This is news? I mean, I have read the Connecticut statute (§46a-81c) which prohibits discrimination on the basis of sexual orientation. I simply assumed upon first reading that it creates a hostile work environment cause of action.
The Connecticut Supreme Court decision in Patino v. Birken Manufacturing Co., which is slated to be published on May 15, 2012, holds for the first time that my reading of the statute was correct.
Never mind the fact that the statute reads like dozens of other anti-discrimination statutes where courts have found there is a hostile work environment cause of action, specifically, that it is unlawful for an employer to refuse to hire, to fire, or to discriminate in the terms and conditions of employment based upon a person’s sexual orientation. Apparently, the defendants in this case still argued that since the statute does not specifically say the magic words, that there is no cause of action.
Although the case is a landmark decision that clearly establishes a sexual orientation hostile work environment cause of action, to me that is not the big lesson in this case. If you read the facts of the case, the harassing conduct was reported on multiple occasions and continued over a 7 year period even though the company took some steps to try to discipline those involved.
To me, this is the big lesson. It is not enough to go through the motions of investigating, disciplining and even training. Those efforts actually have to work. Here, one particularly damaging fact was that the company scheduled training yet most of the accused harassers were not required to attend the training. Seriously?
Another big lesson from this case is that a jury awarded $95,000 to plaintiff, and the Supreme Court upheld the award, based on derogatory slurs that were said in the plaintiff’s presence but not necessarily to the plaintiff directly. Speaking from experience when doing harassment training for clients, this is usually the concept that is novel and hard for employees to understand. They simply assume that the harassment has to be directed at a person for that person to have a right to complain.
We have said it multiple times, employers need to be proactive about educating employees about what is and what is not harassment. Also, it is always better to train employees to be overly respectful rather than simply cover the bare minimum required under the law.