Discrimination Articles

 On December 30, 2016, the Connecticut Supreme Court held employees bringing claims
of discrimination under the Connecticut Fair Employment Practices Act (“CFEPA”) are not
entitled to punitive damages. Tomick v. UPS, 324 Conn. 470 (2016). In Tomick, a jury awarded
$500,000 in punitive damages to the plaintiff, Michael Tomick after finding his employer,
United Parcel Service, discriminated against him due to a disability. The trial court set aside the
punitive damage award. That decision was appealed and upheld by the Appellate Court. The
Supreme Court affirmed the Appellate Court’s decision.

 In making its decision, the Supreme Court found that Conn. Gen. Stat. § 46a-104 does
not authorize an award of punitive damages. Instead, it permits a court to grant “such legal and
equitable relief which it deems appropriate including, but not limited to temporary or permanent
injunctive relief, attorney’s fees and court costs.”

 While this decision was welcomed by employers, the federal Civil Rights Act, and
Americans with Disabilities Act, specifically permit punitive damages to be awarded. Other
employment laws also permit punitive damages under certain circumstances, such as retaliation.
Therefore, most employers still face punitive damages when their actions are considered by a
jury to be sufficient to warrant this extraordinary punishment.

 In July 2014 the EEOC issued guidance on accommodating pregnant employees. Its
focus was centered on a section of the Pregnancy Discrimination Act (“PDA”), which requires
employers to treat pregnant employees in the same manner as non-pregnant employees who are
“similar in their ability or inability to work.” The EEOC basically took the position that under
the PDA any accommodations given to disabled employees must also be made available to
pregnant employees. Therefore, greater accommodations could not be provided to employees
with non-pregnancy related disabilities than were given to pregnant employees. The EEOC also
relied on the 2008 amendments to the ADA, which it argued extended reasonable
accommodation protections to pregnant employees, even though pregnancy is not technically
considered a “disability” under the law. By applying ADA concepts to pregnancies, it stated that
employers could only deny reasonable accommodations to pregnant employees if the
accommodation being sought met the undue hardship standard.

 From a practical standpoint, the EEOC’s position meant that pregnant employees would
have to be provided light duty work, if non-pregnant disabled employees were given such work,
and were also eligible for any other accommodations given to employees disabled for reasons
other than pregnancy. In response, many employers disagreed with the EEOC’s position, and
argued pregnant employees are not entitled to reasonable accommodation. The U.S. Supreme
Court recently weighed in on the matter and took a middle position. Young v UPS.

 The Court held that the failure to accommodate pregnant employees must be analyzed
under the burden shifting regime set forth in McDonnell Douglas v. Green. Under that standard,
the employee must first show she was intentionally discriminated against by being treated less
favorably than non-pregnant employees with a similar inability to work. Employers can
overcome such allegations by stating a legitimate, non-discriminatory reason for the unequal
treatment. For the plaintiff to ultimately prevail, she must prove the employer’s proffered reason
was pre-textual, a lie, or that the employer’s policies impose a significant burden on pregnant
employees, and that the reasons for differing treatment are not sufficiently strong, but are instead
indicative of intentional discrimination.

 In Young, the employee worked for UPS as a driver and was required to lift up to 70
pounds. Ms. Young’s doctors provided documentation limiting her lifting to 20 pounds during
her pregnancy. The plaintiff asked for a lifting accommodation, which the company denied,
even though it provided such accommodations to those injured on the job, or those with non-
pregnancy related disabilities covered by the ADA. As a result, Ms. Young was required to take
time off from work until she could return following her delivery, without limitations.

 The Court, in its ruling, recognized that not every accommodation given to any non-
pregnant employee must be extended to pregnant employees. However, for an employer to
prove a legitimate reason for the unequal treatment it cannot merely rely on greater cost or
inconvenience. Further, the Court noted that an employer who accommodates a large percentage
of non-pregnancy related disabled persons, but fails to assist a similar percentage of pregnancy
related disabled employees will likely lose.

 From a practical standpoint, employers should be prepared to accommodate the
restrictions of pregnant women on the same basis as for non-pregnant disabled employees.
Unless an employer can justify a disparate approach based on legitimate business needs, it likely
will find itself on the losing end of a lawsuit. In addition, Connecticut state law requires
employers to provide pregnant employees with a reasonable leave of absence during their period
of disability, and further requires employers to transfer pregnant employees to a temporary
position if the employee reasonably believes her current position may cause harm to her, or her
fetus. In general, dealing with pregnant employees is a technical area with broad legal exposure.
It makes sense to seek legal counsel when faced with these issues.

 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.

 When communicating the reasons for a discharge, employers sometimes believe less is
more. While “at will” employees can be terminated for any reason, or none at all, and are not
legally entitled to a reason, it often makes sense to provide the specific rationale for the
separation. Not only may it convince the employee that the decision is legitimate and business
related, but in the event legal action against the employer is taken, early and consistent
communication of the reason adds credibility in the defense of the claim. Moreover, where more
than one reason for the decision exists, each reason should be articulated. Doing so provides
multiple opportunities to overcome claims of discrimination, and as the Appellate Court of
Connecticut recently ruled, only one of the proffered reasons need be legitimate to overcome a
discrimination claim. Callender v. Reflexite Corp.

 In that case, plaintiff worked as a team leader of three separate departments, including the
rigid manufacturing line. After being injured on the job she received workers’ compensation and
was placed on a leave of absence. Because of her injuries she notified the company she was no
longer able to perform her particular job. She was, however, able to perform light duty
assignments. Shortly thereafter she was terminated.

 In terminating her position the company provided several reasons for its decision. These
included that the employee’s job was being eliminated as part of the rigid manufacturing line’s
discontinuance, the employee was unable to perform any other available positions, and there was
no light duty work available.

 Plaintiff then filed a § 31-290a workers’ compensation retaliation claim against the
company. She claimed her termination was a result of her filing a workers’ compensation claim.

 Like cases involving other forms of discrimination, § 31-290a cases employ the widely
known McDonnell Douglas burden shifting analysis to determine liability. In doing so, the
plaintiff must establish a prima facie case showing she was engaged in protected activity, the
employer was aware of the activity, the employer took adverse action against the plaintiff, and
that a causal connection exists between the protected activity and the adverse action. The burden
of production then shifts to the employer to articulate a legitimate non-discriminatory reason for
its decision. It is then left to the plaintiff to prove some other discriminatory reason more likely
motivated the employer’s decision, or that the employer’s explanation was a lie.

 In the instant case, the company conceded plaintiff stated a prima facie case. It then
offered its three reasons for terminating the employee. Instead of examining each one in turn,
the trial court found that since the first reason, job elimination, was a legitimate non-
discriminatory reason, which was not refuted by plaintiff, it alone was enough to overcome
plaintiff’s claim. More specifically, the Appellate Court stated “we conclude that it suffices that
the defendant set forth one legitimate non discriminatory reason and that the court was not
required to examine every reason or explanation set forth by the defendant as long as it met its
burden of producing one legitimate reason.”

 This case encourages employers to list each legitimate reason for its termination decision,
and not just the best reason. Employers should, however, be able to support each reason offered,
especially if the case reaches a jury where overall credibility might be more of an issue than in
the summary judgment setting reflected in this case.

 The U.S. Supreme Court recently held that a “supervisor” is someone with the power to
take “tangible employment actions” against an employee. Such actions include the right to hire,
fire, promote, demote, reassign to a position with significantly different responsibilities,
discipline, or significantly change benefits. Vance v. Ball State University. In doing so, it
rejected the EEOC’s broader definition, which treated any person with the authority to direct
another’s tasks, as a supervisor. The case is important because under the well known
Faragher/Ellerth decisions employers are vicariously liable for supervisory harassment, unless
they prove they exercised reasonable care to prevent and correct the harassing behavior, and the
plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities
provided by the employer. Conversely, if the harassment is conducted by a non-supervisor,
including a co-worker, the plaintiff must prove the employer was negligent by failing to take
appropriate corrective action when it knew or reasonably should have known the harassing
conduct was taking place. The Supreme Court’s decision now firmly places the burden on the
employee in harassment cases to prove employer negligence, unless she can prove the harasser
meets the new definition of “supervisor.”

 In this case, plaintiff Maetta Vance was an African-American woman who worked for
Ball State University as a catering assistant. She filed a claim against the University that a white
woman, Saundra Davis, with whom she worked continually, harassed her based on race. While
Davis provided some direction in assigning Vance various tasks, both parties agreed Davis
lacked the power to hire, fire, demote, promote, transfer, or discipline Vance.

 Prior to filing suit, Vance lodged several complaints regarding the harassment, and the
University took steps to address her concerns. The actions taken by the University failed to
satisfy Vance, and she filed her legal claim. As part of her complaint, she alleged Davis was a
“supervisor,” and that she had taken reasonable steps to notify the University of her concerns
regarding Davis, to no avail. Therefore, she argued the University should not be permitted to
assert the affirmative defense afforded under Faragher/Ellerth.

 The University argued that Davis was not a “supervisor” and therefore Vance must prove
it was negligent by not responding in a timely and appropriate manner to her concerns.

 The District Court for Southern Indiana found that Davis was not a “supervisor,” and that
the University had not been negligent in its response. As a result, it granted the University’s
Motion for Summary Judgment. The Seventh Circuit Court of Appeals and the U. S. Supreme
Court both affirmed.

 The Supreme Court pointed out that its ruling does not absolve employers from
harassment caused by non-supervisory staff. It merely changes the burdens of proof. Also, it
cautioned employers to not get too cute by placing the authority to make tangible employment
decisions in the hands of just a handful of “supervisors.” More specifically it stated that even if
an employer concentrates all decision making authority in a few individuals, it likely will not
isolate itself from heightened liability under Faragher and Ellerth. By confining decision making
power to a small number of individuals, those individuals will have limited ability to exercise
independent discretion when making decisions, and will likely rely on other workers who
actually interact with the affected employee. Under those circumstances, the employer may be
held to have effectively delegated the power to take tangible employment actions to those on
whose recommendations it relies.

 While the case increases the burden on plaintiffs claiming harassment by those who
assign work, but don’t have the authority to take tangible employment actions, employers should
still make sure all employees are properly trained regarding unlawful conduct and complaint
procedures to take advantage of the Faragher/Ellerth defense when it applies, and to also avoid
successful negligence claims.

 The U.S. Supreme Court has made it harder for employees to win retaliation claims under
Title VII. Retaliation is defined as taking an adverse employment action against someone
because they opposed a discriminatory act (“opposition”), or filed a complaint or assisted in a
legal proceeding related to a discriminatory act (“participation”). Now, instead of having to
prove an employee’s opposition or participation was a “motivating factor” in the employer’s
decision, an employee must prove that “but for” their opposition or participation, the adverse
action would not have occurred. University of Tex. Southwestern Med. Ctr. v. Nassar.

 In this case, the plaintiff was a physician who worked both as a professor for the
University of Texas, and as a staff doctor at Parkland Memorial Hospital. The two institutions
had an agreement that students studying at the University would receive clinical training at the
Hospital, and in return the Hospital would first fill any staff doctor vacancies with University
faculty members.

 Dr. Nassar was of Middle Eastern descent, and specialized in internal medicine and
infectious diseases. His faculty supervisor was Dr. Beth Levine. Dr. Nassar accused Dr. Levine
of discrimination based on religion and ethnicity. In particular, he alleged she undeservedly
scrutinized his billing practices and productivity, and made insensitive remarks regarding Middle
Eastern people. After complaints to Dr. Levine’s superior, Dr. Fitz, failed to resolve matters to
Dr. Nasser’s satisfaction, he quit, but attempted to continue working at the Hospital. After
quitting, he wrote a letter to various members of the University community. He claimed his
departure stemmed from Dr. Levine’s harassment, and her religious, racial and cultural bias
against Arabs and Muslims. After reading the letter and learning that Dr. Nassar intended to
work for the Hospital while no longer on the faculty, Dr. Fitz interceded and the Hospital ended
Dr. Nassar’s employment.

 Dr. Nassar then filed two claims. One was for religious and ethnicity discrimination by
Dr. Levine that led to his constructive discharge. The second was for retaliation by Dr. Fitz that
led to the loss of his job at the Hospital.

 The trial court found for the doctor on both claims. The Fifth Circuit Court of Appeals
reversed on the discrimination claim, but affirmed the retaliation award. In doing so the
Appellate Court found Dr. Nasser had shown that Dr. Fitz’s intervention with the Hospital was
inspired, at least in part, because Dr. Nassar opposed Dr. Levine’s alleged discriminatory
conduct. In essence, Dr. Nassar’s opposition was a “motivating factor” in Dr. Fitz’s intervention
with the Hospital.

 The Supreme Court, however, held that the Appellate Court used the wrong standard.
Instead, it should have used the “but for” standard. In effect, the Court framed the question as
whether Dr. Fitz would have taken the same course of action absent Dr. Nassar’s opposition to
Dr. Levine’s conduct.

 Under this test, if part of Dr. Fitz’s intervention was triggered by his concern that the
Hospital was breaching its contract with the University by hiring Dr. Nassar, then Dr. Nassar
could not prove retaliation under the Act, even if Dr. Fitz was also motivated by Dr. Nassar’s
complaints regarding Dr. Levine. The Court remanded the case to the Fifth Circuit to make this
determination.

 In reaching its conclusion, the Court exhaustively discussed the legislative and judicial
history of Title VII, and the standards used in determining violations. Without getting into
excruciating detail, Title VII prohibits two forms of conduct. The first is “status based
discrimination” where an employer discriminates on the basis of race, color, religion, sex or
national origin. The second is “retaliation” where an employer takes an adverse employment
action against someone because that person opposed a discriminatory act, or complained of, or
sought legal remedies for unlawful workplace discrimination.

 In status based cases, employees can prove discrimination in one of two ways; through
direct or circumstantial evidence. Where an employee provides direct evidence that unlawful
discrimination was a “motivating factor” in making an adverse employment decision, he wins.
However, the employer is then given an opportunity to prove it had a “mixed motive” in making
its decision that included both the proven unlawful motive, and other lawful reasons. In effect, if
the employer can prove that “but for” [i.e., even absent] the discriminatory motive it would have
taken the same action, the employee is not entitled to reinstatement or any monetary relief, and
may only obtain a declaratory judgment, equitable relief, attorney’s fees, and costs. Under
Connecticut law, however, once an employer proves it would have taken the same action absent
the discriminatory motive, the employer is relieved of all liability. Levy v. CHRO, 236 Conn. 96
at fn. 19 (1996).

 Where an employee can only provide circumstantial evidence of discrimination another
process is used, which is known as the McDonnell Douglas burden shifting analysis. First, the
plaintiff must state a prima facie case of discrimination by showing he is a member of a
protected class, he suffered an adverse employment action, and the circumstances surrounding
the employer’s decision supports an inference of discrimination. Once the plaintiff states a
prima facie case, the burden of production, not persuasion, shifts to the defendant to articulate a
non-discriminatory reason for its decision. If successful, the plaintiff must then prove that the
employer’s offered reason was pretextual, and that intentional discrimination was a motivating
factor in the employer’s decision. In some cases, just proving the employer’s offered reason was
untruthful may be enough to infer a discriminatory motive. Reeves v. Sanderson Plumbing
Prods., 530 U.S. 133 (2000).

 When it comes to Title VII retaliation claims the “but for” standard now applies, not the
lower “motivating factor” standard. An employee must prove that absent his opposition or
participation, he would not have been subjected to the alleged retaliatory action.

 The higher “but for” standard already applies to both discrimination and retaliation
claims under the ADEA. See. Gross v. FBL Financial Services, Inc. The Court also suggested it
applies to ADA discrimination and retaliation cases. See Nassar at 32-33.

 An open question is whether the higher “but for” standard applies to discrimination and
retaliation claims brought in Connecticut under the Connecticut Fair Employment Practices Act.
Although the CHRO has historically applied the lower “motivating factor” standard, Connecticut
courts have repeatedly stated that Connecticut law must be interpreted with an eye toward federal
rulings. Levy v. CHRO, 236 Conn.96 (1996). To add more confusion, other judicial rulings
have interpreted Connecticut law as being more favorable than its federal counterpart. See ex.,
Desrosiers v. Diageo N. Am. Inc., 2010 Conn. Super. LEXIS 2267 at 18 (Sept. 9, 2010).

 Only time will tell how this all shakes out, but some clarity is beginning to emerge, at
least at the federal level.

 A referee of the Connecticut Office of Public Hearings found that an employee under age
40 could state an age discrimination claim under the Connecticut Fair Employment Practices Act
(CFEPA). CHRO v. NERAC, Inc., CHRO Case No. 0840031 (Aug. 2, 2012). The referee also
held the male employee could state a pregnancy related sex discrimination claim under the Act
based on his wife’s pregnancy. The man claimed he was fired based on his age and after his wife
became pregnant.

 The referee found the employee was able to state a claim for age discrimination because
state law is broader than the federal Age Discrimination in Employment Act, which requires a
claimant to be at least 40 years old in order to be covered by that law. While acknowledging that
when interpreting state discrimination statutes the courts often look to federal precedence for
guidance, no such guidance is required here. Although the express language of the federal law
specifically requires a claimant to be at least 40 years old, CFEPA has no such minimum
requirement per se. In addition, state discrimination law is generally considered broader than
federal law.

 While the referee’s decision was in response to the company’s motion to dismiss, and has
not been subject to appeal, at least two federal judges have looked to federal law for guidance
and have held that CFEPA does not cover claims of age discrimination made by persons under
40. Guglietta v. Meredith Corp., 301 F. Supp. 2d 209 (D. Conn. 2004), and Rogers v. First
Union National Bank, 259 F. Supp. 200, 209 (D. Conn. 2003). The referee’s decision follows a
pattern of hearing officers ignoring court rulings on interpretive issues and damage awards.

 With regard to the gender claim, the employee alleged he was fired because his company
was concerned about increased health care costs related to his wife’s pregnancy. Although the
referee recognized that traditional pregnancy based claims are normally made by women,
claimant’s sex was not a bar to bringing such a claim. The referee also cited a recent EEOC case
in which a male was permitted to file a complaint alleging he suffered pregnancy discrimination
when his wife became pregnant.

 As evidenced by this case, employers must base any employment decision on a non-
discriminatory business reason, and be able to credibly articulate that reason if faced with a legal
challenge, even one that is unexpected.

 In a case of first impression, the U.S. District Court for Connecticut applied the “but-for”
causation standard to ADA retaliation claims. Saviano v. Town of Westport, Case No. 3:04-CV-
522(RNC) (D. Conn. Sept. 30, 2011). This is the first case following the U.S. Supreme Court’s
ruling in Gross v. FBL Financial Services, Inc. where the Connecticut District Court was asked
to determine if the Gross “but-for” holding applied to ADA retaliation cases. It answered in the
affirmative.

 Prior to the decision there was some doubt whether the Gross ADEA “but-for” standard,
or the Title VII “motivating factor” standard applied to ADA retaliation cases. As the ADEA’s
anti-discrimination section and the ADA’s retaliation provision both use the word “because,” the
court concluded the same “but-for” standard applied. Specifically, the ADA retaliation section
states no employer shall “discriminate against any individual because such individual has
opposed any act or practice made unlawful by this chapter, or because such individual made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this chapter.”

 The significance of the case is that employees will now have a more difficult time
proving ADA retaliation claims. They will now have to show that the retaliation was specifically
and solely due to their protected activity; not just that their protected activity was a motivating
factor along with other permissible reasons for the employer’s decision.

 On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued its
Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment
Decisions Under Title VII of the Civil Rights Act of 1964. The EEOC also provided a Q&A
document that provides a good overview of the more lengthy Guidance.

 Employers have always risked violating Title VII when using criminal records to screen
applicants for hire or internal promotion. Even in the face of such risk, over 90% of employers
use criminal background checks for some applicants or employees, and over 70% use them to
screen all applicants, according to a recent SHRM study. The risk arises under the “disparate
impact theory.”

 Under this theory, if an employer’s neutral employment policy, screening applicants for
criminal backgrounds, results in a disproportionate number of minorities being eliminated from
employment consideration, the policy violates Title VII, unless the company can prove the
policy is job related and consistent with business necessity. In addition, employers must make
sure they do not treat members of one race, color, religion, sex or national origin differently than
members of any other group based on the member’s criminal background. This would trigger a
“disparate treatment” claim under Title VII.

 According to the Guidance, a policy that automatically excludes everyone with a criminal
record will not be job related and consistent with business necessity, unless such exclusion is
required by federal law. Instead, the EEOC suggests employers develop a screening process that
considers the nature of the crime, the time elapsed, and the nature of the job. It should then
undertake an individualized assessment of those identified in the initial screen to determine if the
person should be excluded based on job relatedness and business necessity. While such
individualized assessment is not required, the EEOC states the use of a screen without an
individualized assessment is more likely to violate Title VII.

 Employers should consider adopting some best practices outlined by the EEOC to avoid
running afoul of the law including:

-Eliminate policies or practices that exclude people from employment based on any
criminal record.

-Train managers about these requirements.

-Develop narrowly tailored written policies and procedures for screening applicants and
employees for criminal conduct.

-Identify essential job requirements and the actual circumstances under which the jobs are
performed.

-Determine the specific offenses that may demonstrate unfitness for performing a
particular job.

-Determine the duration of exclusions for criminal conduct.

-Include an individualized assessment.

-Record the justification for any exclusion.

-Limit inquiries to criminal records that are job related and consistent with business
necessity.

-Keep criminal record information confidential and only use it for the purpose for which
it was intended.

 Connecticut employers should also be aware of a state statute that prohibits them from
requesting arrest, criminal charge, or conviction information in cases where the records have
been “erased” or a pardon has been granted. Conn. Gen. Stat. § 31-51i.