Commission on Human Rights & Opportunities v. Truelove & MacLean, Inc.

BERDON, J.,

dissenting. The court continues to read narrowly the legislative grant of jurisdiction to the commission on human rights and opportunities (CHRO). See Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 653 A.2d 782 (1995); Fenn Mfg. Co. v. Commission on Human Rights & Opportunities, 232 Conn. 117, 652 A.2d 1011 *355(1995).1 Not only am I unable to agree with the result reached by the court today, but I cannot accept its reasoning or its implicit rejection of the public policy concerns underlying today’s decision that the CHRO does not have jurisdiction to award compensatory damages in this case.

To begin, a review of the CHRO’s statutory scheme must consider its beneficent purposes. By enacting the statutes under title 46a, Connecticut’s human rights laws, the legislature set out not only to prevent impermissible discrimination, but also to compensate, as nearly as possible, the victims of discrimination. As part of title 46a, the Connecticut Fair Employment Practices Act (act); General Statutes § 46a-51 et seq.; was enacted to eliminate discriminatory practices from the workplace. As such, the act is composed of remedial statutes, which are to “be construed liberally to effectuate their beneficent purposes.” Civil Service Commission v. Trainor, 39 Conn. Sup. 528, 532, 466 A.2d 1203 (1983); see also Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 492, 656 A.2d 1009 (1995) (remedial statutes are to “be liberally construed in favor of those whom the legislature intended to benefit”). Indeed, the court in this case has failed to abide by this canon of statutory construction.

“[T]he victim of a discriminatory practice is to be accorded his [or her] rightful place in the employment scheme, that is, he [or she] has a right to be restored to the position he [or she] would have attained absent the unlawful discrimination. . . . Where prohibited discrimination is involved, the hearing officer has not merely the power but the duty to render a decree which will, so far as possible, eliminate the discriminatory effects of the past as well as bar like discrimination in *356the future.” (Citation omitted; internal quotation marks omitted.) State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 478, 559 A.2d 1120 (1989).

“Read in its entirety, the [act] not only defines important rights designed to rid the workplace of discrimination, but also vests first-order administrative oversight and enforcement of these rights in the CHRO.” Sullivan v. Board of Police Commissioners, 196 Conn. 208, 216, 491 A.2d 1096 (1985). “It is the CHRO that is charged with the primary responsibility of determining whether discriminatory practices have occurred and what the appropriate remedy for such discrimination must be.” Dept. of Health Services v. Commission on Human Rights & Opportunities, 198 Conn. 479, 488, 503 A.2d 1151 (1986).

In this case, the CHRO awarded compensatory damages in the amount of $5000 for emotional distress suffered by the claimant, Kristine A. Jennings, as a result of the defendant Truelove and Maclean, Inc.’s discriminatory employment practices. Specifically, Jennings was found to have been constructively discharged because of her pregnancy.2 The majority’s reversal of the CHRO’s award of compensatory damages, holding that the CHRO did not have jurisdiction to award such relief, is predicated on the assumption that General Statutes § 46a-58 (a) “does not encompass claims of discriminatory employment practices that fall within the purview of [General Statutes] § 46a-60.”

This conclusion, however, ignores the plain language of § 46a-58 (a),3 which provides in relevant part: “It shall be a discriminatory practice in violation of this section for any person to subject . . . any other person to the deprivation of any rights . . . protected by the consti*357tution or laws of this state ... on account of religion, national origin, alienage, color, race, sex, blindness or physical disability.” (Emphasis added.) Section 46a-58 (a) prohibits, as an illegal discriminatory practice, the deprivation of any right provided by statute or the constitution due to one of the factors enumerated above. Consequently, § 46a-58 (a) requires, by its own terms, another provision, be it statutory or constitutional, before it becomes operative. In other words, § 46a-58 (a) is triggered by a violation of an individual’s rights, as provided for in another statutory or constitutional provision, on the basis of one or more of the following factors: religion, national origin, alienage, color, race, sex, blindness or physical disability.

In this case, the statute that triggered the protection of § 46a-58 (a) was § 46a-60. Pursuant to § 46a-60,4 individuals are guaranteed a workplace and terms, conditions and privileges of employment that are free of impermissible discrimination due to, inter alia, their sex. Because § 46a-60 prohibits employment discrimination on the basis of sex, and sex is one of the factors enumerated under § 46a-58 (a), the CHRO has jurisdiction to award remedies that are available under either statute. I note that there are some forms of discrimination that are prohibited under § 46a-60, such as discrimination due to age or marital status, that are not within the purview of § 46a-58 (a) and that, therefore, § 46a-58 would be inapplicable.

The majority asserts that General Statutes § 46a-86, which sets forth the remedies available to a victim of *358discrimination, supports its interpretation of § 46a-58.1 disagree. By its own terms, § 46a-86 (b),5 6 which provides the remedies for violations of § 46a-60, is not exclusive. Similarly, § 46a-86 (c),6 which provides the remedies for a violation of § 46a-58, is not exclusive.

The majority also rests its opinion upon a partially quoted canon of statutory construction set forth in Gaynor v. Union Trust Co., 216 Conn. 458, 476-77, 582 A.2d 190 (1990). The complete canon stated in Gaynor is as follows: “It is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. . . . Where there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one case or subject within the scope of a general provision, then the particular provision must prevail; and if both cannot apply, the particular provision will be treated as an exception to the general provision.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id. It is fundamental that “when two statutes relate to the same subject matter every effort should be made to find a reasonable field for the operation of both statutes . . . [and] where there is areason*359able field of operation for each statute [that] does not impinge on the domain of the other, it is the court’s duty to give them concurrent effect.” (Internal quotation marks omitted.) Windham First Taxing District v. Windham, 208 Conn. 543, 553, 546 A.2d 226 (1988). In other words, only if a specific statutory provision is inconsistent with a general provision will the specific provision be given exclusivity. Sections 46a-58 (a) and 46a-60, however, are not inconsistent and both can be applied harmoniously. In this case, the claimant has suffered an injury for which both provisions provide remedies that complement each other and that together provide comprehensive relief.

Moreover, the legislative history supports the CHRO’s position that it has jurisdiction to award compensatory damages for emotional distress caused by discriminatory employment practices on the basis of sex. This history indicates that § 46a-58 (a) (formerly § 53-34) was intended to have broad application. Originally, the CHRO did not have jurisdiction to enforce § 46a-58 (a). 18 H.R. Proc., Pt. 10, 1975 Sess., pp. 4808-4810. In 1971, the General Assembly attempted to give the CHRO investigative and enforcement powers over § 46a-58 (a) complaints by passing Senate Bill No. 1772, but then Governor Thomas J. Meskill vetoed that attempt and stated that “[t]he subject matter of [§ 46a-58 (a)] is so broad and general as to provide imprecise direction for an executive commission. Such broad subject matter is more properly relegated to the courts who now have authority in this area.” Conn. Senate Journal, Pt. 3, Spec. Sess., August 1971, p. 74. In 1973, a similar bill, House Bill No. 8400, was passed and was again vetoed by Governor Meskill.

In 1975, however, No. 75-462 of the 1975 Public Acts was adopted to allow the CHRO to investigate and enforce complaints raised under § 46a-58 (a). Representative Thomas C. Clark stated that the “[b]ill . . . *360would extend the powers of the Human Rights and Opportunities Commission to enforce [§ 46a-58 (a)] of the Connecticut General Statutes, which is the Civil Rights Statute of the State of Connecticut . . . which prohibits discrimination or deprivation of rights on account of alienage, color, race or sex. . . . [Presently] the Commission has a right to receive complaints . . . for [a] violation of [§ 46a-58 (a)], but it does not have the right to prosecute those [complaints] to completion under its own laws. This Bill will enable them to do so.” 18 H.R. Proc., supra, pp. 4808-4809.

Finally, “it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement.” (Internal quotation marks omitted.) Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 372, 627 A.2d 1296 (1993). As Judge Maloney of the Superior Court noted in a 1994 memorandum of decision in which he addressed this issue: “The CHRO . . . cites an unbroken string of (its administrative) decisions going back 14 years in which it has awarded damages for emotional distress in employment discrimination cases . . . .” (Emphasis added; internal quotation marks omitted.) Bridgeport Hospital v. Commission on Human Rights & Opportunities, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV920299985 (January 31, 1994).

Therefore, I would hold that the CHRO has jurisdiction to award compensatory damages, pursuant to §§ 46a-58 (a) and 46a-86 (c), for emotional distress in order to compensate the claimant for her emotional injury.

Accordingly, I dissent.

I was not a member of the panels of Supreme Court justices that decided these cases.

Discrimination on the basis of sex “includes but is not limited to discrimination related to pregnancy . . . .” General Statutes § 46a-51 (17).

Jennings alleged a violation of § 46a-58 (a) in her complaint to the CHRO.

General Statutes § 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section: (1) For an employer, by himself or his 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 him 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 disorder, mental retardation, learning disability or physical disability, including, but not limited to, blindness . . .

General Statutes § 46a-86 (b) expressly provides in relevant part: “In addition to any other action taken hereunder, upon afinding of adiscriminatory 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 . . . .” (Emphasis added.)

General Statutes § 46a-86 (c) provides in relevant part: “In addition to any other action taken hereunder, upon a finding of a discriminatory practice prohibited by section 46a-58 . . . the presiding officer shad determine the damage suffered by the complainant . . . and shall allow reasonable attorney’s fees.” (Emphasis added.) Accordingly, an individual, such as Jennings, who is discriminated against in violation of § 46a-58 and who suffers emotional distress, may be awarded compensatory damages pursuant to § 46a-86 (c).