The Connecticut Appellate Court has an interesting case coming out officially early next week about an employer’s obligations to provide leave as a “reasonable accommodation”. You can download Barbabosa v. Board of Education here.

In it, the Court concludes that when attendance is an essential function of the job (as it will be for most

Ms. Lora Wagner -- see below
Ms. Lora Wagner — see below

So, in yesterday’s post, I alerted you to a portion of the state’s pregnancy discrimination law that you may not have been aware of, namely Conn. Gen. Stat. Sec. 46a-60(a)(7)(E).  If you haven’t read it yet, I’d suggest you do so for background for today’s post.

But after yesterday’s post, you may be wondering, is this a theoretical issue? In other words, have their been any lawsuits that employers should perk up their ears to?

As it turns out, yes.

One such case (Fenn Mfg. v. CHRO) began in 1983, when an pregnant employee complained to the CHRO that her employer, Fenn Manufacturing, had violated her rights under Section 46a-60(a)(7)(E) by refusing to permit her to work outside her normal work area whenever a co-worker at a nearby work station spray painted aircraft housings with an aerosolized paint primer containing aromatic hydrocarbons. Claiming that she had suffered ill effects when the primer was first used in her area, and that her doctor had later instructed her to avoid all exposure to aerosols and hydrocarbons during pregnancy, the pregnant employee insisted that she had come “reasonably[to] believe[ ] that continued employment in [her current]position m[ight] cause injury to [herself] or [her] fetus.‘

On that basis she contended that upon informing Fenn in writing of her belief and of the basis therefor, she became entitled under Section 46a-60(a)(7)(E) to have Fenn ‘make areasonable effort to transfer [her] to any suitable temporary position which may [then have] be [en] available‘ for her.

Claiming that at least one such ‘suitable temporary position‘was indeed ‘available‘ for her — that being a modified version of her existing position in which, during the first part of her pregnancy, Fenn had admittedly allowed her to work outside her normal work area during spray painting — the employee argued that Fenn had violated Section 46a-60(a)(7)(E) by refusing to allow her to work in that or some other suitable temporary position until the birth of her baby. As a result of Fenn’s refusal to make this accommodation, she argued, it should be required to compensate her for the wages she lost and the emotional distress she suffered when, as a result of that refusal, she was forced to leave her job to protect the health of her unborn child.

The CHRO sided with the pregnant employee and Fenn appealed. The case went all the way to the Connecticut Supreme Court on the issue of emotional distress damages, but as to the underlying discrimination claim, it was upheld without comment.  Indeed, it’s the lower court’s decision that is instructive.

The court addressed what “reasonable belief” in injury means.

The text of Section 46a-60(a)(7)(E) gives much useful guidance as to what the legislature intended when it conditioned the availability of the statute’s transfer remedy on a pregnant employee’s “reasonabl[e] belie[f]” that continued employment in her current position may cause injury to herself or her fetus. Of special note in this regard are three distinct features of the statute’s triggering mechanism.

The first of these is the use of the term “belief” to describe the measure of conviction which the employee must have as to the existence of a workplace danger before she can invoke the statute’s protections. A “belief” that one faces a particular danger is clearly different from “knowledge” that such a danger exists. Whereas “knowledge,” in common parlance, is a subjective state of certitude as to a fact that is demonstrably true, “belief” is but a firm commitment to or acceptance of the truth of a given proposition, with or without the corresponding ability to prove by any standard that it is true. Though a person cannot “know” what he doubts or cannot prove, he can readily “believe” it, notwithstanding his uncertainties. Therefore, by expressly providing that an employer’s obligation to accommodate an employee under this statute is triggered by the employee’s reasonable “belief” that continued employment in her current position may cause injury to herself or her fetus, the legislature must be found to have intended that pregnant employees should be entitled the statute’s protections even when they cannot prove, by objective, scientific evidence or otherwise, that the dangers they seek to avoid are real and substantial.

In other words, this is a much lower standard for a pregnant employee to meet.


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Today my colleague Chris Engler returns with a post that tackles a recent case that explores what should happen when an employee has exhausted her FMLA leave.  Case closed? Well, not exactly, as Chris explains.  

Most readers have heard the admonition that “No good deed goes unpunished.”  (Readers might be less aware that the phrase was coined by Connecticut’s own former U.S. Representative, Clare Boothe Luce.)

A recent federal decision in Wanamaker v. Town of Westport Board of Education reminds us that this warning is more than just a clever saying.

The plaintiff, an elementary school computer teacher, became pregnant with an expected due date in late April 2009.  Many months into the pregnancy, her  doctor ordered her to bed rest due to complications with her pregnancy.  The school district granted her FMLA leave.

So far, so good.

However, this story took an unfortunate turn after the teacher gave birth in April 2009. Suffice it to say that both the employee and her newborn daughter began to suffer from a number of severe complications and ailments.

As a result of these medical issues, the teacher couldn’t immediately return to work.  In fact, she wasn’t cleared to return to work at all until the following spring, and she ended up missing the rest of that school year.

Here’s where it gets contentious.  

It’s now the summer of 2010.  Ms. Wanamaker has not worked in roughly 16 months.  The school district offered her a job as a regular classroom teacher at her current salary for the 2010-11 school year.  She wanted to be a computer teacher again instead.  Ms. Wanamaker argued that she wasn’t medically able to work as a classroom teacher because it was more physically demanding.

After the school district eventually terminated her for, among other things, job abandonment, Ms. Wanamaker filed suit under the FMLA, the federal Americans with Disabilities Act (“ADA”), and state anti-discrimination laws.

(If the case sounds familiar so far, you’re not having déjà vu.  A number of bloggers (for example, here, here, and here) covered an earlier court ruling in this case that prevented the district from getting a quick win on the FMLA claims.  The issue there was whether the two teaching jobs were equivalent, and all the court said was that they might be.  As it turned out, in the more recent decision, the court neatly sidestepped the issue of whether the two teaching gigs were equivalent under the FMLA.)

Now for the bad news for employers.  This is where the “good deed” quote fits in.


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Last week, Attorney Robin Shea of Employment & Labor Insider proposed 10 rules of etiquette that “will save you from a pregnancy discrimination suit”.  Rule No. 1? Pregnancy is always good news.  Always. Always. Always.

If you haven’t read it, I’ll wait.

There are lots of rules regarding pregnancy that may come into play

Earlier this afternoon, President Obama signed the National Defense Authorization Act of 2010.  By doing so, he approved of several changes to the FMLA .  But before you rip up your existing FMLA policies, the provisions relate to the military-related leaves under the Act.  (H/T Ohio Employer’s Law Blog)  The changes as a whole