Appellate Court Finds Connecticut Fair Employment Practices Act Does Not Prohibit Employers From Discriminating Against Employees Perceived As Physically Disabled, If They Are Not Disabled

The Connecticut Fair Employment Practices Act (CFEPA) prohibits discrimination based on an employee's physical disability, and provides a broad definition as to what constitutes a physical disability. While the federal Americans with Disabilities Act (ADA) explicitly forbids discrimination against employees who are actually impaired, and against employees who are "regarded as" or perceived as disabled,1 there has been disagreement between the federal and state courts in Connecticut as to whether "perceived as" disability claims are valid under the CFEPA.2 In Desrosiers v. Diageo North America, Inc.,3 a Connecticut appellate court recently resolved this disagreement, finding that the CFEPA does not authorize claims of discrimination based on a perceived, but not actual, physical disability.

Factual Background

Mireille Desrosiers worked for Diageo North America, Inc. (Diageo). In 2001, Diageo merged with another company and Desrosiers' position was consequently eliminated. Diageo transferred Desrosiers to a new position, but she struggled in it. During the next several years, her performance progressively deteriorated. She was put on a performance improvement plan in September 2004. Two months later, Desrosiers met with her supervisor. According to Desrosiers, he told her that "her progress was satisfactory" and "she was no longer in need of the performance improvement plan." Upon returning to work from a two-week vacation in January 2005, she told her supervisor she "need[ed] to take time off from work to undergo surgery for a tumor on her right shoulder." The following day, Diageo terminated Desrosiers' employment because she failed to improve her performance.

Desrosiers brought suit against Diageo. She claimed, among other things, that she was discriminated against based upon her physical disability and/or perceived physical disability. The trial court dismissed the latter claim on the grounds that "a cause of action based on a perceived disability is not a legally recognized action in Connecticut."4 After a jury returned a verdict in favor of Diageo on the disability discrimination claim, Desrosiers appealed that decision, arguing that Connecticut General Statutes section 46a-60(a) prohibits employers from discriminating against employees based upon a perceived physical disability.5

Connecticut Appellate Court's Decision

The appellate court affirmed the trial court's decision, finding the statute was "clear and unambiguous" in not...