In a recent legal battle before the Connecticut Supreme Court, a plaintiff challenged her employer's handling of a hostile work environment claim after facing racially discriminatory statements from a coordinator in her department. O'Reggio v. Commission on Human Rights and Opportunities et al., highlights the complexities of defining supervisory roles and the implications for vicarious liability in discrimination cases.
Factual Background
The plaintiff, a Black employee who began working in the department in 2009, was promoted in 2012. Her coordinator, Diane Krevolin, who had authority over work assignments and performance reviews but not over hiring or firing, made racially discriminatory remarks in 2016. Following the plaintiff's internal complaint, Krevolin was placed on administrative leave, and the investigation confirmed the discriminatory statements. Consequently, Krevolin received a one-day suspension and diversity training.
The plaintiff's requests to report to someone other than Krevolin or to be relocated were denied due to organizational constraints and union contracts. Unable to continue working under Krevolin, the plaintiff accepted a temporary position in another division. Although Krevolin retired in 2017, the plaintiff did not return to her former position until 2019.
During the internal investigations, the plaintiff filed a complaint with the Commission on Human Rights and Opportunities, alleging a hostile work environment. The commission concluded that while Krevolin did create a hostile work environment, the department had responded appropriately and was not liable.
The plaintiff appealed, arguing that the department should be vicariously liable under the broader definition of a supervisor. The trial court upheld the commission's decision, referencing the U.S. Supreme Court's definition of a supervisor from Vance v. Ball State University. The plaintiff's appeal to the appellate court was also denied, with the court affirming that the Vance definition was appropriate for such claims.
On further appeal, the plaintiff contended that the narrow Vance definition undermined the state statute's intent. The department maintained that following federal Title VII precedent was correct and that broadening the definition would lead to inconsistent results. The court agreed with the department, confirming the Vance definition of a supervisor for the purposes of vicarious liability.
Issue Before the Court
Who qualifies as a supervisor and renders an employer vicariously liable for the creation of a hostile work environment in violation of the Connecticut Fair Employment Practices Act, General Statutes §46a-51 et seq.?
Standard of Review from a Decision of an Administrative Agency
Under the Uniform Administrative Procedure Act, General Statutes §4-166 et. seq., "It is not the function of this court to retry the case or to substitute its judgment for that of the administrative agency. Even for conclusions of law, the court's ultimate duty is only to decide whether, considering the evidence, the agency has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. Thus, conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." Drum v. Freedom of Information Commission, 348 Conn. 565, 579-80, 308 A.3d 993 (2024).
"This court has previously determined that Connecticut antidiscrimination statutes should be interpreted in accordance with federal antidiscrimination laws." Patino v. Birken Mfg. Co., 304 Conn. 679, 689, 41 A.3d 1013(2012). "We look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both." Feliciano v. Autozone, Inc., 316 Conn. 65, 73 111 A.3d 453 (2015).
Elements of a Hostile Work Environment
To establish a hostile work environment claim in Connecticut, the workplace must be "permeated with discriminatory intimidation, ridicule, and insult that are sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment." Patino v. Birken Mfg. Co., 304 Conn. 679, (Conn. 2012).
The United States Supreme Court also established a framework for determining whether an employer is vicariously liable for a hostile work environment. In doing so, it recognized that although employers are generally not liable for tortious acts committed by their employees outside the scope of employment, vicarious liability will apply "when the employee was aided in accomplishing the tort by the existence of the agency relation." Vance v. Ball State University, 570 U.S. 421,428 (2013). "When a person in supervisory authority discriminates in the terms and conditions of a subordinate's employment, his actions necessarily draw on his superior position over the people who report to him… whereas an employee generally cannot check a supervisor's abusive conduct the same way that she might deal with abuse from a coworker." Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L.ED. 2d 633 (1998).
Plainly, a supervisor is defined as an employee empowered by the employer to take tangible employment actions, such as hiring, firing, or making significant changes in employment status. If the harassing employee is a coworker, not a supervisor, the employer is liable only if the victim shows employer negligence in preventing harassment. Additionally, if the coworker is empowered to take a tangible employment action subject to approval by higher management, that coworker might also qualify as a supervisor.
Application and Affirmative Defense
In this case, the court looked closely at the "aided-in-accomplishment theory of vicarious liability" theory utilized in Vance. If a supervisor's harassment results in tangible employment action, such as termination, demotion, or an undesirable reassignment, liability is imputed to the employer. Without tangible action, the employer can raise an affirmative defense by showing:
- Employer took reasonable care to prevent/correct harassment, and
- The employee unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer. Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.CT. 2275, 141 L.Ed. 2d 662 (1998).
However, if the harassing employee is a coworker and not a supervisor of the plaintiff, the affirmative defense does not apply, and the employer is liable only if the victim can show the employer was negligent in failing to prevent harassment from taking place. Vance at 448-49. To employ the correct standard, courts must determine whether the alleged harasser is a supervisor or coworker.
The Court's Analysis
In the present case, the commission did not conclude that Krevolin was a supervisor under the Vance definition. Despite her authority over work assignments and schedules, Krevolin lacked the power to take tangible employment actions. Therefore, the department was not vicariously liable for Krevolin's creation of a hostile work environment. Although the dissent along with the plaintiff argued that Vance's definition of supervisor is limiting and thwarts enforcing protections for employees against discrimination in the workplace, the court chose not to broaden the definition.
Instead, it reasoned that the employee still enjoys protection from discrimination because Vance also allows for employer liability if a plaintiff shows that the employer was negligent in preventing the discriminatory behavior or failed to adequately monitor or respond to discriminatory activity in the workplace. Thus, an employer is not relieved of responsibility for the behavior of its employees when its own negligence has led to the creation or continuation of a hostile work environment.
In addition, Vance shifts the burden of proof to the employer in circumstances where the harasser is aided by the agency relationship with the employer. An employer will be liable for vicarious liability if a tangible employment action occurs after a delegation of authority by the employer to the harassing employee.
Without concrete action by the Connecticut legislature, the court concluded that the Vance definition strikes a reasonable balance between accomplishing the antidiscrimination purpose of the state act and protecting the legitimate interests of employers. The court reasoned it would upset settled expectations with respect to Connecticut jurisprudence interpreting the state act for it to depart from the Vance definition of supervisor.
The court ultimately ruled that although Krevolin had the authority to assign work, to approve requests for leave, to set employee schedules, to provide training, and to conduct performance reviews, there was no evidence that she had the authority to take tangible employment actions against the plaintiff. Thus, the department was not vicariously liable as a hostile work environment.