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Hidden Provision in Senate Bill Threatens Employer Defenses in Harassment Claims

A Senate bill pending in the Connecticut General Assembly, if passed, would strip employers of two of the most important defenses to sexual harassment claims. The employment provisions in question are tucked away in Section 11(e) of SB-5, “An Act Concerning Online Dating Operators, Online Child Grooming And Harassment, Domestic Violence Training And Protections For Victims Of Family Violence And Domestic Violence.”

The bill, passed yesterday by the Senate, would reverse U.S. Supreme Court precedent on employer liability for discrimination claims, eliminating many employer defenses and rendering Connecticut the only state not to follow U.S. Supreme Court discrimination precedent.

Under current law, an employee claiming discrimination without suffering economic damages must prove the discriminatory conduct complained of “was so severe or pervasive as to alter the terms and conditions of employment.” The standard, established by the Supreme Court, was intended to prevent employer liability in the case of minor workplace slights or insults. Section 11(e) eliminates the “severe or pervasive” standard, providing, “It shall not be a defense to a complaint of discrimination under this section, filed in accordance with section 46a-82, that the conduct was not severe or pervasive.”

Current law also limits an employer’s vicarious liability for a supervisor’s discriminatory conduct where an employer took reasonable steps to prevent the behavior (e.g., sexual harassment training) and provided avenues for employees to report misconduct, but where the employee failed to do so. The proposed bill eliminates this defense, providing, “The fact that such individual did not make a complaint about the discrimination to an employer… shall not be determinative of whether such employer shall be liable.”

“This bill presents a significant setback for employers who have put systems in place to prevent or correct sexual harassment claims in their organizations,” states Attorney Padric Noonan. “However, time may be the biggest obstacle to passage. Before the session ends on May 4, 2022, the bill must pass the House; it would then land on the Governor’s desk for signature,” he noted.

Editor’s Note - Robert Noonan & Associates will conduct its Annual Legislative Update (webinar), which will discuss laws affecting employers that have been passed this session. The date will be announced in the near future with an advance notice to clients of the firm.