The Connecticut Supreme Court recently adopted the U.S. Supreme Court's relatively narrow definition of “supervisor” for use in determining when employers are liable under the Connecticut Fair Employment Practices Act (CFEPA) for creating or failing to remedy a hostile work environment. The decision provides employers with clarity as the term is not defined by the CFEPA.

How We Got Here

In O’Reggio v. Commission on Human Rights and Opportunities, SC20847 (Aug. 1, 2024), the plaintiff had worked as an adjudicator for the Connecticut Department of Labor. She sued the department claiming the program service coordinator to whom she reported had subjected her to a hostile work environment. The program service coordinator had authority to assign the plaintiff work, approve leave requests, set schedules, provide training and conduct reviews. The program service coordinator did not have authority, however, to hire, fire or discipline the plaintiff or other employees.

The trial court and, on an initial appeal, the Connecticut Appellate Court found the program service coordinator was not a supervisor as that term was defined by the U.S. Supreme Court in Vance v. Ball State University, 570 U.S. 421 (2013). Consequently, those Connecticut courts ruled, the department was not automatically liable for the program service coordinator’s alleged acts.

In her appeal to the Connecticut Supreme Court, the plaintiff argued that the Vance definition of supervisor was too narrow for use in hostile work environment claims under the CFEPA. She urged the court to hold that the program service coordinator exercised sufficient control over employee working conditions to render the employer liable for abuse of such “supervisory” power.

The Decision

In a 4-3 decision, the Connecticut Supreme Court narrowly rejected the approach advocated by the plaintiff. Instead, the court adopted the Vance guidelines for determining which supervisors’ actions will result in employer liability. Under the federal statutes considered in Vance, an employer will be held vicariously liable for a hostile work environment created by the conduct of supervisors, unless it can satisfy the so-called Faragher/Ellerth affirmative defense. In simple terms, the employer must show that it took reasonable steps to forbid and prevent harassment, announced and maintained a procedure for receiving complaints and, when it learned of harassment, remedied it promptly and effectively. Conversely, if the employee creating a hostile work environment is a co-worker, a plaintiff must meet a higher, negligence standard to impute liability to the employer. It is, therefore, important to distinguish between supervisors and coworkers.

In Vance, the U.S. Supreme Court determined that for the purpose of hostile work environment claims under federal law, a supervisor is “an employee empowered by the employer ‘to take tangible employment actions against the victim, i.e., to effect a significant change in employment status such as hiring, firing, failing to promote, reassigning with significantly different responsibilities, or causing a significant change in benefits.’”¹ The Connecticut Supreme Court majority in O’Reggio adopted this construction, noting that doing so was consistent with the court’s long-standing principle and the legislature’s intent that CFEPA “be interpreted in accordance with” its federal counterpart, Title VII of the Civil Rights Act of 1964.

The dissenting opinion, however, took the position that Connecticut non-discrimination statutes provide greater protections than their federal counterparts and that “a more expansive definition “of supervisor should therefore be applied when enforcing those statutes. The dissenters said they would hold employers responsible for the actions of any employee who has authority “to direct the day-to-day responsibilities of subordinates.”

It is worth noting that before O’Reggio, the Connecticut Supreme Court had not expressly ruled that the Faragher/Ellerth affirmative defense applies to claims brought under CFEPA. In reaching its decision on the proper definition of supervisor, the court seems to have assumed, although without saying so, that the Faragher/Ellerth defense would indeed apply to state law claims.²

Why Is This Important?

The O’Reggio decision resolves legal ambiguity by formally adopting a definition of “supervisor” for purposes of liability under CFEPA. This does not mean that employers can simply insulate themselves from such liability by purporting to restrict decision-making authority to a very small group. An employer could still be held vicariously liable for the actions of an employee who was not called a supervisor but who was effectively empowered to hire, fire or discipline through delegation of authority.

To help clarify roles, employers should make clear who has authority to take tangible employment actions and what responsibilities may or may not be delegated. They should also have clear policies against discrimination, harassment and retaliation, procedures for receiving complaints and responsive approaches to investigating such complaints. Even if the alleged harasser is not a supervisor, an employer may still be found liable for harassment if the plaintiff shows that the employer knew of the harassment and failed to take prompt and effective remedial action.