/>iOn August 1, 2024, the Connecticut Supreme Court ruled in O’Reggio v. Commission on Human Rights and Opportunities[1] that the definition of “supervisor” set forth by the U.S. Supreme Court in Vance v. Ball State University[2] to establish vicarious liability for hostile work environment claims under Title VII of the Civil Rights Act of 1964 is the correct standard to apply to establish vicarious liability for hostile work environment claims under the Connecticut Fair Employment Practices Act (CFEPA).
Facts
Tenisha O’Reggio was promoted to the position of adjudicator in the unemployment unit of the Connecticut Department of Labor (CT DOL) and began reporting to the unit’s program services coordinator, Diane Krevolin. Krevolin had the authority to assign work, approve leave requests, and conduct performance reviews. She did not have the authority to hire, fire, or discipline any employee. O’Reggio filed an internal complaint alleging Krevolin made racially discriminatory statements in her presence. After an investigation, the CT DOL suspended Krevolin for one day without pay and required her to attend diversity training, crediting her 40-year career with the CT DOL and previous unblemished disciplinary record. The CT DOL also allowed O’Reggio to transfer to another division for one year. While O’Reggio worked in that other division, Krevolin retired. O’Reggio requested permission to return to her former division, which the CT DOL approved.
Claims and Procedural History
O’Reggio filed a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO), alleging that Krevolin created a hostile work environment based on O’Reggio’s race and color in violation of CFEPA. CFEPA establishes that it shall be a discriminatory practice for any employer “to discriminate against any individual in compensation or in terms, conditions or privileges of employment because of the individual’s race [or] color.” Conn. Gen. Stat. § 46a-60a-60(a)(1) (2012).[3] After a hearing, the CHRO concluded that, although Krevolin created a hostile work environment, the CT DOL acted promptly and reasonably to investigate and remedy the situation and, therefore, the CT DOL was not vicariously liable for Krevolin’s actions.
In response, O’Reggio appealed to the Connecticut Superior Court. The court upheld the CHRO’s decision, ruling that O’Reggio’s hostile work environment claim failed because Krevolin was not a “supervisor” as defined in Vance. While the issue of whether a manager meets the definition of “supervisor” may be a factual question, the court did not remand the case for a hearing because O’Reggio’s attorney conceded during oral argument that Krevolin’s supervisory responsibilities, which did not include hiring, firing, or disciplining employees, did not satisfy the Vance definition.
O’Reggio next appealed to the Connecticut Appellate Court. As framed by that court, the issue on appeal was whether the lower court incorrectly applied the Vance definition of “supervisor” to O’Reggio’s hostile work environment claim under CFEPA. The appellate court ruled that the Vance definition furnished the appropriate definition of “supervisor” to distinguish between coworker and supervisor theories of liability for hostile work environment claims under CFEPA. Because O’Reggio’s attorney conceded Krevolin did not meet the test for a “supervisor” under Vance, it affirmed the lower court’s decision.
O’Reggio then sought review by the Connecticut Supreme Court, which accepted the case.
Connecticut Supreme Court Majority Ruling
In a 4-3 decision, the Connecticut Supreme Court explained first that because O’Reggio was appealing from an agency decision, the Court’s task was to decide whether the agency acted unreasonably, arbitrarily, illegally, or abused its discretion. The Court then determined that, as established in a long line of cases, to establish a claim of a hostile work environment under CFEPA, the workplace must be permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. The Court also determined that the state legislature intended to make CFEPA complement the provisions of Title VII. Thus, because the term “supervisor” is not defined in CFEPA, the Court looked to federal court cases interpreting Title VII for guidance.
The Court recognized that, under federal law, it is analytically important to determine whether an alleged harasser is a supervisor or a coworker. If the employee creating the hostile work environment is the complaining employee’s supervisor, then the employer will be vicariously liable regardless of whether the harassment resulted in a tangible employment action. If the employee creating the hostile work environment is a supervisor but there is no tangible employment action, then the employer will be vicariously liable unless the employer satisfies an affirmative defense that it exercised reasonable care to prevent and promptly correct any harassment and the complaining employee unreasonably failed to take advantage of preventative or other corrective opportunities available to the employee. If the employee creating the hostile work environment is not the complaining employee’s supervisor (e.g., a coworker), then the employer will be liable only if the complaining employee proves the employer was negligent in controlling the working conditions.
Connecticut Supreme Court Dissent
The dissent relied on Justice Ginsburg’s Vance dissent that supervisors, like workplaces, “come in all shapes and sizes,” Vance, 570 U.S. at 465, and mere supervisory authority to take tangible employment actions is too narrow a test for determining vicarious liability. As explained by the dissent, by adopting the Vance definition of “supervisor,” the majority allows employers to escape liability where the harasser had the authority to assign excessive work, deny requests for leave, create onerous work schedules, provide or deny training, and conduct performance reviews, using the authority granted to that supervisor by the employer. As reasoned by the dissent, a hostile work environment claim should be allowed against a supervisor with authority to change daily work schedules, reject time off requests, assign extra work, or give poor performance reviews, which may be just as intimidating to an employee as a supervisor taking a tangible employment action. By removing those line supervisors who have direct daily interaction with their subordinate employees and placing liability only on those supervisors with hiring and firing authority, the majority insulates many supervisors from hostile work environment claims.
Significance of the Decision
This decision aligns the test for determining vicarious liability for supervisors for hostile work environment claims under CFEPA with the Vance test. While differences exist between hostile work environment claims asserted under Title VII and CFEPA, the analytical framework for determining those claims appears to be aligned.
ENDNOTES
[1] https://www.jud.ct.gov/
[2] https://www.loc.gov/item/
[3] CFEPA was amended, and the prohibition is now contained in Conn. Gen. Stat. § 46a-60(b)(1) (2024).
