************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopin- ion motions and petitions for certification is the “offi- cially released” date appearing in the opinion. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative. The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Jour- nal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************ Page 0 CONNECTICUT LAW JOURNAL 0, 0
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TENISHA O’REGGIO v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL. (SC 20847) Robinson, C. J., and McDonald, D’Auria, Mullins, Ecker, Alexander and Dannehy, Js. Argued March 20—officially released August 1, 2024*
Procedural History
Appeal from the decision of the human rights referee for the named defendant that the defendant Department of Labor was not liable to the plaintiff for her claim of a hostile work environment, brought to the Superior Court in the judicial district of New Britain and tried to the court, Klau, J.; judgment affirming the decision, from which the plaintiff appealed to the Appellate Court, Prescott, Seeley and Eveleigh, Js., which affirmed the trial court’s judgment, and the plaintiff, on the grant- ing of certification, appealed to this court. Affirmed. James V. Sabatini, for the appellant (plaintiff). Michael E. Roberts, human rights attorney, for the appellee (named defendant). Colleen B. Valentine, assistant attorney general, with whom, on the brief, were William Tong, attorney gen- eral, Joshua Perry, solicitor general, and Michael K. Skold, deputy solicitor general, for the appellee (defen- dant Department of Labor). Opinion
ALEXANDER, J. This certified appeal raises the ques- tion of 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 (state act), General Statutes § 46a-51 et seq. The named defendant, the Commission on Human Rights and Opportunities (commission), con- * August 1, 2024, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. 0, 0 CONNECTICUT LAW JOURNAL Page 1
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cluded in an administrative decision that the defendant employer, the Department of Labor (department), was not vicariously liable for the creation of a hostile work environment in the office where it employed the plain- tiff, Tenisha O’Reggio. The decision was upheld by the trial court, and the Appellate Court affirmed that judg- ment. See O’Reggio v. Commission on Human Rights & Opportunities, 219 Conn. App. 1, 4–5, 20, 293 A.3d 955 (2023). We granted the plaintiff’s petition for certifica- tion to appeal, limited to the following issue: ‘‘Did the Appellate Court correctly conclude that the legal stan- dard adopted by the United States Supreme Court in Vance v. Ball State University, 570 U.S. 421, 133 S. Ct. 2434, 186 L. Ed. 2d 565 (2013), applied to the plaintiff’s claim under the [state act] . . . that the [department] was vicariously liable for the hostile work environment allegedly created by one of the [department’s] employ- ees?’’ O’Reggio v. Commission on Human Rights & Opportunities, 346 Conn. 1029, 295 A.3d 944 (2023). Following our well established use of federal case law applying Title VII of the Civil Rights Act of 1964, as amended by Title VII of the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq. (Title VII), to guide our interpre- tation and application of the state act, we conclude that the Appellate Court’s comprehensive and well reasoned opinion correctly adopted the Vance definition of the term ‘‘supervisor.’’ Accordingly, we affirm the judgment of the Appellate Court. The record reveals the following relevant facts and procedural history. The plaintiff began working for the department in 2009 and was promoted in 2012 to the position of adjudicator in the unemployment unit of its Bridgeport office, where she reported to the unit’s program services coordinator, Diane Krevolin. Krevolin had the authority to assign work, to approve requests for leave, to set employee schedules, to provide training, and to conduct performance reviews. She did not have the authority to hire, fire, or otherwise discipline any employee. In 2016, the plaintiff, who is Black, filed an Page 2 CONNECTICUT LAW JOURNAL 0, 0
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internal complaint with the department’s office of human resources (HR), claiming that Krevolin, who is white, had made several racially discriminatory state- ments to her and in her presence.1 The plaintiff met with HR personnel, and, the following day, the department placed Krevolin on paid administrative leave. HR per- sonnel and the department’s equal employment oppor- tunity manager each conducted separate internal investigations into the plaintiff’s claim. Both investiga- tions concluded that Krevolin had made discriminatory statements. After considering the results of the investi- gations and Krevolin’s lengthy record of service with the department, which lacked any previous disciplinary actions, the commissioner of labor issued Krevolin a one day suspension without pay and required her to attend diversity training.
After the internal investigations were completed, the plaintiff requested that she be allowed to report to someone other than Krevolin or to sit in an area away from Krevolin, but each of those requests were denied. The department determined that the plaintiff could not report directly to the person above Krevolin in the orga- nizational structure, and Krevolin’s union contract did 1 The Appellate Court summarized Krevolin’s discriminatory statements as follows: ‘‘[A]t a one-on-one meeting with Krevolin six months after the plaintiff began her adjudicator position, Krevolin asked the plaintiff what she would do if someone called her a racial epithet; on a later date, Krevolin made a comment suggesting that the man with whom she was talking to must have been lying about looking for work because he was Black; at a meeting, Krevolin stated to the plaintiff and other adjudicators, ‘[y]ou know Hispanics don’t have bank accounts’; Krevolin made a comment that the plaintiff believed was implying that the plaintiff had no reason to be in Sweden on vacation because she is Black; Krevolin said to the plaintiff’s coworker, who had dreadlocks but then changed her hairstyle, ‘I’m glad you . . . took that mess out of your head, you looked like Whoopi Goldberg’; and Krevolin complimented the plaintiff’s hairstyle and stated that she did not like the plaintiff’s old hairstyle because it reminded her of ‘Aunt Jem- ima.’ ’’ O’Reggio v. Commission on Human Rights & Opportunities, supra, 219 Conn. App. 5–6 n.4. 0, 0 CONNECTICUT LAW JOURNAL Page 3
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not allow her to be involuntarily transferred for disci- plinary purposes.2 Because the plaintiff felt that she could not continue to report to Krevolin, she took a position in another division of the department. The new position was for a durational basis from December, 2016, to December, 2017, after which time the plaintiff could request to return to her former position in the unemployment unit. Although Krevolin retired in Octo- ber, 2017, the plaintiff did not seek to return to her former position when eligible in December, 2017. In March, 2019, the plaintiff asked to return to her former position, and the department granted that request. While the department’s internal investigations were ongoing, the plaintiff filed a complaint with the commis- sion alleging that the department had subjected her to a hostile work environment based on her race and color in violation of General Statutes (Rev. to 2015) § 46a-60 (a) (1)3 and General Statutes §§ 46a-58 (a)4 and 46a-70.5 2 Within the organizational structure of the department, Krevolin reported to the director of adjudications and unemployment insurance field services, who, in turn, reported to the director of labor operations. The director of labor operations reported to both the commissioner and the deputy commissioner of labor. 3 General Statutes (Rev. to 2015) § 46a-60 (a) provides in relevant part: ‘‘It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer’s agent . . . to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individuals’ race [or] color . . . .’’ 4 General Statutes § 46a-58 (a) provides in relevant part: ‘‘It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the Constitution or laws of this state or of the United States, on account of . . . color [or] race . . . .’’ We note that § 46a-58 has been the subject of several amendments since the filing of the plaintiff’s complaint. See Public Acts 2022, No. 22-82, § 11; Public Acts 2017, No. 17-127, § 2; Public Acts 2017, No. 17-111, § 1; Public Acts, Spec. Sess., June, 2015, No. 15-5, § 73. Because those amendments have no bearing on the merits of this appeal, and in the interest of simplicity, we refer to the current revision of the statute. 5 General Statutes § 46a-70 (a) provides in relevant part: ‘‘State officials and supervisory personnel shall recruit, appoint, assign, train, evaluate and Page 4 CONNECTICUT LAW JOURNAL 0, 0
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Following a hearing, the presiding human rights referee (referee) issued a final decision, concluding that, although Krevolin had created a hostile work environ- ment, the department acted promptly and reasonably under the circumstances to remedy the situation and, therefore, was not vicariously liable for Krevolin’s actions. The plaintiff thereafter filed an administrative appeal from the commission’s decision to the trial court pursu- ant to General Statutes § 4-183. The trial court upheld the commission’s decision, concluding that the plain- tiff’s vicarious liability claim under the state act against the department failed because Krevolin was not a ‘‘supervisor’’ as defined by the United States Supreme Court in Vance, namely, an employee empowered by the employer ‘‘to take tangible employment actions against the victim . . . .’’ Vance v. Ball State Univer- sity, supra, 570 U.S. 424. The trial court further con- cluded that, despite some ambiguity in the commission’s decision as to whether the referee had found Krevolin to be the plaintiff’s supervisor under Vance, a remand to the commission was unnecessary because the plaintiff’s counsel had expressly conceded during oral argument before the trial court that Krevo- lin’s supervisory responsibilities, which did not include hiring, firing, or disciplining employees, did not satisfy the Vance standard. The plaintiff appealed from the trial court’s judgment to the Appellate Court. The sole issue in the appeal was whether the trial court had incorrectly applied the Vance definition of ‘‘supervisor’’ to the plaintiff’s hostile promote state personnel on the basis of merit and qualifications, without regard for race [or] color . . . .’’ We note that § 46a-70 has been the subject of several amendments since the filing of the plaintiff’s complaint. See Public Acts 2022, No. 22-82, § 16; Public Acts 2018, No. 18-72, § 44; Public Acts 2017, No. 17-127, § 8. Because those amendments have no bearing on the merits of this appeal, and in the interest of simplicity, we refer to the current revision of the statute. 0, 0 CONNECTICUT LAW JOURNAL Page 5
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work environment claim. See O’Reggio v. Commission on Human Rights & Opportunities, supra, 219 Conn. App. 10. The Appellate Court concluded that the Vance definition of ‘‘supervisor’’ furnishes ‘‘the appropriate definition for distinguishing between the coworker and supervisor theories of liability for hostile work environ- ment claims brought under [the state act].’’ Id., 19. Accordingly, the Appellate Court affirmed the trial court’s judgment. Id., 20. This certified appeal followed. On appeal, the plaintiff, joined in part by the commis- sion,6 claims that the Appellate Court incorrectly applied the Vance definition of ‘‘supervisor’’ to her claim seek- ing to hold the department vicariously liable under the state act for the creation of a hostile work environment by Krevolin. The plaintiff contends that the Vance defi- nition undermines the remedial nature of the state act because it is unduly narrow and that we should instead adopt a definition of ‘‘supervisor’’ that includes employ- ees who have the authority to control the conditions under which subordinate employees do their daily work. 6 The commission contends that it is not necessary for this court to reach the certified issue of whether to adopt the Vance definition and, instead, asks us to affirm the trial court’s judgment on the alternative grounds that (1) the plaintiff abandoned her claim before the trial court because of inadequate briefing, and (2) the department waived the Ellerth/Faragher defense that underlies the Vance issue. See, e.g., Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998) (‘‘An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages . . . . The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any . . . harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or correc- tive opportunities provided by the employer or to avoid harm otherwise.’’ (Citation omitted.)); see also Faragher v. Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998) (same). Given our conclusion that the Vance definition is applicable to claims filed under the state act, we need not reach the alternative grounds advanced by the commission. Page 6 CONNECTICUT LAW JOURNAL 0, 0
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In response, the department argues that the Appellate Court correctly applied the Vance definition of ‘‘supervi- sor’’ because this court has ‘‘long followed federal Title VII precedent in determining an employer’s liability when an employee is subject to a hostile work environ- ment.’’ See, e.g., Brittell v. Dept. of Correction, 247 Conn. 148, 166–67, 717 A.2d 1254 (1998) (applying defi- nition of ‘‘hostile work environment’’ from federal case law in case brought under state act). The department further argues that ‘‘powerful policy interests’’ support adopting the Vance definition of ‘‘supervisor.’’ The department also argues that the definition urged by the plaintiff ‘‘requires murky factual determinations and risks inconsistent results.’’ We agree with the depart- ment that, for the purposes of vicarious liability, a super- visor is an employee ‘‘empowered by the employer to take tangible employment actions against the victim’’; Vance v. Ball State University, supra, 570 U.S. 424; including those individuals authorized to take such action subject to approval by higher management. See id., 437 n.8. We begin with the principles that govern our standard of review in an appeal from the decision of an adminis- trative agency. Under the Uniform Administrative Pro- cedure 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, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbi- trarily, illegally, or in abuse of its discretion. . . . [Thus] [c]onclusions of law reached by the administra- tive 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.’’ (Internal quotation marks omitted.) Drumm v. Freedom of Information Commission, 348 0, 0 CONNECTICUT LAW JOURNAL Page 7
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Conn. 565, 579–80, 308 A.3d 993 (2024). ‘‘Cases that present pure questions of law, however, invoke a broader standard of review . . . . [T]he traditional deference accorded to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scru- tiny [or to] a governmental agency’s time-tested inter- pretation . . . .’’ (Internal quotation marks omitted.) Id., 580. Because this case presents a question of law that has not been previously considered, our review is plenary. See, e.g., Longley v. State Employees Retire- ment Commission, 284 Conn. 149, 166, 931 A.2d 890 (2007). We turn next to the legal principles governing our construction and application of the state act. ‘‘This court previously has determined that Connecticut anti- discrimination statutes should be interpreted in accor- dance with federal antidiscrimination laws.’’ (Internal quotation marks omitted.) Patino v. Birken Mfg. Co., 304 Conn. 679, 689, 41 A.3d 1013 (2012). ‘‘We look to federal law for guidance on interpreting state employ- ment discrimination law, and the analysis is the same under both.’’ (Internal quotation marks omitted.) Felici- ano v. Autozone, Inc., 316 Conn. 65, 73, 111 A.3d 453 (2015). Thus, guided by the long line of cases following Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986), in which the United States Supreme Court first recognized that the creation of a hostile or abusive work environment was a violation of Title VII; id., 66; this court has determined that, to establish a claim of hostile work environment under the state act, ‘‘the workplace [must be] permeated with discriminatory intimidation, ridicule, and insult that [are] sufficiently severe or pervasive to alter the condi- tions of the victim’s employment and create an abusive [work] environment . . . .’’7 (Emphasis omitted; inter- 7 Guided by federal case law, this court has further determined that, in order to be actionable, a hostile work ‘‘environment must be both objectively Page 8 CONNECTICUT LAW JOURNAL 0, 0
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nal quotation marks omitted.) Patino v. Birken Mfg. Co., supra, 691. ‘‘We also have recognized that our legislature’s intent, in general, was to make [the state act] complement the provisions of Title VII.’’ Commission on Human Rights & Opportunities v. Echo Hose Ambulance, 322 Conn. 154, 160, 140 A.3d 190 (2016). Accordingly, we previously have considered Title VII jurisprudence in interpreting the meaning of both ‘‘employer’’; see, e.g., Perodeau v. Hartford, 259 Conn. 729, 738–39, 792 A.2d 752 (2002); and ‘‘employee’’ under the state act. See, e.g., Commission on Human Rights & Opportunities v. Echo Hose Ambulance, supra, 160–61. Because the term ‘‘supervisor’’ is not defined in the state act, and our appellate courts have not adopted a definition, we look to federal case law interpreting Title VII for guid- ance. See, e.g., Haskenhoff v. Homeland Energy Solu- tions, LLC, 897 N.W.2d 553, 571 n.2 (Iowa 2017). In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998), and Faragher v. Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998), the United States Supreme Court adopted a framework setting forth the circum- stances under which an employer may be held vicari- ously liable under Title VII for an employee’s creation and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. . . . Whether an environment is objectively hostile is determined by looking at the record as a whole and at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threaten- ing or humiliating, or a mere offensive utterance; and whether it unreason- ably interferes with an employee’s work performance. . . . [T]here must be more than a few isolated incidents of racial enmity . . . meaning that [i]nstead of sporadic racial slurs, there must be a steady barrage of opprobri- ous racial comments . . . . Thus, whether racial slurs constitute a hostile work environment typically depends [on] the quantity, frequency, and sever- ity of those slurs . . . considered cumulatively in order to obtain a realistic view of the work environment . . . .’’ (Citations omitted; internal quotation marks omitted.) Patino v. Birken Mfg. Co., supra, 304 Conn. 699–700. 0, 0 CONNECTICUT LAW JOURNAL Page 9
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of a hostile work environment.8 In establishing that framework, the court was guided by § 219 (2) (d) of the Restatement (Second) of Agency, recognizing an exception to the general rule that employers are not liable for those tortious acts that are committed outside the scope of employment; that exception allows for vicarious liability when the employee was ‘‘aided in accomplishing the tort by the existence of the agency relation.’’ (Internal quotation marks omitted.) Vance v. Ball State University, supra, 570 U.S. 428, quoting 1 Restatement (Second), Agency § 219 (2) (d), p. 481 (1958) ; see Faragher v. Boca Raton, supra, 803 (‘‘[w]hen a person with supervisory authority discriminates in the terms and conditions of subordinates’ 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, supra, 761–62 (‘‘When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted [in the absence of] the agency relation. A tangible employment action in most cases inflicts direct economic harm. As a general proposition, only a supervisor, or other person acting with the authority of the company, can cause this sort of injury.’’). 8 As the Appellate Court aptly recognized, neither this court nor the Appel- late Court previously has had the opportunity to consider whether the Ellerth/Faragher framework applies to cases brought under the state act. See O’Reggio v. Commission on Human Rights & Opportunities, supra, 219 Conn. App. 12–13; see also Brittell v. Dept. of Correction, supra, 247 Conn. 166 n.30 (recognizing then recent decisions in Ellerth and Faragher but deeming them inapplicable in case involving coworker sexual harassment). Nevertheless, no party in the present case argues that that framework should not apply. Therefore, like the Appellate Court, we assume, without deciding, that the Ellerth/Faragher framework applies to hostile work environment claims brought under the state act. See O’Reggio v. Commission on Human Rights & Opportunities, supra, 13. Page 10 CONNECTICUT LAW JOURNAL 0, 0
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Guided by this ‘‘aided-in-the-accomplishment theory of vicarious liability’’; Vance v. Ball State University, supra, 570 U.S. 432; the United States Supreme Court concluded that ‘‘[a]n employer is subject to vicarious liability to a victimized employee for an actionable hos- tile environment created by a supervisor with immedi- ate (or successively higher) authority over the employee.’’ Burlington Industries, Inc. v. Ellerth, supra, 524 U.S. 765. If a supervisor’s harassment culminates in a tangi- ble employment action, such as termination, demotion, or an undesirable reassignment, liability for the supervi- sor’s action is automatically imputed to the employer. Id., 762–63. ‘‘In that instance, it would be implausible to interpret agency principles to allow an employer to escape liability . . . .’’ Id., 763. ‘‘When no tangible employment action is taken, [however], a defending employer may raise an affirmative defense to liability . . . . The defense comprises two necessary elements: (a) that the employer exercised reasonable care to pre- vent and correct promptly any . . . harassing behav- ior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.’’ (Citation omitted.) Faragher v. Boca Raton, supra, 524 U.S. 807. Conversely, if the harassing employee is a coworker and not a supervisor of the victim, the burden imposed by 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. See Vance v. Ball State University, supra, 570 U.S. 448–49. ‘‘[Although] the reasonableness of an employer’s response to . . . harassment is at issue under both standards, the plaintiff must clear a higher hurdle under the negligence standard [applicable to harassment by coworkers], where she bears the bur- den of establishing her employer’s negligence, than 0, 0 CONNECTICUT LAW JOURNAL Page 11
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under the vicarious liability standard [applicable to harassment by supervisors], where the burden shifts to the employer to prove its own reasonableness and the plaintiff’s negligence.’’ Curry v. District of Columbia, 195 F.3d 654, 660 (D.C. Cir. 1999), cert. denied, 530 U.S. 1215, 120 S. Ct. 2219, 147 L. Ed. 2d 251 (2000); see also Swinton v. Potomac Corp., 270 F.3d 794, 804 (9th Cir. 2001) (Discussing burden shifting scheme and stating that ‘‘[i]t might reasonably be argued . . . that employ- ers are ‘better off’ in the negligence context, [in which] the plaintiff is required to prove both the employer’s knowledge of the harassment (or that it should have known) and that it failed to take reasonable corrective action. In the strict liability context, the plaintiff is required to prove significantly less in the prima facie case: merely that the harasser was his supervisor.’’), cert. denied, 535 U.S. 1018, 122 S. Ct. 1609, 152 L. Ed. 2d 623 (2002).
Under the Ellerth/Faragher framework, it is, there- fore, analytically important to determine whether an alleged harasser is a supervisor or a coworker. Because a split developed among the federal courts of appeals with respect to the meaning of the term ‘‘supervisor,’’ the United States Supreme Court adopted a definition of that term in Vance. The court concluded in Vance that a supervisor is an employee empowered by the employer ‘‘to take tangible employment actions against the victim, i.e., to effect a significant change in employ- ment status such as hiring, firing, failing to promote, reassignment with significantly different responsibili- ties, or a decision causing a significant change in bene- fits.’’ (Internal quotation marks omitted.) Vance v. Ball State University, supra, 570 U.S. 431. 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. Id., 437 n.8. Page 12 CONNECTICUT LAW JOURNAL 0, 0
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Adopting the Vance definition is consistent with our well established body of case law holding that ‘‘our legislature’s intent, in general, was to make [the state act] complement the provisions of Title VII.’’ Commis- sion on Human Rights & Opportunities v. Echo Hose Ambulance, supra, 322 Conn. 160. Although this court has occasionally interpreted the state act differently from Title VII, ‘‘it has done so only in circumstances in which there is clear evidence of a contrary legislative intent.’’ Id., 162; see, e.g., McWeeny v. Hartford, 287 Conn. 56, 69, 946 A.2d 862 (2008) (concluding that guid- ance from case law interpreting Title VII was unneces- sary because relevant language of state act was ‘‘susceptible of only one reasonable interpretation’’); see also Vollemans v. Wallingford, 103 Conn. App. 188, 217, 928 A.2d 586 (2007) (concluding that following guidance from federal case law would contradict intent of state legislature), aff’d, 289 Conn. 57, 956 A.2d 579 (2008). Neither the parties’ briefs nor our independent research has found anything in the text or legislative history of the state act indicating that the legislature desired to depart from federal law with respect to the proof and defense of hostile work environment claims. See Patino v. Birken Mfg. Co., supra, 304 Conn. 695–97. We note that the dissent’s rejection of the Vance defini- tion is inconsistent with this court’s approach in inter- preting the state act ‘‘in accordance with federal antidiscrimination laws.’’ (Internal quotation marks omitted.) Id., 689; see, e.g., Feliciano v. Autozone, Inc., supra, 316 Conn. 73 (‘‘[w]e look to federal law for guid- ance on interpreting state employment discrimination law, and the analysis is the same under both’’ (internal quotation marks omitted)). In arguing for a broader approach, the dissent rejects the oft cited proposition that ‘‘our legislature’s intent, in general, was to make [the state act] complement the provisions of Title VII.’’ Commission on Human 0, 0 CONNECTICUT LAW JOURNAL Page 13
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Rights & Opportunities v. Echo Hose Ambulance, supra, 322 Conn. 160. Specifically, the dissent argues that this proposition is the result of a misreading of Pik- Kwik Stores, Inc. v. Commission on Human Rights & Opportunities, 170 Conn. 327, 331, 365 A.2d 1210 (1976), by this court in Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53, 448 A.2d 801 (1982). Although we recognize the dissent’s criticisms of the analysis in Wro- blewski, this proposition has been advanced in count- less employment discrimination decisions and has put the legislature on notice of our consistent interpretation of the state act. Given the interest in stability in the context of statutory interpretation, and the legislature’s primary role in formulating the public policy of our state; see, e.g., Graham v. Commissioner of Transpor- tation, 330 Conn. 400, 417–18, 195 A.3d 664 (2018) (dis- cussing principles of legislative acquiescence and stare decisis); we decline to depart from guiding principles of federal law in the absence of an indication of legislative intent to the contrary. We acknowledge that there are good and persuasive arguments that support the dissent’s adoption of a broader definition of who qualifies as a supervisor. The legislature, however, has not expressly set forth its intent for us to adopt such a definition. To the extent that the legislature wishes to define the term ‘‘supervisor’’ more broadly, it is of course free to adopt legislation directing that approach or, in the alternative, clarifying the persuasive value of federal case law as it has in other contexts.9 Given the lack of any response to Vance from our legislature, which is certainly aware of the hostile work environment theory of liability; see General Statutes 9 Compare Iowa Code Ann. § 216.18 (1) (West 2017) (directing that Iowa Civil Rights Act, Iowa Code Ann. § 216 et seq., which includes employment discrimination protections, ‘‘shall be construed broadly to effectuate its purposes’’), with General Statutes § 35-44b (in interpreting state antitrust statutes, ‘‘the courts of this state shall be guided by interpretations given by the federal courts to federal antitrust statutes’’). Page 14 CONNECTICUT LAW JOURNAL 0, 0
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§ 46a-60 (b) (8) (harassment on ‘‘basis of sex or gender identity or expression,’’ including via conduct creating ‘‘intimidating, hostile or offensive [work] environment,’’ is prohibited discriminatory practice under state act); we continue to view consistency with federal case law as ‘‘especially important in employment law. Employers must comply with both state and federal law. Human resources personnel and supervisors must apply myriad rules and regulations in complex situations. . . . Uncertainty invites more litigation and increasing costs for all parties. An uncertain or costly litigation environ- ment inhibits job creation.’’ Haskenhoff v. Homeland Energy Solutions, LLC, supra, 897 N.W.2d 585. The United States Supreme Court in Vance reasoned that the Vance definition of ‘‘supervisor’’ is ‘‘easily work- able’’ and ‘‘can be applied without undue difficulty at both the summary judgment stage and at trial.’’ Vance v. Ball State University, supra, 570 U.S. 432. Indeed, whether an employee is a supervisor or simply a coworker can usually be ‘‘readily determined’’ by written documentation in official company records as opposed to ‘‘a highly case-specific evaluation of numerous fac- tors.’’ Id. The dissent, the plaintiff, and the commission none- theless encourage us to reject the Vance definition, relying heavily on the argument advanced by Justice Ruth Bader Ginsburg in her dissenting opinion in Vance. Justice Ginsburg concluded that a definition that does not include employees who have the authority to direct daily work activities ‘‘hinder[s] efforts to stamp out discrimination in the workplace’’ by ‘‘reliev[ing] scores of employers of responsibility for the behavior’’ of their employees. Vance v. Ball State University, supra, 570 U.S. 463, 468 (Ginsburg, J., dissenting); see also Aguas v. State, 220 N.J. 494, 528, 107 A.3d 1250 (2015) (rejecting Vance definition and concluding that more expansive definition of ‘‘supervisor’’ ‘‘prompts employers to focus 0, 0 CONNECTICUT LAW JOURNAL Page 15
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attention not only on an elite group of [decision makers] at the pinnacle of the organization, but on all employees granted the authority to direct the day-to-day responsi- bilities of subordinates, and to ensure that those employ- ees are carefully selected and thoroughly trained’’). We disagree for two reasons. First, when a harasser is not a supervisor under Vance, an employer may neverthe- less be held liable upon proof that it was negligent in failing to prevent that harassment. See Vance v. Ball State University, supra, 446. A plaintiff could therefore still prevail by showing, for example, that ‘‘an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints . . . .’’ Id., 449. Thus, an employer is not relieved of responsibility for the behavior of its employees when its own negligence has led to the creation or continua- tion of a hostile work environment. See id., 446. This is particularly so when an employee has put the employer on notice of the hostile work environment created by a coworker, rendering the employer’s com- plaint process—and the employee’s participation in that process—of paramount importance in any assessment of the employer’s negligence. Second, by encompassing within the definition of ‘‘supervisor’’ those employees empowered by the employer to take tangible employment actions subject to approval by higher management, the Vance definition shifts the burden of proof to the employer under the Ellerth/Faragher framework whenever the harasser is aided by the agency relationship with the employer. Even if an employer confines ultimate decision-making power to a small number of individuals in an attempt to escape vicarious liability, those individuals will likely need to rely on—and perhaps delegate authority to— other individuals who actually interact with the subordi- nate employees. If a delegation of the authority to take Page 16 CONNECTICUT LAW JOURNAL 0, 0
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tangible employment actions occurs, an employer could still be subject to vicariously liability. See id., 437 and n.8. We acknowledge that coworkers are, unfortunately, more than capable of creating hostile work environments. We conclude nonetheless that ‘‘ ‘something more’ is required in order to warrant vicarious liability,’’ and that some- thing more requires the harasser to have the power to take tangible employment actions. Id., 439. In the absence of a contrary expression of intent by the legisla- ture with respect to the state act, the Vance definition strikes a reasonable balance between accomplishing the antidiscrimination purpose of the state act and pro- tecting the legitimate interests of employers. See id., 431–32. It would upset settled expectations with respect to our jurisprudence interpreting the state act for us to depart from the Vance definition of ‘‘supervisor.’’ In the present case, the commission made no factual findings as to whether Krevolin was a supervisor under the Vance definition. A remand to the commission, how- ever, is unnecessary because the plaintiff’s counsel expressly conceded that Krevolin’s responsibilities did not satisfy the Vance definition of ‘‘supervisor,’’10 mean- ing that ‘‘the evidence supports only one conclusion as a matter of law . . . .’’ (Internal quotation marks omit- ted.) O’Reggio v. Commission on Human Rights & Opportunities, supra, 219 Conn. App. 19; see Salmon v. Dept. of Public Health & Addiction Services, 259 Conn. 288, 304–305, 788 A.2d 1199 (2002). 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 is 10 At oral argument before this court, the plaintiff’s counsel specifically stated: ‘‘Krevolin did not have the authority by her employer to terminate, promote, demote, transfer, or discipline, so she lacked the power to inflict direct economic harm on [the plaintiff]. Thus, per . . . the definition in Vance, [Krevolin] is not a supervisor.’’ 0, 0 CONNECTICUT LAW JOURNAL Page 17
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no evidence in the record that she had the authority to take tangible employment actions against the plaintiff. Accordingly, we conclude that the department is not vicariously liable for Krevolin’s creation of a hostile work environment. The judgment of the Appellate Court is affirmed. In this opinion McDONALD, D’AURIA and DAN- NEHY, Js., concurred.