Today’s blog entry deals with the question of whether the interactive process continues through any litigation and whether evidence of that interactive process taking place or not taking place when the case is being litigated can be brought into evidence. The case is Kovachich v. Department of Mental Health and Addiction Services, here, decided by the Supreme Court of Connecticut on September 27, 2022. As usual, the blog entry is divided into categories and they are: facts; majority reasoning that exhibits were properly admitted; Chief Justice Robinson’s dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
The facts can be distilled quite a bit. What you have here is a plaintiff requesting from her employer a scent free work environment. While the employer granted accommodations, some employees failed to comply with the scent free working environment designation. As a result, plaintiff was exposed to scents at the jobsite that exacerbated her rhinitis and asthma and on multiple occasions triggered the need for emergency medical treatment. She then sought out legal counsel to ensure that she was protected in the workplace. The plaintiff, her counsel, and the human resources director did meet with the result being a notice was placed on the overtime sign-up sheet informing employees that the Brief Care Unit was scent free. However, with limited exceptions, no additional measures were taken to educate the workforce or to enforce the scent free designation by means of workforce discipline. This led to a filing with the Connecticut version of the equal employment opportunity commission.
At trial, plaintiff’s counsel sought to introduce into evidence an April 29, 2013, email from plaintiff’s counsel to a Connecticut Assistant Attorney General with a subject line, “request for demand.” the content of that email asked for a discussion to find a solution to ensure that plaintiff could be given a scent free environment. No such meeting took place in response to the email. Plaintiff’s counsel also offered into evidence in the email of May 30, 2013, stating that one of the plaintiff’s coworkers was also affected by scents in mandatory training situations and suggesting that online training as a possible accommodation. It also said her employer’s approach was the wrong one and that plaintiff intended to move forward with her case. It specifically inquired about what solutions the employer might propose. Plaintiff’s counsel also sought to introduce into evidence a July 22, 2013 letter containing a set of demands and ending with, “we would be happy to meet with representatives of the defendant who has authority to discuss and recommend these requests.” All of these exhibits were offered for purposes of illustrating plaintiff’s attempts at the interactive process. The trial court admitted the exhibits and wound up finding in favor of the plaintiff awarding $3800 of additional pension income. It also awarded the plaintiff $125,000 for the emotional distress caused by the actions of the employer and $415,389.50 in attorney fees.
The defendant appealed to the appellate court and the appellate court wound up agreeing with the defendant on that the various exhibits should not have been admitted and for other reasons as well. Plaintiff appealed to the Connecticut Supreme Court.
Court’s Reasoning That the Exhibits Were Properly Admitted
- It is true that the Connecticut Code of Evidence provides that evidence of an offer to compromise or settle a disputed claim is inadmissible on the issue of liability and the amount of the claim. Good policy reasons exist for that rule.
- It is also true that the Connecticut Code of Evidence allows an offer to compromise or settle a disputed claim into evidence if it is offered for another purpose. The list of purposes that appear in that statute are illustrated rather than exhaustive.
- Whether the exhibits should have been admitted is an evidentiary area issue reviewed for an abuse of discretion.
- The Connecticut Fair Employment Practices Act borrows from the ADA and requires an interactive process to figure out what accommodation can be put in place in order to overcome a person with a disability’s limitations.
- The need for the interactive process arises because both parties hold information that the other does not have or cannot easily obtain.
- The employee has the burden of initiating the interactive process must come forward with some suggestion of accommodation, and the employer then must make a good-faith effort to participate in that discussion.
- A plaintiff who fails to initiate or participate in the interactive process in good faith loses.
- An employer’s refusal to give an employee his or her specific requested accommodation does not necessarily amount to bad faith, so long at the employer makes an earnest attempt to discuss other potential reasonable accommodations.
- An employer’s failure to participate in the interactive process in good faith does not give rise to per se liability. However, it may be sufficient grounds for denying a defendant’s motion for summary judgment because it is at least some evidence of discrimination. In other words, in Connecticut a failure to engage in a good faith interactive process, is not a separate cause of action but can be introduced as evidence tending to show disability discrimination.
- The interactive process required by law is ongoing and is not exhausted by one effort. The ongoing interactive process continues during the course of plaintiff’s employment even after the plaintiff has filed a complaint alleging disability discrimination.
- The Connecticut Supreme Court found persuasive the reasoning of numerous federal courts that have been admitted evidence of compromise offers and negotiations for purposes of showing that the parties engaged in the interactive process.
- Nothing in the record establishes that the communications contained in the exhibits occurred within the context of the commission’s mandatory mediation program. In fact, plaintiff’s complaint had been pending with the commission for approximately one year and had been referred to in commission investigator at the time the document was generated, which means that the mandatory mediation had at least concluded.
- Although the communication contained in the exhibits occurred while the plaintiff’s complaint was pending before the commission, no evidence exists to indicate that the exhibits were part of the commission’s conciliation efforts, as opposed to their investigative efforts, or independent of the commission’s efforts altogether.
- The purpose of the evidentiary admissions was not to show liability but to show that a party was engaging in the interactive process.
- The trial court did not rely on the exhibits to find that the defendant engaged in discrimination. Instead, the trial court found that the defendant had failed to effectuate the plaintiff’s accommodations by an abject failure to make any reasonable effort to educate the staff about what a scent free environment meant and a supervisor’s refusal to do anything whatsoever about the scent free workplace environment provided by the ADA committee.
- While the trial court did rely on the defendant’s failure to respond to one of the exhibits to find that the good faith interactive process had broken down, that finding was based on defendant’s failure to present any evidence that it responded to the plaintiff’s communication, rather than the content of the communication itself.
- There was no error in the trial court’s determination that the exhibits were highly relevant to the defendant’s ability to react intelligently and legally to the plaintiff’s request for accommodations.
- The content of the communications demonstrate that the plaintiff wanted to continue with the interactive process but was getting nowhere.
Chief Justice Robinson Dissenting Opinion
- Failure to engage in interactive process is not entirely distinct from the liability inquiry as a matter of law.
- Most circuits find a failure to engage in the interactive process results in liability when a reasonable accommodation would otherwise have been possible.
- Connecticut Code of Evidence prohibits admissibility of a variety of things when it goes to liability in general.
- Majority view is too narrow as to what is part of the mediation process.
- My thanks to Daniel Schwartz, who has a blog called the Connecticut Employer Law Blog (the link will take you to his discussion of the case), for first bringing my attention to this case.
- Six justices were in the majority with the Chief Justice being the lone dissenter.
- The interactive process is a continuing duty that continues through any litigation.
- I am not a Connecticut licensed attorney. Mileage may also vary depending upon jurisdiction.
- Federal case law exists holding that request to engage in the interactive process made during ongoing litigation can be admitted for the purpose of demonstrating the continuing obligation of engaging in the interactive process.
- As a preventive law matter, an employer would do well to respond to any accommodation offers while litigation is ongoing. Of course, as we have discussed numerous times in our blog, such as here, once an employer is put on notice that a need for accommodation exists (magic words are not required), the employer should engage in the interactive process.
- In most circuits, failure to engage in the interactive process is a separate cause of action. In those circuits, the dissenting opinion here may hold quite a bit of sway because of the failure to engage in interactive process being a liability issue.