Fenn MFG V Commission On Human Rights and Oppurtunities

Fenn Mfg. v. Commission on Human Rights and Oppurtunities, Not Reported in A.2d...
1994 WL 51143
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UNPUBLISHED OPINION. CHECK
COURT RULES BEFORE CITING.
Superior Court of Connecticut, Judicial
District of Hartford-New Britain, at Hartford.
FENN MANUFACTURING, a Division
of AMCA Engineering, Appellant,
v.
COMMISSION ON HUMAN RIGHTS AND
OPPORTUNITIES and Janeen Rose, Appellees.
No. CIV. CV 92-509435.
Feb. 8, 1994.
MEMORANDUM OF DECISION
SHELDON, Judge.
*1
This is an appeal under Sections 46a-94a 1 and
4-183 2 of the Connecticut General Statutes from a final

order of the Connecticut Commission on Human Rights
and Opportunities (CHRO) requiring respondent-appellant
Fenn Manufacturing (Fenn) 3 to pay money damages for
lost wages and emotional distress to complainant-appellee
Janeen Rose (Ms. Rose) based on the finding that in March
of 1983 Fenn discriminated against Ms. Rose on account of
her pregnancy in violation of General Statutes 46a-60(a)(7)
(E). At all times pertinent to this case, Section 46a-60(a)(7)
(E) has provided as follows:
Discriminatory employment practices prohibited ... (a)

It shall be a discriminatory practice in violation of this
section: ... (7) For an employer, by himself or his agent: ...
(E) to fail or refuse to make a reasonable effort to transfer
a pregnant employee to any suitable temporary position
which may be available in any case in which 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 held by the
pregnant employee may cause injury to the employee or
fetus[.]
The case began in 1983, when Ms. Rose complained to
the CHRO that Fenn had violated her rights under Section
46a-60(a)(7)(E) by refusing to permit her to work outside her

normal work area whenever a co-worker at a nearby work
station spray painted aircraft housings with an aerosolized
paint primer containing aromatic hydrocarbons. Claiming
that she had suffered ill effects when the primer was first
used in her area, and that her doctor had later instructed her
to avoid all exposure to aerosols and hydrocarbons during
pregnancy, Ms. Rose insisted that she had come reasonably
[to] believe[ ] that continued employment in [her current]
position m[ight] cause injury to [herself] or [her] fetus. Id.
On that basis she contended that upon informing Fenn in
writing of her belief and of the basis therefor, she became
entitled under Section 46a-60(a)(7)(E) to have Fenn make a
reasonable effort to transfer [her] to any suitable temporary
position which may [then have] be [en] available for her. Id.
Claiming that at least one such suitable temporary position
was indeed available for her -- that being a modified version
of her existing position in which, during the first part of
her pregnancy, Fenn had admittedly allowed her to work
outside her normal work area during spray painting -- Ms.
Rose argued that Fenn had violated Section 46a-60(a)(7)(E)
by refusing to allow her to work in that or some other suitable
temporary position until the birth of her baby. As a result of
Fenn's refusal to make this accommodation, she argued, it
should be required to compensate her for the wages she lost
and the emotional distress she suffered when, as a result of
that refusal, she was forced to leave her job to protect the
health of her unborn child.
Upon the filing of Ms. Rose's complaint, her case was referred
to a CHRO investigator who made a finding of reasonable
cause to believe that Fenn had indeed discriminated against
Ms. Rose in the manner alleged. After a subsequent failure of
conciliation, the complaint was certified for a public hearing
before CHRO Hearing Officer Herbert R. Scott, who received
evidence on divers dates between June 17 and December 11,
1990. On February 21, 1992, the Hearing Officer 4 issued
a written Memorandum of Decision (Decision) in which
he sustained Ms. Rose's complaint and awarded her the
following damages: $6,555.78 for wages lost from the date
Ms. Rose left her job until the date she would have stopped
working before the birth of her baby had she been afforded
a safe environment in which to work; $739.76 for wages
lost while attending hearings on this claim; $50 for an initial
consultation fee with a lawyer; and $5,000 for emotional
distress. Legal interest at the rate of 10% from the date of
judgment was also assessed. From that Decision, Fenn has
filed the instant appeal.
2015 Thomson Reuters. No claim to original U.S. Government Works.
In support of his Decision, the Hearing Officer made the

following pertinent findings of fact and conclusions of law.
From January of 1981 through March of 1983, Ms. Rose
was employed as a stockroom coordinator at Fenn's plant
in West Hartford. In that capacity, she was responsible for
receiving, storing and issuing parts for assembly operations
and for managing the paper work related to those parts. In
late 1982, Ms. Rose's desk was located in one corner of an
open area within Fenn's 100,000-square-foot plant. This area
was approximately 75 feet long, 50 feet wide and 15 feet
high. In addition to Ms. Rose's desk and the 50 feet of multilevel shelves on which she kept her inventory of parts, this
area contained several work stations for the assemblers of
department 23. The employees in that department assembled
gear boxes and housings for aircraft and other military
equipment.
*2 In late autumn of 1982, Ms. Rose learned that she
was pregnant, and so informed her immediate supervisor,
Mr. Jim Tracy. On learning of her pregnancy, she received
a booklet from Dr. Sauer, her personal physician, entitled
A Doctor Discusses Pregnancy. The booklet explained,
among other things, that women should avoid all exposure to
petroleum products, aerosols and halogenated and chlorinated
hydrocarbons during pregnancy. After reading the booklet,
Ms. Rose became concerned about her own possible exposure
to petroleum products and aerosol sprays while at work. Upon
voicing these concerns to Mr. Tracy in November of 1982,
he granted her permission to do her work in the lab, a closed
area within the plant, whenever oils or aerosol sprays were
being used in her normal work area. Mr. Tracy, in turn,
communicated Ms. Rose's concerns for the health of her fetus
to his own supervisor, Mr. Michael Brooks.
In late November or early December of 1982, Ms. Rose
had occasion to smell the fumes from an aerosolized
zinc chromate primer which the assemblers in her area
occasionally used to spray paint aircraft housings. Her
immediate reaction to smelling the fumes was to sneeze.
Though Ms. Rose did not use the primer in her own work and
had no direct contact with it, she knew both that it was used
at work stations located from 20 to 40 feet from her desk and
that its fumes permeated the entire work area whenever it was
used. Concerned on that basis that it might in some way harm
her fetus, she checked the product's label and found there an
express warning not to inhale its spray mist or dust. When she
informed her doctor of this information, he instructed her to
stay away from the primer's fumes.
Back at work, Ms. Rose reviewed her records and determined

that the zinc chromate primer would continue to be used for
some time. Indeed, she learned that as of January of 1983, at
least 150 more housing units would remain to be assembled,
and that each such unit contained eight separate parts which
would require spray painting with the zinc chromate primer.
For that reason, she again approached Mr. Tracy, and this time
secured his more specific permission to work away from her
desk whenever the zinc chromate primer was being used in
her area.
Sometime in January of 1983, Mr. Tracy informed Ms. Rose
that she could no longer leave her work area during spray
painting. Still, to protect the health of her unborn child,
she continued for some time, upon the advice of her union
representatives, to do her work elsewhere whenever the zinc
chromate primer was being used in her area. During this time
Ms. Rose made no effort to find a permanent solution to
her problem because she had been informed and believed
that her entire department was about to be moved to another,
safer part of the plant. In late February of 1983, however,
she learned for the first time that her department would not
be moved. On receiving this information, she immediately
became concerned that she might henceforth be forced to stay
in her department, inhaling the fumes from the primer, simply
in order to keep her job. To avoid this result, she resolved at
once to act.
*3 First, she requested the material safety data sheet
(MSDS) from the manufacturer of the zinc chromate primer.
From this document, which she received in the first week
of March, 1983, she learned: (1) that the primer consists
of 30-40% pigment, 30-40% aromatic hydrocarbons, 5.1%
chromium as chromate, and less than 0.6% lead by weight;
(2) that overexposure to solvent vapors from the primer
may cause drowsiness, headaches, dizziness and irritation
of [the] eyes, nose and throat, requiring first aid including
remov[al] to fresh air ... [and] flush[ing the] eyes with lots of
water; (3) that the manufacturer recommends the wearing of
a special Mesa/Niosh respirator where vapor concentrations
from the primer are encountered; and (4) that the primer
should be kept away from children.
Her fears enhanced by the MSDS, Ms. Rose reread the
booklet from her doctor, A Doctor Discusses Pregnancy,
and found in it the warning to stay away from chlorinated
and halogenated hydrocarbons during pregnancy. She then
telephoned the Permanent Commission on the Status of
Women (PCSW), informed them of her concerns, and was
told that Fenn was required by law to accommodate those

concerns. So advised, she met at once with Mr. John Mizesko,
Fenn's Industrial Relations Manager, to request that she be
moved. In that meeting, however, Mr. Mizesko told her that
in order to be moved, she had to provide him with a letter
from her doctor.
Complying with Mr. Mizesko's directive, Ms. Rose
immediately contacted Dr. Sauer with the request, which he
honored, that he provide her with a letter explaining that she
should not work in any area contaminated with petroleum
products. When she presented this letter to Mr. Mizesko,
however, he refused to accept it, telling her instead that she
must return to her doctor and get a different note sufficient to
go out on A & S. 5 Despite his refusal to accept her doctor's
letter, Mr. Mizesko learned the contents of that letter from
Ms. Rose, and later discussed the letter with his supervisor,
Mr. Brooks.
Frustrated by Fenn's inaction, Ms. Rose next wrote a letter
to its president, objecting to Fenn's decision not to move
her department. That day as well, she recontacted the
PCSW to request copies of Connecticut's anti-discrimination
laws and called the federal Occupational Safety and Health
Administration (OSHA) to ask for an inspection of her
work area. Three days later, on March 17, 1983, Ms. Rose
recontacted her doctor to request another note explaining
more specifically why she should be moved out of her area.
The following day, an OSHA inspector visited Fenn's West
Hartford plant. On that day, however, no inspection could be
conducted because spray painting was not scheduled to take
place in Ms. Rose's work area. Even so, the inspector did
take the time to speak with Ms. Rose. He told her, among
other things, that as yet OSHA had no standards by which
to measure safe levels of exposure to hazardous materials for
pregnant women or their fetuses.
*4 Also on March 18, 1983, an inspector from the
Travelers Corporation, Fenn's insurer, visited the plant. For
the benefit of this inspector, Mr. Brooks asked one of
Ms. Rose's co-workers to spray paint a housing unit for
demonstration purposes. However, it was never established
to anyone's satisfaction that the amount of paint used in this
demonstration was a representative sample. Indeed, the
inspector himself so stated in the report he ultimately issued
in May of 1983.
On March 21, 1983, Ms. Rose's union filed a grievance on her

behalf. Fenn denied this grievance on March 29. On March
30, after learning that her grievance had been denied, Ms.
Rose met a final time with Messrs. Brooks and Mizesko to
discuss her situation. At this meeting, she presented them with
a copy of the booklet from the PCSW explaining her legal
rights as a pregnant woman in Connecticut together with a
March 25 letter from her obstetrician which read in part as
follows:
[Ms. Rose is] disabled by her
hazardous working condition. I have
a copy of a material data sheet
on a product that she comes in
contact with and she should not
work in an area contaminated with
hydrocarbons during pregnancy. In
addition, my patient has indicated that
recent stress over not being moved
has caused severe cramps, back pain,
headache and nausea which she has not
complained about prior to March 16,
1993.
At the end of this meeting, Mr. Brooks told Ms. Rose that,
If you cannot work in your department, you cannot work at
Fenn. Ms. Rose promptly left Fenn, and did not return to her
work until after she had delivered her baby.
As a result of Fenn's actions, Ms. Rose suffered pain and
humiliation and was not paid from March 31 through July 9,
1983-the period in which she would have continued to work
before the birth of her baby had she not been forced to walk
away to protect the health of her fetus. Her lost wages for
that entire period were calculated by the Hearing Officer to be
$6,555.78. In addition, she paid $50 to consult with a lawyer
and lost an additional $739.76 in wages attending hearings on
her claim.
Based on these findings, the Hearing Officer concluded that
Fenn had violated Ms. Rose's rights under Section 46a-60(a)
(7)(E) by refusing to permit her to work away from her
desk when spray painting was being done in her area. First,
he determined that by the time Ms. Rose walked away
from her job in late March of 1983, she had developed a
reasonable belief that continued employment in that job
might threaten the health of her fetus. This well conceived
belief, he found, was reasonably based on two sources of
information on which any responsible mother could rely: her
personal experience on the job and the thorough research
she had conducted as to the chemical composition of and

dangers associated with exposure to the zinc chromate primer.
From her personal experience, Ms. Rose had learned that
she would not be able to avoid inhaling fumes from the
zinc chromate primer if she were forced to stay in her
work area during spray painting. From her investigation and
research, including her examination of the primer's label and
MSDS and her consultations with her physician, she had
learned that the primer contained toxic chemicals which no
person should inhale, especially during pregnancy. In view
of this state of her information and belief, Ms. Rose was
entitled, in the judgment of the Hearing Officer, to have
Fenn accommodate her by providing her with a safe
working environment free from spray painting which would
be potentially dangerous to her fetus.
*5 The Hearing Officer's second principal conclusion was
that Fenn could have satisfied its statutory obligation to Ms.
Rose under Section 46a-60(a)(7)(E) by simply allowing her
to work elsewhere whenever spray painting was being done
in her area. The spray painting process, he found, took a
maximum of 2 to 3 minutes from start to finish and occurred
no more than twice each working day, with all potentially
hazardous fumes being safely cleared from the area through
the factory's ventilating system within 5 to 10 minutes of each
use. Thus Fenn could have accommodated any employee who
could not be exposed to the fumes by letting her do her work
elsewhere for less than 15 minutes once or twice each day.
As a stockroom coordinator, Ms. Rose already moved around
considerably in her job. Indeed, not only did nothing in her
job description require her to perform her work in one fixed
location, but for at least two months she had been allowed
to perform it elsewhere during spray painting. For those
reasons, the Hearing Officer concluded that Fenn's refusal to
so accommodate her was a discriminatory practice within
the meaning of Section 46a-60(a)(7)(E). On that basis he
entered orders that Fenn pay Ms. Rose damages and legal
interest as enumerated above.
On this appeal Fenn presents several related claims of
error: first, that the Hearing Officer employed incorrect legal
standards and made erroneous findings of fact in deciding that
Ms. Rose had a reasonable belief that continued employment
in her existing position might cause injury to herself and her
fetus; second, that the Hearing Officer employed incorrect
legal standards and made erroneous findings of fact in
deciding that Fenn failed to make a reasonable effort to
transfer [Ms. Rose] to any suitable temporary position which
may [then have] be[en] available for her; and third, that
the Hearing Officer exceeded his statutory authority when he

awarded back pay and damages for emotional distress to
Ms. Rose as a result of the acts here complained of. For the
following reasons, this Court dismisses this appeal insofar as
it challenges the Hearing Officer's finding that Fenn engaged
in a discriminatory practice in violation of Section 46a-60(a)
(7)(E) and decision that it should compensate Ms. Rose for
lost wages, but sustains the appeal insofar as it challenges
the Hearing Officer's decision to award her damages for
emotional distress.
I
General Statutes 46a-94a(a) provides that [t]he
commission, any respondent or any complainant aggrieved by
a final order of a presiding officer ... may appeal therefrom
in accordance with section 4-183.... General Statutes
4-183(a) provides that [a] person who has exhausted all
administrative remedies available within the agency and who
is aggrieved by a final decision may appeal to the superior
court as provided in this section. The Hearing Officer's
Decision is a final decision within the meaning of Section
4-183(a). Fenn is aggrieved by that Decision because it has
thereby been ordered to pay Ms. Rose money damages.
See, e.g., Hartford Federal Savings & Loan v. Tucker,
13 Conn.App. 239, 246 (1988). This Court therefore has
jurisdiction to decide this appeal.
II
*6 Judicial review of final agency decisions is governed by
General Statutes 4-183(j), which provides in pertinent part
as follows:
The court shall not substitute its
judgment for that of the agency as
to the weight of the evidence on
questions of fact. The court shall
affirm the decision of the agency
unless the court finds that substantial
rights of the person appealing
have been prejudiced because the
administrative findings, inferences,
conclusions, or decisions are: (1) In
violation of constitutional or statutory
provision; (2) in excess of the statutory
authority of the agency; (3) made
upon unlawful procedure; (4) affected

by other error of law; (5) clearly
erroneous in view of the reliable,
probative, and substantial evidence on
the whole record; or (6) arbitrary or
capricious or characterized by abuse
of discretion or clearly unwarranted
exercise of discretion.
Under this standard of review, findings of fact are to be
accorded considerable weight by the courts, Levinson v.
Connecticut Bd. of Chiropractic Examiners, 211 Conn. 508,
521 (1989), and the agency's decision must be affirmed unless
the findings are clearly erroneous based on the record or the
findings are arbitrary or capricious or characterized by abuse
of discretion. On appeal, the findings of the hearing officers,
as to the facts, if supported by substantial and competent
evidence, shall be conclusive. Bd. of Ed. v. CHRO, 176
Conn. 533, 539 (1979).
Substantial and competent evidence is that which carries
conviction. It is such as a reasonable mind might accept as
adequate to support a conclusion. It means something more
than a mere scintilla and must do more than create a suspicion
of the existence of the fact to be established. Id. at 538. The
court cannot adjudicate the facts, substitute its own discretion
for that of the tribunal or try the case de novo. Id. at 538-39.
On the other hand, cases presenting questions of law turning
upon the interpretation of statutes invoke a broader standard
of review. See, e.g., Board of Ed. of the Town of Avon v.
Connecticut State Employees Retirement Comm'n, 210 Conn.
531, 540 (1989). Thus it has generally been observed that
[c]onclusions of law reached by
a referee cannot stand ... if the
court determines that they resulted
from an incorrect application of the
law to the facts found or could
not reasonably or logically follow
from such facts (citations omitted)....
[W]e have recognized that our
standards of review in administrative
proceedings must allow for judicial
scrutiny of claims of constitutional
error, jurisdictional error, or error
in construction of an agency's
authorizing statute.
Finkelstein v. Administrator Unemployment Compensation

Act, 192 Conn. 104, 113 (1984). Where, especially, the
construction of a statute [is] on an issue that has not previously
been subjected to judicial scrutiny[, ...] an administrative
ruling is not entitled to special deference. Schlumberger
Technology Corporation v. Dubno, 202 Conn. 412, 423
(1987).
III
A
*7 Fenn's initial claim is that the Hearing Officer applied
an incorrect legal standard when he ruled that in late March
of 1983, when Ms. Rose walked away from her job to
avoid inhaling fumes from the zinc chromate primer, she
reasonably believed that continued employment in that job
might cause injury to herself or her fetus. Arguing that a
pregnant employee's honest, good faith belief that she or
her fetus is endangered by her working environment cannot
qualify as a reasonabl[e] belie[f] under Section 46a-60(a)
(7)(E) unless it is supported by objective, scientific proof
that the perceived danger is real and substantial, Fenn claims
that the Hearing Officer's failure to require such proof in
this case both violated the statute and created a dangerous
precedent.
According to Fenn, there are several important reasons why
the statute must be read to require objective, scientific proof
that the workplace actually poses a real and substantial
danger to maternal and fetal health before an employer's
statutory obligation to make a reasonable effort to transfer
a pregnant employee can be triggered. First, it argues that
the legislature's use of the term reasonable to qualify
the type of belief a pregnant employee must have to
invoke the statute's protections clearly indicates a legislative
intent to assess the legitimacy of the employee's belief by
objective standards. The failure, it claims, to give measurable,
identifiable content to those standards by tying them to
objective, scientific proof will effectively deprive them of
their objectivity, make them unknowable and unworkable,
and thereby unjustifiably expose even the most fair-minded
employers to unfounded claims of discrimination which they
will be powerless to anticipate and avoid. Thirdly, Fenn
argues that since an employer's statutory obligation may
be triggered either by the employee's or the employer's
reasonabl[e] belie[f] that continued employment in her
position may cause injury to the employee or her fetus, the

adoption of a less-than-objective reasonable-belief standard
will enable an unscrupulous employer to rid itself of its
pregnant workers on the pretense, unsupported by scientific
fact, that their continued employment might harm themselves
or their fetuses. Claiming that such a construction of the
statute would bring it into direct conflict with Title VII of
the Civil Rights Act of 1964, which has recently been held
to prohibit an employer's implementation of a fetal protection
plan without objective, scientific evidence to justify it, see
International Union, UAW v. Johnson Controls, 111 S.Ct.
1196, 1204 (1991), Fenn urges this Court to avoid such a
conflict, and thus to avoid the partial invalidation of this
statute, by reading an objective scientific proof requirement
into Section 46a-60(a)(7)(E).
The CHRO agrees that Section 46a-60(a)(7)(E) does not
require an employer to transfer a pregnant employee merely
because the employee has the honest, good faith belief that
she or her fetus will be endangered if she continues to work
in her present position. It argues, however, that the proper
standard for assessing the objective reasonableness of an
employee's belief that either she or her fetus will be so
endangered should not [be] that of the reasonable scientist,
but that of the reasonable employee. Brief of the CHRO
dated October 27, 1992 (hereinafter CHRO Brief), p. 9.
*8 The purpose of the statute, it argues, is to empower
pregnant women to make decisions of choice concerning
their own and their fetus's health based upon reasonable
factors. While such factors may surely include scientific
evidence, the absence of [such] evidence [should] not defeat
a finding of reasonable belief under the law. Id. Thus, when
a pregnant employee perceives a danger to herself or her fetus
in the workplace, she has the right to expect that her employer
will accommodate her by making a reasonable effort to
transfer her to any suitable temporary position that may then
be available for her as long as her belief in the existence
of that danger is one that other reasonable employees in her
circumstances would share. Were it otherwise, the CHRO
argues, the employee would be forced to make an intolerable
choice which our legislature sought to spare her: either to
stop working, at the risk of dismissal or demotion, in order
to protect her own health or that of her fetus; or to continue
working, at potentially lethal risk to herself and/or her fetus,
in order to preserve her income and benefits at the time she
needs them most. Human beings, it concludes, should not be
required to become human guinea pigs, suffering the very
harms the law entitles them to avoid, before [their] refusal
to work in the presence of hazardous substances can be found

reasonable. Id. at 9-10.
B
When interpreting and applying a statute, a court must first
examine the text of the statute to determine if its plain
language gives clear, unambiguous guidance as to the intent
of the legislators who enacted it. If it does, then the court
must apply the legislative enactment according to [its] plain
terms and cannot read into th[ose] terms ... something which
manifestly is not there in order to reach what the court thinks
would be a just result. Johnson v. Manson, 196 Conn. 309,
315 (1985), quoting Rosnick v. Aetna Casualty & Surety Co.,
172 Conn. 416, 422 (1977).
Whenever a statute expressly defines any term or phrase
used within it, that term or phrase must be construed and
applied in precise accordance with its statutory definition.
Plasticrete Block & Supply Corporation v. Commissioner,
216 Conn. 309, 315 (1985), cert. denied, 474 U.S. 1063
(1986). When, however, disputed statutory language is not so
expressly defined, its meaning must be ascertained by other
means reasonably designed to shed light on the legislators'
purpose for its use.
Those means, of course, may include an examination of the
statute's legislative history, an evaluation of the legal and
historical context in which the statute was first enacted, or
any other inquiry that may help to clarify the legislators'
understanding of their own words. Clearly, however, the
most reliable, effective method for discovering what the
legislators intended by their words is to derive the
words' usual and accepted meanings from sources presumably
known to the [legislators at the time,] including their [prior
or contemporaneous] use in other legal contexts and in
dictionary definitions. Johnson v. Manson, supra at 316-17,
quoting Commonwealth v. Zone Book, Inc., 372 Mass. 366,
369 (1977). Plainly recognizing the accuracy and utility of
this method, our legislature has expressly mandated its use by
enacting the following rules of construction, which are now
codified in General Statutes 1-1(a):
*9 In the construction of statutes,
words and phrases shall be construed
according to the commonly approved
usage of the language; and technical
words and phrases, and such as have
acquired a peculiar and appropriate

meaning in the law, shall be construed
and understood accordingly.
C
Because the term reasonable belief is not expressly defined
in the text of Section 46a-60(a)(7)(E), this Court must find its
meaning elsewhere. To that end, as previously noted, it must
first examine the full text of the statute to determine if the
correct meaning of that term is thereby clearly established.
Then, if ambiguity remains, it should resort to the standard
tools of statutory construction described in case law and
codified in General Statutes 1-1(a).
The text of Section 46a-60(a)(7)(E) gives much useful
guidance as to what the legislature intended when it
conditioned the availability of the statute's transfer remedy on
a pregnant employee's reasonabl[e] belie[f] that continued
employment in her current position may cause injury to
herself or her fetus. Of special note in this regard are three
distinct features of the statute's triggering mechanism.
The first of these is the use of the term belief to describe
the measure of conviction which the employee must have
as to the existence of a workplace danger before she can
invoke the statute's protections. A belief that one faces
a particular danger is clearly different from knowledge
that such a danger exists. Whereas knowledge, in common
parlance, is a subjective state of certitude as to a fact that
is demonstrably true, belief is but a firm commitment to
or acceptance of the truth of a given proposition, with or
without the corresponding ability to prove by any standard
that it is true. Though a person cannot know what he doubts
or cannot prove, he can readily believe it, notwithstanding
his uncertainties. Therefore, by expressly providing that an
employer's obligation to accommodate an employee under
this statute is triggered by the employee's reasonable belief
that continued employment in her current position may cause
injury to herself or her fetus, the legislature must be found
to have intended that pregnant employees should be entitled
the statute's protections even when they cannot prove, by
objective, scientific evidence or otherwise, that the dangers
they seek to avoid are real and substantial.
This conclusion is further supported by the statute's
substantive description of what an employee must believe
before she can invoke the statute's protections. She must,
to reiterate, believe that continued employment in [her

current] position may cause injury to [herself] or [her]
fetus. Id. (Emphasis supplied.) A belief that a particular
workplace danger may exist is obviously different from,
and even more uncertain than, a belief that such a danger
does exist. While the latter, as previously noted, suggests
a firm commitment to or acceptance of the truth of a given
proposition, the former suggests but an acceptance of the
realistic possibility that the proposition in question may be
true. By conditioning the operation of Section 46a-60(a)(7)
(E) on a pregnant employee's entertainment of such a lessthan-certain belief in the possible existence of a maternal
or fetal danger in the workplace, the legislature plainly did
not intend that her very uncertainty about the existence
of such a danger should defeat her right to relief. To the
contrary, the adoption of this lower standard suggests that the
legislature thereby intended to make the statute's protections
available to all pregnant workers who reasonably apprehend
a meaningful potential for danger to themselves or their
fetuses in the workplace. Fenn's argument that no such belief
should be deemed sufficient to invoke the statute's protections
unless it is supported by objective, scientific proof that the
danger sought to be avoided is real and substantial is simply
inconsistent with the statute's plain language.
*10 This conclusion is not altered by the legislature's use of
the term reasonable to qualify the sort of employee belief
which will trigger an employer's statutory obligations. For
though the parties agree that such qualifying language was
included in the statute to lessen employer exposure to baseless
requests for transfer and frivolous claims of discrimination by
requiring the evaluation of employee concerns for workplace
safety by an objective standard, there is nothing in the
statute to suggest that that standard must be tied to objective,
scientific evidence. Nowhere in the statute is there any
reference to such a requirement. Nowhere, in fact, does the
statute explicitly require that the employee's belief in the
possible existence of workplace danger be corroborated in
any way, much less that it be validated by information of a
particular type or quality, derived from a particular source,
and/or developed by a particular mode of inquiry. In sum,
apart from the word reasonable itself, the statute does not
describe or qualify the type of belief an employee must have
to invoke the statute's protections.
In common speech, the word reasonable means rational
and logical, based on reason rather than bias or surmise.
In the absence of other qualifying language in the statute,
it would therefore appear that the statute's remedies should
be available to any pregnant employee who rationally and

logically believes that she or her fetus may be injured if she
continues to work in her current position. Though such a
belief need not be based on objective, scientific proof that the
danger feared to exist is real and substantial, it must at least be
based on reason-that is, upon a rational and logical evaluation
of all the facts and circumstances which would have been
known to and taken into account by another reasonable person
in the employee's situation. If the employee's belief is one that
would be shared by other reasonable people in her situation,
it is a reasonabl[e] belie[f] within the meaning of Section
46a-60(a)(7)(E).
The foregoing, plain-language analysis of Section 46a-60(a)
(7)(E) is confirmed by our Supreme Court's longstanding
interpretation of the term reasonable belief in other
common-law and statutory contexts prior to the enactment of
Section 46a-60(a)(7)(E) by the 1979 Connecticut Legislature.
Because the term reasonable belief had thereby acquired a
peculiar and appropriate meaning in the law prior to 1979,
it should logically be given the same meaning in this statute
absent compelling evidence of a contrary legislative intent.
In tort law and in criminal law, the term reasonable belief
has long been used to define key elements of the defense of
self-defense. Thus it has long been held that a person who uses
physical force to defend himself against another person may
justify his conduct, and avoid all civil and criminal liability
therefor, by showing that the force he used was a reasonable
response to what he reasonably believed to be the other
person's use or imminent use of physical force against him.
*11 In this context, the question has sometimes arisen
whether a defendant who has employed force to defend
himself against a perceived danger that did not in fact exist
can legitimately maintain such a defense. Stated differently,
can a defendant's claimed belief in the necessity of using force
to counter another's supposed attack be held reasonable
when it is later shown that the other person neither attacked
him nor intended to attack him in the manner apprehended at
the time?
This, in fact, is the very question which our Supreme Court
of Errors addressed in Morris v. Platt, 32 Conn. 75 (1864),
a civil trespass action in which a defendant claiming selfdefense sought to overturn the trial court's judgment against
him based on the trial judge's failure to instruct his jury that
such a mistake, if reasonable, would not defeat his claim.
The Morris Court agreed with the defendant's position in the

following language:
A man who is assailed, and under such circumstances as
to authorize a reasonable belief that the assault is with
design to take his life, or do him extreme bodily injury
which may result in death, will be justified in the eye of
the criminal law if he kill his assailant, and in an action
of trespass, if he unsuccessfully attempt to kill him, and
he surviving brings his action, for the killing would have
been lawful and of course the attempt lawful; and no
man is liable in a civil suit or criminal prosecution for an
injury lawfully committed in self-defense upon an actual
assailant. Doubtless the question whether the belief was
reasonable or not, must, in either proceeding, be ultimately
passed upon by a jury; and the assailed judges at the time,
upon the force of the circumstances, when he forms and
acts upon his belief, at the peril that a jury may think
otherwise and hold him guilty. But in the language of Judge
Bronson, in the thoroughly considered case of Shorter v.
The People (2nd Comstock, 193), he will not act at the
peril of making that guilt, if appearances prove false, which
would be innocence if they proved true. And such is the
law as cited by Judge Swift (2 Swift Dig., 285), from
Selfridge's case, and as held on a careful review of all the
cases in Shorter v. The People, and in numerous other cases
which may be found cited there, and in Bishop on Criminal
Law, vol. 2nd, page 561, and it is the law of the land.
Morris v. Platt, supra at 83-84.
The upshot of the Morris decision, as our Supreme Court
would frequently reiterate in the 115 years between its
issuance and the passage of Section 46a-60(a)(7)(E), is that
the reasonableness of a person's belief depend[s] on the
situation as it reasonably appeared to [him] ... at the time [of
his acts] rather than on the circumstances actually existing.
Laffin v. Apalucci, 130 Conn. 153, 155 (1943). For as Justice
Hammersly cogently put it:
The right of self defense includes the
right of protection against a reasonably
apprehended danger; otherwise the
right of self-defense would in most
cases be an impotent right. A wellgrounded apprehension of danger,
as well as a certainly existing
danger, may justify a killing in selfdefense. The lawfulness of the act
is determined, not by the fact of an
actually existing danger, but by the

fact of an honest, reasonable and wellgrounded belief in its existence.
This conclusion is supported, moreover, by the relevant

Commentary of the Commission to Review the Criminal
Statutes, which on this topic made the following useful
observations:
*12 State v. Yanz, 74 Conn. 177, 186 (1901) (Hammersly, J.,

dissenting). Accord, Ford v. Glennon, 74 Conn. 6, 10 (1901)
(Such a necessity [as will justify the use of force in selfdefense] need not be a real one, if at the time it appeared to
be real to the person who did the injury.) Hanauer v. Coscia,
157 Conn. 49, 54 (1968) (A defendant is justified in acting
as he did if he acted on the reasonable belief that the plaintiff
intended to do him bodily harm whether or not the danger
which gave rise to the belief actually existed if, in resorting to
self-defense, he reasonably believed in the existence of such
a danger.)
In 1969, the Connecticut legislature incorporated most of
Connecticut's pre-existing common-law crimes and defenses
into a unified Connecticut Penal Code by the passage of
Public Act 69-828. Sections 16 through 23 of that Act,
which are now codified at General Statutes 53a-16 to
53a-23, carried forward into the Penal Code the defense of
self-defense and a host of related defenses which authorize
defendants to use reasonable physical force when they
reasonably believe that one or another particular sets of
Sections 53a-16 to 53a-23 state the

rules of law under which the use of
force is justified and thus not criminal.
For the most part they attempt to
restate the common law. They should
be read in the light of their common
law background, and the fact that an
individual section does not fully state
the relevant common law rule, with
all its pollible applications, exceptions
or implications, should not prevent a
court from reading it as incorporating
the full body of common law rules
relevant thereto.
28 C.G.S.A. at 219. Continuing, the Commission made
the following more particular note of the 1971 General
Assembly's insertion of the word reasonable into the
justification statutes before the phrase physical force:
The purpose of this insertion was
to emphasize that in all cases
contemplated by these sections the
reasonableness of the force used must
be judged objectively in the light of
all the circumstances then obtaining as
well as in the light of the actor's belief.
circumstances exists. 6
Though each of these statutes carefully delineates the
particular set of circumstances which a defendant must
reasonably believe to exist before he may assert a defense
thereunder, none in any way describes or defines what it
means to have such a reasonable belief. This, however, was
no mere oversight or omission, creating needless ambiguity
in a penal statute. To the contrary, it was a clear indication
that the term reasonable belief should be construed in
accordance with the peculiar and appropriate meaning it
had already acquired at common law. General Statutes
1-1(a). This is so for two reasons. First, it is a well established
rule of construction that, [n]o statute is to be construed
as altering the common law, further than its words import
[and that a statute] is not to be construed as making any
innovation upon the common law which it does not fairly
express. State v. Sanchez, 204 Conn. 472, 479 (1987),
quoting Shaw v. Rail Co., 101 U.S. 557, 565, 25 L.Ed. 892
(1879). That rule plainly applies to the justification statutes,
including, particularly Section 53a-19, defining self-defense,
since the term reasonable belief is simply used therein
without modification or refinment.
*13 Id.
Against this background, two conclusions are inescapable:
first, that the term reasonable belief was to be construed
in accordance with its settled common-law meaning; and
second, that in view of that construction, the reasonableness
of a defendant's belief was to be assessed in the light of
all of the circumstances then obtaining. If a reasonable
person in the defendant's circumstances would believe what
the defendant believed, his belief would be a reasonable
belief within the justification statutes. Otherwise, he would
not be able to maintain a defense thereunder.
Not surprisingly, in the years since the enactment of Sections
53a-16 to 53a-23, Connecticut courts have consistently
enforced the common-law standard in assessing the
reasonableness of a defendant's belief in the existence of
circumstances claimed to justify the use of physical force

in self-defense. The test, it has often been observed, is a
subjective-objective one. State v. DeJesus, 194 Conn. 376,
389 n. 13 (1984). It ... focuses on the ... defendant ... claiming
self defense. It focuses on what he reasonably believes under
the circumstances. State v. Corchado, 188 Conn. 653, 663
(1982). Self defense thus requires the trier of fact to measure
the justifiability of the defendant's actions from a subjective
perspective. State v. Hall, 213 Conn. 579, 586 (1990).
Ultimately, however, it requires that the defendant's belief be
found to be reasonable. State v. DeJesus, supra.
of the situation as it reasonably appeared to [her] ... at the

time ... rather than on the circumstances actually existing.
Laffin v. Apalucci, supra at 155. Under this definition, the
reasonableness of an employee's belief does not depend on
the depth of her personal conviction that she is in danger
or the degree to which she can prove she is in danger
based on objective, scientific evidence. Rather, as the CHRO
Hearing Officer correctly concluded, it depends on whether
a reasonable person in her situation would have shared her
belief she was in danger under all the circumstances she knew
or should have known at the time.
In assessing reasonableness, the Court recognizes that there

may be significant differences between what a defendant
reasonably believes and what is true in fact. As at common
law, however, this question is so resolved as not to punish
a person for mistaken impressions which others in like
circumstances would have shared. Thus the Appellate Court
has stated that in determining the reasonableness of a
defendant's belief,
Fenn, as previously noted, has presented no affirmative

evidence that the 1979 Connecticut Legislature intended to
alter the settled meaning of the term reasonable belief when
the danger or apparent danger claimed

by the defendant is to be determined
from his standpoint at the time of
the attack and under all the existing
circumstances, the act leading to the
defendant's claim of self-defense need
not be an actual threat or assault.
The test is not what the other
person actually intended but what the
aggressor's act caused the defendant to
reasonably believe was his intention.
State v. Hester, 28 Conn.App. 469, 473 (1992) (quoting with
approval the relevant instructions of the trial judge).
*14 The significance of these legislative enactments and
their subsequent interpretation for the purpose of this inquiry
can hardly be overstated. By making it clear, just eight
years before the passage of Section 46a-60(a)(7)(E), that the
term reasonable belief was to be construed in accordance
with its settled, common-law meaning, the legislature gave
overwhelming evidence that it should be so construed in
every other statute where compelling evidence of a contrary
intent does not appear. Because there is no evidence of a
contrary intent in the text of Section 46a-60(a)(7)(E), the
phrase reasonable belief must here be accorded the same
meaning it had at common law, to wit: a well-grounded
apprehension of danger, State v. Yanz, supra at 186, honestly
and reasonably entertained by the pregnant employee in view
it used that term in the text of Section 46a-60(a)(7)(E). 7

Instead, it has argued that that term should now be more
narrowly construed to require validation of an employee's
reasonable belief with objective, scientific proof in order to
avoid bringing the statute into conflict with Title VII of the
Civil Rights Act of 1964, as recently interpreted and applied
in International Union, UAW v. Johnson Controls, supra, a
1991 decision of the U.S. Supreme Court. Johnson Controls
focused on the permissible ways for dealing with fetal
hazards under federal anti-discrimination law. The Supreme
Court there held that Title VII, as amended, forbids sexspecific fetal protection policies. Johnson Controls, 111
S.Ct. at 1204. A state cannot mandate special treatment
of pregnant workers based on stereotypes or generalizations
about their needs and abilities. California Federal Savings
& Loan Ass'n v. Guerra, 479 U.S. 272, 285 n. 17 (1987).
In Johnson Controls, the High Court ruled that employers
cannot implement fetal protection plans designed to protect
the health of fetuses by preventing pregnant women from
working in jobs believed to be hazardous unless they can
point to objective, scientific proof that the hazard is real and
substantial.
Under Fenn's analysis, this Court's failure to read such an
objective, scientific-proof requirement into the triggering
mechanism of Section 46a-60(a)(7)(E) will require the
invalidation of that statute to the extent it authorizes
employers to transfer or dismiss pregnant workers without
objectively reliable proof of maternal or fetal danger. For the
following reasons, the Court is unpersuaded by this argument.
*15 First, though Section 46a-60(a)(7)(E) clearly requires
an employer to make a reasonable effort to transfer a
pregnant employee whenever either it or the employee comes
10
reasonably to believe that her continued employment in her

current position may cause injury to herself or her fetus, it
does not authorize the employer to force the employee from
her job against her will. The employee retains full control
over her decision whether or not to work for two reasons.
Initially, if she declines to inform her employer in writing
that she is pregnant, the statute's provisions simply do not
apply to her at all. One who wishes to preserve her privacy
and autonomy in matters of her own health and that of her
fetus thus may do so by her silence. Furthermore, though the
employer must make reasonable efforts to transfer her to a
suitable temporary position if she or it reasonably believes
that continued employment in her current position may cause
injury to herself or her fetus, nothing in the statute requires
her to accept a proposed transfer if one is offered to her. The
statute thus empowers workers who wish both to work during
pregnancy and to avoid maternal and fetal hazards in the
workplace to do so by having reasonable options to continue
working elsewhere to avoid those hazards. Unlike a fetal
protection plan, however, it does not deprive the pregnant
worker of the power to make her own ultimate assessment
of the relevant risks and available options if and when they
are identified. For that reason, this Court's decision not to
read a requirement of objective, scientific proof into Section
46a-60(a)(7)(E) cannot violate Title VII because it does not
in any sense deprive a pregnant woman either of her right to
work during pregnancy or her power to make personal choices
concerning the health and upbringing of her children. Johnson
Controls, supra at 1207.
Secondly, even if it were somehow determined that this
Court's interpretation of the reasonable belief requirement
of Section 46a-60(a)(7)(E) did conflict with Title VII, as
interpreted and applied in the Johnson Controls decision, the
only effect of that decision would be to invalidate that portion
of Section 46a-60(a)(7)(E) which authorizes involuntary,
employer-initiated transfers. Such a result would obviously
have no effect in this case, since here it is the employee herself
who sought a transfer and claims discrimination based on her
employer's failure to so accommodate her.
Thirdly, this is not a case in which the legislature can
fairly be thought to have anticipated a possible constitutional
conflict between the language it inserted in the statute and
the supervening terms of a federal statute or constitutional
provision, and thus to have intended a construction of
its words designed to avoid such a constitutional conflict.
Though the portion of Title VII construed in Johnson
Controls was enacted some 15 years before the passage of
Section 46a-60(a)(7)(E), the Johnson Controls decision broke

significant new ground under that statute, and came nearly 12
years after Section 46a-60(a)(7)(E) first became law. It cannot
reasonably be concluded that in passing Section 46a-60(a)(7)
(E), the General Assembly intended that its terms be read in
light of an unanticipated U.S. Supreme Court decision that
had not yet been issued.
*16 In sum, the Court concludes that Fenn's invocation
of the Johnson Controls decision is inapposite to Section
46a-60(a)(7)(E), both in general and as it applies to this case.
For that reason, the Hearing Officer's interpretation of the
term reasonable belief, as it is used in that statute, is both
correct and constitutional, and must stand.
IV
Fenn's next set of claims challenge the factual findings of
the Hearing Officer, both as to his ultimate conclusion that
Ms. Rose had a reasonable belief that continued employment
in her current position might cause harm to herself and her
fetus and as to certain of his preliminary factual findings on
which he based that conclusion. 8 In particular, it claims that
Ms. Rose's belief cannot be found to have been reasonable
when the record reveals that by the time she walked away
from her job she knew or should have known both that
the only chemicals she feared-halogenated and chlorinated
hydrocarbons-were not in the zinc chromate primer, and that
the area in which she worked was too large to make the
concentration of fumes to which she might be exposed reach
dangerous levels. Ms. Rose knew or should have known about
the absence of halogenated and chlorinated hydrocarbons
from the zinc chromate primer from two sources: the MSDS
she possessed and information received directly from Fenn
Safety Officer Richard Brooks. She knew or should have
known that the area in which she worked was too large for
the small amount of spray paint used in her area to harm her
because here as well, Mr. Brooks had so informed her based
on his own investigation and information he had received
from Travelers personnel.
The Court must first observe that findings of fact or failures
to find fact based on assessments of witness credibility will
not be disturbed on appeal. Conn. Light & Power Co. v.
DPUC, 216 Conn. 627, 639 (1990). Thus, even where the
administrative record contains uncontradicted testimony as to
the existence of a given fact, the Hearing Officer's failure to
find that fact must be understood as a discretionary decision
11
not to believe or accept the testimony of the witness instead

of an abuse of its sound discretion.
In fact, the scope of factual review on an administrative appeal
is very restricted. Bd. of Ed. v. FOIC, 208 Conn. 442, 452
(1988). The Court must not substitute its own judgment for
that of the agency, Lawrence v. Kozlowski, 171 Conn. 705,
707-08, cert. denied, 431 U.S. 969 (1977), and it must accord
considerable weight to the agency's determination of facts.
Levinson v. Connecticut Bd. of Chiropractic Examiners, 211
Conn. 508, 521, 560 A.2d 403, 410 (1989). On appeal, the
function of the court is [limited] to examin[ing] the record ...
to determine whether the conclusions reached are supported
by the evidence that was before [the agency]. O'Donnell v.
Police Comm., 174 Conn. 422, 415 (1978). An administrative
finding is supported by substantial evidence if the record
provides a substantial basis of fact from which the fact in
issue can be reasonably inferred. Lawrence v. Kozlowski,
171 Conn. at 713. The court must take into account [that
there may be] contradictory evidence in the record ... but
the possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency's
finding from being supported by substantial evidence. Huck
v. Inland Wetlands & Watercourses Agency, 203 Conn. 525,
542 (1987).
*17 On this record, there is substantial evidence to support
the Hearing Officer's finding that Ms. Rose's belief that she
or her fetus might be injured by her continued employment
in her current position was a reasonable belief which would
be shared by another, reasonable person in her situation. She
personally smelled the primer's fumes and had an adverse
reaction thereto. Then she consulted with her own doctor, as
would any reasonable person in her position, and was told
to stay away from aerosols and petroleum products of all
kinds, not just the halogenated and chlorinated hydrocarbons
mentioned in the booklet, A Doctor Discusses Pregnancy.
She then obtained the MSDS for the substance she was
concerned about, and again shared it with her doctor. Not
only did the MSDS explicitly warn against exposure to its
contents, but it specifically warned that the primer should
be kept away from children. In addition to raising her own
level of concern about inhaling the fumes from this dangerous
product, it obviously raised her doctor's concerns as well, for
thereafter he wrote two separate notes explaining that she
should not be exposed to hydrocarbons on the job, including,
explicitly, those contained in the zinc chromate primer.
Though the foregoing efforts were surely those of a

reasonable expectant mother, Ms. Rose went further,
obviously doing everything in her power as a layperson to
fully understand the true measure of risk associated with her
exposure to the primer. Upon making these efforts, however,
the most she could learn was that even if OSHA could conduct
a proper inspection of her area, it could not inform her what
level of exposure to the zinc chromate primer would present
an undue risk to a pregnant mother or her fetus. Hardly
relieved by that news, she reasonably concluded that a transfer
to another suitable temporary position was essential to protect
her unborn child from risks apparently associated with her
inhalation of the primer's fumes. Against this background, it
can surely not be stated that the Hearing Officer's finding was
clearly erroneous or characterized by an abuse of his sound
discretion.
As for Fenn's more narrow challenges to the Hearing Officer's
findings of fact, it must first be noted that the Hearing Officer
made no finding that Mr. Brooks actually advised Ms. Rose
of his own or the Travelers inspector's findings that her health
would not be in danger because the concentration of fumes
in her area would be too low to affect her. Even, however, if
such a finding had been made, there would be nothing in such
a communication so powerful, convincing or informative as
to disabuse a reasonable expectant mother in Ms. Rose's
situation of her reasonable belief that continued exposure to
those fumes would endanger herself or her fetus, whether or
not they contained halogenated or chlorinated hydrocarbons.
Weighted against the continuing, seemingly informed advice
of her doctor, who had seen the MSDS and was aware of
the primer's contents, the assurances of a potentially selfinterested agent of her employer, unsupported by anything
more than hearsay from an inspector who had not seen her
department in operation during spray painting, could hardly
have had much persuasive force.
*18 For all of the foregoing reasons, the Court finds that
the Hearing Officer's finding of reasonable belief must be
sustained.
V
Fenn next claims error in the Hearing Officer's determination
that upon learning of Ms. Rose's reasonable belief in the
possible existence of work place danger to herself or her fetus,
it violated her rights under Section 46a-60(a)(7)(E) by failing
to provide her with a safe working environment free from
12
spray painting. It objects, more particularly, to the Hearing

Officer's conclusion that it could and should have satisfied its
statutory obligation to Ms. Rose by permitting her to work
away from her normal work station during spray painting.
Under Section 46a-60(a)(7)(E), Fenn argues, its only
obligation to Ms. Rose upon learning of her above-described
reasonable belief was to make a reasonable effort to
transfer [her] to any suitable temporary position which
may [then have] be[en] available for her. To satisfy this
obligation, it claims, it need only have made an effort which
was reasonable under all the circumstances to place Ms.
Rose temporarily in any position which was both suitable
for her and available to her at the time.
A position, Fenn argues, is a job. A position is suitable
for a pregnant employee when, in view of her qualifications
and current job specifications, she can be placed in that
position without compromising her employer's business
needs or unduly disrupting the terms and conditions of her
existing employment. A suitable position is available' for the
employee if it actually exists and is open to be filled by her in
the relevant time frame. Therefore, Fenn claims, an employer
cannot be found to have violated its statutory obligation to a
pregnant employee without proof and a proper finding that it
failed or refused to place her in some open, existing job which
was substantially similar to her existing job.
In this case, Fenn contends, the Hearing Officer erred by
ruling that it violated Ms. Rose's statutory rights without first
finding, or having any evidentiary basis upon which to find,
that some suitable temporary position was actually available
for her at the time she walked away from her job. Indeed, it
claims that the Hearing Officer expressly declined to make
such a finding when he made the following observation:
Based upon the factual evidence presented here it was not
necessary for the Respondent to find a suitable temporary
position for Mrs. Rose. It was only required to relocate
physically her assigned work place or allow her to leave
the room while spraying was taking place at least until the
air cleared of all toxic fumes.
Decision at 22. This observation, Fenn argues, is clear
evidence that the Hearing Officer based his ruling on an
overbroad interpretation of its statutory obligation. As a
result, it contends, it has been faulted for refusing to do
something which the statute clearly did not require it to do.
*19 Had the correct legal standard been employed, Fenn

argues, the Hearing Officer would necessarily have concluded
that it did not violate the statute, for the evidence of record
does not show that any suitable temporary position was in fact
available for Ms. Rose. Indeed, it claims, Ms. Rose herself so
testified, and the CHRO offered no evidence to the contrary.
For all of these reasons, Fenn insists that the Hearing Officer's
determination that it violated Ms. Rose's statutory rights must
be reversed.
The CHRO implicitly agrees with Fenn that an employer
cannot be found to have violated its statutory duty to a
pregnant employee under Section 46a-60(a)(7)(E) without
proof and a proper finding that some suitable temporary
position was actually available for her at the time she sought
to avoid exposure to workplace danger. It disagrees, however,
with Fenn's contention that the Hearing Officer neither
found nor could have found that such a suitable temporary
position actually existed at the time of Ms. Rose's original
complaint in this case. To the contrary, it contends that the
modified version of Ms. Rose's existing job, in which she had
previously worked outside her normal work area during spray
painting, was just such a suitable temporary position.
The CHRO bases its argument on its reading of the statutory
term position to mean either a job, in the ordinary sense
of that word, or the physical location in which a job is
performed. With that definition in mind, it argues that there
are two types of suitable temporary position to which an
employer may appropriately attempt to transfer a pregnant
employee to satisfy its obligation to accommodate her under
Section 46a-60(a)(7)(E): either a different job with different
duties, or the same job performed in a different physical
location.
Here, the CHRO argues, the Hearing Officer properly ruled
that Fenn's failure to grant Ms. Rose permission to leave
her normal work area during spray painting constituted
a violation of its statutory duty under Section 46a-60(a)
(7)(E) for the following reasons. First, the granting of
such permission for a maximum of 10-15 minutes each
working day would not in any way have compromised Fenn's
legitimate business needs. Ms. Rose, it claims, moved around
considerably in her job, and the record contains no evidence
that the granting of such permission had ever detracted or
would ever detract from her own job performance or the
efficient operation of her department. Second, the making of
this minimal accommodation would have alleviated Ms.
Rose's legitimate fears of workplace danger, and thus have
13
enabled her to continue working throughout her pregnancy.

On this basis, the CHRO argues, Fenn's refusal to so
accommodate Ms. Rose was properly held to have violated
her rights under Section 46a-60(a)(7)(E).
A
To resolve the parties' conflict as to the true nature of an
employer's duty to accommodate a pregnant employee under
Section 46a-60(a)(7)(E), the Court must first examine the
text of that previously uninterpreted statute. There it finds,
as the parties have agreed, that an employer's only duty to a
pregnant employee upon learning of her reasonable belief in
the possible existence of workplace danger to herself or her
fetus if to make a reasonable effort to transfer [her] to any
suitable temporary position which may [then] be available
for her. Id.
*20 So phrased, the statute obviously does not impose on
employers either a general duty to protect their pregnant
employees from workplace danger or a specific duty to
move them out of potentially dangerous positions during
their pregnancies. Instead, by explicitly providing that the
only remedy an employer must make a reasonable effort to
afford its employee is a transfer to any suitable temporary
position which may be available for her, the statute plainly
contemplates that in certain cases no such accommodation
need be made. Where, more particularly, it appears that no
suitable temporary position is available for the employee
despite her employer's reasonable effort to find her one, the
employer need not take any other action to accommodate the
employee because the statute, quite simply, does not require
it. The statute thereby seeks to strike a fair balance between
the employee's powerful interest in avoiding workplace
danger during pregnancy and the employer's legitimate need
to maintain efficiency in the operation of its workplace.
Against this background, the true measure of an employer's
compliance with Section 46a-60(a)(7)(E) must be the
reasonableness of its effort to transfer the employee to any
suitable temporary position which may be available for her.
Though the term reasonable effort is not defined in the
statute and has not yet been construed by our courts, its
meaning can readily be gleaned from the text of the statute
itself.
An effort, in common parlance, is an attempt to accomplish
a definite goal or purpose. A reasonable effort must
therefore be the kind of effort which a reasonable person in

the actor's situation would rationally and logically make to
accomplish that goal or purpose.
Because the goal or purpose prescribed by Section 46a-60(a)
(7)(E) is totransfer the pregnant employee to any suitable
temporary position which may be available for her, a
reasonable effort to accomplish that goal or purpose must
logically be made in two stages. First, the employer must
make a reasonable effort to identify any suitable temporary
position which may then be available for the employer in its
workforce. Second, if this initial reasonable effort leads to the
identification of a temporary position which is both suitable
for the employee and available to her, it must take immediate
steps to place the employee in that position.
The Court agrees with Fenn that the term position, as used
in Section 46a-60(a)(7)(E), means a job. This is because in
another part of the same Public Act by which that subsection
became law, the terms position and job were expressly
equated as follows:
[It shall be a discriminatory practice
for an employer, by himself or
his agent,] to fail or refuse to
reinstate ... [a pregnant] employee
[who has taken a pregnancy-related
leave of absence] to her original
job or to an equivalent position
with equivalent pay and accumulated
seniority, retirement, fringe benefits
and other service credits....
*21 Conn.Gen.Stat. 46a-60(a)(7)(D) (emphasis added).
By making such interchangeable use of the terms job and
position, and ascribing to each the common characteristics
of a job, in the ordinary sense of that word, the enactors
of Section 46a-60(a)(7)(E) gave clear notice that those terms
should be given a common meaning whenever they were used
in the statute.
The Court also agrees with Fenn, as does the CHRO, in
its analysis of the terms suitable and available, as they
are used in the statute. Consistent with the Legislature's
manifest intent to strike a fair balance between the reasonable
interests of employers and employees alike in fashioning
appropriate employer responses to reasonable employee
beliefs in the possible existence of workplace danger, the
suitability of any position to which the employee may
appropriately be transferred must obviously be assessed from
14
two perspectives. From the employer's perspective, a position

is suitable for the employee if she is capable of performing
all of the tasks associated with it in a manner that suits its
business needs. From the employee's perspective, a position
is suitable if her placement in it will not unduly disrupt the
terms and conditions of her existing employment. Therefore,
just as an employer cannot satisfy its statutory obligation
by attempting to transfer a pregnant employee to a position
whose terms, conditions and essential job requirements are
not substantially similar to her own, it cannot be faulted for
failing to offer her such a demonstrably unsuitable position
even if it is available for her in the relevant time frame.
A position is available for the pregnant employee if, as the
parties agree, it actually exists and is open to the employee
at the time she harbors her reasonable belief. The inclusion
of this limitation in the statute gives clear notice that an
employer need not create a wholly new position for a pregnant
employee, even if that position would be suitable for her.
Notwithstanding the Court's agreement with Fenn as to
the meanings of the foregoing statutory terms, it agrees
with the CHRO that an employer can satisfy its statutory
duty to its employee by making a reasonable effort to
transfer her either to an entirely different position in its
workforce which is both suitable and available for her,
or to a modified version of her existing position which is
no less suitable and available for her. The latter, like
the former, is obviously a position-that is, a job with a
definite set of responsibilities associated with it. It will be
suitable for the pregnant employee as long as it is so
structured as to enable her to perform all of her assigned tasks
competently and efficiently, for its terms and conditions are
obviously identical to those of her existing position. Finally,
a modified version of the employee's existing position will
be available for the employee as long as her existing
position is sufficiently flexible to permit the modification
in question without compromising her employer's business
interests. The recognition of flexibility in an employee's
existing job does not constitute the creation of an entirely
new job, which the statute does not require. Instead, it must
fairly be deemed to constitute the transfer of the employee
to a suitable temporary position which is available to the
employee because it exists, she already occupies it, and it can
properly be performed in a modified manner.
*22 In view of the foregoing analysis, an employer's
reasonable initial effort to find its employee a suitable
temporary position to which she might appropriately be
transferred under Section 46a-60(a)(7)(E) must include the

following steps. First, the employer must closely examine
the employee's existing position to determine whether or not
there is sufficient flexibility in it to permit her to perform
her assigned tasks in a modified manner without either
compromising her job performance or exposing herself and
her fetus to the workplace danger she reasonably seeks to
avoid. If such a modified version of her existing position
can be so identified, the employer must immediately make it
possible for her to be placed in that position until the danger
she fears has been eliminated or her pregnancy is at an end.
If the employee's existing position is not sufficiently flexible
to permit such a temporary modification of it to accommodate
her reasonable belief in the possible existence of workplace
danger, the employer must next attempt to determine if a
different suitable temporary position is currently available
for her in its workforce. To that end, it must first examine
its entire workforce to determine what positions are or may
soon become available for the pregnant employee. Then
it must decide if any such position might be suitable for
her by comparing the employee's known qualifications and
credentials and the terms and conditions of her existing
position with the minimum qualifications for and terms and
conditions of any available position to which she might
appropriately be transferred. Only by conscientiously making
such a thorough, good faith effort to find an appropriate
match between the pregnant employee and any position
which is or may become available for her can the employer,
which is uniquely well positioned to know its own workforce
and to assess its own business needs, make a meaningful
determination whether a suitable temporary position is
actually available for the pregnant employee in the relevant
time frame. Because an employer's failure or refusal to make
such a reasonable initial effort to find its pregnant employee
a suitable temporary position will make it difficult at best
for an employee to prove that such a position was in fact
available for her, an employer which fails to make such an
effort must be held to have violated its statutory duty to the
employee no less than an employer which fails or refuses
to place its employee in a suitable temporary position which
clearly existed.
B
In this case, then, there are two independent bases upon which
the Hearing Officer's finding that Fenn violated Ms. Rose's
rights under Section 46a-60(a)(7)(E) must be upheld. First,
15
the record clearly supports the Hearing Officer's essential

finding that Fenn made no effort whatsoever to find Ms.
Rose a suitable temporary position in its workforce. Having
come to the firm view that Ms. Rose's belief in the possible
existence of workplace danger was baseless, it devoted
considerable energy to disabusing her of that belief, but never
once gave ground on its basic position, most clearly voiced
by Mr. Brooks in his last meeting with her: If you can't work
in your department, you can't work at Fenn.
*23 It is doubtless true that Fenn's supervisory and industrial
relations personnel were thoroughly convinced that Ms. Rose
could not reasonably have believed what she claimed to
have believed concerning the possible existence of workplace
danger, despite her express reliance on the MSDS, the
primer's label and the repeated advice of her obstetrician. Still,
by committing itself to resisting her every effort to seek a
safe alternative to working in her existing position, it took
the calculated risk that its unyielding resistance would later
be treated as a total failure to make any effort, much less a
reasonable effort, to transfer her to any suitable temporary
position which may then have been available for her. Even,
then, if the record in this case contained no evidence that
such a suitable temporary position was available for Ms. Rose
when she walked away from her job, the Court would be
unable and unwilling to draw the conclusion that no such
position could ever have been found. In sum, because the
record clearly shows that Fenn failed to make even the most
preliminary effort to find Ms. Rose a suitable temporary
position in its workforce, the Hearing Officer's finding that it
violated Ms. Rose's statutory rights under Section 46a-60(a)
(7)(E) must be upheld.
The second basis upon which the Hearing Officer's finding
of a statutory violation must be upheld is that the record
amply supports his alternative finding that Fenn failed to
place Ms. Rose in a suitable temporary position which in
fact was available for her. That position, of course, was the
modified version of Ms. Rose's existing position in which,
in the early months of her pregnancy, Fenn had admittedly
permitted her to work away from her normal work station
when the zinc chromate primer was being used to spray
paint aircraft parts in her work area. That job, as the Hearing
Officer correctly found, was sufficiently flexible to permit
such a minor adjustment without in the least bit compromising
Fenn's legitimate business interests. It was a job she could
perform competently and without disrupting the work of her
department, for she had done so without incident from late
November of 1982 through late February of 1983. It was a job,
moreover, in which she already moved around considerably.

Had Fenn relented by simply granting her the continuing right
to work away from her desk a short 10-15 minutes each day, it
would not only have alleviated her legitimate concerns for the
health and safety of herself and her fetus, but in the bargain
would have retained the competent services of a competent,
qualified employee for at least three months.
In conclusion, this modified version of Ms. Rose's existing
position was clearly both suitable for her and available to
her in the final months of her pregnancy. Fenn's refusal to
transfer her to that suitable temporary position constituted
a clear violation of Section 46a-60(a)(7)(E). Therefore, the
Hearing Officer's finding that Fenn should have placed her in
that position to fulfill its statutory duty should be upheld.
VI
*24 Fenn's final two claims of error relate to the Hearing
Officer's awards of damages to Ms. Rose for the wages she
lost and the emotional distress she suffered as a result of
its failure to make a reasonable effort to transfer her to a
suitable temporary position, and her resulting decision to
walk away from her job to protect the health of her fetus. Both
claims arise under Section 46a-86 of the Connecticut General
Statutes, which provides in pertinent part as follows:
(a) If, upon all the evidence presented at the hearing
conducted pursuant to section 46a-84, the presiding officer
finds that a respondent has engaged in any discriminatory
practice, the presiding officer shall state his findings of fact
and shall issue and file with the commission and cause to be
served on the respondent an order requiring the respondent
to cease and desist from the discriminatory practice and
further requiring the respondent to take such affirmative
action as in the judgment of the presiding officer will
effectuate the purpose of this chapter.
(b) In addition to any other action taken hereunder, upon
a finding of a discriminatory employment practice, the
presiding officer may order the hiring or reinstatement
of employees, with or without back pay, or restoration
to membership in any respondent labor organization,
provided, liability for back pay shall not accrue from
a date more than two years prior to the filing or
issuance of the complaint and, provided further, interim
earnings, including unemployment compensation and
welfare assistance or amounts which could have been
earned with reasonable diligence on the part of the person
16
to whom back pay is awarded shall be deducted from the

amount of back pay to which such person is otherwise
entitled. The amount of any such deduction for interim
unemployment compensation or welfare assistance shall
be paid by the respondent to the commission which shall
transfer such amount to the appropriate state or local
agency.
(c) In addition to any other action taken hereunder,
upon a finding of a discriminatory practice prohibited
by section 46a-58, 46a-59, 46a-64, 46a-64c, 46a-81b,
46a-81d or 46a-81e, the presiding officer shall determine
the damage suffered by the complainant, which damage
shall include but not be limited to the expense incurred by
the complainant for obtaining alternate housing or space,
storage of goods and effects, moving costs and other costs
actually incurred by him as a result of such discriminatory
practice and shall allow reasonable attorney's fees and
costs.
those in which the remedies of hiring or reinstatement are also

ordered. Insisting that this is not a case involving a claim of
wrongful discharge or failure to hire, Fenn concludes that the
Hearing Officer exceeded his statutory authority by awarding
back pay to Ms. Rose.
The CHRO responds that the provisions of Section 46a-86(a)
and (b), read individually or together, create a broad right
in the employee to be returned to the economic status she
would have had had it not been for the discriminatory
conduct of her employer. Subsection (b) thus specifically
acknowledges the propriety of awarding back pay to remedy
proven employment discrimination, and the affirmative
action language of subsection (a) has been held to be broad
enough to authorize what the CHRO describes as both back
pay and front pay in the case of State v. CHRO, 211 Conn.
464, 478 (1989). For the following reasons, the Court agrees
with the CHRO that the awarding of back pay is indeed a
proper remedy in this case.
The Connecticut Supreme Court has long held that under
Section 46a-86(a), a CHRO hearing officer who finds that an
employer has discriminated against its employee must
A
With respect to the Hearing Officer's decision to award Ms.
Rose back pay, Fenn's argument under Section 46a-86 is
presented in two parts. First, it argues that because special
provision for the awarding of back pay is made in the text
of subsection (b) of the statute, the parallel, affirmative
action remedy provided for in subsection (a) of the statute
cannot be read to give rise to an independent right to back
pay under circumstances not covered by subsection (b).
A contrary conclusion, Fenn contends, would violate the
fundamental maxim of statutory construction that no word
or phrase used in a statute should be so construed as to give
it no independent purpose or meaning in the statute. If the
affirmative action language of subsection (a) were read to
authorize the awarding of back pay, it claims, the separate
back pay provisions of subsection (b) would have no meaning
or purpose.
*25 The second part of Fenn's argument is that the text
of subsection (b) of Section 46a-86 expressly restricts the
awarding of back pay to cases in which the discriminatory
practice to be remedied involves the wrongful discharge of
an employee or the wrongful failure to hire a qualified job
applicant. This is so, it claims, because the only circumstances
in which the statute authorizes the awarding of back pay are
render a decree which will, so far as possible, eliminate

the discriminatory effects of the past as well as bar like
discrimination in the future, Wroblewski v. Lexington
Gardens, Inc., [188 Conn. 44,] 66-67 (Parskey, J.,
dissenting); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975).
Civil Service Commission v. CHRO, 195 Conn. 226, 231
(1988). Ideally, of course, this means to restore [the
employee] to the position he would have attained absent
the unlawful discrimination. Id. at 230. Where, however,
such relief can only be afforded by the creation of a
new position or the bumping of an innocent beneficiary of
unlawful discrimination from his or her job, the hearing
officer must find other ways to remedy the discrimination,
including, where appropriate, the granting of retroactive and
prospective monetary relief. Id. at 230.
Applying these principles to the case before it, the Court in
Civil Service Commission v. CHRO struck down the order of a
CHRO hearing officer which required the City of Waterbury
to create a new fire lieutenant's position for a firefighter who
was not promoted to such a position when the City used a
discriminatory tie-breaking method to choose between him
and another employee for the job. Instead, it ordered that the
case be remanded to the hearing officer who decided it so
17
that he could determine what other relief might appropriately

be awarded under the circumstances to keep the complainant
on a par with the other employee who got the job. Id. at
231. In so doing, the Court recognized that a major portion
of the relief, which the hearing officer might originally have
considered awarding to the complainant would no longer
appropriate, for in the interim the complainant had been
promoted to captain. Still, the Court declined to rule that the
case was entirely moot, for the complainant had made certain
claims for monetary relief, and those claims remain[ed]
unresolved. Id. at 232, n. 4.
*26 The special significance of this case is that it explicitly
recognized the appropriateness of awarding back pay or pay
differentials to remedy proven employment discrimination
where such relief is necessary to put a victim of employment
discrimination on a par with other similarly situated
employees who have suffered no such discrimination.
Because, more particularly, it authorized the granting of such
relief in a case not involving either a wrongful termination
or a wrongful failure to hire, it directly undermines Fenn's
argument that back pay can only be awarded in such cases.
By a similar logic, the Supreme Court subsequently upheld
a CHRO hearing officer's decision to award monetary relief
to a male retiree whose pension benefits in the early years
of his retirement were unlawfully made lower than those
of similarly situated female retirees by using a sex-based
actuarial table. State v. CHRO, supra. Holding that the relief
therein ordered, including the payment to the complainant
of all monies he would have received had his benefits
been calculated properly by using a unisex actuarial table,
was plainly command[ed] by the mandatory language of
Section 31-127, now codified at Section 46a-86(a), State v.
CHRO, supra at 481, the Court explained the logic of its
decision as follows:
The relief is intended to restore those wronged to their
rightful economic status absent the effects of the unlawful
discrimination.... We are under a duty to render relief which
will eliminate the discriminatory effects of the past as
well as bar like discrimination in the future. Louisiana
v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822,
13 L.Ed.2d 709 (1966).... (Citations omitted.) [Rosen
v. Public Service Electric & Gas Co., 477 F.2d 90 (3d
Cir.1973).]
State v. CHRO, supra at 484. This case, then, like Civil
Service Commission v. CHRO, provides strong support for
the proposition that regardless of the context, a victim of
unlawful employment discrimination is entitled to monetary

relief to restore [her] to [her] rightful economic status absent
the effects of the unlawful discrimination. Id. Whether
the wrong has been done by terminating the employee,
refusing to hire her in the first place, or otherwise, monetary
relief may appropriately be ordered either to eliminate
the discriminatory effects of the past ... [or to] bar like
discrimination in the future. Id. (Citation omitted.)
This reading of subsection (a) of Section 46a-86 does
not render meaningless the limiting language of Section
46a-86(b). Read together, the two subsections must fairly be
understood to place a two-year limit on the maximum period
for which back pay can be awarded, and otherwise to require
that deductions be made from any back pay award for any
interim earnings which the employee either received or could
have received in that two-year period from any of the sources
listed in the statute. Otherwise, however, the Supreme Court's
prior interpretations of Section 46a-86(a) plainly refute Fenn's
argument that back pay can only be awarded to an employee
who has been wrongfully terminated or wrongfully refused
employment in the first place.
*27 The question thus becomes whether or not Ms.
Rose's lost wages are so fairly attributable to Fenn's proven
discriminatory conduct as to justify the Hearing Officer's
decision to award them. For the following reasons, the Court
concludes that such damages were appropriately awarded to
restore [Ms. Rose] to ... [her] rightful economic status absent
the effects of the unlawful discrimination.
Fenn, of course, has argued that Ms. Rose's decision to walk
away from her job was an unjustifiable response to working
conditions which she could not reasonably have believed
to be unsafe for herself or her fetus. This Court, however,
has already found that since she was entirely justified in
entertaining that belief, and thus was entitled to have Fenn
make a reasonable effort to transfer her to any suitable
temporary position which may have been available for her,
Fenn's refusal to make such an effort was an unjustifiable act
of discrimination under Section 46a-60(a)(7)(E).
A reasonable pregnant employee in Ms. Rose's situation,
having repeatedly requested help from her supervisors,
formally pursued a grievance through her union, and invoked
the statute's protective provisions throughout her futile,
months-long effort to resolve her serious concerns about
potential workplace danger to her fetus, could have done
no more than she did to find a satisfactory way to continue
18
working without unreasonably endangering her fetus. Ms.

Rose's ultimate decision to leave Fenn can only be understood
as the direct and predictable result of Fenn's discriminatory
conduct. Had she stayed at her job, she would have continued
to work through early July of 1983, as the record clearly
shows and the Hearing Officer properly found. The Court
therefore concludes that the Hearing Officer's decision to
award back pay was well justified in this case. Indeed, it is
the only reasonable way to restore Ms. Rose to the economic
status she would have had had she been allowed to continue
working during the final months of her pregnancy. Fenn's
argument to the contrary is without merit.
B
Fenn's final claim of error is that the Hearing Officer
exceeded his statutory authority by awarding damages to
Ms. Rose for emotional distress. On this score, it presents
three basic arguments. First, because subsection (c) of Section
46a-86 explicitly requires a CHRO hearing officer who
finds a discriminatory practice under one of seven listed
anti-discrimination statutes, not including Section 46a-60, to
determine the damage suffered by the complainant, which
damage shall include ... [all] costs actually incurred by him
as a result of such discriminatory practice ..., comparable
damages, including compensatory damages for emotional
distress, cannot be awarded under the affirmative action
provision of Section 46a-86(a) to remedy any other type
of discriminatory practice. This conclusion, it argues, is
supported not only by the parallel construction of subsections
(a) and (c) of Section 46a-86, but by the Legislature's
refusal on at least two occasions to extend the remedy of
compensatory damages beyond its current scope.
*28 Fenn's second argument is that even without the clear
restriction of compensatory damages to designated situations
made obvious by the parallel construction of subsections (a)
and (c) of Section 46a-86, the affirmative action provision
of subsection (a) cannot be read to authorize the awarding of
damages for emotional distress because the nearly identical
remedy provisions of Title VII, to which Connecticut looks
for guidance, have been authoritatively construed to deny
such relief. See, e.g., United States v. Burke, 112 S.Ct. 1867,
1873 (1992); Carrerra v. New York City Housing Authority,
890 F.2d 569, 581 (2d Cir.1989); Walker v. Ford Motor Co.,
684 F.2d 1355, 1364 (11th Cir.1982).
Thirdly, Fenn argues that relevant Connecticut case law

supports its position on this subject notwithstanding the
claims of the CHRO that the opposite is true. In particular,
Fenn notes that the case on which the CHRO places primary
reliance for a broad interpretation of the statute-State v.
CHRO, supra -does not speak to the issue of compensatory
damages, much less lay the theoretical groundwork for
awarding them to a victim of employment discrimination.
The CHRO responds to these arguments with several counterarguments of its own. First, it contends that the Court
should give weight to the longstanding practice of CHRO
Hearing Officers to award damages for emotional distress
in employment discrimination cases. This practice, it claims,
sheds useful light on how the agency which is charged with
enforcing the statute has construed it. See State ex rel. James
v. Rapport, 136 Conn. 177, 182 (1949); Cairns v. Shugrue,
186 Conn. 300, 309-10 (1982).
Secondly, the CHRO argues that the affirmative action
language of Section 46a-86(a) is indeed broad enough, by
its very nature, to authorize the awarding of damages for
emotional distress. By requiring compensation for emotional
injuries, it argues, the Hearing Officer can ease the hurt and
pain of unlawful discrimination, and thereby accomplish part
of the remedial purpose of the antidiscrimination laws. CHRO
Brief at 27. Ms. Rose, it concludes, suffered real injury; she
[therefore] should be awarded real damages. Id.
The parties to this case have directed much of their time
and energy to this hotly contested issue. In their advocacy,
they have advanced many important reasons why damages
for emotional distress should and should not be awarded by a
CHRO Hearing Officer deciding an unlawful discrimination
claim.
Ultimately, however, this Court cannot resolve this question
based on considerations of policy, for that is the task of the
Legislature. Instead, the Court's sole mission must be to learn
what the Legislature intended and to enforce that intent rather
than to substitut[e] its own ideas of what might be a wise
provision in place of a clear expression of legislative will.
Penfield v. Jarvis, 175 Conn. 463, 474-75 (1978).
A review of General Statutes 46a-86 makes it clear that
the only subsection of that statute which could conceivably
be construed to authorize the Hearing Officer's award of
damages for emotional distress is subsection (a). Subsection
(b) of the statute clearly applies to employment discrimination
19
claims, but makes no reference of any kind to damages

for emotional distress or any other kind of compensatory
damages. Subsection (c), by contrast, explicitly authorizes the
awarding of compensatory damages, but equally explicitly
limits their availability as a remedy to a very small number
of discrimination claims not including claims of employment
discrimination.
*29 The question thus arises, here as with the issue
concerning the Hearing Officer's decision to award back pay,
whether subsection (a)'s general language authorizing the
Hearing Officer to issue an order requiring the respondent ...
to take such affirmative action as in the judgment of the
hearing officer will effectuate the purposes of this chapter
must be read not to include an authorization of compensatory
damages, for emotional distress or other losses, because of
subsection (c)'s express restriction of the availability of such
damages to other contexts. This Court agrees with Fenn that
such a limitation must indeed be read into Section 46a-86(a),
for otherwise subsection (c) of Section 46a-86 would have no
independent meaning or purpose.
Though the Court puts no stock in failed legislative efforts
to extend the scope of its compensatory damages remedy
to all types of discrimination, it notes with interest that a
recent effort has successfully been made to add particular
types of discrimination for which compensatory damages
may be awarded. In Public Act 91-58, the General Assembly
amended Section 46a-86(c) to include within its coverage
discriminatory practices prohibited by Sections 46a-81b,
46a-81d and 46a-81e. This amendment was significant for
several reasons. First, it demonstrated that the legislators felt
it necessary to include these provisions explicitly within the
protective scope of Section 46a-86(c). Had they believed,
as the CHRO argues, that the protections therein extended
were already extended under the general language of Section
46a-86(a), they need never have passed the amendment, for it
would have been mere surplusage.
Secondly, and of even greater significance, the legislators, by
their amendment, necessarily excluded from the coverage of
Section 46a-86(c) any discriminatory practice prohibited by
Sections 46a-81c and 46a-81f. This is so because Sections
46a-81c and 46a-81f, like Sections 46a-81b, 46a-81d and
46a-81e, all became law for the very first time by the
passage of Public Act 91-58. The Legislature's decision to
differentiate among them, including some within the purview
of Section 46a-86(c) and excluding others by omission,
conclusively demonstrates its fixed intention to restrict the
scope of Section 46a-86(c) to the statutory sections therein

mentioned.
The third reason why the legislative choice to include
certain discriminatory practices within the coverage of
Section 46a-86(c) and to exclude others is significant is
that one of the sections excluded specifically deals with
employment. Section 46a-81c, which is excluded from
the coverage of Section 46a-86(c) by Public Act 91-58,
makes it a discriminatory practice for employers and their
agents, employment agencies, labor organizations and other
persons to discriminate in several listed ways because of an
individual's sexual orientation. Section 46a-81d, by contrast,
makes the remedy provisions of Section 46a-86(c) available
to persons who have been discriminated against because of
their sexual orientation in gaining full and equal access to
public accommodations. Nothing could be plainer than that
the Legislature saw fit to extend to protection of Section
46a-86(c) to the latter but not to the former, and so indicated
by its words.
*30 The resulting conclusion is obvious. Our Legislature
itself is well aware of its power to extend or deny the remedy
of compensatory damages to victims of discriminatory
practices. Judging that that remedy is not now authorized by
Section 46a-86(a), it does so by expanding or contracting the
substantive scope of Section 46a-86(c), as it did in Public
Act 91-58. The failure of Section 46a-86(c) to explicitly
include within its coverage any discriminatory practice under
Section 46a-60 precludes this complainant, Ms. Rose, from
recovering compensatory damages for emotional distress.
On this score the Court must further note that the Supreme
Court decisions cited by the CHRO do not go so far as to
establish a general power in the hearing officer to award
compensatory damages in cases arising under statutes not
listed in Section 46a-86(c). Instead, those cases clearly
indicate that the hearing officer's broad power to construct
remedies for employees who have suffered discrimination
in the workplace must only be exercised to accomplish
the purpose of the antidiscrimination statutes, which is to
restore those wronged to their rightful economic status
absent the effects of the unlawful discrimination. State v.
CHRO, supra at 484 (citation omitted). This language does
not confer on the CHRO the power to impose exemplary or
punitive damages on a discriminating employer, nor even to
compensate the employee for any consequential or incidental
damages he or she may have suffered by reason of the
employer's discriminatory conduct. Instead, it directs the
20
CHRO to ensure that whatever remedy is fashioned for the

employee be designed to return him or her to the same
economic status he or she would have had in the workplace
if unlawful discrimination never occurred. This, of course,
requires that consideration be given to placing the employee
in a position which is the functional equivalent of the
position he or she would have occupied had there been no
unlawful discrimination, and that he or she be accorded all
the rights and privileges appertaining thereto [,] ... includ[ing]
the right to be considered for additional promotional
possibilities on the same footing as other similarly situated
persons who have suffered no discrimination. Civil Service
Commission v. CHRO, supra at 231. It also requires, as
noted in Part VI.A above, that consideration be given to
awarding monetary relief to any employee who cannot
otherwise be restored to the economic status he or she
would have had were it not for the discriminatory conduct
in question. Apart, however, from closing any financial gap
which is directly related to workplace status, such as pay
rates, bonuses and benefits, the awarding of monetary relief
is inconsistent with the purpose of Section 46a-86(a), as

described in controlling case law. Therefore, absent express
statutory authorization for the awarding of such damages,
as is explicitly made for public accommodations cases in
General Statutes 46a-86(c), no such damages can be
awarded in an employment discrimination case under the
affirmative action clause of 46a-86(a).
*31 In sum, the Court concludes that while the extension
to victims of discrimination of the right to seek damages for
emotional distress is an idea whose time may one day come,
that time, which must be signalled by our Legislature, has not
yet arrived.
For all of the foregoing reasons, the Court sustains the
respondent's appeal insofar as it challenges the Hearing
Officer's decision to award Ms. Rose $5000 in damages for
emotional distress. In all other respects, however, said appeal
is hereby dismissed.
Footnotes
2
3
4
5
6
C.G.S. 46a-94a reads as follows: Appeal to superior court from order of presiding officer. (a) The commission on human rights
and opportunities, any respondent or any complainant aggrieved by a final order of a presiding officer or any complainant aggrieved
by the dismissal of his complaint by the commission may appeal therefrom in accordance with section 4-183, except venue for such
appeal shall be in the judicial district in which the discriminatory practice is alleged to have occurred or in the judicial district in which
such person resides or transacts business. The court on appeal shall also have jurisdiction to grant to the commission, respondent or
complainant such temporary relief or restraining order as it deems just and suitable, and in like manner to make and enter a decree
enforcing or modifying the enforcing as so modified or setting aside, in whole or in part, the order sought to be reviewed.
(b) Notwithstanding the provisions of subsection (a) of this section, a complainant may not appeal the dismissal of his complaint
if he has been granted a release pursuant to section 46a-101.
C.G.S. 4-183 reads in pertinent part: Appeal to superior court. (a) A person who has exhausted all administrative remedies available
within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of
a petition for reconsideration is not a prerequisite to the filing of such an appeal....
Fenn Manufacturing is a division of AMCA Engineering.
As of 1988, any CHRO hearing officer who presides over a hearing in a contested case before the CHRO is designated a presiding
officer for the purpose of that hearing. See Public Act 88-317. Accordingly, the terms hearing officer and presiding officer will
be used interchangeably in this opinion.
To go out on A & S meant to take a disability leave.
See, e.g., Section 53a-19, which provides as follows:
Use of physical force in defense of person. (a) Except as provided in subsections (b) and (c) of this section, a person is justified in
using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be
the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for
such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1)
using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon
another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that
the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the
initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to
21
section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying
with a demand that he abstain from performing an act which he is not obliged to perform.
(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with
intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the
initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws
from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding
continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not
specifically authorized by law.
In an argument that can readily be rejected, Fenn has proposed that the 1991 General Assembly's redefinition of the term reasonable
belief in and for the purpose of Public Act 91-33 should be used to define that term as it appears in Section 46a-60(a)(7)(E). This
cannot be done for two basic reasons. First and foremost, the legislation itself does not purport to authorize such an application.
Since such a legislative intent could easily have been expressed, the Legislature's failure to express it gives overwhelming evidence
of its intent not to do so. Secondly, even if the Legislature had intended such an application, it could not be applied retroactively
without violating the provisions of General Statutes 1-1(u). Section 1-1(u) provides that, The passage or repeal of an act shall
not affect any action then pending. Only when a statute is purely procedural in nature or accompanied by a clear expression of
the Legislature's intent that it be applied to pending actions is any exception to the plain language this statute recognized. Lavieri
v. Ulysses, 149 Conn. 396 (1962). Therefore, legislation such as Public Act 91-33 does not fall within this exception, for at least
as argued by Fenn, it effects a substantive change in the elements of a statutory cause of action, and does so without indicating an
intent that it be applied retroactively.
Fenn finds fault with the Hearing Officer's conclusion and predicate findings under both its own proposed standard, which this Court
has rejected, and the Hearing Officer's standard, which this Court has found to be correct. In view of the Court's determination, only
the latter claims need be addressed in this opinion.
End of Document
22

Fenn MFG V Commission On Human Rights and Oppurtunities

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Fenn MFG V Commission On Human Rights and Oppurtunities

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Fenn Mfg. v. Commission on Human Rights and Oppurtunities, Not Reported in A.2d...

This is an appeal under Sections 46a-94a 1 and

4-183 2 of the Connecticut General Statutes from a final

Discriminatory employment practices prohibited ... (a)

46a-60(a)(7)(E) by refusing to permit her to work outside her

2015 Thomson Reuters. No claim to original U.S. Government Works.

In support of his Decision, the Hearing Officer made the

Back at work, Ms. Rose reviewed her records and determined

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told that Fenn was required by law to accommodate those

On March 21, 1983, Ms. Rose's union filed a grievance on her

2015 Thomson Reuters. No claim to original U.S. Government Works.

she had conducted as to the chemical composition of and

the Hearing Officer exceeded his statutory authority when he

2015 Thomson Reuters. No claim to original U.S. Government Works.

upon unlawful procedure; (4) affected

Finkelstein v. Administrator Unemployment Compensation

2015 Thomson Reuters. No claim to original U.S. Government Works.

position may cause injury to the employee or her fetus, the

to work in the presence of hazardous substances can be found

2015 Thomson Reuters. No claim to original U.S. Government Works.

acquired a peculiar and appropriate

to reiterate, believe that continued employment in [her

2015 Thomson Reuters. No claim to original U.S. Government Works.

be available to any pregnant employee who rationally and

The Morris Court agreed with the defendant's position in the

2015 Thomson Reuters. No claim to original U.S. Government Works.

actually existing danger, but by the

This conclusion is supported, moreover, by the relevant

*12 State v. Yanz, 74 Conn. 177, 186 (1901) (Hammersly, J.,

Sections 53a-16 to 53a-23 state the

2015 Thomson Reuters. No claim to original U.S. Government Works.

circumstances claimed to justify the use of physical force

of the situation as it reasonably appeared to [her] ... at the

In assessing reasonableness, the Court recognizes that there

Fenn, as previously noted, has presented no affirmative

the danger or apparent danger claimed

it used that term in the text of Section 46a-60(a)(7)(E). 7

2015 Thomson Reuters. No claim to original U.S. Government Works.

reasonably to believe that her continued employment in her

Section 46a-60(a)(7)(E), the Johnson Controls decision broke

2015 Thomson Reuters. No claim to original U.S. Government Works.

not to believe or accept the testimony of the witness instead

Though the foregoing efforts were surely those of a

2015 Thomson Reuters. No claim to original U.S. Government Works.

spray painting. It objects, more particularly, to the Hearing

*19 Had the correct legal standard been employed, Fenn

2015 Thomson Reuters. No claim to original U.S. Government Works.

enabled her to continue working throughout her pregnancy.

therefore be the kind of effort which a reasonable person in

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two perspectives. From the employer's perspective, a position

transferred under Section 46a-60(a)(7)(E) must include the

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the record clearly supports the Hearing Officer's essential

moreover, in which she already moved around considerably.

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to whom back pay is awarded shall be deducted from the

those in which the remedies of hiring or reinstatement are also

render a decree which will, so far as possible, eliminate

2015 Thomson Reuters. No claim to original U.S. Government Works.

that he could determine what other relief might appropriately

unlawful employment discrimination is entitled to monetary