Wroblewski v. Lexington Gardens, Inc.
Wroblewski v. Lexington Gardens, Inc.
Opinion of the Court
The principal issue in this case is whether an employer violates state fair employment statutes when its employment application includes a medical history form asking certain questions of women only. The plaintiff, who declined to
The factual history of this case began in 1974, when the plaintiff, Judith Gail Wroblewski, applied for a position with Lexington Gardens, Ine., a new plant store scheduled to open at the end of the year in Glastonbury. After interviews with Robert White, at that time assistant to the president of Lexington Gardens, and Craig Cavanaugh, manager of the Glastonbury store, the plaintiff filled out a bonding application, a tax form, an employee status sheet, and the disputed medical history form. The plaintiff chose not to complete the section of that form marked “Women,”
After evidentiary hearings in March, April, and May of 1976, a commission hearing examiner concluded that the amended complaint properly cited Campbell Soup and Lexington Gardens as parties.
I
The plaintiff’s original complaint, filed on November 5, 1974, charged Pepperidge Farm with a November 4 violation of General Statutes § 31-126 (a), which prohibits discrimination on the basis of sex in employment practices. Thereafter, following her receipt on December 3 of a letter from the president of Lexington Gardens denying her employment and the failure of the commission’s subsequent conciliation efforts, the plaintiff on September 24, 1975, filed her second, amended, complaint, this time naming Campbell Soup, Lexington
In its memorandum of decision the trial court accepted the retaliation claim as a valid amendment but concluded that the September 24 addition of Campbell Soup and Lexington Gardens to the plaintiff’s complaint, more than ninety days after the alleged act of discrimination, “represented an entirely new complaint which did not relate back to the filing of the original complaint against Pepperidge Farms [sic] on November 4 [sic], 1974.”
At the hearing held before the commission’s examiner, witnesses from the three corporations named by the plaintiff testified at length about the organizational ties of their companies. Their uncon-tradicted testimony revealed the following facts: Pepperidge Farm and Lexington Gardens are both subsidiaries of Campbell Soup, which provides
The defendants’ handling of the plaintiff’s job application and complaint further demonstrates the network of ties among these companies. Robert White, who initially interviewed the plaintiff for a position with Lexington Gardens, at that time had an office at Pepperidge Farm headquarters in Nor-walk. The commission investigator first discussed the plaintiff’s complaint with James Morgan, director of personnel for Pepperidge Farm, and it was Morgan who then suggested to Craig Cav-anaugh of Lexington Gardens that he check the plaintiff’s references. When Cavanaugh had difficulty in obtaining the necessary information, Morgan checked one reference himself. Morgan further testified that he promptly discussed the plaintiff’s complaint with Wear and consulted the legal department of Campbell Soup. When Morgan wrote to the commission investigator concerning the complaint, he used a Lexington Gardens letterhead and signed himself “Director of Personnel, Lexington Gardens, Inc.”
We include this detailed account of corporate interconnections because it amply supports the
n
The plaintiff’s principal claim of error on this appeal is the trial court’s failure to find that the defendants’ medical form with a section designated
The plaintiff’s amended complaint, which framed the issues to be decided by the hearing tribunal,
A
A party claiming a violation of § 31-126 (a) must at the outset establish a prima facie case of discrimination. See McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Board of Education v. Commission on Human Rights & Opportunities, 176 Conn. 533, 537, 409 A.2d 1013 (1979). Only then does the burden shift to the employer “to show a legitimate nondiscriminatory reason for the employer’s conduct.” Board of Education v. Commission on
It is undisputed that the defendants’ employment application procedure treated women differently from men.
"We begin by noting that the benchmark against which allegedly discriminatory employment practices are to be tested is not the motive, not even the
The defendants’ application procedure discriminated in practice against women because only women were absolutely required to answer questions about their reproductive systems. That these questions were mandatory is evidenced by the defendants’ response to the plaintiff’s submission of an incomplete form. Despite her physician’s explicit finding, on the form itself, that she was a “healthy female,”
B
Once the plaintiff has met her burden of establishing a prima facie case of discrimination, the defendant employers must meet their burden by proving the existence of a bona fide occupational qualification, or bfoq, to justify their divergent treatment of male and female applicants.
The evidence offered by the defendants in support of their application procedure took two forms. First, the defendants presented expert medical testimony linking the questions for women to the detection of specific health problems which could incapacitate an employee. Second, they presented evidence that some insecticides potentially dangerous to pregnant women might be used in the Lexington Gardens plant store. The record before us is barren of evidence that such insecticides were actually in use at the Glastonbury store.
We begin by recalling our earlier point that an employer’s motivation in distinguishing one sex from another is not relevant to the determination of a bfoq. Board of Education v. Commission on Human Rights & Opportunities, supra, 539; see Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 454 (D.C. Cir. 1976). Instead, the defendants must show that the claimed occupational qualification, reproductive good health, requires different methods of examination for men and women. We need not decide today to what extent reproductive good health is itself an acceptable bfoq under § 31-126 (a) or whether, as the plaintiff argues, these questions are an improper invasion of privacy, because we find that the record fails to demonstrate any valid basis for the defendants’ chosen method of screening female applicants’ health.
The only basis proffered by the defendants for screening the urogenital health of female applicants by written questions and male applicants by physical examination is the testimony of Wear, Campbell’s medical director, that “women don’t like being examined, having a pelvic examination forced on them.” Such a generalization about the preferences of women as a group cannot be invoked to deny the right of any individual woman to be treated in the same manner as male applicants. As the
The harm in such generalizations, however benign in intent, derives from “[t]he very act of classifying individuals by means of criteria irrelevant to the ultimate end sought to be accomplished. . . .” Evening Sentinel v. National Organization for Women, supra, 35; see Connecticut Institute for the Blind v. Commission on Human Rights & Opportunities, supra, 96. The defendants’ application procedure precluded women from choosing to demonstrate their good health by means of a physical examination. When the plaintiff’s medical form marked “healthy female” by her physician was returned to her, she was denied an opportunity to qualify for employment in the same manner as male applicants. Yet “[i]t is now well recognized that employment decisions cannot be predicated on mere ‘stereotyped’ impressions about the characteristics of males or females.” Los Angeles Department of Water & Power v. Manhart, supra, 707; see Frontiero v. Richardson, 411 U.S. 677, 684-85, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973); Carroll v. Talman Federal Savings & Loan Assn. of Chicago, 604 F.2d 1028, 1030-31 (7th Cir. 1979); Rosenfeld v. Southern Pacific Co., supra, 1224; Sprogis v. United Airlines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971).
C
This holding does not, however, end our inquiry. Under McDonnell Douglas Corporation v. Green, supra, the defendants may offer evidence of a legitimate nondiscriminatory business reason for their refusal to hire.
Burdine permits an employer to rebut a plaintiff’s prima facie case by presenting evidence of nondiscriminatory reasons for its refusal to hire sufficient to raise “a genuine issue of fact as to whether it discriminated against the plaintiff.” Texas Department of Community Affairs v. Burdine, supra, 254-55. The employer need not, however, “persuade the court that it was actually motivated by the proffered reasons.” Id., 254. The hearing examiner and the trial court found that the defendants had met their burden, but that the plaintiff did not succeed in demonstrating that the proffered reasons were not in fact “the true reason for the employment decision.” Id., 256.
An examination of the record reveals some basis for these findings on the second two stages of the
The plaintiff attempted to meet her burden of proving the defendants’ reasons pretextual by offering evidence that unusual screening procedures were adopted to defeat her application and that her qualifications were in fact superior to those of the employees subsequently hired by Lexington Gardens.
Under ordinary circumstances an apparently factual issue concerning the nature of the plaintiff’s references would properly be left to the discretion of the hearing examiner as trier of fact, and “[t]he findings of the hearing tribunal as to the facts, if supported by substantial and competent evidence ...” would be conclusive. General Statutes § 31-128 (b) (now General Statutes § 46a-95 [g]). Under the unusual circumstances of this case, however, consideration of the refusal to hire was inseparable from the examiner’s incorrect conclusion, affirmed by the trial court, that the plaintiff was unjustified in her discrimination claim. Where the trier of fact is asked to determine whether a party was characterized by her supervisor as “individualistic” or “temperamental,” two terms that clearly exist on a continuum, his rejection of her discrimination claim may well color his evaluation of evidence concerning her character and conduct in other areas. We find this to be one of those rare cases in which “particular findings are so enmeshed with the legal standard to be applied that even facially proper findings might require further inquiry.” Connecticut Institute for the Blind v. Commission on Human Rights & Opportunities, supra, 96. The trial court is the appropriate body to consider in the first instance whether the hearing examiner’s incorrect conclusion that the defendants’ medical form was nondiscriminatory fatally tainted his subsequent conclusion that their refusal to hire the plaintiff was similarly nondiscriminatory.
The plaintiff’s third claim of error is the trial court’s failure to find a retaliatory refusal to hire in violation of General Statutes § 31-126 (d).
The elements of this claim, and the test applicable to it, are identical to those of the plaintiff’s claim of a discriminatory refusal to hire discussed above: the defendants may rebut the plaintiff’s prima facie case by offering evidence of a nonretaliatory basis for their refusal to hire, and the plaintiff must then prove that basis pretextual. Texas Department of Community Affairs v. Burdine, supra, 252-53. The hearing examiner found that the plaintiff had met her initial burden of showing retaliation by evidence that the defendants had refused her employment on December 3, 1974, less than a month after she filed her initial complaint with the commission. The same evidence of inadequate references offered by the defendants in response to the plaintiff’s claim of a discriminatory refusal to hire was accepted by the examiner as rebuttal of the retaliation claim.
There is error as to jurisdiction and in the failure to issue a cease and desist order requiring the defendants to cease use of their discriminatory health form. The judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.
In this opinion Speziale, C. J., Healey and Aemextaxo, Js., concurred.
The section of the medical form designated “Women” reads as follows: “Have you had any of the following? (Place a eircle around any 'yes’ answers if the condition has been present during the past 2 years)
Tes | No
Menstrual problems |
Disorder of ovaries or uterus |
Number of pregnancies:
Interval between periods:
Duration of periods:
Date of last period:
Date of last 'Pap’ smear if any:”
The plaintiff answered only the last of the seven questions.
The complete letter from Lucille M. Dahm, B.N., of Pepperidge Farm, read as follows: “Please complete exam form where cheeked in red. This is a necessary part of the exam, and must be completed. Please return to me as soon as possible in the enclosed self-addressed stamped envelope. Thank you.”
The hearing examiner initially dismissed the plaintiff’s complaint against all three defendants on procedural grounds. The plaintiff appealed that decision to the Court of Common Pleas, whieh reversed and remanded for further consideration. The examiner’s decision on remand is described below.
Motions for reconsideration were filed by the commission and by the plaintiff’s own counsel. After reviewing the transcripts of the evidentiary hearing, the examiner reaffirmed his previous decision, and the plaintiff filed her appeal in Superior Court.
The trial court incorrectly applied a ninety day deadline for filing complaints of discrimination. General Statutes § 31-127, the statute governing procedure for complaints to the commission, was amended on April 22, 1974 to increase the filing period from ninety to one hundred and eighty days: “Any complaint filed pursuant to this section must be so filed within one hundred and eighty days after the alleged act of discrimination.” Public Acts 1974, No. 74-54, effective October 1, 1974. Since the plaintiff’s initial complaint was not filed until November 5, 1974, the amended statute applies. In any event, because the plaintiff’s second complaint was filed more than one hundred and eighty days after the alleged act of discrimination, the trial court’s error in this respect is harmless.
Since the plaintiff’s complaint was filed, the legislature has passed a statute limiting an employer’s right to require information from an employee concerning his or her reproductive system.
“ PUBLIC ACT NO. 81-382
AN ACT CONCERNING THE PROTECTION OP WORKERS PROM REPRODUCTIVE HAZARDS AND OCCUPATIONAL SAPETY AND HEALTH REVIEW COMMISSION.
Section 1. Section 46a-51 of the general statutes is amended by adding subsection (17) as follows:
(NEW) (17) “Discrimination on the basis of sex” includes but is not limited to discrimination related to pregnaney, child bearing capacity, sterilization, fertility or related medical conditions.
Sec. 2. Subsection (a) of section 46a-60 of the general statutes is amended by adding subdivisions (9) and (10) as follows:
(NEW) (9) For an employer, by himself or his agent, for an employment ageney, 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 whieh 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. . . .” This statute is of course inapplicable to the plaintiff’s ease.
General Statutes § 31-126 (a) (now General Statutes § 46a-60 [a] [1]) provides as follows: “See. 31-126. unfair employment practices. Tt shall be an unfair employment practice (a) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, because of the race, color, religious creed, age, sex, national origin, ancestry or physical disability, ineluding, but not limited to, blindness of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against him in compensation or in terms, conditions or privileges of employment.”
At oral argument the defendants’ counsel conceded that the form treated women differently but argued that it was not discriminatory in context. In his August 10, 1978 memorandum of decision upon remand, the hearing examiner observed of the form, “[e]ertainly, a review of the Exhibit in question indicates that women are treated differently in that they are required to answer seven questions related to the female organs. There is, on this form, no comparable section referring to males. In addition, the form is devoid of any questions relating to the male urogenital system.” He repeated this observation in his December 11, 1978 memorandum of decision regarding motions for reconsideration.
The plaintiff’s physician did not himself perform a pelvic examination. At the hearing he testified that he relied on the fact that the plaintiff had been examined by her gynecologist, a physician known to him, three months earlier. The defendants never in any fashion challenged the finding of the plaintiff’s physician.
At the hearing, Wear testified that some male applicants had apparently been hired without undergoing a physical examination. He further testified that although he attempted to inform male applicants’ physicians of his requirements concerning urogenital examinations, he was not always able to issue specific instructions.
The so-ealled “business necessity” exception to the statutory prohibition against discrimination, articulated in Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971), applies only when a facially neutral employment practice has a discriminatory effect. Connecticut Institute for the Blind v. Commission on Human Rights & Opportunities, 176 Conn. 88, 93, 405 A.2d 618 (1978); see Dothard v. Rawlinson, 433 U.S. 321, 332, 97 S. Ct. 2720, 53 L. Ed. 2d 786 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975); Harper v. Thiokol Chemical Corporation, 619 F.2d 489, 492 (5th Cir. 1980); cf. Phillips v. Martin Marietta Corporation, 400 U.S. 542, 544, 91 S. Ct. 496, 27 L. Ed. 2d 613 (1971).
When Robert White began to testify eoneerning the use by Lexington Gardens of insecticides potentially dangerous to pregnant women, the defendants’ counsel agreed to submit to the examiner a list of such products actually used at the Glastonbury store. No such list is included in the record before us, and in effect that defense was abandoned.
In his memorandum of decision regarding motions for reconsideration, the hearing examiner found that question two on the medical form, “disorder of ovaries or uterus,” was relevant to “whether that person should be exposed to the insecticides whieh are utilized at a plant store.” The transcript page cited by the examiner in support of this conclusion contains the testimony of Wear that “I certainly would not want an individual who is pregnant exposed to certain things like pesticides, like in gardens at some of our locations, or exposed to lead at a ean plant.” Since the record contains no evidence that such insecticides were in fact used at the Glastonbury store, any conclusion relying on absent evidence must fall.
Although the record reveals some confusion, over the precise position for which the plaintiff had applied, hard goods manager or sales clerk, we need not resolve that question before considering the plaintiff's discrimination claim.
The record indicates that references of subsequent applicants for positions at Lexington Gardens were also cheeked by the defendants.
General Statutes § 31-126 (d) (now General Statutes § 46a-60 [a] [4]) provides as follows: “Sec. 31-126. unfair employment practices. It shall be an unfair employment practice . . . (d) for any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any unfair employment practice or because he has filed a complaint or testified or assisted in any proceeding under section 31-127.”
Concurring in Part
(concurring in part and dissenting in part). I agree with the court’s opinion except for Part II, C.
It is a discriminatory practice for an employer, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ a person because of sex. General Statutes § 46a-60. The hearing on a charge of a claimed discriminatory employment practice involves two issues, namely, (1) the existence of a discriminatory employment practice and (2) the causal relationship between that practice and the complainant’s rejection. In addressing the first question, the trial court concluded that though disparate treatment of women was shown by the use of the employment application form, there was ample support in the record for the hearing examiner’s conclusion that the sep
Once a discriminatory practice has been found the only remaining issue involves the appropriate remedy. General Statutes § 46a-86 (a) provides in pertinent part that “[i]f, upon all the evidence . . . the hearing officer finds that a respondent has engaged in any discriminatory practice . . . [he] shall issue . . . and cause to be served on the respondent an order requiring the respondent to cease and desist from the discriminatory practice . . . .” The majority recognizes this in its direction, ante at p. 60, that such order shall issue. The statute also authorizes the hearing officer to require the respondent “to take such affirmative action as in the judgment of the hearing officer will effectuate the purpose of this chapter.” Under subsection (b) of § 46a-86 the affirmative action referred to in subsection (a) includes hiring of the employee, with or without back pay. If there is a causal connection between the discriminatory practice and the refusal to hire then affirmative relief would be presumptively indicated. To paraphrase the United States Supreme Court in Title VII cases, the Discriminatory Employment Practices Act deals with legal injuries of an economic character occasioned by sex 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
The reason that affirmative relief may be warranted in this case is that the evidence is sufficient to establish a causal connection between the discriminatory practice and the rejection of the plaintiff’s application. When the plaintiff refused to answer those portions of the application form which she regarded as intrusive, her application was held up. This was before the plaintiff filed with the commission on human rights and opportunities her complaint alleging retaliatory action. Later, when she was rejected by the employer, no reason was assigned for such rejection. It would not be unreasonable for a trier to infer from this evidence that her rejection was causally related to the defendants’ discriminatory practice. The practice found wanting here is no different in substance from the discriminatory qualification test condemned in Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971), which the United States Supreme Court recognized as requiring analysis different from that required for a neutral act which potentially has a discriminatory impact. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 806, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
If an employer has a neutral employment policy or practice, a complainant charging either disparate treatment or disparate impact bears the ultimate burden of persuading the trier that he has been the victim of discriminatory action in the face of the employer’s articulation of a non-discriminatory ground for the suspected action. If, on the other hand, an employer has engaged in a practice which is facially discriminatory or in a pattern of discrimination in the past, then in order to effectuate the governmental policy of eradicating discriminatory treatment or practices, it is appropriate in the
Reference
- Full Case Name
- Judith Wroblewski v. Lexington Gardens, Inc., Et Al.
- Cited By
- 37 cases
- Status
- Published