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The short session of the Connecticut General Assembly is set to begin on February 5, 2014.

But the jockeying for items to get on the agenda is well under way. The Connecticut Commission on Human Rights and Opportunities is circulating a proposed bill that would followup on a failed bill from last year’s term.

I previously discussed this proposal in a post last May.

At the time, the proposed bill was thought to be close to passage, but time ran out in the session before it could be picked up.  Earlier versions the bill proved quite troublesome; this latest version still has issues that haven’t been addressed and it’s important for employers to speak up now before the changes are put into place.

So what are some of the changes this bill would bring?

Changes to “Mental Disability”

The bill expands the definition of a “mental disability” to not only “mental disorders, as defined in the most recent edition of the American Psychiatric Association’s ‘Diagnostic and Statistical Manual of Mental Disorders’”, but also to including having “a record of or regarding a person as having one or more such disorders”.

Put aside, for the moment whether including everything in the new DSM5 is worthwhile. The more troubling issue is that the proposed law would continue to cover “regarded as” claims for mental disabilities. The references to a “past history” of mental disability in existing law being removed by this bill are less significant because a “record” of disability would now be covered.

Why is that problematic? Becaues that the definition is inconsistent with how a “physical” disability is treated; where is the reference to being “regarded” as having a physical disability?

Rather than continue to treat mental and physical disabilities as distinct from each other, the legislature should take its cues from the ADA and match its definitions accordingly.  Otherwise, we’ll continue to have three different standards to analyze disability claims — one for ADA claims, and two for state disability-related claims.Continue Reading Legislative Preview: Will the CHRO Bill Get Passed This Year?

Not every case can be a U.S. Supreme Court case filled with sweeping pronouncements on employment law.

Blowing the whistle on a notable court decision

Indeed, many times the law develops through under-reported cases that you’ll never hear about.  The pronouncements may not be sweeping on those cases, but those cases help clarify a point that had been left uncertain before then and may open the door to other arguments as well.

Take the case of Commissioner of Mental Health and Addiction Services v. Saeedi, a Connecticut Appellate decision (download here) that will be officially released on July 9th.

Its ostensibly a whistleblower case under Conn. Gen. Stat. Sec. 4-61dd, where — as part of the damages awarded to the whistleblower — the CHRO ordered agency personnel to undergo professional ethics training and to alter the personnel file of the employee.

But the court was asked to look at something greater: Under the state’s whistleblower statute, where the CHRO has the power to award “any other damages”, does that include equitable (or non-monetary) relief?

The Appellate Court, in reviewing the language of the statute and the legislative history, concluded “no”.  Thus, the ordering of training was improper under the statute. But notably, the court said that because the CHRO was empowered to order reinstatement, the altering of the personnel file was appropriate to achieve that result.

That conclusion is not entirely surprising.

But the Appellate Court goes on a bit further in language that employers may see again in the future and that opens the door a crack to arguments about whether the CHRO can award other relief (perhaps even emotional distress damages) in discrimination cases.  (For background, I’ve talked about the CHRO’s attempt to include emotional distress damages as part of the award of damages.)Continue Reading Appellate Court Limits Relief for Whistleblowers But Opens the Door in Discrimination Cases

In prior posts, I’ve talked about the fluctuating work week and how it can be a useful tool for employers in limited circumstances. 

You might need a calculator

Yesterday, a federal court in Connecticut had a very interesting ruling that addressed whether an employer — when faced with a suit for…

Over the years, I’ve openly questioned whether the CHRO has been improperly awarding emotional distress damages and attorneys fees in employment discrimination claims.  

Indeed, back in February 2009, I noted “Nearly 15 years ago, the Connecticut Supreme Court came out with a pair of decisions that seemed to put to rest the question of…

Suppose you just defended against a discrimination and harassment lawsuit by two former female employees. The jury found that discrimination

Justice for all...including attorneys

and harassment had occurred. But the jury awarded one employee only $1600 in economic damages and nothing for emotional distress. For the other employee, the jury…

Over the last 24 hours, there’s been a lot written about the Supreme Court’s decision yesterday in Wal-Mart Stores v. Dukes.  Frankly, all of them are starting to say the same thing:  The decision is going to hamper all class-action discrimination cases going forward.

But that statement tends to simplify the decision a bit too much.  In my view, what the decision stands for is that it will be increasingly unlikely that the mega-class action (the one that covers an entire company) will be able to proceed without a very specific and tangible practice or policy that the plaintiffs can point too. 

What types of things are we talking about? Well, it would be unlikely, but suppose a company had a mandatory retirement age of 60 but without a legitimate basis for doing so. In essence, it was a company-wide practice of discriminating against older workers.  That type of class action will probably survive.
Continue Reading Wal-Mart v. Dukes: What The Class-Action Decision Really Means for Employers

The Jewish holidays starting tonight encourage reflection. So, it seems particularly appropriate to do some quick updates on earlier posts:

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