If there’s one lesson I’ve learned when looking at laws and legislative proposals, it’s to read the definitions. Because it’s in those definitions that nuances become readily apparant.
In the Connecticut General Assembly, Raised Bill 1442 is just a few days old but is due for a public hearing on Monday, March 10th before the Judiciary Committee. If there’s something that employers should be concerned about — all you have to do is to read the definition being added in the bill.
The bill proposes a variety of changes to the law on anti-discrimination and to the procedures in place at the Commission on Human Rights and Opportunities. Several of those changes are not particularly controversial.
But the addition of a definition to the phrase “employer’s agent” should be.
First, a bit of background.
It has historically been the case that it’s been a discriminatory employment practice, under Conn. Gen. Stat. Section 46a-60(b)(1), “For an employer, by the employer or the employer’s agent” to fire someone (or otherwise discrimnate against someone) because of a protected class such as a gender or race.
While “employer” has been defined, the phrase “employer’s agent” has never been. But thankfully, the entirety of the phrase has been analyzed by our courts.
Indeed, in 2002, the Connecticut Supreme Court found that this section does not impose indvidiual liability on supervisors in Perodeau v. City of Hartford. In a very thorough decision and a unanimous one on this point, the court found that based on the legislative history as well as the history of related statutes such as Title VII, “we conclude that § 46a-60a (a) (1) [now (b)(1)] does not impose liability on individual employees.”
Among the reasons was the fact that the definition of employer did not refer to an individual. Notably, it points to other sections where a “person” can be liable — such as for claims of aiding and abetting discrimination.
Which brings us back to Raised Bill 1442. The bill makes one seemingly innocuous change. It adds a definiton to the phrase “employer’s agent” throughout the state’s antidiscrimination laws, which as I noted before, had never been defined. Here’s what the bill proposes:
“‘Employer’s agent’ means an individual who is authorized by an employer to (A) undertake or recommend tangible employment decisions affecting the employee, or (B) direct the employee’s daily work activities.”
Let’s review the additions.
It uses the term “individual” — a new add to the notion of employer’s agent that the Connecticut Supreme Court refused to add. This means that, if passed, any person could now be sued under the state’s anti-discrimination laws if they were “authorized” (no notion of what that means) by an employer to do one of two things. This is an outright change from years of settled precedent from the Connecticut Supreme Court and just like that, would impose individual liability on a whole range of people.
Next, it suggests individual liability not only for supervsiors but also for anyone who “undertakes or recommends” a tangible employment decision. Who might that include? That could include, human resource representatives, co-workers, attorneys involved in the termination decision, payroll people who are are involved in the process and a seemingly unlimited supply of anyone involved in the process.
It could even include outside vendors, or PEO providers, who have been “authorized” to be part of the process of terminating the employment of an individual. The bill then adds liability to someone who merely “directs” the employee’s daily work activities, even though that individual has no hire/fire authority over the employee. All of this would represent a massive expansion of the state’s anti-discrimination laws.
This change in definitions could also have implications in other areas too, such as sexual harassment cases.
Just last year, the Connecticut Supreme Court, in O’Reggio v. Commission on Human Rights and Opportunities, adopted a relatively narrow defintion of “supervisor” for determining when employers are liable under the Connecticut Fair Employment Practices Act (CFEPA) for creating or failing to remedy a hostile work environment. In doing so, the Court used the same definition as found in the U.S. Supreme Court case Vance v. Ball State. Adding liability for an “employer’s agent” impacts sexual harassment claims too and could eliminate the employer’s Farragher/Ellerth defense. Adding this definition would circumvent this decision as well and could impose liability on individuals at a far lower standard of proof than is otherwise required for harassment claims.
Adding this definition would also impose individual liability for section (b)(7) involving pregnancy discrimination too.
In short, this seemingly small addition of a definition would have massive implications for employers and all of their employees — whether they are supervisors or not. It could add liability for even attorneys involved in the process. And moreover, it seems to be a fix in search of a problem. Why do individuals need to be named, when employers are the ones with the deep pockets to pay such a claim? Why isn’t the “aiding and abetting” part of the statute enough either?
Testimony on this bill is available through 3 p.m. on Sunday or you can testify on Monday at the hearing itself. You can find a link to register here.
Hopefully, there will be a vigorous discussion; a change as big as this deserves to be up front — not just cloaked in a definition.