Connecticut Supreme Court Reaffirms ‘Transferred Intent’ Discrimination Theory
The following article was first published on the Employment Law Letter section of Shipman & Goodwin’s website. It is reposted here with permission.
In Hartford Police Department v. Commission on Human Rights and Opportunities, the Connecticut Supreme Court upheld the agency’s post‑hearing finding that a police department unlawfully terminated a probationary officer due to discriminatory animus displayed by, and imputed from, a supervisor other than the final decision maker.
In doing so, the Supreme Court reaffirmed the continuing vitality of the “transferred intent” doctrine, tracing back to United Technologies Corp. v. Commission on Human Rights and Opportunities, and popping up in cases since.
The transferred intent doctrine permits a claimant to establish the employer’s requisite intent by demonstrating that a supervisor, motivated by discriminatory animus, engaged in conduct that resulted in an adverse action (such as the employee’s termination) by someone else.
Twelve years ago, the U.S. Supreme Court endorsed a variant of this standard, sometimes called the “cat’s paw” theory—a term derived from an Aesop fable and coined by former Seventh Circuit Judge Richard Posner.
In HPD v. CHRO, the human rights referee found that the officer, who had Vietnamese ancestry, was fired in a chain of events initiated by a negative performance review from a sergeant.
The sergeant also had subjected the plaintiff to ethnically derogatory remarks (and had previously faced discipline for similar misconduct towards others).
The referee found that this discriminatory animus wound its way through various memos and disciplinary proceedings into the official reasons given for the plaintiff’s termination—which involved unrelated incidents and did not, in the referee’s view, withstand scrutiny.
The appellate court reversed this discrimination finding based in part on the belief that the U.S. Supreme Court had altered the prevailing United Technologies test for transferred intent.
Not so, said the Connecticut Supreme Court. Rather, the court stated that the (non‑binding) federal case law merely adds a requirement that the supervisor with the ill motive also have intended for the employee to suffer adverse action.
The court in HPD v. CHRO declined to resolve whether Connecticut’s definition of transferred intent also included this intent‑to‑harm element, holding it immaterial to the outcome.
Notably, evidence showed that the allegedly biased supervisor had warned the plaintiff to stop objecting to mistreatment—“or you won’t be around long.”
A causal chain between discriminator and decisionmaker should not automatically lead to liability, however.
The court cited prior decisions affirming that an independent review of the employee’s performance by a neutral administrator, based on concrete and objective factors, may dispel any taint of discrimination.
But the court held this defense unavailing when the police official who fired the plaintiff simply credited tainted information in written reports, without any inquiry into the plaintiff’s exculpatory explanations—even refusing to watch an available video of a suspect’s arrest, to evaluate whether the officer had conducted himself properly, as he claimed. (The hearing referee agreed that he did.)
The court’s opinion also—repeatedly, expressly, and emphatically—reaffirms several core principles of administrative review.
Among them are that a court must defer to an agency’s reasonably supported factual findings, even if the evidence points in different directions; that a hearing referee’s in‑person credibility determinations deserve heightened deference; and that, by contrast, an appellate court owes no deference at all to a lower court’s view of the administrative record.
Putting on a complete and persuasive case at the hearing level is thus critical.
What are the other takeaways for employers?
First, when faced with complaints or reports of discriminatory behavior or misconduct, perform thorough and impartial investigations.
This includes evaluating the credibility of all parties involved and considering all available evidence, including any exculpatory explanations from the accused employee.
Second, where possible, involve neutral parties, such as human resources, in reviewing and assessing employee performance issues or allegations of misconduct.
Their objective perspectives can help mitigate bias and strengthen the fairness of decision-making processes.
Lastly, try to maintain objective performance‑evaluation criteria based on concrete and measurable factors.
That may not be possible in all instances, but reliance on these types of factors can help reduce the risk of a claim that a performance evaluation was biased.
About the authors: Dan Schwartz is a partner at Shipman & Goodwin and has decades of experience solving complex, employment law problems for companies.
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