she told her supervisor about her doctor appointments and her continuing pain.

What’s the Takeaway?

This decision warns employers that if you know about an employee’s medical limitations, that knowledge may be sufficient to trigger the informal interactive process.

While it is not clear whether other courts will adopt this liberal approach, which is better in the long run: Sitting down with the employee or litigating?

It is important to remember that not all requests for an accommodation are reasonable.  The expense of a requested accommodation may not be reasonable; what the employer offers may be reasonable, even if rejected by the employee; and there may not be a solution to the situation.

But engaging in the process makes much more sense than trying to convince a judge or jury that you were too busy to meet for an hour or so and were unwilling to listen to possible ways to have the employee be productive and contribute to the company.

gavelIn an decision of first impression in Connecticut, a federal court on Friday ruled that a transgender discrimination claim based on a failure to hire can proceed under both Title VII and Connecticut’s counterpart, CFEPA.

While the groundbreaking decision in Fabian v. Hospital of Central Connecticut (download here)  is sure to be the subject of discussion, as the court notes, Connecticut has — in the interim — passed a state law explicitly prohibiting discrimination on the basis of gender identity. Thus, for a few years now, Connecticut has already explicitly prohibited transgender discrimination under state law. (The case was based on facts that occurred before passage of the state’s anti-discrimination law.)

But the decision obviously goes further than that and takes up the logic advanced by the EEOC and others of late — namely that Title VII’s prohibition of discrimination “because of…sex” should be read to include transgender discrimination.  The court’s opinion should be mandatory reading not only in the state, but for practitioners nationwide faced with similar claims.

The decision addresses the notion of gender-stereotyping discrimination noting that such discrimination is sex discrimination “per se”.  In the court’s view, the Supreme Court’s decision years ago in Price Waterhouse has led to a “significant shift in the direction of decisions examining alleged discrimination on the basis of transgender identity”.

In doing so, the court notes the split in the circuits that has been developing, even though the Second Circuit hasn’t truly spoken yet on the issue:

In sum, discrimination on the basis of transgender identity is now recognized as discrimination “because of sex” in the Ninth Circuit (as Schwenk recognized the abrogation of Holloway), the Sixth Circuit (as recognized in Smith), and in the Eleventh Circuit (as recognized in Glenn); and the E.E.O.C. (in Macy) and has agreed with that authority.  Discrimination on the basis of transgender identity is regarded as not constituting discrimination “because of sex” in the Tenth Circuit (under Etsitty). The continued vitality the pre–Price Waterhouse decisions in the Seventh and Eighth Circuits (Ulane II & Sommers, respectively)  is unclear.

Judge Underhill, who penned the decision, then goes on to discuss the language of “because of…sex” found in the statute itself.  He notes that:

discrimination on the basis of gender stereotypes, or on the basis of being transgender, or intersex, or sexually indeterminate, constitutes  discrimination on the basis of the properties or characteristics typically manifested in sum as male and female — and that discrimination is literally discrimination “because of sex.”

On the basis of the plain language of the statute, and especially in light of the interpretation of that language evident in Price Waterhouse’s acknowledgement that gender-stereotyping discrimination is discrimination “because of sex,” I conclude that discrimination on the basis of transgender identity is cognizable under Title VII.

For employers in Connecticut, this decision is likely to be closely followed by other federal courts in Connecticut. Judge Underhill is well-regarded and until this decision gets reviewed by the Second Circuit, it’s hard to see how other judges in Connecticut will decline to follow it.

In other words, employers in Connecticut should be alert that a plaintiff may make a gender identity claim under Title VII in Connecticut.

But, as I noted at the top, this decision’s impact in Connecticut may be more muted because Connecticut has now explicitly protected gender identity in the state’s anti-discrimination statutes.

Nevertheless, the decision is an important one to read in the field of gender identity claims.

In the wake of the United States Supreme Court’s ruling in the Hobby Lobby case, holding that the Religious Freedom Restoration Act provides protection to closely held corporations to refuse, for religious reasons, to provide birth control methods and services to employees under the Affordable Care Act’s contraceptive mandate, the issue of accommodating an employee’s religious beliefs has also been called into question.

In light of that, my colleague Jarad Lucan returns to the blog this morning with this post on reviewing Connecticut’s Fair Employment Practices Act’s (“CFEPA”) religious antidiscrimination provisions.

Let’s start with a “simple” proposition.

Generally speaking, Connecticut’s anti-discrimination laws make it illegal for an employer to discriminate against an employee because of that employee’s religious belief or practice.

While not explicit in the statutory framework, it is also illegal for an employer to refuse to accommodate an employee’s religious belief or practice that may run contrary to an employment requirement, unless such accommodation would cause an undue burden on the operation of the employer’s business.

Sounds simple enough, right?

So what’s the problem? Well for most employers, the problem is determining whether an employee’s religious belief is bona fide. In other words, is the employee’s religious belief “sincerely held?”

Indeed, if a religious belief is not sincerely held, then an employer does not have to provide an accommodation.

For example, an employer may rightfully question the sincerity of an employee’s request to wear a beard as an accommodation from the employer’s grooming policy based on his religious belief, if the employee is a long time employee, has never changed his religion, and has never worn a beard in the past.

While there is no bright line test (there rarely is in employment law) for determining the sincerity of an employee’s religious belief, the Equal Employment Opportunity Commission (“EEOC”) has issued guidance in this area. As a reminder, Connecticut courts often look to federal antidiscrimination decisions and guidance when interpreting the CFEPA.

According to the EEOC, when questioning an employee’s belief, employers should begin with the assumption that any request for accommodation is based on a sincerely held religious belief, even if the employer is unfamiliar with the particular belief or practice.

If the employer has an objective basis to inquire about the employee’s sincerity, the employer may seek additional corroborating information, according to the EEOC. Such additional information does not have to be in a specific form, and it may be a written first-hand explanation without third-party verification. When third-party verification is needed, the third-party does not have to be a religious official or member, but can be another who is aware of that employee’s belief.

Employers are cautioned, however, not to demand unnecessary or excessive evidence to support an employee’s claim that he or she has a sincerely held religious belief.  An employer who improperly demands information may be liable for denying a reasonable accommodation request, and may have its actions challenged as retaliatory or as a pattern of harassment.

After receiving information from the employee, an employer may seek to provide an employee with an accommodation or deny a request for an accommodation based on a determination that the employee’s asserted religious belief is not sincerely held.

Although there are only a handful of court decisions dealing with the issue of sincerity, the following factors, may help determine the sincerity of an employee’s religious belief:

  • Whether the employee has behaved in a manner markedly inconsistent with the professed belief;
  • Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
  • Whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and
  • Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

Of course, no factor is dispositive, and as always, an employer should seek additional guidance from a legal professional before making any determination that may lead to a claim of religious discrimination.

The Connecticut Appellate Court yesterday released two notable employment law decisions. They won’t become “official” until April 30, 2013, so you have some time to digest them.  I’ll cover one today and leave the other for a future post (though if you’re really curious you can read it here.)

To me, the more interesting of the two is Langello v. West Haven Board of Education, which decided an issue that you would think had long since been decided. But this is Connecticut; appellate court guidance is few and far between.

The issue: How do both the Teacher Tenure Act and Connecticut’s Fair Employment Practices Act (which prohibits discrimination on the basis of, among other reasons, disability) co-exist with each other and what is the interplay between the two?

Why is this important? Because the Teacher Tenure Act provides that a tenured teacher may be discharged for a “disability” or “other due and sufficient cause”.  Thus, put another way, can a school district fire a teacher because she has a disability without violating the state law prohibiting discrimination on the basis of disability?

To this, the court answers “yes” so long as the proper questions have been answered.

In keeping with the public policy that prohibits discrimination on the basis of disability, and our Supreme Court’s analysis of the legislative intent behind § 46a-60 (a) (1), we conclude that any teacher who is terminated pursuant to the Tenure Teacher Act enjoys the protections of the Fair Employment Practices Act.

A contrary conclusion—that a tenured teacher who is discharged from her employment because of her disability pursuant to § 10-151 (d) (4) is outside of the protections of § 46a-60 would thwart the purpose of the Fair Employment Practices Act.

To ensure compliance with the purpose of the Fair Employment Practices Act, a teacher who is discharged for any of the reasons enumerated in § 10-151 (d) must be afforded the protections of § 46a-60. A board of education, if it seeks to terminate a teacher’s employment pursuant to the Teacher Tenure Act for reason of a disability, must follow the mandates of the Fair Employment Practices Act and show that the teacher was unable to perform the essential functions of her profession with or without reasonable accommodation.

As to the application to the case at hand, the court fairly easily disposes of the teacher’s claim that the employer failed to show that she could not perform the essential functions of the job with or without a reasonable accommodation.

What’s the takeaway here?

For school districts, this case is a crucial one. Any attempt to invoke the provisions of the Teacher Tenure Act by terminating a teacher for a disability, should be reviewed carefully to determine if the employee can perform the essential functions of the job with or without a reasonable accommodation. Without that analysis, school boards are leaving themselves open to a challenge of the type raised in this case.

My thanks to my colleague, Mick Lavelle, who has drafted the following post on a noteworthy issue decided today by the Connecticut Appellate Court.  For employers with long-standing discrimination claims, it’s worth understanding what the statute of limitations are on such claims.

Most employers know that claims of employment discrimination can be brought under two sets of laws: the federal anti-discrimination statute known as Title VII, and the State of Connecticut’s Fair Employment Practices Act.

Both require an initial discrimination complaint to be filed with the Equal Employment Opportunity Commission or the Commission on Human Rights and Opportunities, after which employees have the option of removing the case from the commissions and starting a lawsuit.

But the federal and state laws have different statutes of limitations governing the time when employees must commence a lawsuit.

Under Title VII, employees have 90 days from the date that the EEOC issues a right-to-sue letter, no matter when the complaint was initially filed.

State law also requires that a lawsuit be filed within 90 days after the CHRO issues its equivalent of a right-to-sue letter, known as a release of jurisdiction. But this is also where the state law marches to a different beat. Connecticut’s law, Conn. Gen. Stat 46a-102, has a maximum limitations period of two years from the initial filing of the complaint with the CHRO in which a lawsuit must be initiated.

Earlier today, the Connecticut Appellate Court released Wright v. Teamsters Local 559, which re-emphasized that limitation.  (The case will be officially released next week.) 

In Wright, the plaintiff filed his initial complaint with the CHRO in October, 2004, alleging race discrimination when he was replaced as a union steward, but did not get his release of jurisdiction and file his lawsuit until November, 2006, which was outside the two-year period.

To try to preserve his claim, the plaintiff pointed to an amended complaint he had filed earlier in 2006, alleging age discrimination in addition to the race discrimination claim he had made in his first filing. But the Appellate Court ruled that the statute of limitations applied because all his claims of discrimination derived from the single incident of being replaced as a steward, and they all related back to his initial filing in 2004.

Because the costs of defense and potential damages are far greater in lawsuits than in complaints left with the CHRO for adjudication, employers can at least count down from the date of initial filing to the two-year anniversary, after which they will very likely be immune from suit.

Employers now have the additional comfort of knowing that amendments to the initial complaint will not reset the time period, at least where the amendment derives from the same incident as the initial complaint.