Supreme Court Year In Review: Sexual Harassment Ruling May Have Lasting Impact

Written by Robert G. Brody and Abby M. Warren on September 26, 2013

The Connecticut Law Tribune

September 26, 2013

This Connecticut Supreme Court term was again relatively quiet in the area of labor and employment, with only a few decisions that impact employers, and therefore should impact the advice attorneys give their clients.

Discharging Sexual Harasser

In State of Connecticut v. AFSCME, Council 4, Local 391, the employee, a correctional officer working for the state, was discharged for engaging in open sexual harassment over a period of time. The alleged conduct included verbal comments referencing oral sex and child molestation, graphic and sexually suggestive comments about the complainant’s sexual activity, and physical touching including placing a banana near the complainant’s crotch area in front of employees and inmates.

After a five-day hearing, an arbitrator issued an award that reduced the employee’s dismissal to a one-year suspension without pay or benefits. The arbitrator concluded the dismissal was not “for just cause” as required under the collective bargaining agreement. The arbitrator’s award was overturned by the trial court and made its way up to the Connecticut Supreme Court.

Although courts give great deference to arbitrator awards, there are several exceptions including where there is a clear and well-defined public policy. In other words, the courts will not endorse decisions made by arbitrators that contravene the law or public policy. The Court determined there is a clear and well-defined public policy against sexual harassment and the grievant’s behavior was so “egregious and incorrigible” that it violated that policy. The Court held public policy required the employee’s dismissal.

Despite its ruling, the Court recognized “the fact that there is a strong public policy against certain misconduct does not require an employer to terminate every employee who engages in that misconduct.” However, the determination is whether the conduct is so egregious that it requires termination.

This case is important because all employers — public and private alike — who seek to remedy a situation involving sexual harassment may not have as much discretion in selecting an appropriate remedy as they think. In certain circumstances, employers have no choice but to terminate the employee. Employers and their attorneys should be aware that the language of this case is broad and will likely be used by employees claiming their employer did not effectively combat sexual harassment when the penalty for harassment is arguably too light.

Head Count Affects CTFMLA

In Velez v. Commissioner of Labor et al., the Court held that the Connecticut Family and Medical Leave Act (CTFMLA) applies to employers with 75 or more Connecticut employees. Under the CTFMLA, employees can take 16 weeks of unpaid leave in any 24-month period under certain circumstances. The federal Family and Medical Leave Act (FMLA) only provides 12 weeks of unpaid leave in a 12-month period under similar circumstances.

The defendant in this case employed over 1,000 workers nationwide, but less than 75 in Connecticut. Because of this, the CTFMLA did not apply. The Court affirmed the decision and practice of the Connecticut Department of Labor.

This decision is potentially important beyond its applicability to the CTFMLA because it may pave the way for a narrow application of other Connecticut statutes that rely on some threshold of employee head count.

Drunk Driver Gets Benefits

In Tuxis Ohr’s Fuel Inc. v. Administrator, Unemployment Compensation ActEt Al., the employee, a fuel oil delivery truck driver, was arrested after getting into an accident in his own car during non-working hours while under the influence of alcohol. His commercial driver’s license was suspended for one year. When the employee sought to collect unemployment compensation, the employer argued that the employee disqualified himself from performing the work because of his own behavior. The Court held the employee was not disqualified from receiving unemployment compensation benefits.

The Court reasoned that unemployment compensation benefits are entirely statutory and since the statutes and regulations governing these benefits do not provide for a disqualification under these facts, the employee was not disqualified. This case does not suggest that it is improper to discharge the employee, but clients should understand that however ridiculous it is, they may be stuck footing the bill for unemployment compensation in like circumstances.

The Court mentions other states have reached an opposite conclusion on this issue through other theories. Some states have statutes which disqualify employees who leave work “voluntarily” which includes constructive discharge or a constructive quit including a motor vehicle violation that leads to a loss of an occupationally-required license. Connecticut’s statute contains no such language. Other states have treated similar circumstances as “misconduct” “connected with” employment and have disqualified employees. However, Connecticut defines “in the course of the individuals’ employment” as “during working hours.” Under the current statutory language, the two rationales used in other states do not apply in Connecticut.

This case is not surprising because unemployment compensation is a social program meant to help unemployed workers survive between jobs. Therefore, as most employers know, these laws and their interpretation favor paying workers. It will be interesting to see if the legislature reacts in any way to this case by “fixing” or changing the statute and/or regulations.

Supervisor Not ‘Alter Ego’

In Rajanikant Patel v. Flexo Converters U.S.A Inc., the plaintiff was injured at the defendant’s paper bag manufacturing facility while attempting to remove a bag from a machine. The plaintiff claimed a safety feature had been removed from the machine and he was directed to remove the bag by a night supervisor. The night supervisor allegedly threatened him if he didn’t remove the jammed paper. Under Connecticut law, there is a narrow exception to the exclusivity of the Workers’ Compensation Act where an intentional tort is committed by the employer or the alter ego of the company, but not if committed by supervisory employees. An “alter ego” is someone who has a very high position in the company. The Court concluded the plaintiff could only show the night supervisor was a “top guy” on the night shift but not a top leader in the company. Thus, he was not an “alter ego” of the company.

While we usually complain about the one sidedness of the unemployment laws, it is nice to see the Court recognize the statute was meant to be broad and thus protects the employer for a change.

Conclusion

Each year brings a new focus for the Court. As the Court begins their new term this month, employees, employers, and their counsel should remain aware of the Court’s latest leanings. We look forward to next year’s update.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Abby M. Warren is an Associate with Brody and Associates, LLC. She works on both Labor and Employment Law matters. Abby worked at the New Haven Superior Court. Learn More