Topic:
EMPLOYMENT (GENERAL); DISCRIMINATION;
Location:
DISCRIMINATION IN EMPLOYMENT;
Scope:
Federal laws/regulations; Connecticut laws/regulations;

OLR Research Report


The Connecticut General Assembly

OFFICE OF LEGISLATIVE RESEARCH




January 29, 1997 97-R-0006

TO:

FROM: George Coppolo, Chief Attorney

RE: Federal and State Employment Discrimination Laws

You asked for a brief summary of federal employment anti-discrimination laws and the main ways in which Connecticut law differs.

SUMMARY

There are several major and numerous other federal employment anti-discrimination laws. Federal law prohibits employment discrimination on the basis of race, color, age, ancestry, religion, sex, and disability. State law also prohibits discrimination for these reasons.

Although federal and state anti-discrimination laws are similar, they are not identical. State law is broader than federal law in several respects. For one thing, state law prohibits discrimination on the basis of marital status and sexual orientation, whereas federal law does not. For another thing, state law prohibits age discrimination while federal law, for the most part, only protects workers aged to 40 and over. Also, state law covers employers with three or more employees, while the federal laws, for the most part, cover employers with at least 15 or at least 20 employees. Federal law also typically applies to employers that affect interstate commerce although this is not a significant requirement since the notion of “affecting commerce” adopted by the courts includes virtually any employer.

Another example of how federal and state discrimination law differ involves disabled employees and job applicants. The state definition appears broader than the federal. For instance, it does not require that a disability affect a major life activity such as walking or seeing. On the other hand, state law might be less protective in that it does not explicitly require employers to make reasonable accommodations to an employee's or applicant's disability. But the state enforcement agency, the Commission on Human Rights and Opportunities (CHRO), interprets our law as requiring it.

Connecticut law is broader than federal law in some other respects. For example, it makes it an unlawful discriminatory practice not to take reasonable measures to protect an employee from substances which may cause birth defects, harm an employee's reproductive system, or be a hazard to a fetus. It also makes it an unlawful discriminatory practice for an employer, an employment agency, or a union to ask for certain information from employees or job applicants concerning family planning and other reproductive issues. It also prohibits state agencies from discriminating against someone in employment or in licensing or registration solely on the basis of a prior criminal record.

Following is a brief summary of the principal federal employment anti-discrimination laws and how state law differs. We relied heavily on Commerce Clearing House's Employment Practices Law Reporter for sections of this memo dealing with federal discrimination laws. Please let us know if you need more detailed or additional information.

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

Title VII prohibits employment discrimination on the basis of race, color, sex, religion, or national origin (42 U.S.C.A. 2000e). It applies to employers with at least 15 employees during each working day in each of 20 or more calendar weeks in the current or preceding year. Also, the business must affect interstate commerce. It applies to public as well as private employers.

The law applies to any union that has 15 members or more or that operates a hiring hall that refers workers to covered employers and (1) holds an official certification as a bargaining representative of employees under either the National Labor Relations Act or the Railway Labor Act, (2) is recognized or acts as the exclusive bargaining representative of covered workers or (3) is related to another covered union through a charter arrangement.

Employment agencies are covered if they procure workers for a covered employer. An agency is also covered as an employer if it has the requisite 15 employees and its operations affect interstate commerce. Public agencies are similarly treated.

Connecticut Law

State law also makes it illegal to discriminate in employment on the basis of race, color, sex, religion, and national origin (CGS 46a-60) State law also makes it illegal to discriminate on the basis of marital status, sexual orientation, age, a present or past history of mental disorder, mental retardation, learning disability or a physical disability. State law applies to employers with three or more employees instead of 15 or more as required by federal law. Connecticut law also covers labor unions and employment agencies as does federal law.

In addition to these differences, Connecticut law is more explicit than the federal statute with respect to discrimination against pregnant employees and sexual harassment and prohibits the state from discriminating against job or license applicants solely because of a prior criminal conviction.

Protection for Pregnant Employees. Connecticut makes it an unlawful discriminatory practice for an employer to (1) terminate a woman's employment because of her pregnancy; (2) refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy; (3) deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer; (4) refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits, and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer's circumstances have so changed as to make it impossible or unreasonable to do so; (5) refuse to make a reasonable effort to transfer a pregnant employee to any suitable temporary position which may be available when an employee gives written notice of her pregnancy to her employer and the employer or pregnant employee reasonably believes that continued employment in the position she held may injure her or the fetus; (6) refuse to inform the pregnant employee that a transfer may be appealed to CHRO; or (7) refuse to inform his employees, by any reasonable means, that they must give written notice of pregnancy in order to be eligible for transfer to a temporary position (CGS 46a-60).

Sexual Harassment. Connecticut makes it an unlawful discriminatory practice for an employer to harass any employee, or person seeking employment on the basis of sex. The law defines “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.

Hazards and Occupational Safety. Connecticut law explicitly requires employers to inform prospective employees of substances that may cause birth defects or have other harmful effects. It makes it a discriminatory practice for an employer to refuse to take reasonable measures, upon an employee's request, to protect an employee from identified hazards. It also prohibits employers from conditioning an individual's employment status the person's sterilization and, in general, prohibits employers, employment agencies, and unions from requesting or requiring information relating to an individual's child-bearing age or plans, pregnancy, reproductive system, use of birth control methods or family responsibilities.

Hazardous Substances. Connecticut law requires an employer to inform prospective employees of any substance it uses or produces in the manufacturing process or for research, experimentation or treatment which it should have reasonable cause to believe will cause birth defects or constitute a hazard to an individual's reproductive system or to a fetus when the individual is exposed to such a substance in the course of his or her job assignment. Such information is to be made available to current employees who are exposed to such hazards.

The law makes it a discriminatory practice for an employer to fail or refuse, upon an employee's request, to take “reasonable measures” to protect the employee from the identified hazard or substance or to fail or refuse to inform the employee that the protective measures taken may be the subject of a complaint. “Reasonable measures” are defined as those consistent with business necessity and are least disruptive of the employee's employment.

Sterilization. Connecticut law prohibits employers from conditioning the employment, transfer or promotion of any individual on the sterilization of such individual. An employee may bring a civil action for enforcement of this prohibition.

Employment Inquiries. Connecticut law also prohibits employers, employment agencies and labor unions from requesting or requiring from an employee, person seeking employment or member, information relating to the individual's child bearing age or plans, pregnancy, reproductive system, use of birth control methods or family responsibilities.

The prohibition does not apply if the information is directly related to a bona fide occupational qualification or need, is requested by a physician for an employer, or is directly related to workplace exposure to substances which may cause birth defects or constitute a hazard to an individual's reproductive system or to a fetus and the employer first informs the employee of the hazards involved in exposure to such substances.

Prior Criminal Record. Under state law a person may not be disqualified from state employment or be disqualified to practice or pursue any trade, profession, or business for which a state license, permit, certificate, or registration is required solely because of a prior criminal conviction (CGS 46a-80). But a person may be denied these things if the agency determines he is not suitable after considering (1) the nature of the crime and its relationship to the job in question; (2) the convicted person's degree of rehabilitation; and (3) the time elapsed since the conviction if a conviction is a basis for rejecting an applicant, the agency must put the rejection in writing and specify the evidence it considered and its reasons for rejecting the applicant (CGS 46a-80(b) and (c)).

CIVIL RIGHTS ACT OF 1968—TITLE I

The Civil Rights Act of 1968 (18 U.S.C.A. 245) imposes criminal penalties on anyone who, by force or threat, willfully injures, intimidates, or interferes with someone because of race, color, religion, or national origin with respect to civil rights. The act covers people who interfere with someone applying for a job or continuing employment. It also prohibits the interference with a person's use of hiring halls, labor organizations, or employment agencies. The act carries criminal penalties but prosecution is allowed only if the U.S. Attorney General or Deputy Attorney General certifies that prosecution is in the public interest and necessary to secure substantial justice.

Connecticut Law

It is also a crime under state law to deprive anyone of any legal rights because of their race, color, religion, or national origin (CGS 46a-58(a)). State law is broader than federal law because it also prohibits deprivation of rights based on the persons alienage, blindness, or physical disability.

CIVIL RIGHTS ACT OF 1866

The Civil Rights Act of 1866 (42 U.S.C.A. 1981) prohibits racial discrimination in making and enforcing contracts, including employment contracts. The prohibition applies to all aspects of the contractual process as well as to the benefits, privileges, terms, and conditions of a contractual relationship. It applies to all forms of intentional race discrimination in the workplace including demotions, transfers, promotions, discharges, wages, and working conditions.

Section 1981 applies to public as well as private employment. All employers are covered. There is no business size requirement nor is there any interstate commerce requirement.

Although courts originally interpreted the Civil Rights Act of 1866 as protecting only black persons, the Supreme Court subsequently held that it applies to all persons by its ban on racial discrimination. It is the identifiable classes of persons sought to be protected when the law was enacted that governs. Thus, for example, Arabs and Jews are protected by this law since the concept of separate races that prevailed when the law was enacted applies to them.

Section 1981 violations must be enforced in court through private lawsuits. An aggrieved individual can go directly to court. There is no requirement that an individual first file a complaint with an agency such as the federal Equal Employment Opportunity Commission (EEOC). Unlimited compensation and punitive damages are available and the case can be tried to a jury.

Connecticut Law

Connecticut law provides a similar remedy under the Fair Employment Practices Act. The main distinction is that individuals must file with CHRO and are subject to the rules that apply to CHRO complaints. Federal law is broader in the sense that it applies to any contract, not just employment, and it applies regardless of the number of employees where the Connecticut law only applies if the employer has three or more employees. State law does not provide for punitive damages.

AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967

The Age Discrimination in Employment Act of 1967 (ADEA); 27 U.S.C.A. 63D et.seq.) makes it unlawful to discriminate against employees or job applicants on account of age when they are 40 years of age or older. It prohibits discrimination based on age, not on membership in the class of people 40 or over. Thus, age discrimination can occur even if the person who is hired, promoted, or retained instead of the complainant is also 40 or older.

ADEA applies to those employing 20 or more workers for at least 20 weeks a year; labor unions with 25 members; employment agencies and apprenticeships and training programs that operate to provide referral services to employers engaged in interstate commerce. It applies to public as well as private employers.

Job practices and decisions based on age do not violate ADEA if a danger to public safety might occur because of physical degeneration factors. The standard is whether the age rule is reasonably necessary to a business' safe and efficient operation. The employer can prevail if it can show either that (1) there is a reasonable basis to believe that substantially all people over the age limit established by the employer cannot perform the job duties safely or (2) it is highly impractical to deal with older employees on an individual basis.

ADEA prohibits employees from forcing employees to retire at a certain age. There is an exception for executives and others in high policymaking positions. People serving in these positions for at least two years immediately prior to the retirement may be forced to retire after age 65 if they will receive at least $44,000 a year in pension payments.

ADEA requires employers to provide older employees and spouses the same health care benefits as it provides for younger employees and spouses.

EEOC has the authority to enforce the ADEA. Thus, it may investigate complaints and institute court actions. ADEA also allows the complainant to institute a civil action in courts but requires that the person just file with EEOC and wait at least 60 days after filing their complaint with that agency.

Connecticut Law

Connecticut law is broader than federal law because it is not limited to people 40 years of age or older. Also, it applies to employers with three or more employees instead of 20 or more as required under federal law. State law appears to be somewhat broader than federal law with respect to exceptions to the nondiscrimination rule. Federal law considers whether an age rule is reasonably necessary to the businesses' safe and efficient operations. State law, on the other hand, allows age discrimination only if it is a bona fide occupational qualification or need. Our courts has construed this as requiring that no member of the excluded class is physically capable of performing the tasks required by the job (Evening Sentinel v. National Organization for Women, 168 Conn. 26 (1975)).

EQUAL PAY ACT OF 1963

The Equal Pay Act of 1963 (29 U.S.C.A. 206 et.seq.) makes it unlawful to pay workers of one sex at a different rate from that paid the other sex where the jobs involve equal skill, effort, and responsibility and are performed under similar working conditions. Unlawful wage differentials may not be corrected by lowering the higher-paid groups's wages. The standard used in comparing the work performed is substantial equality; the jobs don't have to be identical.

The law applies to employees of any entity that has two or more employees engaged in interstate commerce, in the production of goods for interstate commerce, or in handling or otherwise working on goods or materials that have moved in or were produced for interstate commerce. It applies to public as well as private employees.

Connecticut Law

Connecticut law prohibits employment discrimination based on sex (CGS 46a-60), and this prohibition appears to cover the situations encompassed by the Equal Pay Act. The federal law's coverage is slightly broader in that it covers employers with two or more employees while Connecticut law covers those with three or more. Connecticut also has a law that explicitly prohibits employees from discriminating in the amount of compensation paid to employees solely on the basis of sex (CGS 31-75). This law may be enforced by the labor commissioner or by a lawsuit filed by the aggrieved employee. If the employee prevails, he also receives reasonable attorney's fees (CGS 31-76).

AMERICANS WITH DISABILITIES ACT OF 1990

The American With Disabilities Act (ADA; 42 U.S.C.A. 12101 et.seq.) prohibits employment discrimination against people with disabilities. It covers recruitment, hiring, termination, and every term, condition, or privilege of employment.

The ADA applies to employers, employment agencies, labor unions, and joint labor-management committees. But it only covers employers who are engaged in an industry affecting interstate commerce and who have 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. It covers private and public employees.

Aggrieved individuals can file a complaint with the EEOC which has the same investigative and enforcement powers as it does with respect to discrimination on the basis of race, color, sex, and national origin.

Disability. The ADA definition of disability is comparable to the definition of the term “individual with handicaps” in 7(8)(B) of the Rehabilitation Act of 1973. A full definition of the term disability appears in 3(2) of the ADA:

• a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

• a record of such an impairment; or

• being regarded as having such an impairment.

If an individual meets any of these three tests, the person is considered to be an individual with a disability and is protected by the ADA.

Physical or Mental Impairment. There are two categories of physical or mental impairment. The first is any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems; neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine. The second category includes any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities.

The ADA does not include an exhaustive list of all of the specific conditions, diseases or infection that would constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of such a list. But it does include, such conditions, diseases and infections as: orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, infection with the human immunodeficiency virus, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, drug addiction and alcoholism.

Simple physical characteristics, such as eye color, hair color, left-handedness, or height, weights or muscle tone that are within normal range and are not the result of a physiological disorder, are not included in the term physical or mental impairment. Likewise, the definition does not include characteristic predisposition to illness or disease. Pregnancy and other conditions that are not the result of a physiological disorder are not impairments.

Common personality traits such as poor judgment or a quick temper are not considered disabilities where these are not symptoms of a mental or psychological disorder. Further, because only physical or mental impairments are included, environmental, cultural and economic disadvantages are not in themselves covered. For instance, having a prison record does not constitute having a disability. Likewise, poverty and a lack of education are not disabilities.

Advanced age is not disability. But medical conditions commonly associated with aging, such hearing loss, osteoporosis or arthritis, would constitute impairments within the meaning of the ADA.

Homosexuality and bisexuality are not impairments and thus are not disabilities as defined by the ADA. Disability also does not include transvestism, transsexuals, pedophilia, exhibitionism, voyeurism, general identity disorders not resulting from physical impairments, or other sexual behavior disorders.

Compulsive gambling, kleptomania, and pyromania are not covered. Neither are psychoactive substance use disorders resulting from current illegal use of drugs.

Major Life Activity. A major life activity is a basic activity that the average person in the general population can perform with little or no difficulty. These activities include caring for oneself, performing manual tasks, walking, seeing, hearing, sitting, standing, lifting and reaching. An impairment rises to the level of disability only when the impairment substantially limits one or more of an individual's major life activities. That is, the individual is either unable to perform the activity or is significantly restricted as to the condition, manner or duration of the performance when compared to the average person's performance of the same activity.

Substantial Impairment of Major Life Activities. Factors that determine whether an impairment is substantially limiting are, first, the nature and severity of the impairment, followed by the duration or expected duration of the impairment, and the permanent or long-term impact of or resulting from the impairment. An individual is not substantially limited in a major life activity if the limitation, when viewed in light of these factors, does not amount to a significant restriction when compared with the abilities of the average person.

Impairments may be disabling for some individuals but not others, depending on the state of the disease or disorder, the presence of other impairments that combine to make the impairment disabling, or any number of other factors. But impairments such as the human immunodeficiency virus are inherently substantially limiting, since HIV substantially limits procreation and intimate sexual relationships. Conversely, temporary, nonchronic impairments of short duration, with little or no long-term or permanent impact, are usually not disabilities. These impairments may include, but are not limited to, broken limbs, sprained joints, concussions, appendicitis, and influenza. Rarely will obesity be considered a disabling impairment.

Record of Impairment. The second prong of the disability definition (the record test) includes an individual who has a history of, or has been misclassified as having, a mental or physical impairment which substantially limits one or more major life activities. This protects individuals who have recovered from a physical or mental impairment that previously substantially limited them (.053). Discrimination on the basis of such past impairment is prohibited under the ADA. Frequently occurring examples of the first category are individuals with histories of mental or emotional illness, heart disease, or cancer; examples of the second are individuals who have been misclassified as mentally retarded.

Regarded as Impaired. The third and final prong of the definition of the term disability includes one who has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer as having such a limitation. This prong also includes an individual who has a physical or mental impairment that substantially limits major activities only as a result of the attitudes of others toward the impairment.

Perception of Employer. The perception of the employer is a key element of this test. Persons think they have an impairment but do not and are not treated as if they do, are not protected.

This third prong is especially important for individuals with stigmatic conditions (such as severe burn victims) that are viewed as physical impairments but do not in fact result in a substantial limitation of a major life activity. Severe burn victims are often viewed by others as

having an impairment which substantially limits some major life activity (for example, working in a restaurant) and are discriminated against on that basis. These individuals are protected by the ADA. The same is also true for the employee or applicant with a condition that periodically causes an involuntary jerk of the head but does not limit the individual's major life activities.

Connecticut Law

Connecticut law is similar, but not identical, to the ADA. For one thing, Connecticut law applies to employers with three or more employees, whereas the ADA applies to employers with 15 or more employees. For another, the definitions of disability under state and federal law are not identical. For example, Connecticut law does not explicitly include those who are perceived as having a disability. But CHRO construes our law as covering such people and hearing officers have agreed. Connecticut courts have not yet decided this issue, however. Also, our definition covers any chronic physical handicap, infirmity, or impairment. It does not incorporate the concept of substantially limiting a major life activity, which has spawned substantial litigation under the ADA. Thus, our law may be easier to apply in this regard and broader from the complainant's point of view.

Another distinction involves the requirement for an employer to reasonably accommodate an employee's known disability. Federal law explicitly covers this while state law does not. CHRO and its hearing officers have interpreted our law as requiring an employer to do so, but the Connecticut Supreme Court has not decided this question yet. CHRO contends that reasonable accommodation is a vital part of antidiscrimination efforts with regard to disabled people.

REHABILITATION ACT OF 1973

The Federal Rehabilitation Act of 1973 (29 U.S.C. et. seq.) prohibits discrimination based on mental or physical disability by businesses performing federal contract work, federal departments and agencies, and recipients of federal assistance. Private employers performing under federal contracts or subcontracts exceeding $10,000 must take affirmative action to hire and advance qualified disabled people. The language of the act is similar to the ADA and the standards used to evaluate discrimination are the same as under the ADA.

Individuals who feel they have been discriminated against may file their complaints with the Labor Department.

Connecticut Law

Our discussion comparing the ADA with Connecticut law would apply equally here except, unlike the ADA, this law applies to all employers who receive federal funds not just to employers with 15 or more employees.

VIETNAM ERA VETERANS' READJUSTMENT ASSISTANCE ACT

The Vietnam Era Veterans' Readjustment Act of 1974 prohibits employment discrimination against qualified veterans with disabilities and veterans of the Vietnam era by certain government contractors and federal agencies. The act also imposes affirmative action requirements (38 U.S.C.A. 4211 et. seq.).

Contractors and subcontractors holding contracts with the federal government in excess of $100,000 for the procurement of personal property and nonpersonal services (including construction) must take affirmative action to employ qualified special disabled veterans and veterans of the Vietnam under their contracts and subcontracts. Affected veterans include those who served in the military during the Vietnam conflict who were discharged or released with other than a dishonorable discharge; those veterans with a disability of 30% or more, those with a disability of 10% or 20% who have a serious employment disability, and those veterans whose discharge or release from active duty was a result of a service-connected disability.

In addition to the affirmative action requirement, these contractors and subcontractors must report at least annually to the Secretary of Labor (1) the number of Vietnam veterans or special disabled veterans by job category and hiring location; and (2) the total number of new employees hired during the period covered by each report and the number of these employees who are Vietnam veterans or special disabled veterans.

Covered contractors must also list all job openings with state employment service local offices. But executive and top management jobs, jobs that will be filled from within a contractor's organization, and jobs lasting three days or less need not be listed. The employment offices, in turn, will give veterans priority in referral.

The law does not provide for individuals to seek relief in a court.

Connecticut Law

Connecticut does not have a similar law.

UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994

This act (28 U.S.C.A. 4302 et. seq.) bans discrimination based on past, current, or future military obligations. It applies to all civilian employees, public and private, regardless of the number of employees. A person who believes he has been discriminated against may file a complaint with the Secretary of Labor. He also can file a private lawsuit and, under certain circumstances, the Attorney General may represent the person in court (38 U.S.C.A. 4322 and 4323).

Connecticut Law

Connecticut does not have a similar law.

CIVIL RIGHTS ACTS OF 1964—TITLE V

Title V of the Civil Rights Act of 1964 prohibits employers who receive federal financial assistance from discrimination on the basis of race, color, or national origin. It applies only when federal aid is granted primarily to provide employment. It is enforced by the federal agency or department that provided the financial assistance. Apparently, individuals also have a private right of action in that first filing a complaint with the agency.

The remedy for noncompliance is cutting off of further federal fines and assistance.

Connecticut Law

Connecticut law prohibiting employees with three or more employees from discriminating against people on the basis of race, color, and national origin applies (CGS 46a-60). The main distinction is that the federal law allows aggrieved people to go directly to court whereas, under state law, a person must file with CHRO first and give them at least 210 days before asking permission to sue (CGS 46a-100 and 101).

AGE DISCRIMINATION ACT OF 1975

Employers who receive federal financial assistance, including state or local government agencies, are barred from discriminating on the basis of age by the Age Discrimination Act of 1975 (01). Unlike the Age Discrimination in Employment Act of 1967, this law does not limit protection to person over 40 years of age. Also, the 1975 Act, unlike the 1967 law, can apply to private employers having fewer than 20 employees (42 U.S.C.A. 6101 et. seq.).

Enforcement of the act is through cutoff of funds by the administering federal agency where compliance is not achieved and notice and administrative hearing have been provided, or by any other means authorized by law. An agency as well as interested individuals may bring a court action against a federal aid recipient. But such individuals must notify in advance the Secretary of Health and Human Services, the Attorney General and the federal aid recipient. In addition, they must have exhausted their administrative remedies.

Connecticut Law

As previously discussed, Connecticut laws prohibits those with three or more employees from discriminating against applicants or employees because of age (CGS 46a-60).

EXECUTIVE ORDERS

Since 1941, the Executive Branch of the federal government has issued executive orders requiring that certain entities doing business with the federal government comply with certain policies.

Federal Contracts—E.O. 11246

Executive Order 11246, which requires equal employment opportunity and affirmative action by contractors and subcontractors having contracts with the federal government, applies to contractors, and subcontractors entering into federal service, supply, and construction contracts and to contractors and subcontractors performing under federally aided construction contracts.

Equal Employment Opportunity Clause

Every contract that the federal government awards amounting to $10,000 or more must contain an equal employment opportunity clause that is binding on the contractor or subcontractor for the life of the contract. Even if the equal employment agreement is not physically incorporated in a nonexempt contract or subcontract, it is considered a part of the contract or subcontract either by reference or by operation of E.O. 11246 and the regulations issued under that order. The agreement provides, among other things, that the contractor or subcontractor will, with respect to that contract, not discriminate against any employee or job applicant because of race, color, religion, sex or national origin.

Federally Assisted Projects

Additional provisions are included in the equal opportunity clause inserted in contracts for federally aided construction projects. A contractor or subcontractor (other than state or local government) applying for such a contract agrees to be bound by the equal employment opportunity clause with respect to all its own employment practices while it participates in construction work under the contract.

A good faith seniority system that qualifies as an exemption under Title VII must also be considered valid under the Executive Order.

Affirmative Action

In addition to the equal employment opportunity obligation, implementing regulations require the development of written affirmative action plans for the increased utilization of minority persons and females by nonconstruction contractors and subcontractors having 50 or more employees and a contract exceeding $50,000, and by construction contractors and subcontractors performing work on federal or federally assisted projects which are estimated to exceed $500,000 in total cost. Construction contracts may also subject an employer to affirmative action requirements. The requirements also apply to any contractor who serves as a depository of government funds in any amount and to banks and financial institutions serving as issuing or paying agents for U.S. savings bonds and savings notes in any amount.

Age Discrimination—E.O. 11141

Executive Order 11141 declares it to be against federal policy for contractors and subcontractors, in the performance of federal government contracts, to discriminate against employees or job applicants on account of age. No specific age, however, is mentioned in the order.

The order prohibits

1. discrimination in employment, advancement or discharge because of age;

2. discrimination because of age in connection with the terms, conditions and privileges of employment; and

3. specification of maximum age limits in solicitations or advertisements for employees to work on government contracts or subcontracts.

These restrictions do not apply if age is an occupational qualification, a condition in a retirement plan, or a statutory requirement. E.O. 11141 does not create an individual right that is enforceable in federal district courts.

Executive Order 11141 also requires that older persons employed by the federal government, or seeking federal government employment, receive full and fair consideration for employment and advancement.

Connecticut Law

As previously explained, Connecticut law prohibits job discrimination on the basis of race, color, religion, sex, national origin, and age, as do these executive orders. Connecticut also requires contractors with 50 or more employees awarded a public works contract exceeding $50,000 in any fiscal year, to develop and file an affirmative action plan with CHRO, which is authorized to approve, disapprove, or revoke the contractor's approval. Approval is required for a contractor to be able to bid or be awarded contracts. Subcontractors must also file compliance reports. The state must withhold 2% of the total contract price per month until the contractor has developed a plan approved by CHRO (CGS 46a-68d).

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