hourglassOne of the rules in employment discrimination cases that seems to have blurred of late is the notion that a complaint of discrimination must be filed within 180 days after the alleged discrimination.

A new decision from Presiding Human Rights Referee at the CHRO (CHRO ex rel. Roig v. State of Conn., Department of Correction et al) suggests that the 180 day rule can still be followed — at least in some instances.

In the case, which was just released on Monday, the employee filed an original complaint against the Department of Correction on March 25, 2013.  Approximately 16 months later, the CHRO permitted the complaint to be amended to include the UConn Health Center.

That was simply too late and does not “satisfy the requirements of equitable tolling”.  Moreover, the Referee said that there was no evidence provided to suggest that the Health Center was aware that the Compalint had filed the complaint and therefore had “constructive notice”.

The referee concludes: “To deny this motion to dismiss, on the facts before me, would render the mandatory statutory filing period meaningless and flout the intent of the legislature”.

This is not insignificant. The CHRO has, of late, been very generous to Complainants in allowing them to amend their complaints — even after the 180 day filing period has expired. This decision may put a chill in that practice or, at the very least, gives employers good reason to ask to dismiss the newly-raised matters when the case goes to a hearing or court.

 

aslWhat does it really mean to provide a reasonable accommodation to an employee who has a disability?

That’s a question I talk about a bunch with clients.  The employee may request one thing but the employer may think that another accommodation can accomplish close to the same thing, perhaps at a lower cost.  Who wins?

It’s not a new question; I’ve talked about it before here on the blog too.

But a recent case by the Second Circuit adds some layering to that discussion.  The case, Noll v. IBM, isn’t one that you’ll see on the front page of The New York Times.  I found out about it from the always reliable (and underrated) Wait a Second Blog.

That blog’s recap is appropriate here:

Noll worked in Poughkeepsie, N.Y., but IBM is a huge corporation for which internal communication were broadcast over a company-wide intranet. Noll asked for captioning of certain intranet videos or transcripts of audio files. Instead, as noted above, IBM gave him transcripts and access to ASL interpreters. Noll said these alternatives were not good enough it was “confusing and tiring” to look back and forth between the video and the ASL interpreter. Also, it sometimes took five days or longer for transcripts to be made available to Noll, and links to the transcripts were sometimes broken.

The IBM Media Library stores over 46,000 video files (!), only 100 of which were captioned.  As for live meetings, IBM provided him with ASL interpreters and Noll found those to be “effective.”  But he didn’t like the interpreters for the videos because he found it “confusing and tiring.”

The Second Circuit noted that determinations of the reasonableness of accommodations are typically fact-specific, but summary judgment can be granted to an employer if the accommodations are “plainly reasonable.”  (Pro tip: If the court is setting forth this standard, you can figure out where it is headed.)

This is an important point to emphasize and the court seems to be setting forth a standard that hasn’t been utilized much before in discussions. “In other words, the plain reasonableness of the existing accommodation ends the analysis. There is no need to engage in further burden‐shifting to consider whether the employee’s requested accommodation would have been reasonable.”

Reasonable accommodation can take many forms, but must be “effective”, the court said.  And, at the same time, employers are not required to provide the “perfect” accommodation or even the “very accommodation most strongly preferred” by the employee.  “All that is required is effectiveness.” 

Here, the court found that the accommodations from IBM were indeed “effective”.  While Noll said the interpreters were not as effective as captioning and that it was “tiring” to watch it, that objection is not enough to get him to a jury trial, let alone victory.

This disadvantage does not render interpretive services ineffective. A person who is deaf necessarily receives auditory information from other senses (principally sight); so it can be expected that many accommodations of deafness — ASL interpretive services as well as captioning — will tax visual attention to some degree. An accommodation for deafness therefore cannot be rendered ineffective by the need to divide visual attention, without more.

For employers, this is an important case to consider. IBM here had access to many more resources than most employers. And even with all the services it provided, it was sued for still not doing enough. The Second Circuit put an end to that — no doubt after IBM spent significant sums to defend itself.  Smaller employers may not be so fortunate.

Still, for employers, showing that you have entered into the interactive process with employees and provided what it believes to be an “effective” reasonable accommodation can still provide a path to success if sued.

I sometimes lament that employers get the short end of the stick when it comes to matters before the Commission on Human Rights and Opportunities.  There’s little doubt, as I’ve said before, that more cases are being retained for investigation.

But what happens after an investigation has concluded that there is “reasonable cause” to believe that discrimination occurred? How do employers fare at a public hearing stage which is supposed to be a “clean slate”?

It’s hard to judge because there aren’t easily identifiable statistics to work from. Instead, you have to piece together a few recent decisions.

In one case this past summer, the employer (the state Judicial Branch) successfully defended itself against a claim of race discrimination. In doing so, the presiding human rights referee found that the evidence was insufficient to support a claim.  (From a legal perspective, there isn’t much to be gleaned from the fact-specific analysis.)

In another case, the employer also successfully defended itself against a claim of age discrimination. The referee found that the evidence of discrimination to be “tenuous, at best”.  The referee said that “While I do not doubt his personal conviction that the failure to hire him was ill advised, for his discrimination claim to be viable the record must either contain evidence sufficient to prove that Respondent harbored and acted with discriminatory animus, intentionally taking Complainant’s age into account in failing to consider him for a…position, or evidence of pretext.”

That burden was not met here.

But in another case, the employer (the state’s Joint Committee on Legislative Management), the presiding human rights referee found that the employer did not provide reasonable accommodations to the employee and discriminated against him on the basis of her disability.  In doing so, the hearing officer awarded over $177,000 in back pay damages and ordered the employer to reinstate the employee.

Unfortunately, there just aren’t many more recent cases published by the CHRO’s hearing office to make a determination.  Employers lately seem to win some and lose some.   Others get settled without a disclosed outcome.

All hope isn’t lost for employers at the CHRO. It just may take a while (and a good amount of attorneys fees) to get there.

The snow may have stalled work in the state for a few days, but the Connecticut General Assembly is now in full swing with bills now being discussed and debated.

So far, the list of bills filed before the Labor & Public Employee Committee is small but that is expected to grow soon with bills on “Employee Privacy” for example, on the horizon.

Many of these bills will have a public hearing on Tuesday, February 18th, so if you have any objection, now is a good time to make them known to your local legislator.

And this is just in the first week.  The legislative session — in an election year, no less — is starting to move quickly and with purpose.  If employers aren’t paying attention yet, now would be a good time to do so.

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, NERAC v. Krich, a copy of which can be downloaded here, the employer alleges (among other things) that that the administrative law judge (a human rights referee) is a client of the presenting attorney (Commission Counsel) in a federal court lawsuit that has similiar issues to the ones that the employer is facing. 

Because of that attorney-client relationship and other due process violations, the employer alleges that the five cases it has before the ALJ must be dismissed.

There are lots of details to this lawsuit that can’t be neatly summarized in one short blog post, but several allegations jump out upon a quick review:

  • First, for those employers, that think the CHRO hearing process is quick and cheap, the lawsuit shows that the employer in this case has been dealing with allegations for over five years and many weeks’ worth of hearings in five consolidated cases.
  • Moreover, the employer sought to recuse the human rights referee (Michele Mount) on the grounds that she had applied for an associate position at the employer’s lawfirm (Jackson Lewis LLP) and was denied a position from the employer’s specific counsel (Victoria Woodin Chavey) in January 2012.   Ms. Mount denied the recusal motion, the lawsuit alleges, on the ground that “‘administrative adjudicators”‘are not required to meet the same standards of impartiality as judges.”  
  • On the date that the motion for recusal was denied, the lawsuit also alleges that Ms. Mount “had reviewed the LinkedIn profile of a senior officer of [the employer] whose alleged remarks had been the subject of a motion in limine” that had been denied.  When the employer sought to preclude reliance on information outside the evidence admitted at the hearing, the referee also denied that motion as well.
  • The lawsuit alleges that the CHRO is also pursuing an agenda of allowing attorney’s fees or emotional distress damages despite “no statutory authority to award such damages pursuant to Conn. Gen. Stat. Sec. 46a-58(a).”  It cites to the City of Shelton lawsuit that I covered back in August 2012.

The employer sought an ex-parte injunction, which was denied, but the court did schedule a hearing on the motion shortly.  The CHRO — through the attorney general’s office — has not yet filed a response and just filed an appearance in the matter on Friday.

For employers, the lawsuit should be carefully watched.  Some employers have been suspicious of whether they are able to get a “fair shake” at the CHRO and this lawsuit will certainly bolster those suspicions.  Whether a court will ultimately intervene, however, is an entirely different question that is simply impossible to answer at this early stage. 

Regardless, if employers have any hearings at the CHRO where the agency is seeking emotional distress damages on behalf of a complainant, they should continue to monitor this case and the Shelton case previously mentioned.

(Disclosure: I previously worked with the employer’s counsel, Ms. Chavey, at our former firm, Day, Berry & Howard up to 2005 or so.  I have no involvement, however, in the above proceeding.)

NERAC v. CHRO

And all of a sudden, things just got very busy at the Connecticut General Assembly.

On Tuesday, several labor & employment law bills are up for discussion and debate at a public hearing scheduled at 2 p.m. (details here).  One of the bills is the newest hot topic — the House version of the unemployment discrimination bill I discussed last week.

Some bills have been brought up before including allowing employers to use payroll cards (essentially debit cards) to pay employees instead of via check or direct deposit.

Perhaps the most notable of the bills to be discussed is one (House Bill 5291) that would not only increase the minimum wage, but make sweeping changes to the penalties for failure to pay minimum wage.  The penalty would increase from twice the amount to triple and would not provide an offset for wages already paid. More importantly, though, this change would also affect overtime claims — thereby making such violations by an employer extremely costly.

Another bill worth noting is House Bill 5237 that would provide an exception to the American School for the Deaf on its payroll practices for teachers. Typically, this exception is reserved for local or regional boards of eduction.  No word why ASD would get this carve out and not other private schools.

As always, these hearings are open to the public.

On Thursday morning, October 20th, the Connecticut Commission on Human Rights and Opportunities is having an informational session on Public Act 11-237 — the new law that changes the procedures before the CHRO.  The session will be held from 10 a.m. to 12 p.m. at the Old Judiciary Room at the State Capitol.   It’s open to the public.

The program should prove to be noteworthy because of a panel discussion that is planned.  Various attorneys who do work with the agency (including me) have been asked onto this panel to share our thoughts on the latest developments.

The agency is going through a difficult time now, as I’ve discussed in some prior posts.  An auditor’s report, for example, found that the agency was struggling to comply with statutory deadlines.

But the new law does hold some promise to streamline things there.  Anything that can shorten the timeframe for cases to be heard and that can resolve cases without fact-findings, is worth considering.

Come join the discussion on Thursday.  In the meantime, have any thoughts on the CHRO? Feel free to post them in the comments below.

 

It’s that time of year in Connecticut’s short legislative season when legislative proposals come fast and furious but only a few will make the cut.  One of the mechanisms used to separate out the contenders from the pretenders is the committee hearing process.  It is a process that allows proponents and opponents to have their say. 

At a hearing at the legislature today, the Labor & Public Employees Committee is scheduled to take up several bills.  They are: 

  1. S.B. No. 169 — AN ACT REQUIRING EMPLOYERS TO CITE A REASON FOR TERMINATION OF THEIR EMPLOYEES.
  2. S.B. No. 239 AN ACT CONCERNING THE CONTINUATION OF DAY CARE SUBSIDIES TO UNEMPLOYED WORKERS.
  3. S.B. No. 240 AN ACT CONCERNING THE E-VERIFY PROGRAM.
  4. S.B. No. 241 AN ACT CONCERNING THE DEPARTMENT OF ADMINISTRATIVE SERVICES AND PREQUALIFICATION AND EVALUATION OF CONTRACTORS.
  5. S.B. No. 242 AN ACT CONCERNING THE RETENTION OF JOBS IN CONNECTICUT
  6. S.B. No. 243 AN ACT CONCERNING UNEMPLOYMENT BENEFITS FOR THOSE PERSONS WHO BECOME DISABLED WHILE UNEMPLOYED.
  7. S.B. No. 261 AN ACT CONCERNING THE CONNECTICUT JOB CORPS TASK FORCE.
  8. H.B. No. 5058 AN ACT CONCERNING THE RIGHT TO ORGANIZE FOR CERTAIN STATE EMPLOYEES.
  9. H.B. No. 5195 AN ACT CONCERNING THE REHIRING OF RETIRED STATE EMPLOYEES
  10.  H.B. No. 5203 AN ACT CONCERNING STATE SERVICE RETIREMENT CREDIT AND TEACHERS’ RETIREMENT CREDIT
  11. H.B. No. 5206 AN ACT PROVIDING AN INDIVIDUAL THE RIGHT TO BRING A DISCRIMINATORY PRACTICE ACTION IN SUPERIOR COURT RATHER THAN THE COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES.
  12. H.B. No. 5284 AN ACT CONCERNING DOMESTIC VIOLENCE VICTIMS AND DISCRIMINATORY PRACTICES.
  13. H.B. No. 5285 AN ACT CONCERNING STATE EMPLOYEES AND VIOLENCE AND BULLYING IN THE WORKPLACE.
  14. H.B. No. 5299 AN ACT CONCERNING THE STREAMLINING OF THE UNEMPLOYMENT COMPENSATION APPEALS PROCESS.

Several, such as the bullying in the workplace proposal have been brought up before but with little enthusiasm.

As discussed last month, however, the proposal to circumvent the CHRO process merits the closest look because it would radically change the way discrimination cases are handled.  Employers in particular need to keep close tabs on this because it would change the statute of limitations on such claims to a much broader standard.  The CHRO has indicated that it opposes the measure as it is drafted. 

The hearing is scheduled to begin at 2 p.m. at the Legislative Office Building, Room 1E. The hearings are open to the public and amazingly enough, if you’d like to speak on any proposal, you can simply sign your name up on a list there.

Another hearing is scheduled for this Thursday.  You can view the agenda here.

 

The Connecticut Labor & Public Employees Committee is now scheduled to hold a hearing on various labor bills of relevance and importance to employers in Connecticut. Some are re-hashes of bills raised last year, but others, including amendments to the state’s FMLA laws are new.  The hearing is scheduled for February 5, at 2 p.m. at the Legislative Office Building, Room 2-E.

Here are some of the bills scheduled to be discussed (the full list is available here):

 

The General Assembly’s Labor & Public Employee Hearing on various labor bills went forward as scheduled on Tuesday.  Among the topics —  the workplace bullying bill that I first reported on on Monday.

Senate Bill 60 would create a private cause of action for workplace bullying. However, even if the bill passes the labor committee, it would still need to pass mA solution to workplace bullying?uster with the judiciary committee, according to state Senator Edith Prague.

The Hartford Courant had a report in Wednesday’s editions:

The bill, which has the support of committee chair state Sen. Edith Prague, D-Columbia, is actually a revised version of a similar bill that failed to reach a full vote of the assembly last year because of concerns about how it might affect businesses. In particular, opponents worried that the bill, which would allow workplace bullying victims to sue their tormentors, could expose employers to potential damages even if they had consistently tried to create a safe environment for workers.

The new legislation aims to protect employers who have acted in good faith by making them exempt from liability if they can show they took steps to prevent bullying behavior on the part of individual employees or supervisors.

Last week, The Word on Employment Law discussed the possibility that these types of bills were being introduced across the United States.  Earlier this month, Ohio Employer’s Law Blog touched the subject as well.  But for a more in-depth look at the subject, the ABA Journal did a nice piece earlier this month. The article quotes from a Tennessee case that perhaps touches on the problem with workplace bullying laws and perhaps over-legislating the workplace. 

The fact that a supervisor is mean, hard to get along with, overbearing, belligerent or otherwise hostile and abusive, does not violate civil rights statutes…

It’ll be interesting to see what happens with this bill in the upcoming months. And for the record, i don’t think hiring bodyguards for the workplace, as the movie poster suggests, is a good idea.  Stay tuned.