Lawyers love their cocktail chatter. And at a recent bar event, an interesting hypothetical came up among lawyers:
Suppose an employee is trying to get pregnant and is thinking about infertility treatments. She’s considering time off for rest, and perhaps even for some in vitro fertilization (IVF) appointments. Perhaps even the doctor has said that
Last week I talked about the new state law regarding pregnancy discrimination that is going into effect on October 1, 2017. In that post, I mentioned a new notice that was required to comply with the law.
Although there is no set form that is required to be used, the Connecticut Department of Labor has
For those unfamiliar with the way a lot of Connecticut laws get implemented, October 1st could seem like just another day. (Though for my kids, they would be impressed that it was a different October 1st in 1982 that EPCOT opened at Disney World.)
But a lot of bills that are passed by the Connecticut General Assembly go into effect on October 1st each year. This year is no exception.
For employers, the biggest of these bills is the new law concerning “Pregnant Women in the Workplace”. I’ve previously recapped the law for pregnant employees in a prior post way back in May, but because we’re getting close to implementation, it’s time for a little refresher.
Existing law makes it a discriminatory practice to:
Those rules remain unchanged. But the new law revises some other provisions and adds more to the protections. Effective October 1st, it will now also be unlawful to:
The changes don’t stop there. The new law also explains that the word “pregnancy” will also include “pregnancy, childbirth or a related condition, including but not limited to, lactation”. It also expands the definition of “reasonable accommodation ” and “undue hardship”.
Continue Reading Two Weeks Until New Protections for Pregnant Employees Become Effective
Well, the Connecticut General Assembly ended earlier this week and, as predicted, it ended with a whimper and not a bang. Many employment law proposals failed to receive votes, including those on minimum wage and Paid FMLA, leaving many employers (and the CBIA) breathing a bit of a sigh of relief.
I’ve previously recapped
Today is the last day of the Connecticut General Assembly regular session. So it’s a good time to take a look at some of the bills pending or passed. Strangely, things seem pretty quiet on the employment law front. But after the dust settles, I’ll have another update. Here is where we stand as of
On Tuesday, May 23rd, the Connecticut House of Representatives overwhelmingly passed a measure that would greatly expand the already broad anti-discrimination provision that exist under Connecticut law. The bill, House Bill 6668, would make several substantive changes to the protections including defining what is a “reasonable accommodation” instead of leaving that determination open.
I’ve
Last week, the U.S. Supreme Court decided one of the most anticipated cases in the court’s docket this year — at least for employment lawyers — in Young v. UPS. There’s been lots of bytes uploaded talking about the case from a federal level. Much of it
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.Continue Reading Connecticut Law May Force Employer to Transfer Pregnant Employee
With all the talk about the Supreme Court deciding a pregnancy discrimination case this term and what it means for federal law, there is a separate Connecticut law on the subject — a portion of which you are probably unfamiliar with.
Yes, you probably know that if you’re an employer with three or more employees,
Every year, I break out a crystal ball, or a magic 8-ball, or some tea leaves, and make some pronouncement about what will happen in the upcoming year.
It’s sort of a no-lose proposition. If I’m right, well, then I pat myself on the