Connecticut Court Says Gay Rights Law Covers Workplace Harassment

Written by Arthur S. Leonard Friday, 22 May 2009 05:46

In a case of first impression, Connecticut Superior Court Judge Eliot D. Prescott has ruled that the state's law banning employment discrimination on the basis of sexual orientation extends to hostile environment workplace harassment of gay employees. In a memorandum decision issued on May 15, 2009, Prescott rejected a post-trial motion by Birken Manufacturing Company to set aside a verdict in favor of former employee Luis Patino. Judge Prescott reaffirmed the jury's award of $94,500 in damages to compensate Patino for the emotional harm he suffered as a result of being subjected to harassing language by co-workers on an almost daily basis over a period of years.

Lambda Legal filed an amicus brief in the case and made the judge's opinion, as yet unpublished, available to me. My experience is that many Connecticut Superior Court decisions are eventually published on Westlaw and Lexis, if not in the Northeastern Reporter, and since the judge identifies the question of whether the gay rights law extends to hostile environment sexual harassment cases an issue of first impression, one expects it will eventually be picked up for publication.

Judge Prescott noted that Connecticut courts have generally tracked Title VII of the federal Civil Rights Act of 1964 in determining the extent of coverage, and federal courts have held that the hostile environment theory extends - contrary to Birken's argument - to all protected classes under Title VII, not just to women. Althought Title VII does not explicitly cover sexual orientation claims, and gay employees have won only limited relief under Title VII in cases where the hostile environment could be tied to gender non-conformity rather than sexual orientation, Prescott observed that Connecticut's addition of sexual orientation to its own workplace discrimination law makes that category eligible for the same treatment as sex or race, and there is no good reason why a hostile environment premised on the victim's sexual orientation should not be actionable.

In this case, plaintiff Patino had been subjected to a string of hostile name-calling that went on virtually unabated, experiencing only brief relief as a result of relatively ineffectual actions by the company in response to his complaints. (Indeed, one supervisor advised him to see a psychiatrist, instead of taking decisive action against abusive co-workers.)

Prescott also rejected Birken's argument that Patino had not proved any injury sufficient to sustain the award of damages. The jury was instructed that it could award damages for "any emotional distress and mental anguish" that Patino suffered during the period allowed under the statute of limitations. (The harassment described in this case stretched back many years, but of course the company's liability would be limited to the statutory period leading up to the filing of Patino's legal charges.) "At trial, Patino testified that the harassment he suffered over this period made him feel angry, sad, humiliated and diminished. He left work feeling depressed and had difficulty sleeping. Yet Birken management's response to Patino's complaints was to 'diagnose' him as having a 'paranoid delusion' and to advise him to obtain psychiatric care. We assume that the $94,500 award consituted the jury's common sense evaluation of Pation's emotional distress."

One suspects that given the amount of money involved, and the "first impression" nature of the case, Birken may decide to appeal this verdict. Perhaps saner heads will prevail. After all, Judge Prescott's well-reasoned decision is likely to be affirmed on appeal, creating a published appellate precedent, and Birken, if being competently advised, might decide it is not worth their additional litigation expenses to create such a precedent.

Read the original article at Leonard Link