Connecticut Supreme Court

worker3After nine-plus years of writing about employment law in Connecticut, it’s getting to be pretty rare to find a topic that I haven’t at least touched upon, but here’s one: The Duty of Loyalty.

Indeed, a new Connecticut Supreme Court case is giving me the opportunity to do so.

The case arises from an employee who, while working for one employer, was secretly working as an independent contractor for a competitor.  The employer sued under a breach of the duty of loyalty claim.

The case, Wall Systems Inc. v. Pompa, officially released last week, can be downloaded here.

Lawyers will look at the case because it sets forth what types of damages are recoverable when a breach of a duty of loyalty claim is established.  In doing so, the court makes it clear that a trial court has some discretion in fashioning the appropriate remedy:

We agree with the plaintiff that the remedies of forfeiture of compensation paid by an employer, and disgorgement of amounts received from third parties, are available when an employer proves that its employee has breached his or her duty of loyalty, regardless of whether the employer has proven damages as a result of that breach. Nevertheless, the remedies are not mandatory upon the finding of a breach of the duty of loyalty, intentional or otherwise, but rather, are discretionary ones whose imposition is dependent upon the equities of the case at hand. Moreover, while certain factors, including harm to the employer, should not preclude a finding that the employee has committed a breach of the duty of loyalty, they nevertheless may be considered in the fashioning of a remedy. Here, because the trial court properly exercised its broad discretion when it awarded damages but declined to order forfeiture or disgorgement, we will not disturb its judgment on this basis.

But I think the more interesting point for companies is to understand the scope of the duty of loyalty.

In discussing the scope of this duty, the Connecticut Supreme Court reaffirmed principles that were last set forth in detail over 50 years ago in Town & Country House & Homes Service, Inc. v. Evans.  In that case, the court found an employee breached the duty of loyalty by soliciting employer’s customers for his own competing business while still working for the employer.

The court noted that an employee’s duty of loyalty includes “the duty not to compete … and the duty not to disclose confidential information”.  The court noted that this duty not to compete is during the employment relationship — not necessarily after — and is not dependent on the use of employer’s property of confidential information.

The court went on to say that the duty of loyalty “also includes the duty to refreain from acquiring material benefits from third parties in connection with transaction undertaken on the employer’s behalf.”  What does this mean? Essentially, it bars the collection of “secret commissions and kickbacks which might cause the employee to act at the expense or detriment of his or her employer”.

An employer may seek the forfeiture of an employee’s compensation for the period of disloyalty, but the court concludes that such a remedy is an equitable one and subject to the facts of the particular case.

But it’s always important to read the footnotes and here, in footnote 9, the Court inserted the notion that the duty of loyalty may not apply all employees.  “The scope of the duty of loyalty that an employee owes to an employer may vary with the nature of their relationship. Employees occupying a position of trust and confidence, for example, owe a higher duty than those performing low-level tasks.”

Still, the case is an excellent one for employers to keep in mind — particularly if the employer does not have restrictive covenants with its employees.  If the employees are engaging in competing work while still employed, the employer can use this case — and the theories behind it — to see the appropriate remedies.

With the appropriate employee, the employer can further strengthen its arguments, but including this in an employment agreement along with restrictive covenants.  In such a case, the court reminds parties that an employer could then terminate that agreement prematurely and seek recovery of damages directly attributable to the employee’s breach.

Employers should consider consulting with their favored outside counsel to see how this decision may apply to them.


My colleague, Jarad Lucan, returns today with a post discussing a new Connecticut Supreme Court case that has expanded the state’s anti-discrimination laws when it comes to disability claims. 

When Congress enacted the Americans With Disabilities Act (ADA), it recognized that fears, misperceptions, and stereotypes about disabled individuals are so pervasive that employment discrimination reaches beyond those who are burdened by the requisite substantially limiting impairments.

As a result, the definition of a disability under the ADA expressly includes being regarded as having a physical or mental impairment that substantially limits one of more major life activity.

In other words, the ADA clearly prohibits disability discrimination based on an employer’s mistaken belief.

Unlike the ADA, the Connecticut Fair Employment Practices Act (CFEPA) does not expressly protect an employee whose employer mistakenly regards him or her as being physically disabled (the CFEPA does expressly make it illegal for an employer to discriminate against an employee because the employer regards the employee as being mentally disabled).

In fact, under the CFEPA, physically disabled is defined to include only any individual who has any chronic physical handicap, infirmity or impairment.

Nevertheless, the Connecticut Supreme Court determined last week that the CFEPA does protect individuals from being discriminated against because of an employer’s mistaken belief about his or her physical disability.

In Desrosiers v. Diageo North America, Inc., the Supreme Court recognized that the language of the CFEPA is plain and unambiguous (which normally ends a court’s inquiry into the meaning of a statute) in that nowhere does it establish protection for an individual who is regarded as having a physical disability.

However, the Supreme Court determined that applying the CFEPA in such a manner would bring about bizarre results.

“Namely, under the plain language of [the CFEPA], if an employee has a chronic disease, the employer may not discharge the employee on that basis. If, however, the employer is undergoing testing that leads his employer to believe that he has a chronic disease, the literal terms of the [the CFEPA] do not protect the employee from discharge on that basis, despite the fact that the employer’s actions, in both cases, were premised on the same discriminatory purpose.”

In arriving at its decision, the Supreme Court relied, in large part, on the Commission on Human Rights and Opportunities’ long standing interpretation of the CFEPA to include protection for employees who are regarded as having a physical disability.

In addition, the Supreme Court looked to the legislative history of the CFEPA, which made clear that the definition of physically disabled was to “cover as many people as possible under the definition and leave it open and broad.”

In the Court’s opinion, it would be inconsistent with the legislative efforts to protect as many individuals as possible and “thwart” the purpose of the CFEPA to exclude protection for employees who are merely regarded as being physically disabled.

Not surprisingly, Justice Zarella issued a forceful dissent saying that the interpretation would not lead to a “bizarre” result:

Although the majority’s interpretation of the relevant statutory language may be the better public policy, and although the legislature might adopt that policy if the matter is brought to its attention, that is not sufficient reason for abandoning the plain and unambiguous directive in the statute itself. The fact that a better public policy exists does not mean that the expressed public policy ‘‘yields absurd or unworkable results . . . .’’

Nevertheless, the outcome is probably not terribly surprising. The Supreme Court has long looked to federal antidiscrimination laws, including the ADA, when interpreting the CFEPA and taken a fairly expansive view.

Way back in 2008, for example, the Supreme Court determined in Curry v. Allan S. Goodman, Inc. that the CFEPA requires an employer to engage in the interactive process with employees and provide reasonable accommodations if necessary even though no such requirements are expressly included in the CFEPA.

For employers in Connecticut, the case shouldn’t result in dramatic changes to policy because most employers simply follow the ADA procedure — whether or not it applies to them. After this decision, it’s pretty clear that those procedures will apply in a similar fashion under state law tool.

(Disclosure: Dan Schwartz represented an individual defendant in this matter at the lower courts and will refrain from direct comment on this matter.

As I’ve done in the past when I’ve been tied up with a trial or arbitration, today will bring a “Blast from the Past” — a post that you might have missed the first time around. Indeed, because this post is from July 2008, odds are that even if you saw it, it’ll still be fresh today.  The topic? Well, to keep with the arbitration theme, it’s on defining the issue for an arbitrator. 

Suppose you, as an employer, have union-backed employees. The union files a grievance on behalf of three employees alleging that they did not receive “premium” pay on three holidays. Because the dipsute cannot be resolved, the matter is sent to arbitration.

For some employers, defining the issue to be sent to arbitration may not seem that important; after all, the arbitrator will just hear evidence relating to the supposed issue and issue a decision consistent with that issue.

The Court Decision

But a recent case released by the Connecticut Supreme Court demonstrates the importance of crafting language that specifies what the exact issue is and what remedies the arbitrator will have available to it.

In Office of Labor Relations v. New England Health Care Employees Union, District 1199 (download here), the parties submitted the above factual scenario to an arbitrator with the following issues listed:

Did the [s]tate violate [a]rticle [twenty-one] of the [agreement] in the [s]tate’s application of holiday designation and payment of holiday pay to the [g]rievants? If so, what shall be the appropriate remedy, consistent with the [agreement]?

The arbtirator rendered an award in favor of the union finding that the state did indeed violate the portion of the collective bargaining agreement. In doing so, the arbtrator issued an decision that ordered that the employer had to change its holiday policy to give premium pay to all employees under the collective bargaining agreement on a going forward basis.

The state appealed, first to the trial court, and then ultimately to the Connecticut Supreme Court, on the grounds that the arbtirator exceeded his authority when issuing the “remedy” because the arbitrator’s decision applied to all employees, not the three employees on whose behalf the issue was grieved.

The Connecticut Supreme Court agreed with the state, finding that the question presented should be interpreted like any contract:

As we have stated previously herein, it is well settled that we read contracts of this nature in a way that will give effect to every provision and apply a common sense construction of the words used. Thus, the language of the submission and its internal structure indicate that the question of relief was intended to address the harm to the three individual grievants named in the first question.

In essence, the Supreme Court stated that it was common sense that the remedy could only address the three employees at issue; otherwise, the parties would have structured the request differently.

The Takeaway

So what’s the takeaway from this case from an employer perspective (and indeed from a union perspective)? Take time to craft the issues for arbitration in as specific a fashion as possible. While the Connecticut Supreme Court upheld the langauge that was used in this situation, the question presented to the arbitrator could have been more specific and the issue could have been avoided entirely.

So if last Tuesday’s post about the latest Connecticut Supreme Court decision on travel time was for employers, this post is for the ones who love the nuances of the law.

Dan Klau on his Appealingly Brief blog did a deep dive into the decision. And it wasn’t pretty.

Commuting at 1964 Worlds Fair

The issue Dan highlights is this: The Connecticut Department of Labor’s (“DOL”) interpretation of its own regulation on travel time was first rejected because that interpretation had not been time-tested and was not the product of formal rule-making procedures.

But it was also rejected because the Court said the agency’s interpretation was also not reasonable. Dan questions this:

The DOL based its interpretation of its regulation on a 1995 opinion letter of the United States Department of Labor concerning travel time under the federal Portal-to-Portal Act of 1947. The DOL expressly referenced that letter in a written guide it published, “A Guide to Wage and Workplace Standards.” (The link is to the 2014 revision, which appears to contain the same relevant text (see p. 38) at issue in Sarrazin.) The Court noted that Congress had rejected that position (on policy grounds) in 1996, “yet the department’s handbook inexplicably fails to acknowledge the questionable history of the 1995 opinion letter. . . .” This, according to the Court, is what made the DOL’s interpretation of its own regulation unreasonable.

I fail to see why the DOL’s statement that it interpreted its own regulation in accord with the 1995 opinion letter means that its interpretation is “unreasonable.” It seems to me that the question of reasonableness turns on the “fit” between the 1995 opinion letter and the text of the regulation, not on whether Congress, as a policy matter, disagreed with the 1995 opinion letter. Congress’s intentions are certainly relevant to federal law, but not to the reasonableness of the DOL’s interpretation of its own regulation. Employment lawyers, what say you?

There’s more, of course, to this story. It actually starts with a 1994 US Department of Labor Opinion letter which ruled that the time spent by an employee traveling from home to the first work assignment, or returning home from the last assignment, in an employer provided vehicle was similar to that of traveling between jobs during the day and therefore represented a principal activity, which must be compensated. No compensation would be required in cases where employees used their own personal vehicles.

Continue Reading CTDOL’s Interpretation of Travel Time Not “Reasonable”; What Happens Next?

It’s tough to draw lessons from appeals of arbitration decisions.

Why? Because the standard to overturn arbitration cases is high and, it’s only when there are really bad facts (or, perhaps more likely, an really bad error in interpreting the law) that appellate courts consider reversing the decision.

That appears to be the case in State v. AFSCME, Council 4, Local 391, a decision from the Connecticut Supreme Court that will be officially released on August 6, 2013.

In that case, an alleged sexual harasser had been fired; but an arbitrator found the dismissal was unwarranted and ordered the employee reinstated — albeit reinstated after a one year suspension.  The Appellate Court reversed the arbitrator’s finding.  The Connecticut Supreme Court, in its ruling, has upheld that decision.

In doing so, the Court concludes that termination of an alleged harasser may not be appropriate in all cases, but may be required in many others:

We also recognize that the fact that there is a strong public policy against certain misconduct does not require an employer to terminate every employee who engages in that misconduct. Rather, we must determine whether the employee’s misconduct was ‘‘so egregious that it requires nothing less than termination of the [employee’s] employment so as not to violate public policy.’’

In this case, the court found it so egregious as to warrant termination.  Here’s a sample:

[T]he complainant testified in the arbitration proceeding as follows: ‘‘[The grievant] stated to [the complainant],‘Hey [h]omo it’s about time you came downstairs and stop sucking c**k.’ [The complainant] also testified that six weeks after that when he was . . . in the pharmacy he felt something touch his buttocks, he jumped and turned around and [the grievant] had a banana held at his crotch area, and made the statement in front of a witness, ‘he jumped like a girl.’ The [c]omplainant went on to testify . . . that at least [thirty] times [the grievant] called him a ‘ripper.’ The [c]omplainant didn’t know what that meant, and asked another employee what it meant and was told it meant ‘child molester.’ He confronted [the grievant] and asked him to stop making those statements, but [the grievant] continued. The [c]omplainant bought a parrot from another co-worker, [the grievant] overheard the conversation and later in the shift asked the [c]omplainant, ‘what did you have to do for the bird, give him a blow job.’ [The grievant] on other occasions also made comments about the [c]omplainant and a co-worker because they lifted weights together, and asked the [c]omplainant, ‘what do you guys do there grab each [other’s] crank.’ ’’

The dissent takes the majority to task saying that while he agrees that Connecticut has a public policy prohibiting sexual harassment in the workplace, it does not mandate termination of employment in every instance.  Rather, a “strong punishment” should be all that the state should force.

For employers, the case is a double-edged sword. On the one hand, the court seems to approve of an employer who says that it has a zero tolerance policy for harassment and supports the termination. But on the flip side, suppose the alleged harasser wasn’t terminated.  Could the employer then be liable for sexual harassment for not terminating the harasser? What will be “so egregious”? Is it the exception or the norm?

We’ll have to see the way this plays out in the court system over the next few years.

As I get closer to the five year anniversary of this blog next month, I continue to take a look again at topics I covered early on.  One of those topics was the oft-overlooked statute of Conn. Gen. Stat. 53-303e.  That statute purports to make it a crime for employers to require employees to work on his or her designated Sabbath, among other things.

I noted back then that you could find the statute on the Connecticut Department of Labor’s website.

But there was a problem, I noted. Part of the statute was been overruled by the Connecticut Supreme Court nearly 25 years ago.  So effectively the statute is devoid of meaning. Of course, I said, you wouldn’t know that from the statute.

So what’s changed since then? Amazingly, nothing. It remains firmly on the books of the Connecticut state statutes.  You can be fined $200 for each violation.  And confusingly, the Connecticut Department of Labor still lists it among the statutes that employers need to follow closely.

What should be done? The General Assembly each year “cleans up” old statutes with bills that are technical in nature.  When it considers the labor & employment side of things, hopefully the legislature can remove the portion of the statute that has been overruled. Frankly, the entire statute is just out of place as well, but that’s an issue for another day.

Will it happen? Probably not. As I’ve noted before, once a law is on the books, it’s hard to remove. This statute — 25 years after a portion has been overruled — remains a shining example of this.  So, for employers, it’s important to note that you can’t believe everything you read — even if it appears on a government website.

As we continue the analysis of this week’s Connecticut Supreme Court decisions, the court also clarified how employees can prove their claims of discrimination in Perez-Dickson v. City of Bridgeport.  It is the first opinion in some years to do so and employers (and practitioners) will likely want to cite this case on a going-forward basis because of that.

First, the court looked at whether proof on how the plaintiff was treated when compared to others was sufficient to support a claim of race discrimination.

In doing so, the court finally adopted language that is used in many other federal discrimination cases, namely that the other people must be “similarly situated in all material respects.” What does that mean? It means that “the plaintiff and those he maintains were similarly situated were subject to the same workplace standards and (2) . . . the conduct for which the employer imposed discipline was of comparable seriousness.”  (Hey, it’s the court; things can only get so clear.)

But then the court addressed a second, more all-encompassing vision for how claims of discrimination should be handled by courts and juries.  It is among the “cleanest” versions yet by the court on what is (or is not) required.  Here’s the test:

In summary, when a plaintiff attempts to establish racial discrimination through the use of circumstantial evidence, the plaintiff must first present some evidence from which an inference may be drawn that other similarly situated individuals not in the protected class were treated more favorably than the plaintiff. … If the defendant then articulates a nondiscriminatory reason for the disparate treatment, the presumption of discrimination arising from the prima facie case drops from the picture. … The burden will then be on the plaintiff to prove by a preponderance of the evidence that the employment action was discriminatory. Finally, although the evidence that a plaintiff presented in support of her prima facie case may be sufficient to satisfy her ultimate burden of proof, that will not necessarily be the case.

Finally, the court also addressed the role that statistics should play in employment discrimination cases.  The language suggests that the court looks upon such statistics with disfavor.  Standing alone, statistical evidence is sufficient to establish discriminatory intent in individual disparate treatment actions only when it shows a “stark pattern of discrimination . . . .”

The court concluded that the evidence offered by the employee was insufficient, as a matter of law, to support a claim of discrimination (despite what the jury may think).

Specifically, we must conclude that the plaintiff’s circumstantial evidence that the defendants treated seven white employees and four African-American employees more favorably than they treated her when she was accused of abusing a student in 2005 is insufficient as a matter of law to raise an inference of intentional racial discrimination.

And taken together, the “statistics” of the termination pattern reveal nothing.

The evidence in the present case simply does not reveal any pattern of disparate treatment on the basis of race, much less the “stark pattern” or “gross statistical disparities” that are required to prove such claims.

For employers, this case is important for understanding that establishing a race discrimination isn’t infinitely hard, it’s not easy either.  This is not to suggest that Superior Courts are now going to grant summary judgment motions and directed version motions quickly, but it should be used by employers as strong ammunition for those motions regardless.

It’s been several years since employers had some decisions to cheer about at the Connecticut Supreme Court.  But yesterday, the court released two important decisions that will likely rank as among the most significant the court has issued in the employment context in the last decade.

I represented the employer in one of those cases, which you can download here; I’ll address that decision, which overturned a $10 million jury verdict, in a separate upcoming post when I’m able. 

Today, I’ll address one portion of the court’s decision in the other case,  Perez-Dickson v. City of Bridgeport (download here).  In an unanimous decision, the court reversed the $2 million jury verdict in favor of the employee and entered judgment for the employer. 

One question the court had to answer was whether a state statute, Conn. Gen. Stat. 17a-101e, created a private cause of action to the employee.  That statute prohibits employers from discriminating against an employee who makes a child abuse report as a “mandated reporter.” 

The court concluded that there is no private cause of action by the employee.  Only the Attorney General is entitled to bring a claim on behalf of the employee.

The court disposes of this claim relatively easy (and leaves open the question as to how the trial court let this claim proceed). 

Both the contours of the right created by § 17a-101e and the specific remedy for a violation of the right are plain and unambiguous. Nothing in the text of the statute even remotely suggests that, contrary to this plain and unambiguous language, the legislature intended to authorize private citizens to bring actions on their own behalf pursuant to the statute. Indeed, the plaintiff does not contend otherwise. Rather, she claims only that the defendants’ claim that § 17a-101e does not create a private cause of action is unreviewable, a claim that we have rejected. Accordingly, we conclude that §17a-101e does not provide a private cause of action and that the trial court therefore lacked subject matter jurisdiction over the plaintiff’s claim pursuant to that statute.

For employers, this ruling should narrow the types of claims that can be brought against employers and should give them some breathing room on the potential retaliation claims that could arise from having to discipline a mandated reporter, particularly on reasons unrelated to the report.

The decision also addresses the burden of proof in discrimination cases and First Amendment issues as well.   In particular, the court looked at whether Garcetti v. Ceballos prohibited the employee’s claims.  Look for more posts this week on these other aspects.

It’s not very often that the Connecticut Supreme Court considers employment law issues.

But today, two notable cases are being argued in front of the court. Both could have an impact on employers in the state.

Court Considers Employment Law Cases

In Patino v. Birken Manufacturing, the court is being asked to consider whether a hostile work environment harassment claim can be brought under state law (Conn. Gen. Stat. Sec. 46a-81c if you’re keeping track at home). 

The court’s summary of the case is as follows:

The plaintiff, Luis Patino, was employed by the defendant, Birken Manufacturing Company (Birken), as a machinist. Beginning in 1991, some of Patino’s coworkers began calling him derogatory homosexual names. The derogatory words were not spoken to Patino directly but were made in his presence. In 2005, Patino commenced this action, alleging that Birken violated General Statutes § 46a-81c by failing to prevent its employees from creating a hostile work environment for Patino on the basis of his sexual orientation. Section 46a-81c provides in relevant part: “It shall be a discriminatory practice . . . [f]or an employer, by himself or his agent, . . . to discriminate against [an individual] . . . in terms, conditions or privileges of employment because of the individual’s sexual orientation . . . .” (Emphasis added.)

After trial, the jury returned a verdict in favor of the plaintiff. Birken filed a motion to set aside the verdict, arguing that no cause of action exists for a hostile work environment claim under the plain and unambiguous language of § 46a-81c. The trial court acknowledged the absence of an explicit hostile work environment provision in § 46a-81c but found that this was not dispositive. Rather, the court opined that the answer to the question before it turned on the interpretation of the phrase “terms, conditions or privileges of employment” in § 46a-81c. The court observed that in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), the United States Supreme Court, in the context of a sexual harassment claim under Title VII, broadly interpreted the phrase “terms, conditions or privileges of employment” to include protection from a hostile work environment. Relying on Vinson, the trial court ruled that the phrase “terms, conditions, or privileges of employment” in § 46a-81c imposes liability on an employer who fails to prevent its employees from creating a hostile work environment for a coworker on account of his sexual orientation.

Next, Birken argued that the evidence was insufficient to establish a hostile work environment because the derogatory words Patino heard were not directed at him. Relying on federal court precedent, the trial court ruled that discriminatory conduct does not have to be directed at the plaintiff or to his face to be actionable. Thereafter, noting that Patino consistently overheard his coworkers making derogatory remarks about his sexual orientation in his presence, the court rejected Birken’s insufficiency of the evidence claim, stating that Patino’s workplace was both objectively and subjectively hostile. Accordingly, the trial court denied Birken’s motion to set aside the verdict.

On appeal, Birken contends that § 46a-81c does not provide a cause of action for a hostile work environment claim. Alternatively, Birken claims that the evidence was insufficient to establish that the conduct of the coworkers created a hostile work environment for Patino.

The other case to be argued today is Velez v. Connecticut Department of Labor.  I’ve previously written about the case here and here.  The crux of the case surrounds whether employers need to count out-of-state employees for purposes of the state FMLA laws.  Notably, both the employer AND the Connecticut Department of Labor argue together that out of state employees should not be counted.

The court’s summary of the case states:

The plaintiff filed a complaint with the state department of labor alleging that her employer, defendant Related Management Company, had violated the Connecticut family and medical leave law, General Statutes § 31-51kk et seq., in firing her. The department of labor dismissed her complaint, finding that Related Management was not subject to the state family and medical leave law because it employed only thirty-five employees in Connecticut, and General Statutes § 31-51kk (4) defines an “employer” for purposes of the family and medical leave law as one “who employs seventy-five or more employees.”

The plaintiff appealed to the Superior Court, and the parties stipulated that, while Related Management employed only thirty-five people in Connecticut, it had over a thousand employees nationwide. The trial court disagreed that Related Management was not an employer for purposes of the family and medical leave law. The court noted that § 31-51kk (4) contains no geographic limitation on counting employees and ruled that, in determining whether an employer meets the statutory seventy-five employee threshold, out-of-state employees should be counted. The court refused to defer to two previous department of labor decisions that concluded that § 31-51kk (4) did not allow the counting of out-of-state employees, finding that those decisions were not reasonable and that the agency’s interpretation of the statute would ignore the underlying purpose of protecting small employers and instead skew the exemption in favor of those employers having few employees in Connecticut but many employees in other states.

Related Management and the department of labor appeal. They claim that the trial court should have deferred to the agency’s reasonable and time-tested interpretation of § 31-51kk (4) and that its interpretation is supported both by reference to the agency’s regulations and the legislative history of the family and medical leave law. The department of labor also argues that the court’s interpretation of § 31-51kk (4) would lead to unworkable results.

 A decision on both of these cases is expected later this year.  (The briefs are not yet available online, but will be posted here soon.)

It’s so rare nowadays that the Connecticut Supreme Court rules on discrimination cases that, when I first took a look at its new decision in Duart v. Department of Corrections (download here) — officially released next week — I got excited.  After all, the case is based on a claims of gender, race and sexual orientation discrimination. Even the CHRO submitted an amicus brief in support of the decision.

Connecticut Supreme Court

But upon further review, it’s a decision only the lawyers will love; for employers, the case lacks the oomph to make it significant.

At issue is whether a party seeking a new trial on the basis of alleged knowing and deliberate discovery misconduct must show that the result at a new trial would likely be different.  The court concludes yes; the party must show that a “different result” would have occurred — a high standard indeed to meet.

In reaching that conclusion, the court basically notes that discovery has become so difficult that the other party can often find something to complain about. That would lead to chaos, according to the court.

Given the breadth of discovery in modern trial practice, it is inevitable that the movant could find some fault with the other party’s compliance with broadly phrased discovery requests. If we obliged the nondisclosing party to prove harmlessness every time the moving party claimed that the nondisclosure constituted misconduct, we would impose an insupportable burden on the nonmoving party to disprove amorphous assertions, as in the pre- sent case, that the ‘‘entire case would have gone differently . . . .’’ Requiring a showing of a different result serves as a means of differentiating those cases in which the nonmoving party’s alleged misconduct materially affected the resolution of the underlying case—and in which, accordingly, the increased burden and expense is thereby warranted—from those cases in which relitigation would be a pointless exercise.

For employers, it’s hard to take away much from this decision.  It’s a procedural decision that may impact discovery and trials. But for human resources professionals, it’s not going to have much, if any impact.