Declaratory Ruling: Blois v. Hunter's Ambulance

STATE OF CONNECTICUT
COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES

JAMES R. BLOIS : NO. 9730074
VS. :
HUNTER'S AMBULANCE, INC., ET AL.: DECEMBER 8, 1997

DECLARATORY RULING
ON THE PETITION FOR A DECLARATORY RULING
FILED BY HUNTER'S AMBULANCE, INC., ET AL.

I. INTRODUCTION.

This Petition for a Declaratory Ruling is an outgrowth of a complaint of discrimination filed by James R. Blois (Complainant) against Hunter's Ambulance Service, Inc., Hunter's Limousines, Ltd. and Dan Hunter (Respondents) with the Commission on Human Rights and Opportunities (CHRO) on August 23, 1996. By Petition for a Declaratory Ruling dated June 23, 1997 and received by the CHRO on June 25, 1997, the Respondents requested that the CHRO answer two questions pertaining to the above-captioned complaint of discrimination. As found in the Petition, these questions are: (1) "Whether or not the Complainant was an employee of Hunter's Limousines, Ltd within the meaning of CONN. GEN. STAT. ' ' 46a-60(a)(1), 46a-60(a)(sic) and 46a-60(a)(8)"; and (2) "Whether same-sex harassment states a cause of action for which relief could be granted in the State of Connecticut." See Petition at 2.

II. FACTS.

The facts supplied to the CHRO by the Respondents are as follows:

See Petition at 1-2.

III. PARTIES.

The parties to this Declaratory Ruling are:

Hunter's Ambulance Service, Inc.
450 West Main St.
Meriden, CT 06451

Hunter's Limousines, Ltd.
450 West Main St.
Meriden, CT 06451

Dan Hunter
450 West Main St.
Meriden, CT 06451.

In addition, the Complainant has an interest in the subject matter of this Declaratory Ruling. He is:

James R. Blois
168 Baileyville Rd.
Middlefield, CT 06455.

The Certification on the Respondents's Petition for a Dec-laratory Ruling indicates that a copy of the Petition was mailed on June 23, 1997 to the Complainant's attorney, Alan Scheer of Pullman & Comley, 850 Main St., P.O. Box 7006, Bridgeport, CT 06601-7006. The CHRO has not heard from Atty. Scheer in con-nection with this Petition. Had he wished, the Complainant could have intervened or been made a party to this proceeding. See CONN. GEN. STAT. ' 4-176(d); Section 46a-54-124 of the REGULATIONS OF CT STATE AGENCIES.

IV. THE ISSUE OF WHETHER THE COMPLAINANT WAS AN EMPLOYEE OF HUNTER'S LIMOUSINES, LTD. IS SET DOWN FOR SPECIFIED PROCEEDINGS: AN INVESTIGATION PURSUANT TO CONN. GEN. STAT. ' 46a-83.

The Respondents, attaching an affidavit from Dan Hunter, the President of Hunter's Limousines, Ltd., argue that Complainant was not an employee of Hunter's Limousines, Ltd. See Petition at 2-4. Based on that assertion, the Respondents ask that the CHRO declare "[n]ull and void Cheryl Sharp's Decision of November, (sic) 21, 1996". Id. at 6. The CHRO notices Sharp's decision, even though it has not been provided by the Respondents. Cf. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 591 (1979)(court may take judicial notice of court files involving litigation between same parties, including judge's opinion).

Although the CHRO has the obvious authority to review in-dependently the conclusion of Sharp that Hunter's Limousines, Ltd. was the Complainant's employer and may even conduct a formal administrative hearing on the issue; see CONN. GEN. STAT. ' 4-176(g); ordinarily, the investigative process triggered by the filing of a discriminatory practice complaint should be allowed to run its course without involvement or interference. However important it may appear to the parties, if the CHRO became in-volved in every disagreement as to the factual basis for an Investigator's conclusion, the investigative process would be effectively overturned and replaced by a process not provided by statute: investigation by a committee of nine commissioners.

If the General Assembly intended this agency's commissioners to be involved in the day-to-day business of investigating cases, it would have so provided. Having commissioners do the job of staff, however, would not only be unworkable, it would counter-mand the very statutes under which the CHRO operates. Sharp's decision was reached under CONN. GEN. STAT. ' 46a-83(b), which authorizes the CHRO's "executive director or his designee" to conduct the review contemplated by the statute. That the CHRO's commissioners are not to participate in the review is made clear by the final sentence, "The executive director shall report the results of his determinations pursuant to this subsection to the commission quarterly during the year."

A similar curtailing of the role of commissioners in the investigatory process may be found in P.A. 91-302, ' ' 3 and 4, which amended CONN. GEN. STAT. ' ' 46a-83 and 46a-84 by removing the right of commissioners to investigate complaints or serve as presiding officers to hear complaints at public hearing. The consistent message sent by these enactments is that CHRO com-missioners are to be involved in matters of policy and oversight, and not purely investigative activities. And so, for the in-vestigative process envisioned by the General Assembly to work properly, the CHRO's investigators must be permitted to make determinations, as Sharp has done, in the statutory manner provided by law and the investigatory process allowed to run its due course. Like the district courts spoken of in Anderson v. Bessemer City, 470 U.S. 564, 574 (1985), a Title VII case, "[t]he [investigator's] major role is the determination of fact, and with experience in fulfilling that role comes expertise."

Further, it is important as a matter of law and policy that the legal framework created by our General Assembly to resolve complaints of discrimination be respected. As mentioned, this is a case in which a petition for declaratory ruling was filed by respondents in connection with a pending complaint of discrimin-ation. The only appeal permitted by a respondent from a CHRO determination is in cases where, after a public hearing, a CHRO Presiding Officer has made a finding of discrimination. See CONN. GEN. STAT. ' 46a-94a. That situation is not here present. Our law does not provide the Respondents with a right to judicial review of a decision made under CONN. GEN. STAT. ' 46a-83(b) retaining an affidavit for investigation. The only appeal permitted from CHRO determinations made under CONN. GEN. STAT. ' 46a-83(b) is by a complainant, not a respondent. See CONN. GEN. STAT. ' 46a-83a.

Nor do the Respondents have any statutory right to an appeal of Sharp's decision within the CHRO itself. Some state agencies, the Worker's Compensation Commission, for example, are structured to permit intra-agency appeals. See CONN. GEN. STAT. ' 31-301. The CHRO is not such an agency. Reconsiderations by the CHRO's commissioners are allowed only in the case of decisions adverse to a complainant. See CONN. GEN. STAT. ' 46a-83(e).

Whether or not by design, the Respondents, by filing this Petition, seek to appeal a create a right to judicial review where heretofore there is no right. As mentioned, this Petition was filed in connection with the Complainant's Affidavit of discrimination. But for that Affidavit, there would be no Petition. In these circumstances, the CHRO does not believe that it would be wise or prudent to extend the right to appeal beyond what the General Assembly has already provided.

Under our law, the Respondents would not have a right to appeal Sharp's decision unless, after an investigation is con-ducted, an Investigator determines that there is reasonable cause and, after a public hearing is held, a Presiding Officer finds that Hunter's Limousines, Ltd. committed a discriminatory practice against the Complainant. Thus, by filing this Petition, the Respondents may achieve through the back door what they could not through the front: a right to appeal Sharp's decision retain-ing the Complainant's Affidavit for investigation, as Respondents do have a right to appeal from declaratory rulings. See CONN. GEN. STAT. ' ' 4-183; 4-166(3)(B). The CHRO does not believe that the declaratory judgment process was designed to be used in this manner to supplement the appeal rights of respondents.

Other forays into the judicial arena from respondents chal-lenging a determination of a CHRO Investigator have been un-successful. Town of Avon v. CHRO, No. CV-97-0567551, J.D. of Hartford-New Britain at Hartford (May 6, 1997)(Maloney, J.) (respondent does not have judicial right to have case dismissed on ground different from that relied on by CHRO); Electro Methods, Inc. v. CHRO, No. CV-97-0567191, J.D. of Hartford-New Britain at Hartford (May 8, 1997)(Maloney, J.)(respondent does not have right to judicial review of decision of Investigator finding complaint to be timely filed without first exhausting CHRO's hearing process); Flanagan v. CHRO, No. CV-96-0563942, J.D. of Hartford-New Britain at Hartford (January 30, 1997) (Allen, T.) (court will not enjoin CHRO investigation due to claims of procedural unfairness), appeal filed April 28, 1997, A.C. 17127; Proto v. CHRO, No. CV-97-0402711, J.D. of New Haven at New Haven (August 18, 1997)(Hodgson, J.)(court will not en-join CHRO Investigator from considering certain evidence). The Respondents herein have met with a similar fate. Hunter's Ambulance, Inc. v. CHRO, No. CV-97-0571598, J.D. of Hartford-New Britain at Hartford (September 15, 1997) (McWeeny, J.)(court will not enjoin CHRO from considering and will not itself decide whether the Complainant was an employee of Hunter's Limousines, Ltd. or whether same-sex harassment states a claim under state antidiscrimination laws).

Although the Respondents are understandably upset with Sharp's decision, our law does not provide relief just because a party disagrees with a decision of the CHRO. Baroody v. CHRO, No. CV-97-0072715, J.D. of Litchfield (November 7, 1997)(Pickett, T.). As in Electro Methods, Inc. v. CHRO, at 5-6, Respondents here "merely argue[] that the investigator's ruling was erron-eous. But that circumstance alone does not justify...taking a short-cut through the administrative process."

Even if the CHRO were inclined to determine whether the decision to retain the Complainant's Affidavit was erroneous, the facts provided by the Respondents are so incomplete that such a finding could not be made on the basis of this Petition. It is the Respondents' responsibility to provide an adequate factual record for this Petition. See Declaratory Ruling on the Petition for Declaratory Ruling of the Town of Avon, CHRO No. 9415041; Section 46a-54-122(b)(3)(petition for declaratory ruling must "provide an appropriate factual background of the circumstances giving rise to the request").

Beyond the facts recited in Part II of this Declaratory Ruling, which are quoted verbatim from the Petition, all the Respondents have proffered is a conclusory affidavit by Dan Hunter. In making the decision to retain the Complainant's Af- fidvait for investigation, Sharp was by law required to consider a wider spectrum of evidence. Under CONN. GEN. STAT. ' 46a-83(b), the decision to retain Complainant's Affidavit for an in-vestigation was made on the basis of "the complaint, the respond-ent's answer and the responses to the commission's requests for information, if any, and the complainant's comments, if any, to the respondent's answer and information requests." Until the contrary appears, Sharp is presumed to have considered this in-formation before making her decision. Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 6 (1986); Clisham v. Bd. of Police Commissioners, 223 Conn. 354, 362 (1992). Respondents, however, have not included this material a part of their sub-mission. Thus, it is impossible to know, based on the factual record presented by the Respondents, whether Sharp's decision is correct. Without looking at all information before her--not only that favoring the Respondents--the CHRO is not in a position to second guess her decision. The Respondents were notified by the CHRO that their Petition would be declared pursuant to CONN. GEN. STAT. ' 4-176(e)(1), which is to say "to the specified circum- stances" found in their Petition. See letter dated July 17, 1997. Accordingly, it was incumbent upon the Respondents to provide a full record for the CHRO to review.

Finally, the CHRO notes that it did not receive the Respond-ents' Petition until June 25, 1997. According to the facts provided by the Respondents, the Complainant filed his Affidavit with the CHRO "on or about August 23, 1996." CHRO investigations are time sensitive. If an investigation is not completed within the statutory period, the CHRO risks losing jurisdiction over the complaint. Angelsea Productions, Inc. v. CHRO, 236 Conn. 681 (1996). CONN. GEN. STAT. ' 46a-83(d) now allows up to a total of 18 months to complete an investigation: findings must be made

At a maximum, then, the CHRO will have until January 22, 1998, to finish its investigation into the allegations of Complainant's Affidavit. The Complainant's employment status was an issue from the beginning. Waiting 10 months before filing a Petition for Declaratory Ruling shortened considerably the time the Investig- ator has to complete the investigation. Again consuming time, the CHRO again notes that the Respondents earlier attempted to interest the Superior Court in determining the Complainant's status as an employee of Hunter's Limousines, Ltd. by seeking injunctive relief against the CHRO. This action was dismissed by the Court. Hunter's Ambulance, Inc. v. CHRO, No. CV-97-0571598, J.D. of Hartford-New Britain at Hartford (September 15, 1997) (McWeeny, J.). Thus, the Respondents seek to litigate the Complainant's employment status everywhere but the proper forum: an investigation conducted pursuant to CONN. GEN. STAT. ' 46a-83(c).

As noted, there is presently an ongoing complaint of dis- crimination pending before the CHRO involving Complainant and the Respondents. In light of this, the CHRO sets this matter down for specified proceedings: an investigation pursuant to CONN. GEN. STAT. ' 46a-83. Under the circumstances of this case, it is more appropriate that the determination of whether Complainant was an employee of Hunter's Limousines, Ltd. occur within the context of an ongoing investigation and not through the CHRO's declaratory judgment process. The CHRO took similar action on the Petition for Declaratory Ruling of Hartford Fire Insurance Group, CHRO No. 9610542. See attached correspondence.

V. SAME-SEX HARASSMENT STATES A CAUSE OF ACTION FOR WHICH RELIEF CAN BE GRANTED UNDER CONNECTICUT ANTIDISCRIMINATION LAW.

Respondents have also asked the CHRO to determine whether same-sex harassment "states a cause of action for which relief could be granted in the State of Connecticut." See Petition at 2. Although not cited, the relevant statutory provision is CONN. GEN. STAT. ' 46a-60(a)(8), which makes it a discriminatory employment practice

Noting that we look to the interpretation of Title VII in construing state antidiscrimination law and that the United States Supreme Court is poised to decide the question of same-sex harassment under federal law in Oncale v. Sundowner Offshore Services, Inc., 83 F.3d 118 (5th Cir. 1996), cert. granted June 7, 1997, No. 96-568; see Petition at 5; Respondents ask that the CHRO hold in abeyance any decision under state law, as it is

Thus, Respondents are essentially asking that the CHRO agree to allow the U.S. Supreme Court to determine the scope and meaning of CONN. GEN. STAT. ' 46a-60. For a number of reasons, however, the CHRO declines to abdicate its responsibilities in the state antidiscrimination arena, preferring instead to chart the dir- ection state law will move, and when.

In the first place, given the Respondents's heavy reliance on federal law,

At certain times, then, our courts have approved of and applied federal interpretation of federal law to state antidiscrimination law. Levy v. CHRO, 236 Conn. 96 (1996)(using federal burden of proof scheme in proof of state discrimination claim); Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44 (1982)(same); Zlokower v. CHRO, 200 Conn. 261, 264 (1986)(despite difference in text, substantive provision of federal law read into Connecticut's law). At other times, our courts have rejected federal law, and struck out independently. State v. CHRO, 211 Conn. at 483 (rejecting U.S. Supreme Court precedent which would "not enhance the remedial purposes of our [state] discriminatory employment practices legislation."); Evening Sentinel v. NOW, 168 Conn. 26 (1975)(applying more stringent test for determining bfoq than applied under federal law); Bridgeport Hospital v. CHRO, 232 Conn. 90 (1995)(rejecting federal remedy of emotional distress damages under state law). In the absence of entirely consistent signals from our highest court, it must remain an open question whether our state supreme court would find the U.S. Supreme Court's decision in Oncale to be conclusive. This is especially true in the area of sexual harassment, where lower courts have found that individuals may be personally liable for their acts of sexual harassment, whereas federal court have not imposed lia- bility. Compare Lueneburg v. Mystic Dental Group, No. CV-95- 0535839, J.D. of New London at New London (August 1 and 22, 1996) (Hurley, J)(holding that persons may be individually liable for sexual harassment under state law) and Murphy v. Burgess, No. 3:96CV01987 (AHN), U.S. District Court, District of Connecticut (July 16, 1997)(Nevas, S.J.)(same) with Walters v. Homestaff Health Care, No. CV-95-0146961, J.D. of Stamford-Norwalk at Stamford (February 8, 1996)(Tobin, J.)(no individual liability under state law) and Martinez-Duffy v. DeJesus, No. CV-94-0545193, J.D. of Hartford-New Britain at Hartford (May 1, 1996)(Wagner, T.)(same). In this respect, Connecticut law has gone past federal; there is no individual liability under federal law, at least in this Circuit. Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995). Moreover, in a pre-Bridgeport Hospital case, the Second Circuit has itself acknowledged that in some ways Connecticut provides broader relief than is available under Title VII. Graham v. New York Dept. of Civil Services, 907 F.2d 324, 327 (2d Cir. 1990).

Even if the CHRO were inclined to follow the lead of the U.S. Supreme Court, it could not do so in this case. As stated in Part IV above, CHRO investigations are time sensitive; they must be completed within statutory time limits. In the case of the Complainant's Affidavit, the CHRO must conclude its investig-ation on or about January 22, 1998. The U.S. Supreme Court heard oral argument in Oncale last Wednesday, December 3, 1997. There can be no assurance that a decision will be handed down before January 22, 1998. Indeed, that Court may well not issue a decision before the close of the Term in June 1998, well after the time for the CHRO to complete its investigation has expired. The CHRO cannot allow the important constitutional right the Complainant has in having the CHRO investigate his case; Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982); to be lost.

Second, there is some legislative history to support the position that same-sex harassment is unlawful. Legislative his-tory is a recognized aid to interpreting statutes. Bridgeport Hospital v. CHRO, 232 Conn. at 102. While the primary impetus for enacting statutory protections against sexual harassment undoubtedly was to protect women; see legislative history of P.A. 80-285; that was not its sole purpose, as the debate on P.A. 80-285 indicates. See remarks or Sen. Skelley in S-160 CONNECTICUT GENERAL ASSEMBLY SENATE PROCEEDINGS, Vol. 23, Pt. 4, p.1177 (April 15, 1980)(purpose of law was to allow complaint to be filed before "individual is forced to leave her job or his job or is terminated. The current amendment allows for a complaint process to be pursued by the individual before she or he is forced to leave their (sic) job."); remarks of Rep. Balducci in H-263 CONNECTICUT GENERAL ASSEMBLY HOUSE PROCEEDINGS, Vol. 23, Pt. 14, p.4099 (April 23, 1980)("What this particular bill tries to do is to deal with those women that are in the workplace today. And men, by the way."). Sen. Skelley and Rep. Balducci were sponsors of the bill in their respective chambers; as such, their remarks are entitled to "particular attention." Angelsea Productions, Inc. v. CHRO, 236 Conn. at 695 n.10; Bridgeport Hospital v. CHRO, 232 Conn. at 102.

Later, in the discussion which led to the passage of P.A. 92-85, now codified as CONN. GEN. STAT. ' 46a-54(15), a clearer expression may be found that same-sex harassment is encompassed within the prohibition on sexual harassment contained in CONN. GEN. STAT. ' 46a-60(a)(8). The former statute requires employers "having three or more employees to post in a prominent and accessible location information concerning the illegality of sexual harassment and remedies available to victims of sexual harassment...." That the posting requirement did not pertain merely to employers having a mixed-sex workforce is made certain in this exchange on the floor of the House:

See H-630 CONNECTICUT GENERAL ASSEMBLY HOUSE PROCEEDINGS, Vol. 35, Pt. 8, pp. 2506-07.

This legislative history is illuminating on the question of whether CONN. GEN. STAT. ' 46a-60(a)(8) prohibits same-sex har-assment. A subsequent legislative act may throw light on the legislative intent of a former related act. Sherry H. v. Probate Court, 177 Conn. 93, 104 (1979); Baker v. Norwalk, 152 Conn. 312, 317 (1965). "We are entitled to presume that, in passing a stat-ute, the legislature not only did so with knowledge of existing statutes but also that it did not intend to enact a conflicting statute." Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 541 (1985). The legislature "is always presumed to have created a harmonious and consistent body of law". CHRO v. Truelove & Maclean, Inc., 238 Conn. 337, 347 (1996)(citations omitted; quotation marks omitted). "[T]his tenet of statutory construction requiring us to read statutes together is partic-ularly applicable when the statutes relate to the same subject matter." Paige v. Town Plan & Zoning Commission, 235 Conn. 448, 455 (1995). Thus, since it is clear that the General Assembly intended sexual harassment to include same-sex harassment as to the posting requirement in CONN. GEN. STAT. ' 46a-54(15), same-sex harassment must also be unlawful under CONN. GEN. STAT. ' 46a-60(a)(8).

Third, when "a statute is almost a literal copy of a statute of a sister state," "it is proper to resort to the decisions of a sister court construing that statutory language." State v. Elliott, 177 Conn. 1, 5 (1979); Jacques v. H.O. Penn Machinery Co., 166 Conn. 352, 359 n.3 (1974). All state courts which have tackled the issue have found in favor of liability for same-sex harassment, regardless of the sexual orientation of the victim or perpetrator. While numbers alone are not controlling, the wide support enjoyed for finding same-sex harassment actionable must be taken into consideration. Melnychenko v. 84 Lumber Co., 424 Mass. 285, 676 N.E.2d 45 (1997); Cummings v. Koehnen, 556 N.W.2d 586 (Minn.Ct.App. 1996), review granted February 26, 1997, C6-96-1118; Zalewski v. Overlook Hospital, 692 A.2d 131 (N.J.Super.Ct. 1996). The similarity between the Massachusetts statute and our own is particularly striking.

Some federal courts have come to a like conclusion. Dow v. Belleville, Illinois, 119 F.3d 563 (7th Cir. 1997); Quick v. Donaldson Co., 90 F.3d 1372 (8th Cir. 1996); Sardinia v. Dellwood Foods, 69 FEP Cases 705 (S.D.N.Y. 1995). Others have drawn a distinction based on sexual orientation. When one party is homosexual and the other is heterosexual, same-sex harassment claims have been validated. Where both men are arguably hetero-sexual, the claims have been disallowed. Compare McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191 (4th Cir.), cert. denied, 117 S.Ct. 72 (1996)(claims of sexual harassment between heterosexuals not actionable) with Wrightson v. Pizza Hut of America, Inc., 99 F.3d 128 (4th Cir. 1996)(where supervisor was homosexual, claim of harassment permitted by heterosexual em-ployee). Still other courts, not faced with the issue of same-sex harassment between two arguably heterosexual males, have permitted claims where the harassment is between a heterosexual and homosexual male. Indeed, "[n]umerous district courts have concluded that same-sex harassment(both the hostile environment and quid pro quo varieties) can be actionable under Title VII." Fredette v. BVP Management Associates, 112 F.3d 1503, 1508 n.10 (11th Cir. 1997). These cases are collected in Doe, 119 F.3d at 573-74 and Sardinia, 69 FEP Cases at 708.

Oncale v. Sundowner Offshore Services, Inc., supra, is one of the fewer cases taking the minority view that there can be no such legal animal as same-sex harassment. Oncale did not reach this result independently; it applied prior circuit precedent in Garcia v. Elf Atochem North America, 28 F.3d 446 (5th Cir. 1994).

As explained in Fredette, 112 F.3d at 1508,

The question, then, is whether Garcia is commanding; it is not. Beyond the criticism voiced in Fredette, as noted in Sardinia, 69 FEP Cases at 708-09 (footnotes omitted),

The CHRO believes that Fredette and Sardinia sufficiently discredit Goluszek and its progeny like Garcia and Oncale, and that it may fairly be said that Goluszek falsely interprets Title VII. Goluszek is no longer good precedent in the Northern District of Illinois, as the Seventh Circuit has repudiated it. Doe, 119 F.3d at 574.

Even if the Fifth Circuit's Oncale decision ultimately stands, the CHRO declines to find it persuasive authority on the interpretation of state law. "Whatever progress [Oncale] may betoken for Title VII law, elimination of...[a cause of action for same-sex harassment] would not enhance the remedial purposes of our [state] discriminatory employment practices legislation." State v. CHRO, 211 Conn. at 483. Sexual "harassment is harass-ment, regardless of whether it is caused by a member of the same or opposite sex". Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 138 (2d Cir. 1993)(Van Graafeiland, J., concurring), cert. denied, 510 U.S. 1164 (1994).

Fourth, both the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice believe that same-sex harassment violates Title VII. A joint amicus brief has been filed in Oncale v. Sundowner Offshore Services, Inc., No. 96-568, on behalf of Oncale. By both contract and worksharing agreement, the CHRO is obliged to consider the EEOC's interpretation of antidiscrimination laws so that a consistent approach is taken between our agencies.

As noted in the amicus brief, the EEOC "has long recognized that harassment on the basis of sex is a violation of Title VII." See Amicus Brief at 17. One advantage to outlawing all forms of same-sex harassment, whatever the sexual orientation of the harasser and victim, is to avoid a mini-trial on the issue of their sexual orientation. Id. at 21-22 n.8. Discrimination is at times subtle enough; Reliance Insurance Co. v. CHRO, 172 Conn. 485, 488-89 (1977); without introducing additional hurdles for its victims to overcome. Merely claiming that he or she was of the same sexual orientation as the victim would plunge the CHRO into a bottomless inquiry into peripheral issues. Connecticut law conditions liability for sexual harassment on the harasser's conduct, not his or her sexual orientation. Under CONN. GEN. STAT. ' 46a-60(a)(8), it is a discriminatory practice for certain "unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature" to be committed. Thus, "the bench-mark against which allegedly discriminatory employment practices are to be tested is not the motive, not even the benign motive, of the discriminatory employer....It is the [act] itself, and not the motive behind it, that we must examine." Wroblewski, 188 Conn. at 54-55. If the act is unwelcome, from the victim's perspective, it is unlawful.

Finally, it is difficult to imagine how the extreme conduct described in Oncale does not define sexual harassment at its most vile. Described in the Court's opinion is the following outrageous misconduct:

No employee, regardless of sex, should be subjected to such gross mistreatment on the job, regardless of the supposed fact that all participants in the assaults were heterosexual. "It is not un-reasonable to expect a workplace to be free of sexually explicit and suggestive conduct." Fox v. Sierra Development Co., 66 FEP Cases 1775, 1778 n.3 (D.Nev. 1995).

For these reasons, the CHRO declares that Connecticut anti- discrimination law recognizes a cause of action for same-sex sexual harassment, regardless of the sexual orientation of the victim and harasser.

COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES

Adopted by a majority vote of the Commissioners of the Commission on Human Rights and Opportunities present and voting at a Special Meeting of the Commission held on December 8, 1997, at Hartford, Connecticut.

Attest: ______________________________
Nicholas Cioffi, Chairperson

Date: _____________________