The other shoe has dropped. For now.

Governor Malloy late today released his official “Plan B” detailing the layoffs expected as a result of the union concession vote. And it’s ugly.

It calls for a 15 percent staff reduction at the Department of Labor, 30 percent reduction at the Commission on Human Rights and Opportunities, and 10 percent reduction at the judicial branch (resulting in 450 layoffs there alone).

It’s not the elimination of the CHRO which was on the table, but cuts this deep will no doubt have a serious impact on the work that can be done at that agency.

If this goes through, expect big delays to start happening. The next few days and weeks are going to be worth watching. Will there be a new deal cut? Perhaps. But until then, the uncertainty continues.

As Connecticut law blogger Ryan McKeen aptly notes:

It’s bad for business when disputes can’t be resolved in a timely and efficient manner. Bad. Bad. Bad.

In reading the Connecticut Judicial Branch’s new strategic plan (which overall, is a very thorough and useful document), I was struck by its persistent usage of the term "intellectual disability."  Indeed, section I.3 of the Plan indicates that the judicial branch will work with the legislature to revise laws that hamper participation by those with “intellectual disabilities.” 

Thus, it is not clear what an "intellectual disability" is – especially as used by the Judicial Branch in its report.  As referenced by the Judicial Branch, the term seems to connote some mental deficiency that may be the equivalent to, or a step away from, mental retardation, or dyslexia or some other cognitive deficit (the Report refers to those persons who appear in court who cannot read signs or cannot understand instructions). 

I have to confess that I had not heard that term used in a legal context and it’s usage here by our court system struck me as odd. What exactly is an "intellectual disability" and why is the Judicial Branch using that term?  A quick search of Connecticut caselaw reveals no cases where that term is even used by Connecticut courts. So what’s going on?

What is an "Intellectual Disability"?

It seems that the judicial branch is using the term "intellectual disability" as a substitute for “mental retardation.” But the only reference that I could find to “intellectual disability” in our state laws is as a modifier of the term "mental retardation," not as a substitute.

"Mental retardation" is defined in Conn. Gen. Stat. 1-1g as "a significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period." 

Interestingly enough, the Connecticut Council on Developmental Disabilities actually suggests using the term "mental retardation" in its media guide. (While the legislature did change the name of the Department of Mental Retardation to the Department of Developmental Services last year in Public Act 07-73, it left the term "mental retardation" alone, only compounding the issue.) 

But this definition does not seem to be equivalent to a mere “intellectual disability” which connotes some lacking in intellectual ability – but without the “deficits in adaptive behavior.”  The State Department of Education released a working draft of a proposal that used the term "intellectual disabilities" and defined it a little differently than "mental retardation." 

After a quick search of the state statutes, I found that in the sole instance where "intellectual disability" is used, it is used to represent something different than what is meant by "mental retardation".  Conn. Gen. Stat. 17a-210b, states that "The absence of a diagnosis of, or reference to, mental retardation, intellectual disability or developmental disability within an individual’s school records or medical records shall not preclude the Department of Mental Retardation from making a finding of mental retardation, as defined in section 1-1g." This does not equate to a mental impairment to which the state employment discrimination laws apply (i.e. depression, anxiety, bi-polar disorder, etc.).

Of course, the CHRO, the agency responsible for enforcing the state’s disabilities laws, still uses the term "mental retardation" because, presumably, that is its charge under Conn. Gen. Stat. 46a-51.

Compounding the issue further, the federal government has used the term in yet a different context as well.  For example, even though the Americans with Disabilities Act doesn’t use the term "intellectual disabilities",  the EEOC released guidance on this issue way back in 2004 and explained its usage of the term in yet another definition.

The EEOC’s use of the term "intellectual disabilities" follows the model of the President’s Committee on Intellectual Disabilities (formerly known as the President’s Committee on Mental Retardation). The Committee adopted this term to "update and improve the image of people with disabilities who were formerly referred to as people with mental retardation and to help reduce discrimination against these citizens." The Committee also "sought to reduce the public’s confusion between the terms mental illness and mental retardation and to remove the use of terms which resulted in faulty name-calling."

Even the CDC has a different way of defining "intellectual disability".  So, by now, your guess is as good as mine on what the term really means, and how it should be used in legal matters.

"Intellectual Disability" Needs a Clear Definition Before Courts Start Using It

Why is this important, particularly in the employment context?  Because our state discrimination courtesy morguefile "dictionary"laws don’t talk about "intellectual disabilities" – they talk about providing protection to employees who live with "mental retardation".  And when our court system and others start using terms without a clear definition, it is bound to lead to confusion and fights over what these terms now mean. 

For employers, this is the worst of situations because without clear boundaries of what is proper, you can bet that a lawsuit — at some point or another — isn’t far behind. (One can imagine a prospective employee who cannot read suing for disability discrimination when refused a job that requires reading and pointing to the Judicial Branch’s report as evidence that Connecticut now protects persons with “intellectual disabilities.”)

I am by no means arguing for the continued usage of the term "mental retardation" if our government folks have decided to begin using the term “intellectual disability" in its stead –especially if the term is stale and pejorative to some.  But by the same token, introducing a phrase like "intellectual disabilities" (particularly in the court system) that has no common meaning and isn’t an exact substitute, isn’t necessarily the solution either. 

In fact, I would argue that it’s downright reckless for the courts and state agencies to start using that term without some guidance from the legislature.

It’s certainly time for the government (both state and federal) to come to some sort of understanding about its usage and help define that term.  Creeping usage benefits no one.  And if the General Assembly has eliminated the term from the Department of Mental Retardation, why continue the term elsewhere?

The point here is that if the Judicial Branch is going to incorporate an undefined term in its report (and others start adopting the term), it should explain the term or give some frame of reference for it. If the term “intellectual disability” is something other than “mental impairment” or “mental retardation,” and the Judicial Branch is defining a new class of persons that must be accommodated in some fashion, then that needs to be explained for those of us that deal with hyper-technical definitions of “disability” (mental and physical) day in and day out.

Do you have any ideas on how to fix this issue? Any experience with the term "intellectual disability" Is this actually just another example of the PC word police? What are other states doing?

Feel free to comment below.  I’ll try to follow-up on the subject in an upcoming post with ideas and suggestions.

Many thanks to my colleague Joshua Hawks-Ladds for his comments and suggestions for this post.

The blog and press coverage of the Connecticut Supreme Court’s case of Curry v. Allan S. Goodman, Inc. continues this week with two additional shout-outs to this blog.  In addition, another resource cited to the decision that is worth mentioning.

First up, the well-run and informative Point of Law blog, edited by Walter Olsen, discusses the case today with a references to this blog.  There are lots of other employment law issues discussed at the site so I would recommend it for a different perspective on the legal system.    

In addition, the Connecticut Law Tribune (subscription required) has a detailed article in this morning’s paper on the Curry decision.  The reporter contacted me last week and I provided him with some additional insights in the case. The reporter was also kind enough to quote this blog as well.

"This is a very significant decision," said Daniel A. Schwartz, an employment lawyer at the Hartford office of Pullman & Comley, who writes ctemploymentlawblog.com. He is not personally involved in this case, but said the ruling is "mandatory reading" for all employment law practitioners.

"There have been attempts in recent years to create this reasonable accommodation language with legislative changes, but those bills did not pass," Schwartz said.

The decision — officially released April 15 — puts employers on notice to be responsive to needs of disabled employees and to actively engage in communication once a problem is identified. "They can’t just take a hear-no-evil, see-no-evil, speak-no-evil attitude," Schwartz said in an interview.

Lastly, as part of the press coverage, I also stumbled on to a very good site today that I’m sure others have known about for years: the Connecticut Judicial Branch Law Libraries Newslog.  The site keeps readers updated on  "Connecticut legislative developments, new court decisions, online legal research tools, new law library resources, and other topics of interest to the Connecticut legal community."  I would definitely check the site out.