Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In a recent decision, the Connecticut Appellate Court held that “supervisor” for hostile work environment discrimination claims brought under Connecticut law is the same as applied in similar federal claims brought pursuant to Title VII. The court’s decision in Tenisha O’Reggio v. Commission on Human Rights and Opportunities1 marks the first time Connecticut appellate courts have addressed the definition of “supervisor” under the Connecticut Fair Employment Practices Act (CFEPA).
The Path to the Appellate Court
The plaintiff worked as an adjudicator for the Connecticut Department of Labor. She filed a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO) alleging that the program service coordinator to whom she reported subjected her to a hostile work environment based on her race and color in violation of CFEPA.
At public hearing, the administrative law judge ruled in favor of the employer, concluding that although the program coordinator had created a hostile work environment, the employer acted promptly and reasonably to remedy the situation and was therefore not negligent.
In her appeal of the ALJ’s decision to the Connecticut Superior Court, the plaintiff argued that because the hostile work environment was created by her supervisor, the ALJ was required to impute liability to the employer. In response, the employer argued that even though the program coordinator was referred to as plaintiff’s supervisor, she did not meet that definition under the U.S. Supreme Court’s holding in Vance v. Ball State University, 570 U.S. 421 (2013). The court agreed and upheld the ALJ’s decision.
The Vance Framework
In Vance, the Supreme Court outlined the framework for an employer’s vicarious liability for the conduct of its employees with respect to claims of a hostile work environment in violation of Title VII. Under Vance, if the employee who created the hostile work environment is a “supervisor,” the employer will be liable for the supervisor’s conduct, regardless of whether the harassment resulted in a “tangible employment action,” unless an employer can satisfy the Ellerth/Faragher affirmative legal defense.2 However, if the employee is the plaintiff’s co-worker and not a supervisor, the employer will only be liable if the plaintiff establishes that the employer was negligent in controlling its working conditions.
The term “supervisor” is not defined in Title VII, but the Supreme Court defined the term for purposes of Title VII hostile work environment claims as an employee who is employed by the employer to take tangible, employment actions against the plaintiff. The Court held that the ability to direct another employee’s day-to-day tasks is not sufficient to make an employee a supervisor for purposes of Title VII claims. Rather, a supervisor must be able to effect a significant change on the employment status of other employees, such as hiring, firing, or altering the benefits of other employees.
In O’Reggio, the plaintiff did not appeal claiming that the Vance framework did not apply, but rather that the trial court erred in applying the Vance definition of “supervisor” to her claims. The plaintiff asserted that the Vance definition is inconsistent with the remedial nature of CFEPA. Plaintiff conceded the program coordinator would not meet the definition under Vance but advocated for a new, broader definition of “supervisor” to include employees who have the power to control the day-to-day conditions of their subordinate’s work. The appellate court rejected this argument.
Why is it important?
As is the case in Title VII, there is no statutory definition of “supervisor” in CFEPA, Connecticut’s Title VII counterpart. Nor had the term previously been defined by the Connecticut appellate courts, although federal courts had applied the Vance framework when considering hostile work environment claims under Connecticut law.
O’Reggio, therefore, resolves a legal ambiguity in Connecticut by formally adopting a definition for the term “supervisor” for CFEPA claims, clarifying that for purposes of a hostile work environment claim, a “supervisor” is limited to an employee who has been given the power by their employer to take tangible employment actions against other employees. Accordingly, plaintiffs asserting a hostile work environment claim will be held to the same standard applied in federal claims under Title VII, i.e., they will be required to allege and prove that the offending co-worker is a supervisor as defined by the U.S. Supreme Court in Vance in order to assert a viable claim against their employer based on vicarious liability. If the co-worker is not a supervisor, plaintiffs will be required to make an additional showing that the employer was negligent in controlling its working conditions in order to succeed on their hostile work environment claims.
1 Tenisha O’Reggio v. Commission on Human Rights and Opportunities No. 45011, 2023 WL 3051651 (Conn. App. Ct. Apr. 25, 2023).
2 The Ellerth/Faragher defense is named after the collective holdings of two Supreme Court cases, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998). The defense specifically requires that an employer show that (1) it exercised reasonable care to prevent and promptly correct any harassing behavior and (2) the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities that were provided.