Last week the CHRO released its case data for FY 2018.  Overall, the numbers do not dramatically differ from FY 2017.  However, perhaps not surprisingly given the media coverage of the viral #MeToo movement beginning in October 2017, some notable increases emerged.

The increase in the overall number of complaints filed in FY 2018 rose slightly from FY 2017 (up from 2376 to 2484).  While not alarming, in the past we have seen the number of complaints filed against employers drop during periods of low unemployment such as currently reflected in the U.S. labor market.

Historically, employment claims alleging discrimination based on race, age, physical disability, sex, and color make up the greatest percentage of CHRO complaints.  In FY 2018, however, the number of complaints based on sex jumped more than 20%, elevating sex discrimination complaints to the head of the pack while the number of complaints based on race, age, physical disability and color remained fairly consistent. Even more dramatically, the number of complaints alleging sexual harassment rose by nearly 62% over FY 2017.

The data in Connecticut mirrors national trends. The EEOC released preliminary FY 2018 sexual harassment data in early October showing that the Commission filed 66 harassment lawsuits, including 41 alleging sexual harassment, reflecting more than a 50% increase in suits challenging sexual harassment over FY 2017.    Charges filed with the EEOC alleging sexual harassment increased by more than 12% over the same time period.

The increase in sexual harassment claims and complaints based on sex discrimination coincides with the explosion of media headlines and high profile sexual harassment cases which sparked last year’s #MeToo movement.  Anecdotal information regarding the number of sexual harassment complaints filed with the CHRO in the current fiscal year suggests an even more dramatic rise in the number of these claims in the first half of FY 2019.

What’s the takeaway?

As legislative, legal and cultural shifts addressing sexual harassment in the workplace continue to develop, employers should brace for an increase in the number of sexual harassment and sexual discrimination claims.  However, maybe – just maybe – these shifts will result in long term changes to the culture that allowed this conduct to exist in the first place.

Employers should revisit, review and revise their company’s Sexual Harassment Prevention policy and ensure compliance with Connecticut’s sexual harassment prevention training requirements.  Perhaps more importantly, employers should strive to go beyond the legal requirements in addressing and responding to sexual harassment complaints, and seek to change workplace culture so that these – and other forms of discriminatory conduct – find zero tolerance in the workplace.

The United States Department of Justice recently filed a friend of the court brief with the Eastern District Court of New York arguing that Title VII of the Civil Rights Act of 1964 does not cover sexual orientation.  However despite what is taking place at the National level, Connecticut has a separate statute which governs discrimination against persons on the basis of sexual orientation.  Connecticut General Statute 46a-81c states that:

It shall be a discriminatory practice in violation of this section: (1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s sexual orientation or civil union status, (2) for any employment agency, except in the case of a bona fide occupational qualification or need, to fail or refuse to classify properly or refer for employment or otherwise to discriminate against any individual because of the individual’s sexual orientation or civil union status, (3) for a labor organization, because of the sexual orientation or civil union status of any individual to exclude from full membership rights or to expel from its membership such individual or to discriminate in any way against any of its members or against any employer or any individual employed by an employer, unless such action is based on a bona fide occupational qualification, or (4) for any person, employer, employment agency or labor organization, except in the case of a bona fide occupational qualification or need, to advertise employment opportunities in such a manner as to restrict such employment so as to discriminate against individuals because of their sexual orientation or civil union status. Continue Reading Connecticut Discrimination Statutes Still Cover Sexual Orientation

The Second Circuit recently adopted the “cat’s paw” theory of liability for retaliation claims brought under Title VII, holding that “an employee’s retaliatory intent may be imputed to an employer where the employer’s own negligence gives effect to the employee’s retaliatory animus and cause the victim to suffer an adverse employment decision.” Vasquez v. Empress Ambulance Service, Inc., Docket No. 15-3239-cv (Calabresi, J. August 29, 2016)

The Plaintiff, Andrea Vasquez, was an EMT with the defendant, Empress Ambulance.  She was the recipient of unwelcome sexual advances from a co-worker, Tyrell Gray, which she immediately reported to Empress.  Empress undertook an investigation that consisted exclusively of evidence from Gray, which he had doctored to make it look like Vasquez was the aggressor.  Empress refused to consider any contradictory evidence offered by Vasquez and fired her for sexual harassment.  Vasquez brought suit against Empress and Gray, alleging she was wrongfully terminated in retaliation for filing a sexual harassment complaint in violation of Title VII and New York Human Rights Law.  The district court dismissed her claim, holding that the retaliatory intent of Gray, a low-level employee without any decision making authority, could not be imputed to Empress, and, therefore, Empress could not have engaged in retaliation based on his actions. The Second Circuit disagreed.

In order to establish a retaliation claim under Title VII, an employee must show the employer discriminated or took an adverse employment action against him/her because of his/her opposition to an unlawful employment practice.  The employee must also show a connection between the adverse employment action and his/her participation in a protected activity. The term “cat’s paw”, derived from an Aesop’s fable, refers to a theory of liability involving an employee who suffers an adverse employment action by a decision maker who does not have a discriminatory motivation but who has been “manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action.”

In Vasquez, the Second Circuit, in holding that the “cat’s paw” theory of liability can be used to support a claim of retaliation under Title VII, noted that it’s adoption of this theory is consistent with long standing precedent in the Circuit that “a Title VII plaintiff is entitled to succeed, even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias has played a meaningful role in the [decision-making] process.”

In addition to adopting the “cat’s paw” theory, the court held that, under agency principles, such liability could be imputed not only to supervisors, but to low ranking employees, where the employer’s negligence gives effect to the retaliatory intent of that employee. Here, the Second Circuit determined that Empress’ refusal to look at any evidence other than that provided by Gray was sufficient to allege negligence in conducting its investigation of Vasquez’s allegations.

The Circuit court emphasized that its ruling should not be interpreted to mean that an employer will be held liable simply because it acts on the information of a biased co-worker or because the employer was reached an incorrect conclusion regarding alleged employee misconduct, but “only when an employer in effect adopts an employee’s unlawful animus by acting negligently with respect to the information provided by the employee and therefore affords that biased employee an outsized role in its own employment decision, can the employee’s motivation be imputed to the employer an used to support a claim under Title VII.”

The take away is that employers should be aware of potential biases and motivations of supervisors and witnesses when considering employee discipline, particularly in discharge cases.  Any investigations should be thorough, fair and well-documented to reduce the potential for liability based on employer negligence for failure to recognize improper animus.

The Appellate Court of Connecticut, in a long awaited decision, recently held in Tomick v. UPS, 157 Conn. App. 312 (Conn. App. Ct. 2015), that a plaintiff cannot recover punitive damages under Connecticut’s statute prohibiting discrimination in employment, the Connecticut Fair Employment Practices Act (“CFEPA”).  The Court accordingly set aside the jury’s $500,000 award of punitive damages to the plaintiff, who claimed he was discriminated against because of his disability, among other claims.

Following the canons of statutory construction, the Court reasoned that punitive damages, an “extraordinary remedy”, may only be awarded if the statute expressly provides for them.  The relevant provision of CFEPA allows the court to award attorney’s fees and court costs, but not punitive damages in addition.  Other statutes, on the other hand, do expressly allow an award of punitive damages, for example, in cases of discriminatory credit practices with a cap and discriminatory housing practices.  In sum, if the Legislature had wanted to make punitive damages available to a plaintiff in the case of employment discrimination, it knew how to say so but did not.  Attorney’s fees and court costs remain available to prevailing plaintiffs.

The Tomick decision comes as a boon to employers, who have had to factor into their settlement strategies and litigation budgets the uncertainty of an enormous jury award of punitive damages.   In this very case, for instance, the jury’s $500,000 award in punitive damages was 5 times the damages otherwise awarded for the disability discrimination.  If the matter is appealed and the Supreme Court overturns the decision, an unsettled issue is whether the punitive damages should be set by the judge or the jury, the latter of which generally presents greater anxiety for defendant employers.

The Tomick case serves as a reminder to employers to review their own anti-discrimination policies.  Our firm provides guidance to employers in crafting such policies and conducts employee training on discrimination and sexual harassment in the workplace.

If you work or operate a business long enough, it is inevitable that the decision to terminate will be made at some point.  This decision, while not an easy one to make, is compounded by issues that can arise immediately after when the terminated employee believes they were “wrongfully terminated” and seek redress through a number of channels including the Equal Employment Opportunity Commission or the court system.

In order to help shield you from possible claims, the following checklist can aid in deciding that termination is appropriate as well as help mitigate any possible fallout.

If you can answer yes to each of these questions, then there is a good chance that not only is termination appropriate, but that any punitive action by the terminated employee can be disposed of quickly.

  • Is there credible (and documented) evidence that supports termination?
  • Is the rule cited for termination job related?
  • Has the employee received adequate notice that violating this rule can result in termination?
  • Is the termination consistent with past-practice? If not, can you point to (and show) a legitimate business reason as to why termination is appropriate in this instance?
  • Have the prior disciplinary problems been documented and has the employee been made aware of these prior actions?
  • Has care been taken to ensure that any prior discipline did not violate state or federal law?
  • Have you given the employee a chance to explain his or her side of the story?

While the above is a good starting point in assessing whether there is a sufficient basis to terminate the employee, it is always important to speak with your labor attorney or human resources director in order to fully understand any potential exposure as well as additional steps that must be taken in order to effectively terminate the employee as well as shield your business from any possible repercussions.

At Berchem Moses & Devlin, P.C., our labor and employment attorneys have years of experience in handling terminations as well as litigating claims based on wrongful termination both in courts and other administrative agencies.  Should you require assistance in making the decision to terminate call one of our attorneys at (203) 783-1200.

On October 1, 2014 Public Act 14-27 went into effect which revamped Connecticut’s provisional pardon law (Conn. Gen. Stat. § 54-130a).  The revisions were based on the recommendations of the Connecticut Sentencing Commission and under this new bill: “a provisional pardon or certificate [of rehabilitation] creates a presumption of rehabilitation. The bill requires the state or an agency that denies employment or a credential based on a conviction for which the person received a provisional pardon or certificate to give the applicant, in writing, the reasons for the denial.”  While Connecticut’s Provisional Pardon has been around since 2005 (P.A. 06-187) the new law makes it illegal for an employer to solely deny employment to an applicant who presents a Certificate of Employability or to discharge or discriminate against someone based solely on a conviction for which the individual received a provisional pardon.

This statute applies to all employers in the State of Connecticut and it bars public and private employers from (1) denying employment based solely on a conviction for which the applicant received a provisional pardon or (2) discharging or discriminating against someone based solely on a conviction prior to being employed for which the employee received a provisional pardon.

According to the Connecticut General Assembly, an applicant who presents a certificate of employability may only have their prior conviction used against them in the employment decision after they consider the following:

(1)   the nature of the crime and its relationship to the job;

(2)   information pertaining to the person’s rehabilitation; and

(3)    the time elapsed since the conviction or release.

What does that mean for your business? Essentially an applicant with a Provisional Pardon cannot be automatically eliminated from employment merely because the conviction exists.  Instead, if an employer believes the conviction will interfere with the job, must carefully evaluate the applicant before making the decision.  In addition, for state and other agencies, the applicant must receive in writing the reasons why they are not being considered for employment.

Since each applicant must be reviewed on a case-by-case basis; coupled with the nuances that are inherent in all hiring decisions, human resource directors and other members of management need to carefully evaluate an applicant who presents a certificate of employability.  When questions or problems come up with provisional pardons, our teams of lawyers are here to assist you in making the proper, informed choice to minimize exposure.

Most of the time, when an employer terminates an employee, and that employee sues, a court will not let an employer introduce evidence uncovered after the decision to terminate.  However an exception has been added due to a recent decision by the Second Circuit Court of Appeals where it was held that evidence that is uncovered after termination may be used to show that an employer had a non-discriminatory basis for the discharge.

In Weber v. Fujifilm Medical Systems USA Inc., 13-4891-cv(L); 14-206-cv (XAP) (2d. Cir. 2014) the Plaintiff claimed he was fired based on his race and national origin under Title VII of the Civil Rights Act of 1964 and also brought suit alleging breach of contract and tortious interference with a contract.  Over the objections of the Plaintiff, the Defendants were permitted to use evidence uncovered after the termination that the Plaintiff had engaged in misconduct and other irregularities during his tenure.  The District Court allowed the evidence for the limited purpose of showing a non-discriminatory basis for the termination and as a defense to the Plaintiff’s claim of breach of contract.  The jury found the Defendants not liable for discrimination (but liable for breach of contract and tortious interference) and awarded damages totaling over $500,000; far less than he would have been entitled to if the Plaintiff prevailed on the Title VII claims.

In its decision, the Second Circuit found that even though the defendant learned of the evidence only after the Plaintiff was terminated, “Defendants were…not estopped from arguing that the after-acquired evidence of Weber’s role in the [financial] arrangement confirmed their suspicions that he mismanaged [Defendants’] finances.”

While this decision helps employers in defending against discrimination claims where actual evidence of malfeasance is uncovered after termination, care must be taken anytime the decision to terminate is made.  Properly training managers or supervisors helps mitigate the potential for lawsuits.    Contact any of our experienced labor attorneys for training or if you have a discrimination case pending.

Have you as an employer ever written in a job posting that only currently employed or recently unemployed applicants will be considered, or denied an applicant because he or she had a history of unemployment?

It sounds counterintuitive at first—like a restaurant turning away hungry people—but some employers may be concerned that unemployment itself indicates a lack of requisite experience or that a long-unemployed individual is motivated for any job at all.  A Connecticut bill currently under consideration would prohibit such hiring practices, following in the footsteps of New York City, New Jersey, Oregon, and D.C.

House Bill 5274, as amended, An Act Concerning Unemployed Individuals and Discriminatory Hiring Practices, would prohibit employers, employment agencies, and temporary help services from taking several actions if they are based solely on a person’s “status as unemployed.”  “Status as unemployed” includes not only current unemployment, but also past gaps in employment, regardless of duration.  The prohibited actions include:  (1) disqualifying a person from employment; (2) refusing to refer a person for employment (or requesting that he or she not be referred); and (3) limiting a person’s access to information about a job.

Continue Reading Proposed Connecticut Bill Prohibits Employers From Taking Certain Actions Based on Unemployment Status

According to a recent Los Angeles Times article, a California jury recently awarded a hospital employee $168 million, including $125 million in punitive damages, to a female physician assistant who endured two years of sexually inappropriate behavior and then was fired for reporting the harassment as well as patient care violations.  The perpetrators included cardiac surgeons.  The plaintiff claimed the hospital tolerated their behavior because of the large revenues they generated. 

The verdict, one of the largest ever recorded in a sexual harassment case, highlights the need to conduct regular training and education, to take seriously and investigate complaints, and to think long and hard about terminating or taking other action against an employee who has filed a sexual harassment complaint. 

It is no secret that most employers attempt to manage the risk of litigation through the use of employee separation agreements.  A recent Second Circuit decision serves as a valuable reminder of the importance of drafting separation agreements which will stand up to attack.

Earlier this month, in Ridinger v. Dow Jones & Co., the Second Circuit Court of Appeals found in favor of an employer in enforcing a waiver of age discrimination claims under the Age Discrimination in Employment Act (“ADEA”).  The Older Workers Benefit Protection Act (“OWBPA”), which modifies the ADEA, among other very stringent and specific prerequisites, requires that a waiver and release of claims be written in a manner calculated to be understood by the employee.  If it fails to meet this requirement, it is not considered knowing and voluntary. 

The employee argued that the agreement was unenforceable because it did not comply with this requirement.  The Second Circuit held that when there is no evidence that the individual employee’s comprehension level was below that of the average eligible employee, the employer carries its burden of proving that a waiver was sufficiently clear to meet the requirements of the OWBPA if the language is calculated to be understood by the average employee.  The Court concluded that the district court correctly found that the agreement did not use or combine the terms “waiver,” “release,” and “covenant not to sue” in a manner that was found to be confusing in other cases.  Accordingly, it reasoned that the employee could not have been misled by an error in the boilerplate language of the agreement giving him the right to challenge the validity of the agreement itself because this right was expressly stated.  The court also pointed out that the agreement specifically provided that the employee waived his right to sue only with respect to claims “through the date of this Agreement,” consistent with the OWBPA, and contained his acknowledgment that he was advised to consult an attorney before signing it.  Concluding that the employee had not pointed out anything in the agreement that could have led him to believe that he retained the right to bring an action for violation of the ADEA, rather than simply an action challenging the validity of the agreement, the court ruled that the agreement was a valid waiver of his right to bring an ADEA action against his former employer.

The take away lesson from this case is just the reminder that the OWBPA imposes strict requirements on the waiver of ADEA claims, which employers simply must be aware of and take the time to comply with.  Accordingly, employers should periodically review their separation agreements, especially if they include provisions related to age discrimination