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.


Continue Reading Connecticut Law May Force Employer to Transfer Pregnant Employee

pregnancy1With 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,

Last week, my colleagues Peter Murphy and Harrison Smith, offered to write about the latest developments in the law regarding pregnancy.  The post was scheduled to come out today, when, much to our surprise, the EEOC yesterday afternoon released long-awaited guidance on the subject.

So much for that post!

After a quick rewrite last night, here’s the very latest that includes both my comments and additional sourcing from Peter & Harrison….

Just a few short weeks ago, the U.S. Supreme Court announced that next term it will once again tackle an issue that raises strong feelings in many women (and men)–how pregnant women are treated in the workplace in comparison to non-pregnant employees. 

As anyone interested in employment law knows, both Congress and the EEOC have focused extensively in recent years on getting employers to provide reasonable accommodations to disabled employees.  Although what constitutes a reasonable accommodation remains a difficult determination in certain circumstances, the need to engage in an interactive dialogue with disabled employees over accommodations now is well established. 

What to do with pregnant employees under the Pregnancy Discrimination Act, however, has been less clear.  The EEOC yesterday chimed in with new guidance on the subject.

But let’s not get ahead of ourselves. First, the background.

The Federal Courts of Appeals are split on whether, and in what situations, an employer that provides work accommodations to non-pregnant, disabled employees with work limitations must also provide work accommodations to  pregnant employees who are “similar in their ability or inability to work” as the non-pregnant employees.  

In the case coming to the Supreme Court, Young v. United Parcel Service, the trial court and the Fourth Circuit held that the PDA does not require employers to provide accommodations to pregnant employees.  

The Fifth, Seventh and Eighth Circuits agree with the Fourth Circuit, while other courts, such as the Tenth Circuit and the Sixth Circuit, hold otherwise.

Since 2012, the EEOC has been kicking around the subject of revising its guidelines on the subject.  By a 3-2 vote, the EEOC decided that it could not wait until the Supreme Court gave birth to a clarifying decision, and so yesterday the EEOC issued its final pregnancy discrimination guidelines.
Continue Reading EEOC Declines a “Pregnant” Pause; New Guidance Awaits Supreme Court Decision

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

The Second Circuit has long held that supervisors cannot be sued in their individual capacity under Title VII.  But can an employee do an end run around that by arguing that the supervisor is the “alter ego” of the company?

Well a few federal courts outside Connecticut have said that under the “alter ego” doctrine,

Here’s an interesting question: Does the Pregnancy Discrimination Act protect an employee who is no longer pregnant?

Court: PDA covers maternity leave

A federal court decision in Connecticut yesterday says, yes. The case, Canales v. Schick Manufacturing, Inc. can be downloaded here.

The Pregnancy Discrimination Act (PDA) is part