Pregnancy Accommodation

Sec. 46a-60. (Formerly Sec. 31-126). Discriminatory employment practices prohibited. (a) It shall be a discriminatory practice in violation of this section:

(1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness;

(2) For any employment agency, except in the case of a bona fide occupational qualification or need, to fail or refuse to classify properly or refer for employment or otherwise to discriminate against any individual because of such individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness;

(3) For a labor organization, because of the race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness of any individual to exclude from full membership rights or to expel from its membership such individual or to discriminate in any way against any of its members or against any employer or any individual employed by an employer, unless such action is based on a bona fide occupational qualification;

(4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84;

(5) For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so;

(6) For any person, employer, employment agency or labor organization, except in the case of a bona fide occupational qualification or need, to advertise employment opportunities in such a manner as to restrict such employment so as to discriminate against individuals because of their race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness;

(7) For an employer, by the employer or the employer's agent: (A) To terminate a woman's employment because of her pregnancy; (B) to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy; (C) to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer; (D) to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer's circumstances have so changed as to make it impossible or unreasonable to do so; (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; (F) to fail or refuse to inform the pregnant employee that a transfer pursuant to subparagraph (E) of this subdivision may be appealed under the provisions of this chapter; or (G) to fail or refuse to inform employees of the employer, by any reasonable means, that they must give written notice of their pregnancy in order to be eligible for transfer to a temporary position;

(8) For an employer, by the employer or the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent, to harass any employee, person seeking employment or member on the basis of sex. "Sexual harassment" shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (C) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment;

(9) For an employer, by the employer or the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent, to request or require information from an employee, person seeking employment or member relating to the individual's child-bearing age or plans, pregnancy, function of the individual's reproductive system, use of birth control methods, or the individual's familial responsibilities, unless such information is directly related to a bona fide occupational qualification or need, provided an employer, through a physician may request from an employee any such information which is directly related to workplace exposure to substances which may cause birth defects or constitute a hazard to an individual's reproductive system or to a fetus if the employer first informs the employee of the hazards involved in exposure to such substances;

(10) For an employer, by the employer or the employer's agent, after informing an employee, pursuant to subdivision (9) of this subsection, of a workplace exposure to substances which may cause birth defects or constitute a hazard to an employee's reproductive system or to a fetus, to fail or refuse, upon the employee's request, to take reasonable measures to protect the employee from the exposure or hazard identified, or to fail or refuse to inform the employee that the measures taken may be the subject of a complaint filed under the provisions of this chapter. Nothing in this subdivision is intended to prohibit an employer from taking reasonable measures to protect an employee from exposure to such substances. For the purpose of this subdivision, "reasonable measures" shall be those measures which are consistent with business necessity and are least disruptive of the terms and conditions of the employee's employment;

(11) For an employer, by the employer or the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent: (A) To request or require genetic information from an employee, person seeking employment or member, or (B) to discharge, expel or otherwise discriminate against any person on the basis of genetic information. For the purpose of this subdivision, "genetic information" means the information about genes, gene products or inherited characteristics that may derive from an individual or a family member.

(b) (1) The provisions of this section concerning age shall not apply to: (A) The termination of employment of any person with a contract of unlimited tenure at an independent institution of higher education who is mandatorily retired, on or before July 1, 1993, after having attained the age of seventy; (B) the termination of employment of any person who has attained the age of sixty-five and who, for the two years immediately preceding such termination, is employed in a bona fide executive or a high policy-making position, if such person is entitled to an immediate nonforfeitable annual retirement benefit under a pension, profit-sharing, savings or deferred compensation plan, or any combination of such plans, from such person's employer, which equals, in aggregate, at least forty-four thousand dollars; (C) the termination of employment of persons in occupations, including police work and fire-fighting, in which age is a bona fide occupational qualification; (D) the operation of any bona fide apprenticeship system or plan; or (E) the observance of the terms of a bona fide seniority system or any bona fide employee benefit plan for retirement, pensions or insurance which is not adopted for the purpose of evading said provisions, except that no such plan may excuse the failure to hire any individual and no such system or plan may require or permit the termination of employment on the basis of age. No such plan which covers less than twenty employees may reduce the group hospital, surgical or medical insurance coverage provided under the plan to any employee who has reached the age of sixty-five and is eligible for Medicare benefits or any employee's spouse who has reached age sixty-five and is eligible for Medicare benefits except to the extent such coverage is provided by Medicare. The terms of any such plan which covers twenty or more employees shall entitle any employee who has attained the age of sixty-five and any employee's spouse who has attained the age of sixty-five to group hospital, surgical or medical insurance coverage under the same conditions as any covered employee or spouse who is under the age of sixty-five.

(2) No employee retirement or pension plan may exclude any employee from membership in such plan or cease or reduce the employee's benefit accruals or allocations under such plan on the basis of age. The provisions of this subdivision shall be applicable to plan years beginning on or after January 1, 1988, except that for any collectively bargained plan this subdivision shall be applicable on the earlier of (A) January 1, 1990, or (B) the later of (i) the expiration date of the collective bargaining agreement, or (ii) January 1, 1988.

(3) The provisions of this section concerning age shall not prohibit an employer from requiring medical examinations for employees for the purpose of determining such employees' physical qualification for continued employment.

(4) Any employee who continues employment beyond the normal retirement age in the applicable retirement or pension plan shall give notice of intent to retire, in writing, to such employee's employer not less than thirty days prior to the date of such retirement.

(1949 Rev., S. 7405; 1955, S. 3035d; 1959, P.A. 145, S. 3; 1963, P.A. 261; 1967, P.A. 426, S. 2; P.A. 73-279, S. 14; 73-647; P.A. 75-350, S. 2; 75-446, S. 2; P.A. 78-148, S. 10; 78-350, S. 1, 6; P.A. 79-152; 79-303; 79-304, S. 1; 79-480, S. 1; P.A. 80-285; 80-422, S. 9; P.A. 81-382, S. 2; P.A. 82-196, S. 1; P.A. 86-381; P.A. 88-303, S. 3, 6; P.A. 89-147, S. 1, 3; P.A. 90-88, S. 3; 90-330, S. 3, 11; P.A. 98-180; P.A. 01-28, S. 8.)

History: 1959 act specified that discrimination based on age is unfair employment practice in Subdivs. (a), (b), (c) and (f), added exception re bona fide occupational qualification or need in Subdiv. (f) and added provision specifying when provisions of section are not applicable; 1963 act limited provision specifying when section does not apply to provisions "as to age"; 1967 act specified that discrimination based on sex is unfair employment practice in Subdivs. (a), (b), (c) and (f); P.A. 73-279 made discrimination based on physical disability including blindness an unfair employment practice in Subdivs. (a), (b), (c) and (f); P.A. 73-647 added Subdiv. (g) re termination of employment because of pregnancy as unfair employment practice; P.A. 75-350 added proviso in Subdiv. (1) of provision specifying when section does not apply re new employees' inclusion in existing retirement or pension plans and collective bargaining agreements; P.A. 75-446 made discrimination because of marital status an unfair employment practice in Subdivs. (a), (b), (c) and (f); P.A. 78-148 made discrimination because of mental retardation an unfair employment practice in Subdivs. (a), (b), (c) and (f); P.A. 78-350 revised previous provision specifying inapplicability of section to delete inapplicability re termination of employment where employee is entitled to benefits under retirement or pension plan or collective bargaining agreement and re operation of terms of retirement or pension plan or group or employee insurance plan, inserting new provisions as Subdivs. (1) to (3); P.A. 79-152 divided section into Subsecs., replacing alphabetic Subdiv. indicators with numeric indicators accordingly and adding provision in Subsec. (a)(7), formerly Subdiv. (g), re transfer of pregnant employee to temporary position; P.A. 79-303 revised Subsec. (b)(1) to include retirement or pension plans for employees of higher education institution, and, in conjunction with P.A. 79-304, expanded Subsec. (b)(2) re age and level of position and added Subdiv. (b)(5); P.A. 79-480 specified discrimination based on present or past history of mental disorder as unfair employment practice in Subsec. (a); P.A. 80-285 added Subsec. (a)(8) re sexual harassment; P.A. 80-422 rephrased provisions, substituted "discriminatory" for "unfair" employment practices and added Subdivs. (2) to (4) in Subsec. (b); Sec. 31-126 transferred to Sec. 46a-60 in 1981; P.A. 81-382 added Subdivs. (9) and (10) as discriminatory practices; P.A. 82-196 amended Subsec. (b) to limit the allowable reduction in employee benefit plan insurance coverage provided to any employee who has reached the age of 65 to the amount of such coverage available under Medicare; P.A. 86-381 amended Subdiv. (1) of Subsec. (b)(1) to increase from $27,000 to $44,000 the threshold amount of annual retirement benefits receivable by certain employees which permit the termination of their employment; P.A. 88-303 amended Subsec. (b)(1) by deleting provisions re inapplicability of section to a person who has reached the age of 70 and is entitled to benefits under a pension or retirement plan for state or municipal employees or for certain teachers; inserting a provision specifying that the section is applicable to certain teachers at independent institutions of higher education who are mandatorily retired on or before December 31, 1993, after reaching age 70, removing the provision to limit the allowable reduction in employee benefit plan insurance coverage provided to any employee who has reached the age of 65 to the amount of such coverage available under Medicare; providing that the terms of health insurance plans must entitle all employees to coverage under the same conditions regardless of age; rewriting Subdiv. (2) to prohibit age-based pension plan provisions and substituting "normal retirement age in the applicable retirement or pension plan" for "date on which he becomes eligible for the maximum possible retirement benefit available to him" in Subdiv. (4); P.A. 89-147 substituted July 1, 1993, for December 1, 1993, in Subpara. (A) of Subdiv. (1) of Subsec. (b) as the date before which certain persons may be mandatorily retired after reaching age 70 and to which the section does not apply; P.A. 90-88 amended Subsec. (b)(1) to allow for the provision of reduced coverage for Medicare eligible employees of employers with less than 20 employees; P.A. 90-330 amended Subsec. (a) to include persons with learning disabilities; (Revisor's note: In 1995 the indicators (1), (2) and (3) in Subsec. (a)(8) were changed editorially by the Revisors to (A), (B) and (C) respectively for consistency with statutory usage); P.A. 98-180 added Subsec. (a)(11) making discrimination based on genetic information a discriminatory practice; P.A. 01-28 made technical changes for the purpose of gender neutrality in Subsecs. (a) and (b) and amended Subsec. (a) by changing "mental disorder" to "mental disability".

See Sec. 1-1f for definitions of "blind" and "physically disabled".

See Sec. 1-1g for definition of "mental retardation".

See Sec. 28-17 re prohibition against discharging employee for civil preparedness activity or eligibility for induction into armed services.

See Sec. 46a-61 re mental disorder exception concerning discriminatory employment practices.

Annotations to former section 31-126:

Cited. 140 C. 537. Cited. 153 C. 173; Id., 652. Final judgment by arbitrators as to employment discrimination bears action. 163 C. 309. Cited. Id., 327. Cited. 165 C. 318. Sex classification in help wanted advertising constitutes a per se violation. 168 C. 26. Cited. Id., 504. Failure to define specifications for position or to test capabilities of applicant resulting in blanket exclusion from position is unfair employment practice. 176 C. 88. Cited. Id., 291; Id., 533. Cited. 177 C. 75. Cited. 179 C. 471.

Purpose of statute is to eliminate discrimination in employment for specified reasons, and it is only within these prescribed reasons that the statute operates. 17 CS 93. See note to Sec. 46a-82. Not unfair employment practice for corporation employer to require complainant to work regular factory shifts although this would require work on a religious sabbath. 28 CS 341.

Subdiv. (a):

Sex discrimination is an unfair employment practice which newspapers are not allowed to promote. 168 C. 26. Cited. 170 C. 327. Cited. 172 C. 485. Cited. 198 C. 479. Cited. 211 C. 464.

Subdiv. (d):

Cited. 198 C. 479.

Subdiv. (e):

A newspaper aids and abets sex discrimination by offering sex classifications in help wanted advertisements and commits an unfair employment practice. Bona fide occupational qualification exceptions are rare. 168 C. 26.

Subdiv. (f):

A corporation is a "person" and a newspaper corporation publishing an advertising section in sex-segregated columns is guilty of promoting the unfair employment practice of sex discrimination in hiring. 168 C. 26.

Annotations to present section:

Cited. 188 C. 44. Cited. 193 C. 558. Cited. 195 C. 226. Cited. 202 C. 601; Id., 609. Cited. 211 C. 129. Cited. 226 C. 670. Cited. 232 C. 91. Cited. 236 C. 96; Id., 681. Cited. 238 C. 337. Sec. 46a-100 represents an unambiguous waiver of sovereign immunity, authorizing actions against the state for alleged discriminatory employment practices in violation of section; claims properly brought before the commission are outside the cognizance of the Claims Commissioner. 291 C. 384.

Cited. 16 CA 379. Cited. 40 CA 577. Plaintiff provided no authority or per se rule equating violation of section with intentional infliction of emotional distress and court was not inclined to create such a rule. 61 CA 108.

Cited. 39 CS 528. Actions brought under this section may include actions brought against police departments. 50 CS 420.

Subsec. (a):

Subdiv. (1): Good faith not exculpatory under the statute; target of fair employment legislation is the effect, not the purpose, of discrimination. 188 C. 44. Subdiv. (1) cited. 196 C. 208; 198 C. 479. Subdiv. (4) cited. Id; 202 C. 150. Subdiv. (1) cited. 211 C. 464; 220 C. 307; 228 C. 545; 231 C. 328. Subdiv. (1): Sec. 46a-86 does not authorize award of damages for emotional distress and attorneys' fees for violation of this section. 232 C. 91. Subdiv. (7) cited. Id., 117. Subdiv. (7)(E) cited. Id. Subdiv. (1) cited. 236 C. 250. Subdiv. (4) cited. Id. Subdiv. (1) cited. 237 C. 209. Section does not expressly obligate employer to accommodate employee's work-at-home requests, or to refrain from taking adverse action against employee who persists in efforts to secure such arrangement. 249 C. 766. Subdiv. (1) does not impose liability on individual employees. 259 C. 729. Because Fair Employment Practices Act clearly expresses a public policy determination by legislature that employers with fewer than three employees shall be exempt from liability for discrimination on the basis of sex, including pregnancy-related discrimination, a common-law claim for wrongful discharge on the basis of pregnancy will not lie against such employers. 260 C. 691. Trial court should not have remanded case to referee because employer was entitled to judgment as a matter of law where plaintiff was denied promotion because of failure to obtain same license as required for prior job occupants and where license requirement was a legitimate, nondiscriminatory reason and not pretextual. 272 C. 457. Subdiv. (1) imposes a duty on employers to provide reasonable accommodation to their disabled employees. 286 C. 390. Plaintiff had no standing under the statute because as a recipient of surviving spouse pension allowance, plaintiff was not within a class of persons statute was intended to protect. Section pertains only to those persons who have sought or obtained an employment relationship with the employer alleged to have engaged in a discriminatory employment practice. 287 C. 56.

Subdiv. (1) cited. 4 CA 423. Subdiv. (4) cited. 5 CA 643. Subdiv. (1) cited. 18 CA 241; 27 CA 635; 35 CA 474; 38 CA 506; 41 CA 1. Subdiv. (4) cited. 44 CA 446. Subdiv. (8) cited. Id. Cited. Id., 677. Subdiv. (1) cited. Id. Federal standards reviewed for guidance in enforcing state antidiscrimination statutes; court held that defendant had provided plaintiff with reasonable accommodation. 57 CA 767. Subdiv. (7): There is a public policy against sex discrimination in employment sufficiently expressed in statutory and constitutional law to permit a cause of action for wrongful discharge; although Sec. 46a-51(10) excludes many employers from the requirements of the act, the clear public policy against sex discrimination transcends the exclusion. 64 CA 573. Company may be held liable for discrimination even where decision-making official did not intentionally discriminate if information used by that official in deciding to terminate a worker's employment was filtered through another employee who had a discriminatory motive. 72 CA 212. Subdiv. (1): State's public policy prohibiting discrimination on the basis of disabilities is embodied in Subdiv. 81 CA 726. Subdiv. (7): Trial court's finding of discriminatory practice affirmed, contrary to defendant's assertions, plaintiff's claim of discriminatory practice does not fail merely because evidence offered to prove defendant's violation of that subparagraph arose out of an incident that is also arguably within purview of another subparagraph under same statutory subdivision. 88 CA 60.

Subsec. (b):

Subdiv. (1)(C) cited. 196 C. 208.

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