Commission on Human Rights and Opportunities Ch 1

In its everyday sense, to “discriminate” suggests noticing differences between things or people that are otherwise alike and making decisions based on those differences. In a legal context, “discrimination” means to treat someone unfavorably in comparison to others because of his/her protected status. “Protected status” refers to certain personal characteristics that public policy has determined should not be the basis for discrimination. Every U.S. citizen is a member of some protected class because of race, color, religion, sex, national origin, age, or handicap condition. The scope of protection is specifically outlined by state and federal law.

Treating a person unfavorably in comparison to others may be a violation of anti-discrimination laws only when that person’s protected status is a factor in the treatment. Thus, unfair treatment alone is not equivalent to illegal discrimination.

There are many forms of discriminatory actions. Typically, they are explained under three legal theories of discrimination: overt; disparate treatment; and disparate impact.

Overt discrimination is a specific, observable act to discriminate against a person or class of persons because of protected status. This treatment is also referred to as intentional discrimination. An example would be failing to interview job applicants based solely on their race (race discrimination).

Disparate treatment is the inconsistent application of rules, policies, or practices to one group of people in comparison to another. For example, male employees being reprimanded for arriving late to work while female employees who are also late are not reprimanded could constitute sex discrimination.

Disparate impact is the uniform application of a rule or policy to all individuals that has the effect of distinguishing or differentiating members of protected classes. This treatment also is referred to as adverse impact. An example would be having a height requirement for employment. Unless it is an essential part of the job, this requirement may have a discriminatory impact on females.

The purpose of civil rights laws is to guarantee individuals equal opportunity in political, economic, and social activities. Historically, civil rights laws have been enacted in response to evidence of discrimination against groups and categories of people. Initial federal civil rights laws were passed in the 1960s. The scope of protection and areas covered by anti-discrimination laws continued to grow throughout the 70s, 80s, and well into the 90s. As a result, there are several federal and state anti-discrimination laws.

Connecticut and federal anti-discrimination laws are very similar in nature, but some distinctions exist. State law is generally broader than federal provisions. The first part of this chapter contains a discussion of the major anti-discrimination laws relating to employment, housing, credit, public accommodations and facilities. [1] A synopsis of the types and bases of prohibited discrimination in Connecticut is provided in Table I-1.

Authority to enforce these laws falls upon both federal and state agencies. However, the federal agencies are authorized by statute to defer resolution of complaints to the state entity affording discrimination protection. In Connecticut, the Commission on Human Rights and Opportunities is the agency charged with enforcing these laws in conjunction with the federal agencies. (The enforcement structure is explained in more detail at the end of this chapter.)

Federal law. Various federal laws protect individuals from employment discrimination on the basis of race, color, sex, religion, national origin, age, or disability. The federal Equal Employment Opportunity Commission (EEOC) has jurisdiction over all these laws, but will defer administrative enforcement to designated state agencies, like CHRO. Also, complainants generally have the right to sue in federal court if the complaint is not resolved administratively. Among the federal laws are:

Equal Pay Act of 1963 - The act prohibits discrimination on the basis of gender in compensation for substantially similar work under similar conditions. It applies to both public and private employers having two or more employees.

Civil Rights Act of 1964, Title VII - The act forbids employment discrimination on the basis of race, religion, sex, or national origin. It applies to both public and private employers with at least 15 employees as well as unions and employment agencies.

Age Discrimination in Employment Act (ADEA) of 1967 - The act makes it unlawful to discriminate against employees or job applicants on account of age when they are 40 years of age or older. ADEA applies to both public and private employers employing 20 or more workers for at least 20 weeks a year. It also applies to employment agencies and labor unions with at least 25 members. The act prohibits employers from forcing retirement at a certain age. ADEA also requires employers to offer older employees and their spouses the same health care benefits as they provide for younger employees and spouses. However, employment decisions based on age do not violate ADEA if physical degeneration could cause a public safety threat.

Table I-1. Bases and Types of Prohibited Discrimination in Connecticut.
On the Basis of:	Employment	Housing & Public Accommodations	Credit Transactions
Age	·	·	·
Ancestry	·	·	·
Color	·	·	·
Learning Disability	·	·	·
Marital Status	·	·	·
Mental Retardation	·	·	·
National Origin	·	·	·
Physical Disability	·	·	·
Race	·	·	·
Religious Creed	·	·	·
Sex	·	·	·
Sexual Orientation	·	·	·
Criminal Record*	·
Mental Disorder	·
Familial Status		·
Lawful Source of Income		·
Mental Disability		·
Use of Guide Dog		·
*Only for state employment and licensing Source: CHRO

Rehabilitation Act of 1973 – The act protects handicapped individuals against employment discrimination by federal departments and agencies and federal contractors and subcontractors.

Americans with Disabilities Act (ADA) of 1990 - The act prohibits discrimination against qualified individuals with disabilities with regard to job application, hiring, discharge, promotion, training, wages, or other terms, privileges, or conditions of employment. The law applies to private sector employers having 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. ADA also covers government employees.

A “qualified individual” is defined as one who can perform the essential functions of the job, with or without any accommodation by the employer. However, employers are required to make any reasonable accommodation for an employee’s disability that does not inflict undue hardship on the business operation. Under ADA, alcoholics and drug addicts are not qualified as disabled.

State law. Connecticut employment discrimination law is similar, but not identical, to federal provisions, and is enforced administratively by CHRO. In general, state law provides broader protection. Connecticut prohibits employment discrimination, except in the case of a bona fide occupational qualification or need, based on race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability (C.G.S. § 46a-60). Similar to the federal statute, this applies to public and private employers as well as employment agencies and labor organizations. However, state law is broader than federal law in that it applies to employers with three or more employees. Connecticut’s age discrimination law is also broader than federal law because it is not limited to people 40 years of age or older. Furthermore, state law extends protection on the basis of sexual orientation (C.G.S. § 46a-81c).

Connecticut also prohibits employers from discriminating in the amount of compensation paid to employees solely on the basis of sex (C.G.S. § 31-75). The federal Equal Pay Act coverage appears slightly broader in that it covers employers with two or more employees while Connecticut law covers those with three or more. In addition, Connecticut law prohibits public employers from discriminating against state job or licensure applicants solely because of a prior criminal conviction. State law is also more explicit than federal statutes with respect to discrimination against pregnant employees and sexual harassment.

Connecticut considers an employer engaged in a discriminatory practice if it terminates a woman’s employment because of pregnancy or refuses to grant her a reasonable leave of absence for maternity. Employers must also assure pregnant women a reasonable disability leave and the full maintenance of her employee benefit rights. The woman’s right to her job is protected except in case of a private employer whose circumstances have changed in her absence, making reinstatement unreasonable or impossible.

State law also addresses sexual harassment directly in statute. It is an unlawful discriminatory practice for an employer to harass any employee or person seeking employment on the basis of sex. The statutes define “sexual harassment” as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when: 1) submission to such conduct is made, either explicitly or implicitly, a term or condition of an individual’s employment; 2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting him or her; or 3) the conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.

Finally, it is illegal in Connecticut for an employer to request or require employees or potential employees to provide genetic information or other information related to the individual’s child bearing age or plans, pregnancy, reproductive system, use of birth control methods, or family responsibilities.

Federal law. Discrimination in the sale or rental of housing on the basis of race, color, national origin, religion, sex, disability, or family status is illegal. Federal housing law is enforced by the U.S. Department of Housing and Urban Development (HUD) by means of investigation, conciliation, and administrative hearing. Complainants may file a private suit in federal court at any time. As with employment, HUD can defer case enforcement to designated state agencies, like CHRO. The major federal housing discrimination law is the Civil Rights Act of 1968, Title VIII and IX (as amended by the Fair Housing Amendments Act of 1988). The act prohibits discrimination in the sale or rental of housing on account of race, color, religion, sex, national origin, handicap, or familial status (having children). The law exempts: 1) single family houses which are sold or rented without brokerage services or advertising, provided the sales or rentals are bona fide private transactions and not part of larger businesses; and 2) owner-occupied houses with up to four resident families. Retirement communities are exempt from the prohibition against selling or renting to families with children.

Landlords are required to allow tenants with disabilities to make reasonable alterations to render housing accessible (at their own expense). Landlords are also required to make reasonable adjustments to rules or services for such tenants. The law further requires any new multifamily housing to be designed to accommodate persons with disabilities.

State law. Connecticut prohibits discrimination in housing based on race, color, national origin, ancestry, creed, sex, familial status, disability, marital status, age, lawful source of income, and sexual orientation (C.G.S. §§ 46a-64c, 46a-81e). CHRO administratively enforces violations of these laws. One significant distinction between federal and state statutes is that federal laws do not cover marital status, age, sexual orientation, or lawful source of income. Otherwise, state law is substantially equivalent to the federal provisions with respect to prohibited practices. Prohibited activities covered by the law include:

State discriminatory practices also include refusing to allow disabled individuals to make reasonable modifications at their own expense to accommodate their disability (C.G.S. § 46a-64c). Connecticut provides exemptions to these laws to owner-occupied buildings with up to four units. Exceptions are also made in housing designed for and occupied by older persons.

Federal law. Federal laws prohibit discrimination in providing credit or credit-related services. These laws are administered by various regulatory agencies under the direction of the Federal Reserve Board. Complainants may also file private civil suits in federal court. As mentioned previously, the federal housing provisions cover discrimination in financial or credit transactions related to housing.

In addition, the Equal Credit Opportunity Act of 1974 forbids discrimination in the granting of credit on account of sex, marital status, race, color, religion, national origin, age, or receipt of public assistance benefits. This law applies to institutions granting consumer, business, or commercial loans. In credit transactions related to housing, individuals are also protected from discrimination because of family status or disability.

State law. Under Connecticut law, it is illegal for a creditor to discriminate against any person eighteen years of age or older on the basis of sex, age, race, color, religious creed, national origin, ancestry, marital status, mental retardation, sexual orientation, learning disability, blindness, or physical disability (C.G.S. §§ 46a-66, 46a-81f). Enforcement of these laws is done by CHRO in cooperation with the state Department of Banking.

Federal law. Federal law prohibits privately owned facilities that offer food, lodging, entertainment, or other services to the public from discriminating on the basis of race, color, religion, or national origin. The federal statutes related to nondiscrimination in public accommodations and facilities include:

Civil Rights Act of 1964, Title II – The act forbids discrimination on account of race, color, religion, or national origin in privately owed places of accommodation offered to the public, such as hotels, restaurants, and theaters. Victims of such discrimination may submit a complaint with the Civil Rights Division of the U.S. Department of Justice or file a civil action in federal court. However, if there is a state law prohibiting such discrimination state remedies must be exhausted before bringing suit in federal court.

Civil Rights Act of 1964, Title III – The act authorizes the U.S. Attorney General to file suit in federal court to prevent discrimination against any individual who has been denied equal use of any public facility owned, operated or managed by a state or local government on account of race, color, religion or national origin.

Americans with Disabilities Act, Titles II and III – The act prohibits discrimination on the basis of disability in public services, public accommodation, and services operated by private companies. The act defines disability as “a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such impairment.”

State law. Connecticut law also addresses discrimination in places of public accommodation, resort, or amusement defined as any establishment that caters or offers its services, facilities, or goods to the general public. C.G.S. § 46a-64 makes it unlawful to discriminate on the basis of race, creed, color, national origin, ancestry, sex, marital status, age, lawful source of income, mental retardation, or mental or physical disability. These laws are administratively enforced by CHRO. In addition, public accommodation discrimination on the basis of sexual orientation is covered by C.G.S. § 46a-81d. Among the prohibited practices are to:

Exemptions are made for the rental of sleeping accommodations for the exclusive use of persons of the same sex and separate bathrooms or lockers rooms based on sex. The law also allows age exceptions for minors or special discounts for persons 60 years of age or older. Nursing homes owned, operated, and affiliated with a religious organization are allowed to discriminate on the basis of creed. Further, denial of accommodations or services on account of insufficient income does not constitute discrimination on the basis of lawful source of income.

In addition, places of public accommodations are required to post notice, in a conspicuous place, that guide dogs may enter such premises. The statute sets a fine of not more than $100 or less than $25 for public accommodation violations; imprisonment for not more than 30 days is also possible.

The overlap of state and federal law allows individuals alleging discrimination to seek recourse through either state or federally established administrative or judicial procedures. Individuals may sue in court for discrimination claims generally if administrative remedies have been exhausted.

An administrative charge of discrimination is a prerequisite for a lawsuit under: Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act of 1967; Title I of the Americans with Disabilities Act of 1990; and the Rehabilitation Act of 1973. Under these laws, a complainant must first exhaust administrative procedures before pursuing court action. Otherwise, the court has discretion as to whether an aggrieved party must seek administrative adjudication before filing a lawsuit.

On the federal level, there are several government agencies that handle discrimination issues. Among them are: the U.S. Equal Employment Opportunity Commission (EEOC); the Department of Justice (DOJ); the Department of Labor (DOL); and the Department of Housing and Urban Development (HUD).

The EEOC is the lead federal agency responsible for enforcing equal employment opportunity laws and regulations. After EEOC has processed a case and failed in conciliation efforts, the Department of Justice may file suit in federal district court against employers charged with discrimination under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act (ADA). The Department of Labor’s Office of Federal Contract Compliance Programs enforces laws against discrimination by federal government contractors and subcontractors. Discrimination issues relating to housing are primarily overseen by the U.S. Department of Housing and Urban Development.

Equal Employment Opportunity Commission (EEOC). Originally created by Congress in 1964 as part of the Civil Rights Act, EEOC enforces key federal statutes prohibiting discrimination in the workplace through investigation, conciliation, litigation, coordination, education, and technical assistance. The agency’s jurisdiction covers all government employers, private employers, employment agencies, and labor unions. The EEOC is also responsible for the federal sector employment discrimination program and provides funding and support to state and local fair employment practices agencies known as FEPAs. FEPAs, such as Connecticut’s CHRO, enter into workshare agreements to assist EEOC with its enforcement responsibilities.

EEOC is composed of five commissioners and a general counsel appointed by the President and confirmed by the Senate. The five-member commission makes equal employment opportunity policy and approves most litigation. The general counsel is responsible for conducting EEOC enforcement litigation. In federal fiscal year 1998, EEOC’s appropriated budget was $242 million and the agency had 2,544 full-time employees. The EEOC carries out its work through its Washington headquarters and in 50 field offices throughout the United States.

EEOC process. Individuals alleging employment discrimination may begin the EEOC process by filing administrative charges. Individual commissioners may also initiate discrimination charges. If EEOC determines through investigation that there is “reasonable cause” to believe discrimination has occurred, it must seek to conciliate the charge to reach a voluntary resolution between the charging party and the respondent. If conciliation does not occur, EEOC may bring suit in federal court. Whenever EEOC concludes its processing of a case, or earlier upon the request of a charging party, it issues a “notice of right to sue”, which enables the charging party to bring an individual action in court.

To manage the approximately 80,000 charges filed annually, EEOC has developed a system of categorization. Charges are prioritized into three categories for the purposes of investigation and resource allocation. “Category A” charges are designated high priority and are assigned principal investigative and settlement efforts. “Category B” charges are believed to have some merit but more investigation is needed before a decision is made on handling. “Category C” charges include non-jurisdictional or unsupported charges that are immediately closed.

Settlements are encouraged at all stages of the process. In federal fiscal year 1998, EEOC obtained $169.2 million in monetary benefits for charging parties through settlement and conciliation. EEOC also recovered close to $90 million through litigation.

In addition, EEOC has initiated a mediation-based alternative dispute resolution (ADR) program. The program is voluntary, includes confidential deliberation by all parties, and uses neutral mediators.

State and local program. The EEOC contracts with approximately 90 fair employment practices agencies (FEPAs) throughout the country to help process discrimination claims. Through the use of workshare agreements, FEPAs oversee charges raising claims under both state and local laws prohibiting employment discrimination as well as the federal laws enforced by EEOC. The Connecticut Commission on Human Rights and Opportunities is the EEOC- designated FEPA for the state.

U.S. Department of Housing and Urban Development (HUD). Established in 1965, the Office of Fair Housing and Equal Opportunity within HUD exercises a broad range of authority in matters related to fair housing. The majority of the agency’s civil rights responsibilities lies in its authority to enforce Title VIII of the Civil Rights Act of 1968. The agency’s enforcement responsibilities dramatically expanded with the passage of the Fair Housing Amendments Act of 1988, which increased the coverage of Title VIII.

HUD process. An individual alleging housing discrimination may file a complaint at any one of HUD’s 10 regional offices. Upon receipt of the complaint, HUD will notify the alleged violator of the complaint and permit the violator to submit an answer. HUD will then investigate the complaint and determine whether there is reasonable cause to believe a statutory violation has occurred. An administrative hearing is held if reasonable cause is found.

At the hearing, each party’s legal counsel presents its case before an administrative law judge. HUD will attempt to conciliate all complaints. Judicial action may be taken if conciliation efforts fail or are breached. Parties may file suit even after filing a complaint provided they have not entered a conciliation agreement and an administrative law judge has not started a hearing.

Multiple agency involvement. When state law substantially parallels federal anti-discrimination laws, federal law requires complaints to be deferred from the respective federal authorities, EEOC and HUD, to the state agency for processing. The details of this deferral process are specified in federal regulations and in worksharing agreements between CHRO and these federal agencies.

The workshare agreement stipulates which agency retains the charge. If a charge is filed with CHRO and is also covered by federal law, it is considered to be “dual filed.” The charge usually will be retained by CHRO for handling. If the charge is initially filed with the federal agency and is also covered by state law, the federal agency will “dual file” the charge but may retain it for handling. In addition, EEOC will usually retain charges: 1) alleging a violation of the Equal Pay Act; 2) filed against the FEPA; 3) alleging retaliation for previously filing a charge with EEOC; and 4) referring to federally funded or administered agencies.

Based on its contracts with EEOC and HUD, CHRO must submit a randomly selected portion of its cases for federal review and approval. During these reviews, the federal agencies determine whether CHRO conducted a proper investigation and drew appropriate conclusions regarding the evidence. If EEOC or HUD agrees with the action taken by the agency, it also closes the case. If either federal agency finds a flaw in either in the work or in the decision rendered, it may send the case back to the CHRO for further investigation.

[1] Several federal anti-discrimination laws also exist in matters relating to education, voting, law enforcement, and federally assisted programs. These issues are not under the jurisdiction of CHRO. Therefore, they are not included as part of this discussion.