Connecticut Employer Liable for Anti-Gay Workplace

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.” Chief Justice Chase T. Rogers wrote the opinion, to be published May 15, for the unanimous court in Patino v. Birken Manufacturing Company.

Luis Patino began working for Birken as a machinist in 1977 and continued there until he was discharged in 2004. His claim of hostile work environment discrimination is based on incidents that began in 1991, when he “became the subject of name-calling on the shop floor,” according to the opinion. This included “derogatory slurs for homosexuals in Spanish, such as ‘pato’ and ‘maricon,’ and in Italian and English, such as ‘pira,’ ‘faggot,’ and ‘homo.’” Patino testified he heard these slurs “very often” –– on occasion, two or three times a day –– usually spoken behind his back but loud enough for him to hear. He testified he was “overwhelmed by anger and by frustration and the humiliation” that resulted. He was sometimes so upset his body would shake, his work suffered, and he lost sleep.

Patino does not claim he was fired for being gay. In a separate lawsuit now pending before a federal agency, he alleges he was fired for whistle-blowing activities, not specified in the Connecticut ruling.

Though he began keeping a diary recording every incident of harassment, Patino held off on complaining for about five years, seeking to avoid a workplace confrontation. Eventually, he told a supervisor, who called a group meeting to warn such language would have to stop. After a few weeks, Patino testified, it resumed. The court’s opinion details a series of complaints Patino made over the years, but the company never took effective action against his harassers. In 1996, he also began filing complaints with the state’s Commission on Human Rights and Opportunities.

Patino filed his hostile workplace complaint in 2004, and a jury awarded him $94,500 in “noneconomic damages.” When the judge refused Birken’s motion to set aside the verdict or reduce the damages, the company appealed. It argued that because the gay rights law does not specifically mention “hostile environment” liability, Patino had no legal claim since Birken took no action against him based on his sexual orientation.

After federal courts first began recognizing hostile work environment claims related to sexual harassment and discrimination, Connecticut amended its civil rights law to recognize such a claim in the context of sexual discrimination. As a result, unlike most states and the federal government, Connecticut law explicitly authorizes a hostile workplace claim in cases of sex-based discrimination. Because the gay rights law subsequently passed did not mention such claims, Birken argued Patino had no case.

Rejecting that argument, the chief justice pointed out that federal rulings under the 1964 Civil Rights Act can be used under Connecticut statute to interpret analogous provisions of state civil rights law. Federal courts have adopted the view that a hostile workplace environment claim may be brought under any of the categories protected by the 1964 Civil Rights Act, not just sex.

The US Supreme Court’s standard has been that the harassment must be so severe or pervasive as to have changed the “terms and conditions of employment.” The Connecticut Supreme Court has now adopted the same analysis for the ban on sexual orientation discrimination. Given that a jury ruled in Patino’s favor, the court rejected Birken’s argument that the plaintiff failed to show the harassment was severe or pervasive. The Supreme Court would not second-guess the trial judge’s decision refusing to set aside the jury verdict.

Patino’s diary turned out to be an important factor in the case, because it provided detailed evidence showing a pattern of harassment stretching back over many years and added credibility to his testimony in court.

Chief Justice Rogers, faced with Birken’s claim that the word “pato” might not have been intended as a slur, since it literally means a male duck in Spanish, noted that other courts have rejected similar arguments about the use of English words like “fag” and “faggot.” Concluding “there are presumably few occasions on which employees would discuss male ducks on the shop floor of an industrial plant,” Rogers, quoting from an Illinois case on this point, wrote that to accept such an argument “serves only to further tax the gullibility of the credulous and require this court to espouse a naïveté unwarranted under the circumstances.”

More from Around NYC