Race/Sex/Religion
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.

 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.

 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.

 The Equal Employment Opportunity Commission (EEOC) recently ruled that claims of
transgender discrimination are covered under Title VII’s gender discrimination provisions. Macy
v. Holder, EEOC Appeal No. 0120120821 (April 20, 2012). This brings federal anti-
discrimination law in line with Connecticut’s Fair Employment Practices Act (CFEPA), which
already prohibits discrimination on the basis of gender identity or expression.

 In Macy, a police detective applied for a job with the Federal Bureau of Alcohol,
Tobacco, Firearms and Explosives. At the time, Macy was known as a male. During the
background check following her application, she notified the Bureau that she was in the process
of transitioning from a male to a female. Shortly thereafter the Bureau informed her the job
would no longer be filled. She was later told someone else, who was further along in the
background check process, was hired for the job.

 Macy filed a gender discrimination complaint with the EEOC claiming the Bureau’s
stated reason for hiring someone else was pretextual, and the real reason was her transgender
status. She checked off “sex” discrimination as the basis for her claim on the complaint form,
and wrote in “gender identity and sex stereotyping” to further clarify her claim.

 In finding her claim covered by Title VII, the EEOC stated, “the Commission hereby
clarifies that claims of discrimination based on transgender status, also referred to as claims of
discrimination based on gender identity, are cognizable under Title VII’s sex discrimination
prohibition.” It went on to refer to the Supreme Court’s decision in Price Waterhouse v.
Hopkins, in which the Court said that sex discrimination is not limited to discrimination because
of biological sex, but also gender stereotyping, including the failure to act and appear according
to expectations defined by gender. In Price Waterhouse, the Court found that Price
Waterhouse’s statements that Hopkins should walk, talk and dress more femininely if she wanted
to become a partner, were the types of sex stereotyping outlawed by Title VII. In essence, the
Court stated that gender discrimination occurs any time an employer treats an employee
differently for failing to conform to gender based expectations or norms.

 In applying these principles, the EEOC said an employer discriminates when a
transgender person has expressed his or her gender in a non-stereotypical fashion, or when the
employer is uncomfortable that someone has transitioned, or is transitioning from one gender to
another. In drawing an analogy from religious discrimination, the EEOC noted that
discriminating on the basis of gender change is akin to discriminating against someone who
converted from Christianity to Judaism. In that instance, an employer that claims it is not biased
toward Christians or Jews, but only converts, would clearly be in violation of the law.

 As a result of this decision, employers are advised to review their policies and practices,
including employee handbooks, to make sure they comply with both Title VII and the CFEPA.

 The Connecticut Supreme Court ruled that the Connecticut Fair Employment Practices
Act covers hostile environment claims based on sexual orientation. Patino v. Birken
Manufacturing Co., SC 18441 (May 15, 2012). This is an important development for gay and
lesbian employees, as federal law does not prohibit discrimination based on sexual orientation.

 In this case the plaintiff worked for defendant as a machinist for some 27 years. Over the
course of his employment he was repeatedly subjected to slurs related to his sexual orientation.
He complained on numerous occasions and filed multiple claims with the Commission on
Human Rights and Opportunities (CHRO). Even though the company took several steps,
including transferring the offenders, the taunts continued.

 In interpreting the state statute the Court found that the language prohibiting
discrimination in “terms and conditions” of employment based on sexual orientation was similar
to that covering other protected classes, such as race or gender. The Court then applied well
established principles of what constitutes hostile environment discrimination in those other areas,
to sexual orientation.

 In doing so, the Court reiterated that hostile environment discrimination occurs where the
workplace is permeated with discriminatory intimidation, ridicule, and insult that are sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
work environment. It went on to explain that the environment must be both objectively and
subjectively offense, and one that a reasonable person would find hostile or abusive, and one that
the victim in fact found to be hostile and abusive. Factors to be considered include the frequency
and severity of the abuse, whether it involved physical threats and humiliation, and whether it
unreasonably interferes with an employee’s work performance. In addition, the conduct need not
be directed at a particular employee in order to support a claim, nor must the employee be
present when the conduct occurs as long as the employee is aware the conduct took place.

 It is now clear that Connecticut prohibits discrimination based on sexual orientation in
both disparate treatment and hostile environment contexts, and employers should review their
polices and provide supervisory training to insure compliance with the law.

 The Second Circuit Court of Appeals, which covers Connecticut, recently ruled that
employers can be held directly liable for the discriminatory acts of contractors hired to perform
certain tasks on their behalf. In Halpert v. Manhattan Apts., the court found a company that
hired an independent contractor to conduct job interviews was liable for discriminatory remarks
made by the contractor during the hiring process. While the case involved the Age
Discrimination in Employment Act, the court made it clear that the same principles apply under
Title VII.

 In this case, Manhattan Apartments hired Robert Brooks, an independent contractor, to
screen, interview, and hire employees for Manhattan Apartments. In interviewing the plaintiff,
Michael Halpert, Brooks allegedly told Halpert he was “too old” for the position. Halpert sued
Manhattan Apartments claiming a violation of the ADEA.

 In reversing the lower court, the Court of Appeals found that when an employer hires an
individual to interview candidates and make employment decisions on its behalf, the company
may be held liable if that individual improperly discriminates on the basis of age, or any other
protected characteristic. This is true whether the individual responsible for the conduct is an
employee or independent contractor. When an independent contractor is used, liability attaches
directly under agency theory, making the company liable for the acts of any of its actual or
apparent agents.

 To limit legal exposure, employers should carefully screen contractors, and make sure
they are trained in equal employment opportunity practices. Also, any agreement between the
employer and contractor should include indemnification language so that the employer is
indemnified for any acts of the contractor that may expose the employer to liability. These steps
are especially important as firms continue to outsource more human resource work and thereby
lose direct control over important interactions.

 Effective March 23, 2010, The Patient Protection and Affordable Care Act of 2010
amended the Fair Labor Standards Act (“FLSA”), and granted nursing mothers the right to
“reasonable” unpaid work breaks to express breast milk.

 Employers with 50 or more employees must provide the breaks, and furnish a private
location shielded from view and free from intrusion, other than a bathroom, for these breaks. The
law does not specify how many breaks must be provided each work day, or the length of the
breaks, but permits mothers to take a break “each time such employee has a need.” Nursing
mothers are entitled to these lactation breaks for up to one year after their child's birth.
Employers with fewer than 50 employees are exempt from the statute only if they can
show the breaks would cause “undue hardship” by subjecting the employer to “significant
difficulty or expense.”

 Connecticut already requires all employers to permit mothers to express breast milk, or
breastfeed their child at work during a meal or break period, in private. Conn. Gen. Stat. § 31-
40w. The new federal law differs in that it creates additional break periods, but does not require
breastfeeding at work.