The Connecticut Supreme Court recently adopted the U.S. Supreme Court’s relatively narrow definition 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. The decision provides clarity for employers because the term is not defined in the CFEPA.

How we got here

In O’Reggio v Commission for Human Rights and OpportunitiesSC20847 (August 1, 2024), the plaintiff had worked as an arbitrator for the Connecticut Department of Labor. She sued the department, alleging that the program services coordinator to whom she reported subjected her to a hostile work environment. The program services coordinator had the authority to assign the plaintiff work, approve vacation requests, set schedules, provide training, and conduct reviews. However, the program services coordinator did not have the authority to hire, fire, or discipline the plaintiff or other employees.

The trial court and, on appeal, the Connecticut State Court of Appeals concluded that the program coordinator was not a supervisor as defined by the U.S. Supreme Court in Vance v. Ball State University570 U.S. 421 (2013). Consequently, these Connecticut courts ruled, the department was not automatically liable for the program services coordinator’s alleged actions.

In her appeal to the Connecticut Supreme Court, the plaintiff argued that the Vance The definition of “supervisor” was too narrow to apply to hostile work environment claims under CFEPA, and asked the court to find that the program services coordinator exercised sufficient control over employees’ working conditions to make the employer liable for abuse of that “supervisory power.”

The decision

In a 4-3 decision, the Connecticut Supreme Court narrowly rejected the plaintiff’s approach. Instead, the court adopted the Vance Guidelines for determining which actions of superiors lead to employer liability. According to the Vancean employer is held vicariously responsible for a hostile work environment created by the conduct of his superiors, unless he can prove the so-called Faragher/Ellerth affirmative defense. Simply put, the employer must show that it took reasonable steps to prohibit and prevent harassment, announced and maintained a process for receiving complaints, and, when it learned of harassment, promptly and effectively remedied it. Conversely, if the employee creating a hostile work environment is a co-worker, a plaintiff must meet a higher standard of negligence to attribute liability to the employer. It is therefore important to distinguish between supervisors and co-workers.

In VanceThe U.S. Supreme Court ruled that in hostile work environment claims under federal law, a supervisor is “an employee who is authorized by the employer to take specific employment action against the victim, ie. to bring about a material change in employment status, such as hiring, firing, failure to promote, reassignment with significantly different responsibilities, or a material change in benefits.'”¹ The majority of the Connecticut Supreme Court in O’Reggio adopted this interpretation, finding that it was consistent with the Court’s long-standing principle and the Legislature’s intent that CFEPA should be interpreted “consistently with” its federal counterpart, Title VII of the Civil Rights Act of 1964.

The dissenting opinion, however, held that Connecticut’s anti-discrimination laws provide greater protection than its federal laws and that, therefore, a “broader definition” of “supervisor” should be applied in enforcing those laws. The dissenting opinion stated that they would hold employers responsible for the actions of any employee who has the authority to “direct the daily functions of his subordinates.”

It is worth mentioning that O’ReggioThe Connecticut Supreme Court had not expressly ruled that the Faragher/Ellerth affirmative defense applies to claims brought under the CFEPA. In deciding the proper definition of superior, the Court appears to have assumed, although it did not specifically say, that the Faragher/Ellerth In fact, the defense would also apply to claims under state law.²

Why is that important?

The O’Reggio Decision eliminates legal ambiguity by formalizing a definition of “supervisor” for liability purposes under CFEPA. This does not mean that employers can simply escape such liability by purporting to limit decision-making authority to a very small group. An employer could still be held vicariously liable for the actions of an employee who was not designated as a supervisor but who, through delegation of authority, had actual authority to hire, fire, or discipline.

To clarify roles, employers should make clear who has the authority to take specific employment actions and which responsibilities can and cannot be delegated. They should also have clear policies against discrimination, harassment and retaliation, procedures for receiving complaints and responsive approaches to investigating such complaints. Even if the alleged harasser is not a supervisor, an employer can still be held liable for harassment if the plaintiff proves that the employer knew about the harassment and failed to take prompt and effective remedial action.

Footnotes

¹ O’ReggioSC 20847 (1 August 2024) (Quote Vance v. Ball State Univ.570 US 431).
² O’ReggioSC 20847, footnote 8.