ESPINOSA, J.
Under the Connecticut Fair Employment Practices Act (act), General Statutes § 46a-51 et seq., employers may not discriminate against certain protected classes of individuals, including those who are physically disabled. The sole issue in this appeal is whether the act also prohibits employers from discriminating against individuals whom they perceive to be physically disabled. The plaintiff, Mireille Desrosiers, claims that the Appellate Court improperly affirmed the trial court's partial summary judgment rendered in favor of the defendants Diageo North America, Inc. (Diageo), and Lawrence D. Levine,
"Diageo had a formal performance evaluation program in place in which an employee could receive a ranking of below expectations, satisfactory, fully meets expectations or exceeds expectations. In February, 2004, the plaintiff was rated as satisfactory. In April, 2004, the plaintiff was still struggling in the new position; therefore, Levine drafted a document entitled `Mireille's Key Criteria and Deliverables,' which listed five areas where the plaintiff needed to improve. In the August, 2004 evaluation, Levine rated the plaintiff's performance as below expectations, In September, 2004, the plaintiff was evaluated and informed that certain aspects of her job performance were still inadequate as she had only met two of her five goals. The plaintiff thereafter was placed in a ninety day performance improvement plan prepared for her by Levine. On November 17, 2004, the plaintiff met with Levine to talk about her progress. According to the plaintiff's affidavit, Levine informed her that her progress was satisfactory, she was no longer in need of the performance improvement plan and she no longer had to worry about the criteria stated in the document delivered to her in September, 2004.
"The plaintiff took vacation time from December 21, 2004 through January 4, 2005. When the plaintiff returned to work on January 4, 2005, she informed Levine that she would need to take time off from work to undergo surgery for a tumor on her right shoulder. On January 5, 2005, Levine informed the plaintiff that her employment was terminated. The defendants' stated reason for terminating her employment was that her performance had not sufficiently improved.
"The plaintiff's amended complaint sets forth five counts against the defendants. The first three counts alleged disparate treatment discrimination under [§ 46a-60].
"On May 3, 2010, the defendants filed a motion for summary judgment ... [and] the court granted the defendants' motion for summary judgment on counts one, two, four and five. As to count three, the court granted the defendants' motion for summary judgment to the extent that it alleged a cause of action based on a perceived physical disability, but denied the motion as to the allegation of discrimination based on a physical disability. In its memorandum of decision on the defendants' motion for summary judgment, the court expressly determined that `a cause of action based on a perceived disability is
The plaintiff appealed to the Appellate Court, claiming that the trial court improperly had rendered summary judgment in part on count three of the amended complaint on the basis of its improper conclusion that Connecticut does not recognize a cause of action for discrimination on the basis of a perceived physical disability.
In her appeal to this court, the plaintiff claims that the Appellate Court improperly affirmed the judgment of the trial court on the basis of its determination that § 46a-60 (a)(1) only protects individuals who are physically disabled from employment discrimination. The plaintiff contends that because § 46a-60 (a)(1) is silent as to whether it also protects individuals who are regarded as physically disabled, the Appellate Court should have considered the legislative history of the act and the decisions of the commission in construing the statute. According to the plaintiff, these sources compel the conclusion that § 46a-60 (a)(1) protects individuals who are regarded as physically disabled from employment discrimination. The plaintiff further argues that even if the text of § 46a-60 (a)(1) is plain and unambiguous, an interpretation that § 46a-60 (a)(1) protects individuals who are physically disabled from employment discrimination but does not protect individuals who are regarded as physically disabled from employment discrimination, would yield absurd results. Diageo counters that the clear and unambiguous terms of § 46a-60 (a)(1) do not provide a cause of action for discrimination premised on perceived physical disabilities because individuals who are perceived to be physically disabled are not within the protected class of physically disabled individuals, and that even if the language were ambiguous, the trial court's ruling is consistent with the legislative history of the act. As an alternative ground for affirmance, Diageo claims that the pleadings, affidavits and other proof submitted by the plaintiff were insufficient to establish an issue of material fact with respect to whether the defendants regarded the plaintiff as physically disabled. We conclude that § 46a-60 (a)(1) protects individuals who are perceived to be physically disabled from employment discrimination and reject Diageo's alternative ground for affirming the judgment of the Appellate Court. Accordingly, we reverse in part the judgment of the Appellate Court.
The standard of review for a trial court's ruling on a motion for summary judgment is well established. "Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court.... When ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record."(Internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). In the present case, the trial court granted in part the motion for summary judgment on count three of the amended complaint solely on the basis of its legal determination that Connecticut does not recognize a cause of action for discrimination premised on a perceived physical disability. In other words, while individuals who have a physical disability are a protected class under the statute, individuals who are perceived to have a physical disability do not fall within this group and are not protected by the statute. Because this legal determination
When presented with a question of statutory construction, "[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature." (Internal quotation marks omitted.) Manifold v. Ragaglia, 272 Conn. 410, 419, 862 A.2d 292 (2004). "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. General Statutes § 1-2z."(Internal quotation marks omitted.) Tuxis Ohr's Fuel, Inc. v. Administrator, Unemployment Compensation Act, 309 Conn. 412, 421-22, 72 A.3d 13 (2013). When a statute is not plain and unambiguous or would yield absurd or unworkable results, however, "we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ...."(Internal quotation marks omitted.) Id., at 422, 72 A.3d 13. Finally, when it becomes necessary to consult additional sources, "[w]e traditionally have accorded deference to the time-tested interpretation of an agency charged with enforcing the provisions of a statute, provided that the agency's interpretation has been formally articulated and applied for an extended period of time, and that interpretation is reasonable."(Internal quotation marks omitted.) Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 404, 944 A.2d 925 (2008). As this court recently affirmed, "[d]eference is warranted in such circumstances because a time-tested interpretation, like judicial review, provides an opportunity for aggrieved parties to contest that interpretation. Moreover, in certain circumstances, the legislature's failure to make changes to a long-standing agency interpretation implies its acquiescence to the agency's construction of the statute.... For these reasons, this court long has adhered to the principle that when a governmental agency's time-tested interpretation [of a statute] is reasonable it should be accorded great weight by the courts."(Internal quotation marks omitted.) Tuxis Ohr's Fuel, Inc. v. Administrator, Unemployment Compensation Act, supra, at 422-23, 72 A.3d 13.
In order to determine whether the legislature intended to protect individuals who are regarded as physically disabled from employment discrimination, we look first to the text of § 46a-60, which provides in relevant part: "(a) It shall be a discriminatory practice in violation of this section: (1) For an employer ... except in the case of a bona fide occupational qualification or need, 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 individual's race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability, including, but not limited to, blindness...."
Although § 46a-60 (a)(1) is silent as to whether its physically disabled, the definitions of "`[p]hysically disabled'" in § 46a-51 (15) and "`[m]ental disability'" in § 46a-51 (20), are instructive. See General
Although we agree with the Appellate Court's determination that the plain text of § 46a-60 (a)(1) does not protect individuals who are perceived to be physically disabled from employment discrimination, our analysis does not end here. The plaintiff contends that even if the text of § 46a-60 (a)(1) is plain and unambiguous, this court must consult other sources to ascertain the legislature's intent because "[a]n interpretation that [the act] excludes perceived disabilities would yield absurd results, and the legislative history supports the conclusion that Connecticut lawmakers intended [the act] to cover individuals with perceived disabilities." See General Statutes § 1-2z (meaning of statutes shall be ascertained from text and relationship to other statutes only if those sources reveal unambiguous meaning that is not absurd or unworkable); Blasko v. Commissioner of Revenue Services, 98 Conn.App. 439, 455, 910 A.2d 219 (2006) (turning to extratextual evidence to determine meaning of statute when plain and unambiguous language would lead to absurd or unworkable result); see also Raftopol v. Ramey, 299 Conn. 681, 703-705, 12 A.3d 783 (2011) (turning to extratextual evidence to determine meaning of statute when language was ambiguous and proposed interpretation would lead to bizarre result).
Here, although the language of § 46a-60 (a)(1) is plain and unambiguous, a literal application of the statutory language would lead to a bizarre result. Namely, under the plain language of § 46a-60 (a)(1), if an employee has a chronic disease, the employer may not discharge the employee on that basis. If, however, the employee is undergoing testing that leads his employer to believe that he has a chronic disease, the literal terms of § 46a-60 (a)(1) do not protect the employee from discharge on that basis, despite the fact that the employer's action, in both cases, was premised on the same discriminatory purpose. Similarly, under Diageo's interpretation of § 46a-60 (a)(1), an employee who is discharged because his employer believes a rumor that he has a chronic impairment can pursue a cause of action, but only if the rumor is true and the employee actually has the chronic impairment. If the rumor is false, and the employee does not have the impairment, but is merely believed to have the impairment, the employee has no recourse, despite the fact that in either case the employer's action was based on the same discriminatory motive. That scenario is contrary to the very idea of an antidiscrimination statute and is inconsistent with the legislature's clear statement "that discrimination based on a physical disability is prohibited." Ann
We start with the legislative history of the act, which incorporated provisions to protect physically disabled individuals from employment discrimination in 1973. Public Acts 1973, No. 73-279, § 14 (P.A. 73-279). Although this court has not considered the history of the act with respect to the definition of physically disabled, this court examined the history of the act in order to determine whether § 46a-60 requires employers to provide reasonable accommodations to disabled employees and found that "the legislative history reveals a consistent intent to increase protections for individuals with disabilities. "Curry v. Allan S. Goodman, Inc., supra, 286 Conn. at 412, 944 A.2d 925. Recognizing that "the intent of the legislature [was] to stamp out discrimination on the basis of physical disability and a wide range of other disabilities (mental disability, learning disability, and mental retardation)"; id., at 412, 944 A.2d 925; we concluded that § 46a-60 requires employers to provide reasonable accommodations to disabled employees. Id., at 415, 944 A.2d 925.
With respect to the precise issue of whether the act protects individuals who are perceived to be physically disabled, the legislative history indicates that the legislature, consistent with its broad intent to stamp out discrimination, worked to craft a definition of physically disabled that would be specific enough to indicate who was protected by the law, but not so specific as to exclude individuals who were not enumerated. When the legislature enacted P.A. 73-279 to "encourage and enable the blind and otherwise physically disabled to participate fully in a social and economic life of the [s]tate and to engage in remunerative employment," it did not define physically disabled. 16 S. Proc., Pt. 5, 1973 Sess., p. 2299, remarks of Senator Louise S. Berry. The following year, when the legislature defined the term; see Public Acts 1974, No. 74-346 (P.A. 74-346); Representative Jean T. Thornton explained that the legislature "did not define... physically disabled [in 1973] because we could see there was just no way to do it and we wanted to cover as many people as possible under the definition and leave it open and broad. It was intended to cover any medical condition that would prohibit a person from being discriminated against, in other words, that didn't sound very correct, what I mean is you could not discriminate against someone if they were physically disabled or had a medical problem of any sort in employment. And you can see why we did not define it last year. It's because of all the questions that have come up today. We cannot have a whole catalogue of every medical ailment in our statutes." 17 H.R. Proc., Pt. 11, 1974 Sess., pp. 5130-31.
The history of P.A. 74-346 documents the legislature's determination to define physically disabled
In keeping with this broad legislative intent, the commission, for more than twenty-five years, has interpreted § 46a-60 (a)(1) to protect individuals who are regarded as physically disabled.
Since 1989, the commission consistently has interpreted § 46a-60 (a)(1) to protect individuals who are perceived to be physically disabled from employment discrimination and its reasoning has been articulated formally in numerous decisions. For example, in Doe v. Ann Howard's Apricots Restaurant, Inc., Commission on Human Rights & Opportunities, Opinion No. 9110357 (September 22, 1993), a commission hearing officer reiterated that "it is as much a violation of [§ 46a60 (a)(1)] ... to discriminate against someone because [he or she] is perceived to have a [physical] disability, as it is to discriminate against someone because [he or she] does, in fact, have a disability." Similarly, the hearing officer in Knowles v. Gilman Bros. Co., Commission on Human Rights & Opportunities, Opinion No. 9240221 (August 8, 1995), explained that "[d]enying claims because the victim of discrimination was not actually disabled is as offensive as denying a race-based claim solely because the wrongdoer mistakenly thought that the victim was of a particular ethnic or racial group. It is the act of discrimination that these laws are intended to prohibit, regardless of whether the animus was improperly directed. In any event, rulings by other [commission] hearing officers demonstrate that perceived disabilities have been afforded protection under Connecticut discrimination laws for many years." In 2000, a commission hearing officer again articulated that "to prohibit an employer from discriminating against an employee due to his physical disability must necessarily include instances when the employer mistakenly perceives the individual to be disabled because in both instances an individual's impairment or affliction is falsely presumed to adversely affect their ability to perform their jobs. Whether the disability is actual or merely perceived, in each case the employer makes an assumption about capability that is unrelated to actual qualifications. In the employer's mind, which is the key to a finding of liability, each case is the same. Therefore, to allow an employer to escape from liability merely because the disability he thought he was discriminating against — fortunately for him or her — is not medically verifiable, would be to reward the exact behavior the statute was intended to prohibit. This cannot be the intended result of ... § 46a-60 (a)(1)."(Emphasis in original.) Scarfo v. Hamilton Sundstrand, Commission on Human Rights & Opportunities, Opinion No. 9610577 (September 27, 2000); see also Chily v. Milford Automatics, Inc., Commission
Not only has the commission clearly articulated its long-standing interpretation of § 46a-60 (a)(1), but its interpretation is reasonable. The commission's conclusion that the act protects individuals who are regarded as physically disabled is consistent with the legislative history and purpose of the act and has also been endorsed by the trial courts. See, e.g., Mills v. RE/MAX Heritage, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-030193581, 2005 WL 941400 (March 16, 2005) (denying motion to strike that asserted that act does not recognize cause of action for discrimination on basis of perceived physical disability); Commission on Human Rights & Opportunities ex rel. Tucker v. General Dynamics Corp., Superior Court, judicial district of New London, Docket No. 517054, 1991 WL 258041 (November 22, 1991) (5 Conn. L. Rptr. 700, 702) (agreeing with rationale followed in states of Wisconsin and New Jersey that person perceived as physically disabled is as much within protected class as person with actual disability).
Moreover, the fact that the legislature has not clarified the definition of physically disabled in response to the commission's consistent interpretation of § 46a-60 (a)(1) indicates the legislature's acquiescence to the commission's interpretation. Tuxis Ohr's Fuel, Inc. v. Administrator, Unemployment Compensation Act, supra, 309 Conn. at 422-23, 72 A.3d 13; see also Hartford v. Hartford Municipal Employees Assn., 259 Conn. 251, 262 n. 14, 788 A.2d 60 (2002) (legislative inaction in response to long-standing articulation of agency position indicates acquiescence to agency's interpretation). For the foregoing reasons, we conclude that the commission's interpretation of § 46a-60 (a)(1) is entitled to deference.
We disagree with Diageo's claim that the commission's decisions are inconsistent with the legislative history, which it contends merely demonstrates that the legislature intended that the act cover a "broad spectrum of physical conditions" and offers no guidance with respect to whether the act covers individuals who are regarded as physically disabled. Although the legislative history does not address expressly the issue of whether the act protects individuals who are regarded as physically disabled, the legislature's overarching intent to "stamp out discrimination on the basis of physical disability and a wide range of other disabilities (mental disability, learning disability, and mental retardation)"; Curry v. Allan S. Goodman, Inc., supra, 286 Conn. at 412, 944 A.2d 925; coupled with its efforts to be as inclusive as possible in defining the term physical disability, is consistent with interpreting § 46a-60
Similarly, we are not persuaded by Diageo's argument that the legislature's failure to amend the definition of physically disabled to include individuals who are regarded as physically disabled following the adoption of the Rehabilitation Act Amendments of 1974, Pub.L. No. 93-651, § 111, 89 Stat. 2-3,
After considering the intended scope of the term physically disabled in the context of the legislative history of the act and the decisions of the commission, we conclude that § 46a-60 (a)(1) protects individuals who are regarded as physically disabled from employment discrimination. To interpret the statute otherwise would be inconsistent with the legislature's efforts to define physically disabled to "cover as many people as possible under the definition and leave it open and broad"; 17 H.R. Proc., supra, p. 5130, remarks of Representative Thornton; and with the legislature's "consistent intent to increase protections for individuals with disabilities." Curry v. Allan S. Goodman, Inc., supra, 286 Conn. at 412, 944 A.2d 925. We decline to interpret § 46a-60 (a)(1) in a manner that would thwart this purpose. See id. As a result, we conclude that § 46a-60 (a)(1) prohibits employers from discriminating against individuals whom they regard as physically disabled and, therefore, reverse in part the judgment of the Appellate Court.
Diageo urges us to affirm the judgment of the Appellate Court on the alternative ground that even if § 46a-60 (a)(1) protects individuals who are regarded as physically disabled from employment discrimination, "[t]here was no evidence ... to support [the] plaintiff's claim that [the defendants] discriminated against her because of a perception that she was physically disabled." We disagree.
The standards governing our review of the trial court's grant of summary judgment apply to our review of this claim. In the present case, as a procedural matter, we note that the defendants' motion for
The amended complaint alleges that the plaintiff's employment was terminated on January 5, 2004, one day after she informed Levine that she needed surgery regarding a tumor on her right shoulder. The plaintiff's affidavit indicates that she missed four weeks of work in April, 2003, when she underwent stomach surgery, and that shortly after the surgery, Levine questioned her need to miss work for a medical appointment when she had been out of work for four weeks. The affidavit further indicates the plaintiff's belief that when she told Levine that she required surgery to remove a tumor from her shoulder, he perceived her medical condition to be worse than it was. Finally, the plaintiff's affidavit notes that she had required prior surgery to remove tumors during her employment with Diageo and that she had mentioned this to Levine shortly before she was discharged.
During oral argument before this court, Diageo also claimed that there was no dispute that it had decided to terminate the plaintiff's employment in November, before the plaintiff had mentioned the need for surgery. Contrary to Diageo's assertion, however, the plaintiff's complaint contends that the decision to terminate her employment was made the day after she notified the defendants of her need for surgery. Moreover, the plaintiff responded during oral argument that this issue is in dispute.
We conclude that the pleadings and affidavits in this case are sufficient to establish a question of material fact. As a result, we decline to affirm the judgment of the Appellate Court on this alternative ground.
The judgment of the Appellate Court is reversed in part and the case is remanded to that court with direction to reverse the judgment of the trial court only with respect to count three of the plaintiff's complaint and to remand the case to that court with direction to deny the defendants' motion for summary judgment in part on count three, and for further proceedings according to law; the judgment is affirmed in all other respects.
In this opinion ROGERS, C.J., and EVELEIGH and VERTEFEUILLE, Js., concurred.
PALMER, J., concurring.
I agree with the result that the majority reaches and most of its analysis, but, in contrast to the majority, I also agree with the plaintiff, Mireille Desrosiers, that General Statutes § 46a-60 (a)(1) reasonably can be construed to prohibit discrimination on the basis of a perceived physical disability. In my view, the statutory bar against
As the majority notes, under General Statutes § 46a-51 (20), "`[m]ental disability'" includes "an individual who has a record of, or is regarded as having one or more mental disorders, as defined in ... the American Psychiatric Association's `Diagnostic and Statistical Manual of Mental Disorders,'" whereas § 46a-51 (15) defines the term "`[p]hysically disabled'" to include only an "individual who has any chronic physical handicap, infirmity or impairment...." Although this definitional difference supports the contention of the defendants Diageo North America, Inc., and Lawrence D. Levine that § 46a-60 (a)(1) denies protection to individuals who are perceived to be physically disabled but, in actuality, are not, it does not mandate that interpretation. In defining the term "mental disability," the legislature may have taken special care to prohibit discrimination on the basis of a perceived mental disorder because of the difficulty in discerning whether symptoms or conduct associated with that disorder are actually the product of the disorder. Alternatively, the legislature may have used the term "regarded as" in defining "mental disability" merely to indicate that a formal diagnosis of a disability in accordance with the Diagnostic and Statistical Manual of Mental Disorders is not a necessary prerequisite to a discrimination claim predicated on such a disability. In either case, it would not necessarily follow that the legislature intended to permit discrimination on the basis of a perceived physical disability. Because physical disabilities are often more readily apparent or recognizable than mental disabilities, the legislature simply may not have focused on the need to articulate that additional protection expressly with respect to physically disabled employees.
In view of the fact that the language of § 46a-60 (a)(1) does not plainly and unambiguously foreclose the interpretation advanced by the plaintiff, we look to extratextual evidence to determine whether that interpretation is correct. See General Statutes § 1-2z. I fully agree with the majority that the formally articulated, time-tested and reasonable interpretation of § 46a-60 (a)(1) by the Commission on Human Rights and Opportunities as prohibiting discrimination on the basis of a perceived physical disability is entitled to deference. See, e.g., Longley v. State Employees Retirement Commission, 284 Conn. 149, 166, 931 A.2d 890 (2007) ("reaffirm[ing] the principle that courts should accord deference to an agency's formally articulated interpretation of a statute when that interpretation is both time-tested and reasonable"). In fact, this construction is not just reasonable, but is by far the more reasonable construction in light of the remedial purpose of the Connecticut Fair Employment Practices Act, General Statutes § 46a-51 et seq., to prohibit unfair discrimination in the workplace. I therefore concur.
ZARELLA, J., dissenting.
I agree with the majority that the language of General Statutes § 46a-60 (a)(1) is plain and unambiguous. I part ways with the majority, however, to the extent that it further concludes that applying the plain meaning of the statute to the facts of
The majority correctly concludes that the language of § 46a-60 (a)(1) is plain and unambiguous in that it does not protect individuals "regarded as having" a physical disability. As the majority aptly notes, the contrast between the statutory language prohibiting an employer's discrimination on the basis of a physical disability versus a mental disability makes clear that the legislature did not intend to prohibit discrimination on the basis of perceived physical disabilities. General Statutes § 46a-51(20) expressly includes within the definition of "`[m]ental disability'" individuals "regarded as having" a mental disorder, whereas the definition of "`[p]hysically disabled'" in § 46a-51 (15) does not include individuals "regarded as having" a physical disability. In light of this difference, it is apparent that the legislature did not intend to provide the same protection to those with perceived physical disabilities as it did to those with perceived mental disabilities. The fact that other legislatures have made similar distinctions suggests that the absence of the phrase "regarded as having" from the definition of "`[p]hysically disabled'" in § 46a-51 (15) was not mere happenstance but, rather, an intentional decision by our legislature. Compare Wis. Stat. § 111.32(8)(c) (2011-12) (defining "`[i]ndividual with a disability'" as including individuals "perceived as having" physical or mental impairment), with Ga.Code Ann. § 45-19-22(3) (Supp.2013) (definition of "`[d]isability'" does not include perceived physical or mental disabilities). It is not our role to speculate about why the legislature decided to include the phrase "regarded as having" in § 46a-51 (20) but not in § 46a-51 (15). If the legislature intended to protect individuals with perceived physical disabilities, it is, of course, free to amend § 46a-51 (15) to include within the definition of "`[p]hysically disabled'" individuals "regarded as having" a physical disability.
After concluding that the language of § 46a-60 (a)(1) is plain and unambiguous, the majority posits that applying the plain meaning of § 46a-60 (a)(1) in the present case would lead to a bizarre result. More specifically, it posits that, "under the plain language of § 46a60 (a)(1), if an employee has a chronic disease, the employer may not discharge the employee on that basis. If, however, the employee is undergoing testing that leads his employer to believe that he has a chronic disease, the literal terms of § 46a-60 (a)(1) do not protect the employee from discharge on that basis, despite the fact that the employer's action, in both cases, was premised on the same discriminatory purpose.... That scenario is contrary to the very idea of an antidiscrimination statute and is inconsistent with the legislature's clear statement `that discrimination based on a physical disability is prohibited.'" I disagree.
In my view, the majority misses the point. The legislature's clear statement is that "discrimination based on a physical disability is prohibited"; (emphasis added; internal quotation marks omitted); not that discrimination based on a perceived disability is prohibited. Although the majority's interpretation of the relevant statutory language may be the better public policy, and although the legislature might adopt that policy if the matter is brought to its attention, that is not sufficient reason for abandoning the plain and unambiguous directive in the statute itself. The fact that a better public policy exists does not mean that the expressed public policy "yields absurd or unworkable results...." General Statutes § 1-2z.
This distinction, however, is neither absurd nor unworkable. It simply does not provide as broad a protection as the majority wishes. Indeed, the legislature is free to make this exact type of distinction in passing legislation. See, e.g., Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 300, 307-308, 914 A.2d 996 (2007) (upholding as constitutional statute prohibiting smoking in restaurants and cafes but not in casinos or private clubs). Statutory language often reflects compromises that are made in order to garner the support necessary to obtain passage. Simply because a statute does not go as far as this court may wish does not make such compromises absurd. In fact, decisions like today's may have a chilling effect on similar, future legislation. Legislators who may be willing to support narrower legislation than that originally proposed might be unwilling to reach that compromise for fear that this court would upset that compromise under the guise that it produces "absurd" results.
The test under § 1-2z for what constitutes an absurd or unworkable result does not revolve around what the majority of this court determines to be better public policy. For this reason, I respectfully dissent.
"(1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, 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 individual's race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability, including, but not limited to, blindness...."
Section 46a-60 was amended after the plaintiff's employment was terminated in 2004; see Public Acts 2011, No. 11-55, § 24; Public Acts 2011, No. 11-129, § 20; but those changes are not relevant to this appeal. For convenience, we refer to the current revision of § 46a-60.
"(20) `Mental disability' refers to an individual who has a record of, or is regarded as having one or more mental disorders...."