Connecticut Bar Journal
73 CBJ 223.
LABOR RELATIONS AND EMPLOYMENT LAW: 1998 DEVELOPMENTS IN CONNECTICUT
LABOR RELATIONS AND EMPLOYMENT LAW: 1998 DEVELOPMENTS IN CONNECTICUTBY JOSHUA-HAWKS-LADDS*This article reviews significant 1998 employment-related decisions of the Connecticut supreme, appellate, and superior courts and the State of Connecticut Board of Labor Relations, as well as important 1998 legislation. (fn1)
Momentous supreme court decisions were sparse in 1998, with Brittell v. Department of Correction (fn2) standing out as the most consequential. In Brittell, the court enunciated Connecticut's standard for employer vicarious liability for coworker sexual harassment and clarified the standard of review for such a claim. In an additionally notable supreme court decision, Poulos v. Pfizer, (fn3) the court made plain what Connecticut employers had previously only inferred: that under Connecticut's drug testing laws, they may lawfully seek an employee's consent to be tested for drugs or alcohol - even without reasonable suspicion of illegal use.
Labor cases dominated the appellate court's docket in 1998 - several of which are headed to the supreme court. Prominent non-labor decisions include Cotto v. United Technologies Corporation, (fn4) in which the court held that an employee's refusal to display an American flag at work, as required by his employer, was not a constitutionally protected activity. (fn5) The court also decided several wrongful discharge cases and discrimination claims brought under Connecticut General Statutes Section 31-290a. The court overturned several jury verdicts based on claimed breaches of implied contracts and decided several Freedom of Information Act cases with employment-related issues.
Legislation was highlighted by the overhaul of the Connecticut Commission on Human Rights and Opportunities (fn6) and a modification to Connecticut's law on employment surveillance. (fn7)
SUPREME COURT DECISIONS
Undoubtedly, the most significant employment-related supreme court case was Brittell v. Department of Correction. (fn8) Brittell's significance is twofold. First, the court clarified that it will use the "clearly erroneous" standard in reviewing a trial court's judgment of arguably mixed questions of law and fact brought under the Connecticut Fair Employment Practices Act (CFEPA). (fn9) Thus, in Brittell, the court used this standard to review the trial court's determination, regarding the adequacy of the employer's response to a claim of coworker sexual harassment. (fn10) The court held that "in light of the factbound nature of determinations regarding the efficacy of an employer's response to illegal harassment by one or more of its employees," the clearly erroneous standard is appropriate for review of the trial court's findings. (fn11)
Second, once again endorsing the use of federal legal standards under Title VII of the Civil Rights Act of 1964 (fn12) (Title VII) as "guidance" in analyzing a CFEPA claim, the court established Connecticut's standard for an employer's vicarious liability for coworker sexual harassment. In dicta, the court also endorsed the recent United States Supreme Court's holdings in Burlington Industries, Inc. v. Ellerth (fn13) and Farrager v. Boca Raton, (fn14) relating to employer liability for supervisor harassment.
The holding in Brittell is simple: a plaintiff pursuing a hostile work environment claim against an employer arising out of coworker harassment must establish that the employer knew or should have known of the harassment and was negligent in investigating and remedying the harassing conduct. (fn15) How the court arrived at that standard, though, is as significant as the holding itself.
The court made clear that the definition of a hostile work environment claim for Title VII purposes is the operative definition of that term in CFEPA claims. (fn16) As in Title VII cases, for there to be an actionable claim for a sexually hostile environment under CFEPA, the workplace must be permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment .... In order to be actionable ... a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so .... Whether an environment is sufficiently hostile or abusive is determined by looking at all of the circumstances... (fn17)
The court then reasoned that the employer's liability for failing to remedy coworker sexual harassment that creates such an environment is rooted in "common law agency principles." (fn18) Again utilizing Title VII case law, the court adopted the following standard for evaluating an employer's remedial response to a claim of coworker harassment: The law is clear that an employer may not stand by and allow an employee to be subjected to a course of . . . sexual harassment by co-workers .... Accordingly, an employer will be held liable for harassment perpetrated by its employees if the employer provided no reasonable avenue for complaint, or ... the employer knew (or should have known) of the harassment but unreasonably failed to stop it. Put another way, once an employer has knowledge of a racially (or sexually) combative atmosphere in the workplace, he (or she) has a duty to take reasonable steps to eliminate it. The standard is essentially a negligence one ... and reasonableness . . . depends among other things on the gravity of the harassment alleged; the severity and persistence of the harassment . . . and . . . the effectiveness of any initial remedial steps; and the nature of the work environment . . . and the resources available to the employer. An employer's response should be evaluated to determine how prompt, appropriate and adequate it was. To determine whether the remedial action was adequate, we must consider whether the action was reasonably calculated to prevent further harassment. Once an employer has in good faith taken those measures which are both feasible and reasonable under the circumstances to combat the offensive conduct we do not think (it) can be charged with discriminating on the basis of race (or sex). Whether an employer has fulfilled (its) responsibility (to take reasonable steps to remedy a discriminatory work environment) is to be determined upon the "facts of each case. (fn19)
The court also noted that the law does not require "that investigations into sexual harassment complaints be perfect." (fn20) The question "is not whether the investigation was adequate . . . but rather whether the remedial action was adequate." (fn21)
In Brittell, the defendant investigated the plaintiff's complaints and, in the process, identified and interviewed witnesses who could reasonably provide information regarding the allegations and then promptly issued notices pertaining to the consequences of harassment. (fn22) Since the determination of whether the employer's investigation was reasonable depends on an evaluation all of the "facts and circumstances of the particular case," (fn23) the court determined that the trial court's conclusion upholding the reasonableness of the employer's response was not clearly erroneous. (fn24)
The court also held that the defendant's offer of a transfer to another position was an appropriate remedy to the plaintiff's harassment claims: Although we agree that the victim of sexual harassment should not be punished for the conduct of the harasser by having to work in a less desirable location as a result of the employer's remedial plan, in circumstances such as these, in which the identity of the harasser remains unknown despite good faith attempts to ascertain it, relocation of the victim away from the hostile work environment is a reasonable remedia] response so long as the victim's transfer, viewed objectively and under all the circumstances, fairly accommodates the legitimate interests and concerns of the victim. (fn25)
Based on the facts and circumstances of the transfer in Brittel, the court would not overturn the trial court's decision regarding her transfer to another position. (fn26)
Finally, the court rejected plaintiff's constructive discharge claim. The court noted that a constructive discharge occurs "when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily." (fn27) However, a claim of constructive discharge "must be supported by more than the employee's subjective opinion that the job conditions have become so intolerable that he or she was forced to resign." (fn28) The court found that Brittell did not meet her burden of establishing that she was compelled to resign because of an intolerable work atmosphere. (fn29) In fact, the court held that when the plaintiff left her employment on permanent medical leave, since she rejected defendant's offer of a transfer to any one of several facilities, she could not establish that the harassment would have continued under those circumstances. (fn30) Therefore, the court rejected each of the plaintiffs claims.
In Poulos v. Pfizer, Inc., (fn31) the supreme court reversed a trial court judgment in favor of the plaintiff awarding him damages, interest, attorneys' fees and costs for his wrongful termination in...