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Connecticut Supreme Court Rules on Gay Hostile Environment Claim

Posted on: May 8th, 2012 by Art Leonard No Comments

The Connecticut Supreme Court has ruled that the state law banning sexual orientation discrimination "imposes liability on employers for failing to take reasonable steps to prevent their employees from being subjected to hostile work environments based on their sexual orientation."  The ruling in Patino v. Birken Manufacturing Company, 2012 WL 1570857, released early in May, will be officially published on May 15.  Chief Justice Chase T. Rogers wrote the opinion for the unanimous court.

The plaintiff, Luis Patino, began working for Birken as a machinist in 1977 and continued there until he was discharged in 2004.  His claim of hostile environment discrimination is based on incidents that began in 1991, when he "became the subject of name-calling on the shop floor."  This included "derogatory slurs for homosexuals in Spanish, such as 'pato' and 'maricon,' and in Italian and English, such as 'pira,' 'faggot,' and 'homo.'  The slurs were used in a variety of contexts, including 'faggot go home' and 'faggot get out of here.'"  Patino testified that he heard these statements "very often," sometimes as much as two or three times a day, usually spoken behind his back but loud enough and close enough for him to hear.  He testified that he was devastated and "overwhelmed by anger and by frustration and the humiliation" resulting from harassment.  He said that he was sometimes so upset that his body would shake, his work product would suffer, and it interfered with his sleep.

Patino does not claim that he was fired for being gay.  In a separate lawsuit now pending before a federal agency, he is claiming he was fired for whistle-blowing activities, not specified in the Connecticut Supreme Court's decision.

Patino began to keep a diary recording all the incidents of verbal harassment, but avoided complaining for about five or six years, seeking to avoid any workplace confrontation.  However, he eventually did complain to a supervisor, who called a group meeting and said such language would have to stop.  However, Patino testified, after a few weeks it resumed again.  The court's opinion details a series of complaints that Patino made over the years, but the company never took effective action against his harassers.  Then he began filing complaints with the state's Commission on Human Rights and Opportunities, beginning in 1996, as well as writing letters to company officials.

In January 2004, Patino filed the complaint that led to this lawsuit, alleging that the employer had violated Connecticut's sexual orientation discrimination law (which is a separate enactment from the state's general anti-discrimination statute) "by creating a hostile work environment because of the plaintiff's sexual orientation [and] failing to take adequate measures to alleviate the harassment or to remedy the hostile work environment."  The case went to a jury trial.  The jury ruled for Patino and awarded $94,500 in "noneconomic damages."  The trial court ruled against the employer's post-trial motions to set aside the verdict or reduce the amount of damages, and the employer appealed.

The employer argued that because the gay rights law does not specifically mention the "hostile environment" theory of liability, there is no basis for a legal claim in this case, as the employer took no action against Patino based on his sexual orientation. 

The employer's argument is based on the peculiar history of state civil rights legislation in Connecticut.  Originally, Connecticut's general anti-discrimination statute, which includes a prohibition on sex discrimination, did not mention sexual harassment or hostile environment theories of liability.  Such theories were first proposed during the 1970s in federal litigation under Title VII of the Civil Rights Act of 1964.  Gradually the lower federal courts began to accept the claim that a "hostile environment" might be a basis for a sex discrimination claim, even when the employer had not taken any tangible discriminatory action against the employee, and the Equal Employment Opportunity Commission (EEOC) issued Guidelines summarizing and endorsing the developing case law. 

Connecticut reacted to the EEOC Guidelines by amending its civil rights law to specifically recognize a "hostile environment " sex discrimination claim, even before the U.S. Supreme Court issued its key decisions which endorsed the EEOC's Guidelines in the mid-1980s.

Thus, Connecticut's anti-discrimination law, unlike Title VII or the laws of most other states, specifically authorizes a legal claim for sex discrimination based on a hostile environment.  However, the subsequently enacted Connecticut gay rights law does not specifically mention hostile environment claims.  Thus, the employer in this case argued, such a claim should not be available as a matter of state law since it wasn't specifically mentioned in the statute.

In rejecting this argument, Chief Justice Rogers pointed out that the Connecticut anti-discrimination statute also provides that federal court decisions under Title VII would provide the method of interpreting and applying analogous provisions of Connecticut's civil rights law.  Since the federal courts have adopted the view that a hostile environment claim may be brought under Title VII based on any of the prohibited grounds of discrimination, not just sex, a similar analysis should apply under the Connecticut statute.

Specifically, the U.S. Supreme Court has ruled that harassment that is severe or pervasive and that is directed at an employee because of any of the characteristics listed in the Civil Rights Act (race or color, religion, national origin, or sex) is unlawful discrimination, provided that it is severe or pervasive that it can be said to have change the "terms and conditions of employment" of the individual.  The Connecticut Supreme Court has now adopted that same analysis for the ban on sexual orientation discrimination in this case.

The court rejected the employer's argument that Patino had failed to meet the burden of showing severe and pervasive harassment.  As to that, the court said, since a jury had ruled in favor of Patino, the issue wasn't whether the Supreme Court agreed with that result, since it is up to the jury to make its decision based on the evidence presented at trial.  The more limited role for the Supreme Court was to determine whether the trial judge committed an abuse of discretion by denying the employer's post-trial motion to set aside the verdict.  As long as there was evidence in the record to support the jury's verdict, the Supreme Court would not second-guess the trial judge on its sufficiency.

The employer also argued that the damages were excessive, pointing out that Patino had not presented any medical evidence as to emotional distress, so that the only evidence concerning his injury suffered as a result of the harassment was his own testimony.  The Supreme Court rejected this argument, observing that a plaintiff is competent to testify about the impact that harassment has had on him, and evidently the jury found that uncontradicted testimony to be credible.  Furthermore, the court pointed out that the amount awarded was not out of line compared to verdicts in other hostile environment cases, which tended to range between $50,000 and $150,000.  The court rejected the employer's argument that there must be corroborative evidence for such a damage claim. 

Patino's diary turned out to be an important factor in the case, because it provided detailed evidence that helped to show a pattern of harassing conduct stretching back over many years and added credibility to his testimony in court.  The court quoted extensively from the diary to find supportive details to rebut the employer's arguments.  For example, the employer argued that most of the comments cited by Patino could not support his claim because they were not made to his face, and thus not necessarily directed at him, but the court quoted from diary entries documenting some slurs that were stated to Patino's face, and added that under hostile environment precedents derogatory workplace statements don't have to be made to the plaintiff's face if they are severe or pervasive enough to have poisoned the workplace atmosphere.

The employer's most bizarre argument was that one particular slur was not necessarily a slur at all, because the word that was used, 'pato,' while sometimes used as a homophobic slur, literally means a male duck in Spanish, and so might not have been used as a slur.  Chief Justice Rogers pointed out that "other courts have noted that English words like 'fag' and 'faggot' similarly have several uses in the English language.  Nevertheless, those courts have explained that, when one definition of a term predominates, courts may follow the interpretation most reasonable in the context."  He quoted an Illinois case that had refuted this argument, stating, "To suggest otherwise serves only to further tax the gullibility of the credulous and require this court to espouse a naivete unwarranted under the circumstances."  Concluded Rogers, "As there are presumably few occasions on which employees would discuss male ducks on the shop floor of an industrial plant such as the defendant's, the argument that the plaintiff's co-workers did not intend to use the word pato in a derogatory way lacks merit."

Attorneys Jon L. Schoenhorn and Sara J. Packman represent Patino.  Amicus briefs were filed by attorneys from Lambda Legal and the Connecticut Employment Lawyers Association, and the Commission on Human Rights and Opportunities also filed an amicus brief in support of Patino.

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