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In Connecticut’s first appellate decision on the issue, an exception to the general employment-at-will doctrine has been found for pregnancy discrimination in the case of an employer who was exempt from the state fair employment act by having fewer than three employees. Theoretically, the policy exception would apply to employers with just one employee. In the case in question, there were two reasons why Nicole Ann Thibodeau’s wrongful termination suit was an uphill battle. First, she was an at-will employee, who could be fired for just about any reason — or no reason. Second, she worked for a company with fewer than three employees, so it didn’t even meet the definition of “employer” under Connecticut’s Fair Employment Practices Act. After Thibodeau lost her job because of “too many doctor appointments,” as claimed in her complaint, she filed suit claiming a breach of good faith and fair dealing. Her employer, Design Group One Architects, countered that she was fired for poor performance that preceded her pregnancy. It argued that a constitutional challenge should fail because the firm wasn’t a governmental body, and the constitution only applies to government action. The trial court ruled there was no public policy preventing her termination. On appeal she was represented by Gary E. Phelan, of West Hartford, Conn.’s Klebanoff & Phelan. A three-judge panel, with Judge Antoinette Dupont writing, held that “there is a public policy against sex discrimination in employment sufficiently expressed in statutory and constitutional law to permit a cause of action for wrongful discharge.” Dupont was joined by Barry R. Schaller and Administrative Judge Joseph P. Flynn, sitting by designation. Phelan, commenting after the decision, said it could apply to employers with as few as one employee. “This is important, not just for things like independent contractor relationships — over 10 percent of the workforce is independent contractors — but also for in-home employees, such as an au pair,” who could also have a cause of action in such a case. Michael D. O’Connell, of Hartford’s O’Connell, Flaherty & Atmore, represents the employer, which has filed for an appeal to the state supreme court. O’Connell completely disagrees with Phelan’s view. Exceptions to the at-will doctrine are extremely narrow, he said, and the legislature debated long and hard before it decided to exempt smaller employers from the fair employment act. “Can the Appellate Court ignore the statement of public policy that the legislature has adopted, and create its own statement of policy?” O’Connell asked. “We say no.” Dupont’s opinion is a clear review of policy exceptions to the employment-at-will doctrine, emphasizing that a specific statutory violation is not a prerequisite to finding a policy violation. Beginning in the 1950′s, courts began to make exceptions for an employee fired for refusing to commit perjury, filing a workers’ compensation claim or engaging in union activity. In 1980, frozen-food manager Ewald Sheets was fired for objecting to labeling inconsistencies, and Connecticut Supreme Court Associate Justice Ellen Peters wrote a landmark opinion. It found that Sheets could sue Teddy’s Frosted Foods for wrongful discharge, based on the Legislature’s broad policy of consumer protection. That right did not require him to cite a violation of a specific state statute. Since then, Connecticut’s case-by-case approach hasn’t always favored the employee. In 1986, Hartford Courant employee Edward Morris was accused of misappropriating funds. He tried to get under the Sheets rule on grounds that his accusation and firing were baseless. The court found no public policy was “affronted by his termination.” In 1997, in Faulkner v. United Technologies, Faulkner invoked the federal Major Frauds Act to contend that he was illegally terminated for whistle-blowing in a helicopter factory. The state supreme court agreed. In another UTC case the same year, Gary F. Parsons refused assignment to Bahrain during building military tension in the Persian Gulf, citing state workplace safety law. Again, it was the “broad legislative concern” expressed in the statutes, not a specific statutory violation, which allowed Parsons to sue. Notably, Connecticut found no such broad policy favoring a “family friendly” workplace that would justify a termination suit by an employee who had lobbied for job improvements in this area. In the case that tipped the scales against Thibodeau at trial, California decided in 1994 that it had no broad public policy against age discrimination that would create an exception to the at-will doctrine. However, Dupont ruled that pregnancy discrimination is a form of sex discrimination, and Connecticut has had a public policy against sex discrimination embodied in the state constitution, statutes and case law. The pivotal case for the plaintiff was last year’s Washington state supreme court case of Roberts v. Dudly. Like Connecticut, Washington limits its definition of “employer” to those with more than three employees. In Washington, the Roberts court reasoned that, while there is a policy to exempt small employers from the statute’s specific remedies and burdens, there is no policy to exempt employers, large or small, from common-law discrimination suits. Dupont’s panel wholeheartedly agreed with that approach. Connecticut’s supreme court held in its 1975 case, Evening Sentinel v. National Organization for Women, that sex classification in advertising is a per se violation of Connecticut law for any employer, large or small. Although there is an exclusion for small employers in the Fair Employment Practices Act, Dupont’s panel concluded that “Our clear public policy as to sex discrimination transcends such an exclusion.” Thibodeau’s case was sent back to the trial court level to determine whether her firing was based on pregnancy or her alleged ineptitude.

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