Employers Have Duty to Prevent Sexual Orientation Harassment

Scott E. Schaffer, Esq. • July 1, 2009

In a case of first impression, the Connecticut Superior Court held the Connecticut Fair Employment Practices Act imposes liability on employers who fail to prevent the creation of a hostile work environment based on sexual orientation. Patino v. Birken Manuf. Co., CV 05 4016120 S, (Conn. Super. Ct. May 15, 2009).

The plaintiff, Luis Patino, began working for Birken in 1977 as a machinist. Beginning in 1991 some of his co-workers began to routinely call him derogatory names for homosexuals. He reported these incidents to his supervisor. Although the company transferred one of the offending co-workers, and conducted some limited training in an effort to end the comments, they continued. Patino eventually filed a CHRO complaint, and after receiving a release of jurisdiction, filed suit in Superior Court.

Although Birken, in a Motion to Set Aside the Jury Verdict, argued that employers are not liable for hostile work environment claims based on sexual orientation under CFEPA, the Court disagreed. It found CFEPA clearly prohibits discrimination in the conditions of employment based on sexual orientation. It went on to state that “conditions of employment” include the right to work in a non-hostile environment. As a result, the Court upheld the jury’s finding of liability and its award of $94,500 in non-economic emotional distress damages.

Based on the Court’s ruling, employers will be held to the same standard in preventing sexual orientation based harassment as governs harassment based on race, age, religion, and other protected categories. That standard holds an employer liable for co-worker harassment when the employer provides no reasonable avenue for the employee to complain, or when the employer knew or should have known of the harassment and unreasonably failed to stop it. This case makes clear the crucial need for all employers to have well communicated complaint procedures, and to take swift and effective action when put on notice of a potential violation.