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Connecticut Public Act 1-28, set to take effect Oct. 1, will “raise a whole host of issues [over what constitutes a mental disability] that, at the very least, will have to be litigated in court,” employment defense lawyer Daniel A. Schwartz predicted. Employment-defense lawyers sharply disagree over the potential impact of a new law defining “mental disability” under Connecticut’s Fair Employment Practices Act. The legislation that is belatedly stirring debate among practitioners was quietly passed by the General Assembly this session and will take effect Oct. 1. Some employment-defense attorneys, such as Daniel A. Schwartz, of Day, Berry & Howard’s Hartford, Conn. office, have gone as far as warning their clients that the new law may hinder employers in terminating workers who are kleptomaniacs, pedophiles or active drug-users. All three criminal activities, Schwartz said last week, are among the 400 or so “mental disorders” listed in the most recent edition of the American Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders” (DSM-IV), which will be used to define “mental disability” under state Senate Bill 1053, now Public Act 1-28. Other lawyers who represent management in labor disputes, however, dismiss such concerns and contend the measure, if anything, will actually curtail the number of employees afforded protection under the law, which, they note, is currently vague and left open to court interpretation. ‘BROADEST POSSIBLE DEFINITION’ Plaintiffs’ attorney Gary E. Phelan, of West Hartford, Conn.’s Klebanoff & Phelan, takes the middle ground. An expert on bringing claims under the federal Americans With Disabilities Act, Phelan discounted what he called Schwartz’s “extreme” view of the legislation’s potential consequences. Regardless of Public Act 1-28, employees, he said, still have to be qualified to perform their jobs because of a federal law requirement. Just as it isn’t considered discrimination to deny a blind applicant the opportunity to become an airline pilot, a pedophile wouldn’t be qualified to hold a position at, say, a daycare facility, Phelan added. Such ill-conceived claims almost certainly would not withstand a bona fide-occupational-qualification defense, he maintained. Phelan, however, agreed with Schwartz that, when the law takes effect, it will greatly expand what is now considered in Connecticut to be a mental disability. “This is the broadest possible definition of a mental disorder,” Phelan said. Indeed, Schwartz said he was dumbfounded when Day Berry’s law librarian e-mailed him a legislative alert announcing the bill’s passage, which, he said, appears to have come without any opposition and little discussion among legislators. “I’ve had to read it about 20 times to convince myself” of the act’s meaning. After getting word out to his colleagues at Day Berry — the state’s largest firm — they all agreed with his concerns, Schwartz added. Signed by Gov. John G. Rowland May 25, the legislation will “raise a whole host of issues [over what constitutes a mental disability] that, at the very least, will have to be litigated in court,” Schwartz maintained. NEW LAW REQUIRES A DIAGNOSIS His assumption, however, that the bill’s potential impact “slipped below everyone’s radar” when it was voted on at the state Capitol couldn’t be more wrong, according to Judiciary Committee Co-Chairman Michael P. Lawlor, D-East Haven, Conn. “Everybody knew what they were doing,” Lawlor said of his fellow lawmakers in the General Assembly. The legislation, he insisted, “will make it less likely that employers will discriminate against people with mental illness.” The Connecticut Business and Industry Association also carefully reviewed the bill, but didn’t take a position on it because it felt the measure wasn’t a “significant departure” from current law, said CBIA in-house lobbyist and associate counsel Elizabeth E. Gara. “No one [on the CBIA's Labor and Employment Law Council, made up of corporate counsel and employment-defense lawyers] believed this expanded the law in any way,” Gara declared. The soon-to-be law, she added, “requires, in fact, that the mental disorder be diagnosed.” Commission on Human Rights and Opportunities hearing officers already take a “pretty broad” view when it comes to defining a mental disability, added employment-defense lawyer Kenneth R. Plumb. “I’m not sure anybody is going to be any worse off than they already were,” said Plumb, of Berchem, Moses & Devlin in Milford, Conn. Supplying statutory concreteness, the legislation may actually narrow the number of conditions granted protection under the law, Gara maintained. But “by giving a definition as broad as it potentially could be … it may bring clarity in some ways, but it creates confusion in other ways,” Schwartz countered. Currently, it isn’t uncommon, Schwartz said, for state courts to borrow from federal law when deciding employment discrimination cases. The ADA, he added, at least, limits the definition of mental disability to conditions that pose a “substantial limitation of a major life activity.” It also automatically excludes legal protection for disorders such as pedophilia and current drug abuse, Schwartz said. In addition, there is certain case law favorable to employers on whether the ADA applies to disabilities that can be “mitigated” through the use of prescription medicine or other corrective means, he noted. But in examining Public Act 1-28, “there doesn’t appear to be any reference to the severity of the illness — or whether it [can be] mitigated or not,” Schwartz contended. Phelan, however, said the impact of the legislation itself will be mitigated by the fact that the DSM-IV is already used to define mental disorders under Conn. Gen. Statute section 17a-549, which prohibits the denial of employment, housing or licenses to people with a history of mental problems. The use of the manual also is consistent with Conn. Gen. Statute section 17a-458, which defines “psychiatric disabilities” and is the place courts already are likely to turn to decide disputes over an employee’s eligibility for legal protection, said employment defense lawyer David L. Metzger, of Metzger & Associates in Hartford. “It’s pretty innocuous,” Metzger said of the legislation, calling concerns to the contrary “much ado about nothing.”

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