Posts tagged with "westport employment attorneys"

Sexual Harassment Under Connecticut Law

Under the Connecticut Discriminatory Employment Practices Act, codified at Connecticut General Statute 46a-60(a)(8), it shall be a discriminatory practice “[f]or an employer [. . .] to harass any employee, person seeking employment or member on the basis of sex or gender identity or expression.  ‘Sexual harassment shall, for the purposes of this section be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (C) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.”[1]

Sexual harassment can include actions ranging from suggestive or lewd remarks to unwelcome hugs, touches, or kisses, to retaliation for complaining about sexual harassment.  Furthermore, sexual harassment can happen by a male or a female, to a male or a female.  And the harasser does not need to be the victim’s supervisor – harassment can come from a co-worker or agent.

There are outlets in Connecticut to turn to, should you find yourself with questions about sexual harassment.  Sometimes a victim may not be sure if unwanted attention rises to the level of sexual harassment.  The Connecticut Commission on Human Rights and Opportunities provides valuable information on sexual harassment and discrimination in the workplace, including step-by-step guides on how to proceed if you are the victim of such harassment.  If the situation requires legal action, please contact an experienced employment law attorney.

The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. We at Maya Murphy frequently litigate employment claims in both state and federal courts.  Should you have any questions about sexual harassment or any other employment law matter or to schedule a consultation, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at

[1] Conn. Gen. Stat. 46a-60(a)(8).

Preemptive Effect of LMRA Extends to Suits Alleging Liability in Tort

Collective Bargaining Agreements (CBA)

Labor relations between an employer and a union are typically defined in a Collective Bargaining Agreement (“CBA”) between the two.  The CBA sets forth the parties’ respective rights and obligations with respect to such things as wages, hours, and other terms and conditions of employment.  The Labor Management Relations Act (“LMRA”) grants jurisdiction to the federal district courts for “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce.”

If resolution of a state law claim turns upon interpretation of the CBA, the claim is preempted and subject to dismissal by the federal court.  But “when the meaning of contract terms is not the subject of dispute, the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished.”

A Relevant Case

A decision of the Second Circuit Court of Appeals pointed out the fuzzy line that can sometimes exist between a preempted claim and one that is not.  In Adonna v. Sargent Mfg. Co., 2012 U.S. App. LEXIS 10343 (2d Cir. May 23, 2012), a union employee brought claims against his employer for intentional and negligent infliction of emotional distress.  The employer conduct complained of included reassignment, suspension, reduction in pay, and demands not imposed on any other employee.

The Court of Appeals concluded that whether or to what extent this conduct was wrongful could be determined only by examining the CBA provisions relating to the employer’s right to manage, direct, and discipline the workforce, and set employee wages.  Because the employee’s claims were “inextricably intertwined” with the terms of the CBA they were preempted and properly dismissed by the trial court.

Employers and employees alike should be aware of the extensive preemptive effect of the LMRA.  It is the rare state-law tort claim that will not require not only the consultation, but also the interpretation of the relevant CBA, thereby resulting in preemption at the federal level.

The employment law attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience in the negotiation and litigation of all sorts of employment-related disputes and assist clients from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield in resolving such issues. Please contact our office at 203-221-3100.

Hostile Work Environments and the Faragher/Ellerth Defense

In a landmark case, the United States Supreme Court established the standard by which an employer could be held liable under Title VII of the Civil Rights Act of 1964 for the creation of a hostile work environment based on sexual harassment.  By way of background, Title VII is a federal law that prohibits discrimination in employment on the basis of sex, race, color, national origin, and religion, and is applicable to employers with 15 or more employees.

Title VII Lawsuit

The reach of Title VII was brought to the Supreme Court’s attention in 1998, when it decided Faragher v. Boca Raton.  In that case, Faragher worked part time as a lifeguard between 1985 and 1990, finally resigning in 1990.[1] In 1992, she brought an action against her immediate supervisors and the city and asserted claims under Title VII.

In her suit, Faragher alleged that her supervisors created a sexually hostile work environment by making lewd remarks and subjecting Faragher and other female lifeguards to unwanted and offensive touching.[2] The district court, considering evidence of a pattern of inappropriate conduct engaged in by Faragher’s supervisors, concluded that the conduct was “discriminatory harassment sufficiently serious to alter the conditions of Faragher’s employment and constitute an abusive working environment.”

The Court based its finding on three principles: “(1) the harassment was pervasive enough to support an inference that the City had ‘knowledge, or constructive knowledge’ of it; (2) the City was liable under traditional agency principles because [her supervisors] were acting as its agents when they committed the harassing acts; (3) Gordon’s knowledge of the harassment, combined with his inaction, ‘provides a further basis for imputing liability on the City.’”  The district court awarded Faragher one dollar in nominal damages.[3]

Employer Liability Under Title VII

The Eleventh Circuit Court of Appeals reversed the judgment against the city on appeal, based on its finding that the City had no actual or constructive knowledge of the harassment.

The case reached the United States Supreme Court, which reversed the decision of the Eleventh Circuit and reinstated judgment in favor of Faragher.  In reaching its conclusion, the Supreme Court set down bright line rules to determine the liability of an employer under Title VII when its employees have created a hostile sexual work environment.

First noting that in order to weed out complaints attacking ordinary “tribulations of the workplace,” the Court noted that in the past it had “made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment.”[4] Undertaking a detailed analysis, the Court ultimately held that “[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.  When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.”[5] 

Defending a Hostile Work Environment Claim

Essentially, the Court provided for an employer to raise a defense to a claim of a hostile work environment, if the employer can show that it exercised reasonable care to prevent and correct any sexually harassing behavior, and second, that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.  This created what has become known as the Faragher/Ellerth defense.

The Court, however, was unable to find any evidence tending to prove the affirmative defense.  Instead the Court found that Faragher’s supervisors “’were granted virtually unchecked authority’ over their subordinates.”[6]

With that, the Court established that employer can be liable for discriminatory behavior by supervisory personnel.

The Faragher/Ellerth Defense

The Second Circuit Court of Appeals had an opportunity to apply and interpret the “Faragher defense” recently in Gorzynski v. JetBlue Airways Corp., in 2010.  There, plaintiff Gorzynski brought an employment discrimination action against her employer JetBlue, alleging that she suffered a hostile work environment due to race, sex and age discrimination.  Pursuant to her employer’s sexual harassment policy, Gorzynski complained of the harassment to her supervisor, who also was her harasser.

The district court held that defendant JetBlue was entitled to the Faragher/Ellerth defense.  The Second Circuit found that while taken individually, the complained-of incidents may not have risen to the level of egregiousness necessary to prevail on a sexual harassment claim, “when taken together they do describe a work environment in which a jury could find that men, including Gorzynski’s supervisor, were able to – and did at will – comment inappropriately on women as sexual objects.”[7] 

Having found that Gorzynski established the existence of a hostile work environment, the Second Circuit next considered whether her employer could prove, by a preponderance of the evidence, the Faragher/Ellerth affirmative defense.  Rejecting a rigid reading of the Faragher rule, the Second Circuit held that “an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser.

Instead, we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer’s sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures.”[8]

The Takeaway

The holding of this case applies to employees and employers in Connecticut, as the Second Circuit covers Connecticut, in addition to New York and Vermont.  The decision is important for several reasons, one of them being the notion that an employee’s sexual harassment claim will not fail for complaining of sexual harassment to the wrong person.  It also serves as a reminder to employees to become familiar with their company’s sexual harassment policy.

As the above cases demonstrate, sexual harassment claims can be complicated.  If you think that you have been subjected to a sexually hostile work environment, you should consult with an experienced employment attorney with the knowledge and resources to advocate on your behalf.  Please contact Joseph C. Maya, Esq., to set up an initial consultation, at 203-221-3100 or at


[1] Faragher v. City of Boca Raton, 524 U.S. 775, 780 (1998).

[2] Id. at 781.

[3] Id. at 783.

[4] Id. at 788.

[5] Id. at 807.

[6] Id.

[7] Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 103 (2d Cir. 2010).

[8] Id. at 105.