In a 4-3 decision, the Connecticut Supreme Court adopted the federal Title VII standard for determining who is a “supervisor” under the Connecticut Fair Employment Practice Act (CFEPA). The determination of “supervisor” status is critical under Title VII and the Connecticut Fair Employment Practices Act because an employer is presumptively automatically liable for a hostile work environment perpetuated by a supervisor, although an employer can rebut that presumption by asserting that (1) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (2) the harassed employee unreasonably failed to take advantage of any preventive or corrective opportunities offered by the employer to avoid harm.
In O’Reggio v. Commission on Human Rights and Opportunities, et al., decided on August 1, 2024, a narrow majority declined to adopt a much broader definition of “supervisor,” opting instead to accept the definition applied under Title VII as expressed in the U.S. Supreme Court’s 2013 decision in Vance v. Ball State University. Consequently, according to O’Reggio, in the case of a hostile work environment, an employer is vicariously liable for the acts of a harasser if the harasser has the power to take tangible employment actions. (If the harasser is a coworker of the employee being harassed, then the harassed employee is required to prove the employer’s negligence in failing to prevent the harassment from taking place).
The dissent argued that the majority should have adopted a broader definition of “supervisor,” in line with the remedial nature of the CFEPA. In dismissing this argument, the majority stated that the legislature has been “on notice” of federal and state courts’ consistent interpretation of “supervisor” and has failed to enact legislation adopting a broader definition. Indeed, according to the court, “[t]he legislature . . . has not expressly set forth its intent for us to adopt such a definition. To the extent that the legislature wishes to define the term ‘supervisor’ more broadly, it is of course free to adopt legislation directing that approach. . . .”
Employers should not interpret the court’s decision as relieving them from liability for the acts of their non-supervisory employees. As stated above, an employer can still be liable for harassment committed by a non-supervisor if it acted negligently in preventing the harassment from happening in the first place. Nevertheless, O’Reggio demonstrates the court’s restraint in expanding employee rights without legislation reflecting a clear intent to do so.
