Bill Upends Fair Employment Practices Act
Tucked inside legislation awaiting action by the state House sit significant changes to Connecticut’s employment discrimination statute, the Fair Employment Practices Act.
Section 11 of SB 5 repeals Connecticut’s current employment discrimination law and replaces it with new language proposed to take effect Oct. 1, 2022.
The section changes the definition of “employer,” adds a new category to the list of protected classes, changes the definition of “sexual harassment,” and and shifts the burden of proof in hostile work environment cases to employers.
As originally drafted, the bill also significantly limited the terms an employer may include in employment discrimination settlement agreements, essentially rendering them worthless.
The settlement agreement language was removed from the bill before the state Senate approved it April 27.
Hostile Environment Cases
The new statutory language changes the definition of “employer,” to include any person with just one employee, rather than three or more.
It also adds a new category to the list of classes protected from discrimination to include victims of domestic violence.
Most significantly, the bill changes how hostile environment cases are litigated and proven.
Section 11 of the bill adds a new subparagraph (e) to CGS 46a-60, which includes three important changes to an employee’s burden of proof in discrimination cases.
The added paragraph provides that:
- In any complaint filed with Connecticut Commission on Human Rights and Opportunities, it shall not be a defense that the conduct “was not severe or pervasive.”
- An employee’s failure to complain of conduct prior to filing a complaint “shall not be determinative of whether [an] employer … shall be liable.”
- Where “the harassing conduct complained of does not rise above the level of what a reasonable person would consider discrimination,” this will be available to the employer as an affirmative defense.
Reversing U.S. Supreme Court Precedent
These additions to the act reverse decades-long precedent at both the U.S. Supreme Court and the Connecticut Supreme Court.
Both Title VII and Connecticut law have long established that, where an employee claims to be a victim of hostile environment discrimination, the employee must prove that the employer’s conduct was severe or pervasive.
The absence of such proof is available to an employer as a defense.
Second, when an employee fails to complain of the harassment, and an employer used reasonable care to prevent it—by having a complaint policy, for example—this failure to complain will often relieve an employer of liability.
And third, when the conduct does not rise above what a reasonable person would consider to be discrimination, this means that the employee has failed to prove their case.
The bill’s language shifts this burden of proof to the employer.
As originally drafted, SB 5 also significantly limited the terms that employers may include in settlement agreements.
Before being amended on the Senate floor, the bill added new subparagraphs to the Fair Employment Practices Act, which provide that settlement agreements resolving discrimination complaints may not include any of the following terms:
- A restriction on an employee’s or applicant’s right to obtain future employment with the settling employer;
- A non-disparagement clause;
- A non-disclosure clause;
- An agreement not to file a complaint with the EEOC, CHRO, or state or federal court, including any restriction on “pursuing an employee’s rights under state or federal discrimination laws.”
These proposed settlement agreement restrictions would discourage employers from settling discrimination suits.
Employers across the state should be aware of these major changes to state law and contact state legislators immediately to share their concerns.
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