A New Ruling on Workplace Discrimination

??????A couple of weeks ago the Connecticut Supreme Court issued a decision that is likely to give employers around the state a greater level of agita.

???????????In?Hartford Police Department v. Commission on Human Rights and Opportunites, the Supreme Court reversed the decision of a lower court and found that the Hartford Police Department had discriminated against a police officer of Vietnamese ancestry because of his ancestry.

???????????The case involves police officer Khoa Phan who was employed by the Hartford Police Department until he was terminated while still on probation. Officer Phan was hired by Hartford back in December 2009. He graduated from the police academy and joined the force in July 2010.

???????????Upon his employment with Hartford, he entered the field training program which he passed in October 2010, and he was assigned as a patrol officer. However, he was still on probation and was observed daily by his supervising sergeants.

???????????One of his supervising sergeants was Steven Kessler who previously had been disciplined for making discriminatory or racist remarks and had been suspended for a total of sixteen days.

???????????While supervising Officer Phan, Sgt. Kessler made demeaning and racist remarks to him. He particularly derided Officer Phan over his language abilities. He criticized Officer Phan’s accent and derided him for not being born in the U.S.

???????????Officer Phan asked Sgt. Kessler to end his derisive comments about Phan’s heritage and language abilities, but Kessler refused. Officer Phan said he would grieve Sgt. Kessler’s conduct through the union, and Sgt. Kessler threatened him with termination.

???????????Afterwards Kessler began discussing Phan’s behavior and abilities with other sergeants in a derisive manner. Suddenly Phan’s daily reports began documenting confrontational behaviors which had not existed prior to the interaction with Kessler.

???????????Phan was also ordered to write a report containing a false statement, and he was subsequently disciplined for being untruthful even though he included the false statement on an order from a superior officer.

???????????Other incidents occurred leading to Officer Phan’s termination in June 2011. Officer Phan had become a target of his supervisors after he challenged the derisive commentary of his sergeant and after he suggested filing a grievance with the union.

???????????In making his case for discrimination against the police department, Officer Phan claimed that Sgt. Kessler’s hostile and discriminatory behavior toward him, coupled with Kessler’s history of discriminatory conduct, established that the police department had a discriminatory animus against him when it fired him.

???????????The police department claimed that it had made the decision to terminate Pham without even considering Kessler’s conduct or derision of Phan. In other words, even if Kessler had a discriminatory animus toward Phan, that animus could not be imputed to the decision-makers who actually fired Phan.

???????????However, the Supreme Court held that it is not necessary for the decision-maker to have made the discriminatory remarks. Sometimes the speaker’s discriminatory intent can be transferred to the decision-maker. This is known as “transferred intent.”

???????????The Court said that employers can be held liable for discrimination even where the decision-maker did not intentionally discriminate if the information used by the decision-maker was filtered through another employee who had a discriminatory motive.