Connecticut Fair Employment Practices Act Prohibits Perceived Disability Discrimination

 The Connecticut Supreme Court recently ruled that the Connecticut Fair Employment
Practices Act, Conn. Gen. Stat. § 46a-51 et seq., (CFEPA), not only prohibits discrimination
based on actual physical disability, but also applies to discrimination based on perceived
physical disabilities. Desrosiers v. Diageo North American, Inc. This brings Connecticut state
law in line with the federal Americans with Disabilities Act, which expressly protects employees
from discrimination based on both actual and perceived disability.

 Ambiguity in the CFEPA’s statutory language required the Court to undergo a complex
analysis to determine whether employees who employers perceived as being disabled were
protected by the Act. While the Act’s language clearly extended protection to those suffering
from a “mental disability,” including those who “[have] a record of, or [who are] regarded as
having one or more mental disorders,” the definition of “physical disability” was limited to “any
individual who has any chronic physical handicap, infirmity or impairment….” This left open
the question whether those regarded as having a physical disability, even if such perception was
incorrect, enjoyed protection under the Act.

 In answering the question in the affirmative, the Supreme Court first noted the difference
in language covering mental and physical disabilities, and stated that the statutory language on
its face was clear and unambiguous. In essence, the plain language clearly excluded perceived
physical disabilities while covering perceived mental disabilities. In most cases this would end
the inquiry, however, the Court went on to employ a technique of statutory interpretation that
requires additional analysis when it believes the plain language yields an “absurd or unworkable
result.” Finding that to be the case here, the Court stated:

Here, although the language of § 46a-60 (a)(1) is plain and unambiguous, a literal
application of the statutory language would lead to a bizarre result. Namely, under
the plain language of § 46a-60 (a)(1), if an employee has a chronic disease, the
employer may not discharge the employee on that basis. If, however, the
employee is undergoing testing that leads his employer to believe that he has a
chronic disease, the literal terms of § 46a-60 (a)(1) do not protect the employee
from discharge on that basis, despite the fact that the employer's action, in both
cases, was premised on the same discriminatory purpose.

 As a result, the Court then dove into the legislative history and found that CFEPA was
intended to “increase protections for individuals with disabilities,” … and was meant to be “as
broad and inclusive as possible.” Therefore, protecting those perceived as being physically
disabled is consistent with this broad intent.

 Further, the Court noted that the agency charged with interpreting the statute, the
Connecticut Commission on Human Rights and Opportunities (“CHRO”) has since 1989
interpreted CFEPA to cover perceived physical disabilities. Therefore, the agency’s position
should be given great deference, especially since the legislature has had ample time to amend the
Act, if it believed the agency’s interpretation was incorrect. Its acquiescence instead indicates
general agreement with the agency’s view of the language.

 While Justice Zarella issued a strong dissent arguing that the clear language does not
create absurd results, and therefore perceived physical disabilities should not be protected under
the Act, his colleagues carried the day. As such, Connecticut and federal law now both clearly
protect employees who are perceived as having either a physical or mental disability.