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Amidst the tumult of the recent holiday season, the Connecticut Supreme Court issued one of its most important decisions of the year in the employment law arena.

In Desrosiers v. Diageo North America, the court held on Dec. 16, 2014, that Connecticut's Fair Employment Practices Act, Conn. Gen. Stat. §46a-51 et. seq. (CFEPA) protects individuals who may not have a "disability" as defined by the statute but are perceived or "regarded as" having such a disability by their employer. As a result, Connecticut avoided joining only 10 other states whose anti-discrimination laws do not extend to individuals who are perceived by their employers as having a disability.

The impact of Desrosiers cannot be fully grasped without first discussing the vagaries of the definition of "disability" under the state and federal anti-discrimination laws.

The American with Disabilities Act (ADA), adopted in 1990, defines the term "disability" as (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; and (3) being regarded as having such an impairment. 42 U.S.C. §12102(l).

The Connecticut Fair Employment Practices Act, Conn. Gen. Stat. §46a-51 was amended in 1973 to cover individuals with a "physical disability," which was defined as "any chronic, physical handicap, infirmity or impairment." The CFEPA's definition of disability did not expressly cover individuals with perceived disabilities. Nevertheless, the state Commission on Human Rights and Opportunities routinely interpreted the CFEPA to protect employees who were regarded as disabled. Courts also often held that the CFEPA extended to individuals who were regarded as disabled.

For example, in a 2003 decision in Connor v. McDonald's, the District Court of Connecticut rejected the defendant's argument that the CFEPA did not cover "regarded as" claims, reasoning that "although the CFEPA does not specifically provide for an analogous cause of action to the 'regarded as' disabled provision of the ADA, the CFEPA was intended 'to be at least as co-extensive as its federal statutory counterpart.'"

The terrain shifted in 2012 when the Appellate Court held in Desrosiers that Connecticut did not recognize a cause of action for discrimination based on a perceived physical disability. The Appellate Court reasoned that the text of the statute is "clear and unambiguous in that it does not cover claims of discrimination based on perceived physical disability."

In the aftermath, employers and employment law practitioners grappled with a state statute that had a broader definition of disability than the ADA's in matters involving actual disability but no protection in a "regarded as" case.

In its decision, the Supreme Court agreed that the CFEPA's definition of physical disability clearly and unambiguously did not cover perceived disability claims. Nevertheless, the court held that the statute extended to individuals with perceived physical disabilities, reasoning that "a literal application of the statutory language would lead to a bizarre result."

The court illustrated its point by observing that, under the employer's interpretation of the statute "an employee who is discharged because his employer believes a rumor that he has a chronic impairment can pursue a cause of action, but only if the rumor is true and the employee actually has the chronic impairment. If the rumor is false, and the employee does not have the impairment, but is merely believed to have the impairment, the employee has no recourse, despite the fact that in either case the employer's action was based on the same discriminatory motive."

After analyzing the legislative history surrounding the 1973 expansion of the CFEPA to protect individuals with physical disabilities, the court concluded that the term "physical disability" was intended to be defined broadly. Finally, the Supreme Court observed that the CHRO has interpreted the definition of "physical disability" to include individuals who are regarded as having a physical disability.

In Desrosiers, the court discussed its 2008 decision in Curry v. Allan S. Goodman that the CFEPA required employers to provide reasonable accommodation to employees with disabilities even though it was not expressly required under the statute. Curry relied primarily on the CHRO's consistent, long-standing interpretation of the CFEPA as requiring employers to provide reasonable accommodation.

Desrosiers mirrored the U.S. Supreme Court's recognition in its 1987 decision in School Board of Nassau County, Fla. v. Arline , interpreting the definition of disability under §504 of the Federal Rehabilitation Act of 1973.

According to the U.S. Supreme Court, a perceived disability "might not diminish a person's physical or mental capabilities, but could nevertheless substantially limit that person's ability to work as a result of the negative reaction of others to the impairment."

Arline elaborated that: "By amending the definition of 'handicapped individual' to include not only those who are actually physically impaired, but also those who are regarded as impaired and who, as a result, are substantially limited in a major life activity, Congress acknowledged that the society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment."

The Arline court's observation was echoed by the Seventh Circuit in the 1995 case Vande Zande v. State of Wisconsin Dept. of Administration. While comparing the ADA's "regarded as" prong of the definition of disability to racial or other types of illegal discrimination, the Court aptly noted that: "Many such impairments are not in fact disabling but are believed to be so, and the people having them may be denied employment or otherwise shunned as a consequence. Such people, objectively capable of performing as well as the unimpaired, are analogous to capable workers discriminated against because of their skin color or some other vocationally irrelevant characteristic."

If you feel you have been mistreated by your employer or in your place of employment and would like to explore your employment law options, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut including New Canaan, Bridgeport, White Plains, and Darien.

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Source: Gary Phelan, Fair Employment Act Covers 'Perceived Disabilities'; Court ruling is an important development in anti-discrimination law, Conn. Law Trib., (Jan. 26, 2016)