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

Senate Bill 3, titled “Combatting Sexual Assault and Sexual Harassment” has been modified since first introduced and passed the Senate late last week.  Despite the title, the bill would impact every discrimination case filed in the state and would make significant changes to the sexual harassment prevention training requirements.

It is awaiting a vote

A lot has been made of the recent district court decision on legal job protections for qualifying medical marijuana patients.

But the decision has another piece that has been overlooked and which may cause employers some heartburn as well.

The “Negligent Infliction of Emotional Distress” cause of action has been on life support for

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

A new revised bill (in the form of an amendment) to amend the state discrimination statutes and amend the CHRO procedures has been posted on the Connecticut General Assembly’s site this afternoon.  The amendment (8532) can be found in the information for S.B. 1164

A review of the language shows a few changes, including the

Whenever someone tells you that a proposed bill “clarifies” something or “simplifies” existing law, you should view such talk with a dose of healthy skepticism.

Indeed, viewing the written testimony of CHRO Executive Director Robert Brothers in support of Senate Bill 1164, you could be left with the impression that the changes being proposed to the state’s anti-discrimination laws were nothing more than technical in nature. 

But a more detailed review of the proposed bill reveals significant changes to how the state processes anti-discrimination complaints and what the scope is of such laws.   It would seemingly add emotional distress damages, for example, to the relief available at a public hearing for the first time. 

To be fair, some of the changes really are technical in nature, such as to make the statute more gender neutral. The problem is that such innocuous changes are lumped together with the significant ones.

The Office of Legislative Research’s summary of the bill is far more complete than the CHRO testimony and highlights some of the substantive changes, but even that office’s summary misses some troubling changes. 

Here are three (among many) notable items from the bill worth a review, illustrating why this rushed bill is a bad idea at this time. 

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”.  


Continue Reading Revisions to CHRO-Related Statutes Under Consideration Include Damages for Emotional Distress

A new lawsuit filed last Thursday in Connecticut state court by an employer alleges that the employer’s due process rights are being violated by “inherently conflicted and irreparably unfair proceedings” at the Commission on Human Rights and Opportunities (CHRO) — the state agency responsible for investigating and enforcing the state’s anti-discrimination laws. 

In the lawsuit,