Fenn Mfg v Commission on Human Rights and Oppurtunities

Fenn Mfg. v. Commission on Human Rights and Oppurtunities, Not Reported in A.2d...

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1994 WL 51143Only the Westlaw citation is currently available.

UNPUBLISHED OPINION. CHECKCOURT RULES BEFORE CITING.

Superior Court of Connecticut, JudicialDistrict of Hartford-New Britain, at Hartford.

FENN MANUFACTURING, a Divisionof AMCA Engineering, Appellant,

v.COMMISSION ON HUMAN RIGHTS AND

OPPORTUNITIES and Janeen Rose, Appellees.

No. CIV. CV 92-509435. | Feb. 8, 1994.

MEMORANDUM OF DECISION

SHELDON, Judge.

*1 This is an appeal under Sections 46a-94a 1 and4-183 2 of the Connecticut General Statutes from a finalorder of the Connecticut Commission on Human Rightsand Opportunities (CHRO) requiring respondent-appellantFenn Manufacturing (Fenn) 3 to pay money damages forlost wages and emotional distress to complainant-appelleeJaneen Rose (Ms. Rose) based on the finding that in Marchof 1983 Fenn discriminated against Ms. Rose on account ofher pregnancy in violation of General Statutes 46a-60(a)(7)(E). At all times pertinent to this case, Section 46a-60(a)(7)(E) has provided as follows:

Discriminatory employment practices prohibited ... (a)It shall be a discriminatory practice in violation of thissection: ... (7) For an employer, by himself or his agent: ...(E) to fail or refuse to make a reasonable effort to transfera pregnant employee to any suitable temporary positionwhich may be available in any case in which an employeegives written notice of her pregnancy to her employer andthe employer or pregnant employee reasonably believesthat continued employment in the position held by thepregnant employee may cause injury to the employee orfetus[.]

The case began in 1983, when Ms. Rose complained tothe CHRO that Fenn had violated her rights under Section

46a-60(a)(7)(E) by refusing to permit her to work outside hernormal work area whenever a co-worker at a nearby workstation spray painted aircraft housings with an aerosolizedpaint primer containing aromatic hydrocarbons. Claimingthat she had suffered ill effects when the primer was firstused in her area, and that her doctor had later instructed herto avoid all exposure to aerosols and hydrocarbons duringpregnancy, Ms. Rose insisted that she had come reasonably[to] believe[ ] that continued employment in [her current]position m[ight] cause injury to [herself] or [her] fetus. Id.On that basis she contended that upon informing Fenn inwriting of her belief and of the basis therefor, she becameentitled under Section 46a-60(a)(7)(E) to have Fenn make areasonable effort to transfer [her] to any suitable temporaryposition which may [then have] be [en] available for her. Id.Claiming that at least one such suitable temporary positionwas indeed available for her -- that being a modified versionof her existing position in which, during the first part ofher pregnancy, Fenn had admittedly allowed her to workoutside her normal work area during spray painting -- Ms.Rose argued that Fenn had violated Section 46a-60(a)(7)(E)by refusing to allow her to work in that or some other suitabletemporary position until the birth of her baby. As a result ofFenn's refusal to make this accommodation, she argued, itshould be required to compensate her for the wages she lostand the emotional distress she suffered when, as a result ofthat refusal, she was forced to leave her job to protect thehealth of her unborn child.

Upon the filing of Ms. Rose's complaint, her case was referredto a CHRO investigator who made a finding of reasonablecause to believe that Fenn had indeed discriminated againstMs. Rose in the manner alleged. After a subsequent failure ofconciliation, the complaint was certified for a public hearingbefore CHRO Hearing Officer Herbert R. Scott, who receivedevidence on divers dates between June 17 and December 11,1990. On February 21, 1992, the Hearing Officer 4 issueda written Memorandum of Decision (Decision) in whichhe sustained Ms. Rose's complaint and awarded her thefollowing damages: $6,555.78 for wages lost from the dateMs. Rose left her job until the date she would have stoppedworking before the birth of her baby had she been affordeda safe environment in which to work; $739.76 for wageslost while attending hearings on this claim; $50 for an initialconsultation fee with a lawyer; and $5,000 for emotionaldistress. Legal interest at the rate of 10% from the date ofjudgment was also assessed. From that Decision, Fenn hasfiled the instant appeal.



In support of his Decision, the Hearing Officer made thefollowing pertinent findings of fact and conclusions of law.From January of 1981 through March of 1983, Ms. Rosewas employed as a stockroom coordinator at Fenn's plantin West Hartford. In that capacity, she was responsible forreceiving, storing and issuing parts for assembly operationsand for managing the paper work related to those parts. Inlate 1982, Ms. Rose's desk was located in one corner of anopen area within Fenn's 100,000-square-foot plant. This areawas approximately 75 feet long, 50 feet wide and 15 feethigh. In addition to Ms. Rose's desk and the 50 feet of multi-level shelves on which she kept her inventory of parts, thisarea contained several work stations for the assemblers ofdepartment 23. The employees in that department assembledgear boxes and housings for aircraft and other militaryequipment.

*2 In late autumn of 1982, Ms. Rose learned that shewas pregnant, and so informed her immediate supervisor,Mr. Jim Tracy. On learning of her pregnancy, she receiveda booklet from Dr. Sauer, her personal physician, entitledA Doctor Discusses Pregnancy. The booklet explained,among other things, that women should avoid all exposure topetroleum products, aerosols and halogenated and chlorinatedhydrocarbons during pregnancy. After reading the booklet,Ms. Rose became concerned about her own possible exposureto petroleum products and aerosol sprays while at work. Uponvoicing these concerns to Mr. Tracy in November of 1982,he granted her permission to do her work in the lab, a closedarea within the plant, whenever oils or aerosol sprays werebeing used in her normal work area. Mr. Tracy, in turn,communicated Ms. Rose's concerns for the health of her fetusto his own supervisor, Mr. Michael Brooks.

In late November or early December of 1982, Ms. Rosehad occasion to smell the fumes from an aerosolizedzinc chromate primer which the assemblers in her areaoccasionally used to spray paint aircraft housings. Herimmediate reaction to smelling the fumes was to sneeze.Though Ms. Rose did not use the primer in her own work andhad no direct contact with it, she knew both that it was usedat work stations located from 20 to 40 feet from her desk andthat its fumes permeated the entire work area whenever it wasused. Concerned on that basis that it might in some way harmher fetus, she checked the product's label and found there anexpress warning not to inhale its spray mist or dust. When sheinformed her doctor of this information, he instructed her tostay away from the primer's fumes.

Back at work, Ms. Rose reviewed her records and determinedthat the zinc chromate primer would continue to be used forsome time. Indeed, she learned that as of January of 1983, atleast 150 more housing units would remain to be assembled,and that each such unit contained eight separate parts whichwould require spray painting with the zinc chromate primer.For that reason, she again approached Mr. Tracy, and this timesecured his more specific permission to work away from herdesk whenever the zinc chromate primer was being used inher area.

Sometime in January of 1983, Mr. Tracy informed Ms. Rosethat she could no longer leave her work area during spraypainting. Still, to protect the health of her unborn child,she continued for some time, upon the advice of her unionrepresentatives, to do her work elsewhere whenever the zincchromate primer was being used in her area. During this timeMs. Rose made no effort to find a permanent solution toher problem because she had been informed and believedthat her entire department was about to be moved to another,safer part of the plant. In late February of 1983, however,she learned for the first time that her department would notbe moved. On receiving this information, she immediatelybecame concerned that she might henceforth be forced to stayin her department, inhaling the fumes from the primer, simplyin order to keep her job. To avoid this result, she resolved atonce to act.

*3 First, she requested the material safety data sheet(MSDS) from the manufacturer of the zinc chromate primer.From this document, which she received in the first weekof March, 1983, she learned: (1) that the primer consistsof 30-40% pigment, 30-40% aromatic hydrocarbons, 5.1%chromium as chromate, and less than 0.6% lead by weight;(2) that overexposure to solvent vapors from the primermay cause drowsiness, headaches, dizziness and irritationof [the] eyes, nose and throat, requiring first aid includingremov[al] to fresh air ... [and] flush[ing the] eyes with lots ofwater; (3) that the manufacturer recommends the wearing ofa special Mesa/Niosh respirator where vapor concentrationsfrom the primer are encountered; and (4) that the primershould be kept away from children.

Her fears enhanced by the MSDS, Ms. Rose reread thebooklet from her doctor, A Doctor Discusses Pregnancy,and found in it the warning to stay away from chlorinatedand halogenated hydrocarbons during pregnancy. She thentelephoned the Permanent Commission on the Status ofWomen (PCSW), informed them of her concerns, and was



told that Fenn was required by law to accommodate thoseconcerns. So advised, she met at once with Mr. John Mizesko,Fenn's Industrial Relations Manager, to request that she bemoved. In that meeting, however, Mr. Mizesko told her thatin order to be moved, she had to provide him with a letterfrom her doctor.

Complying with Mr. Mizesko's directive, Ms. Roseimmediately contacted Dr. Sauer with the request, which hehonored, that he provide her with a letter explaining that sheshould not work in any area contaminated with petroleumproducts. When she presented this letter to Mr. Mizesko,however, he refused to accept it, telling her instead that shemust return to her doctor and get a different note sufficient togo out on A & S. 5 Despite his refusal to accept her doctor'sletter, Mr. Mizesko learned the contents of that letter fromMs. Rose, and later discussed the letter with his supervisor,Mr. Brooks.

Frustrated by Fenn's inaction, Ms. Rose next wrote a letterto its president, objecting to Fenn's decision not to moveher department. That day as well, she recontacted thePCSW to request copies of Connecticut's anti-discriminationlaws and called the federal Occupational Safety and HealthAdministration (OSHA) to ask for an inspection of herwork area. Three days later, on March 17, 1983, Ms. Roserecontacted her doctor to request another note explainingmore specifically why she should be moved out of her area.

The following day, an OSHA inspector visited Fenn's WestHartford plant. On that day, however, no inspection could beconducted because spray painting was not scheduled to takeplace in Ms. Rose's work area. Even so, the inspector didtake the time to speak with Ms. Rose. He told her, amongother things, that as yet OSHA had no standards by whichto measure safe levels of exposure to hazardous materials forpregnant women or their fetuses.

*4 Also on March 18, 1983, an inspector from theTravelers Corporation, Fenn's insurer, visited the plant. Forthe benefit of this inspector, Mr. Brooks asked one ofMs. Rose's co-workers to spray paint a housing unit fordemonstration purposes. However, it was never establishedto anyone's satisfaction that the amount of paint used in thisdemonstration was a representative sample. Indeed, theinspector himself so stated in the report he ultimately issuedin May of 1983.

On March 21, 1983, Ms. Rose's union filed a grievance on herbehalf. Fenn denied this grievance on March 29. On March30, after learning that her grievance had been denied, Ms.Rose met a final time with Messrs. Brooks and Mizesko todiscuss her situation. At this meeting, she presented them witha copy of the booklet from the PCSW explaining her legalrights as a pregnant woman in Connecticut together with aMarch 25 letter from her obstetrician which read in part asfollows:

[Ms. Rose is] disabled by herhazardous working condition. I havea copy of a material data sheeton a product that she comes incontact with and she should notwork in an area contaminated withhydrocarbons during pregnancy. Inaddition, my patient has indicated thatrecent stress over not being movedhas caused severe cramps, back pain,headache and nausea which she has notcomplained about prior to March 16,1993.

At the end of this meeting, Mr. Brooks told Ms. Rose that,If you cannot work in your department, you cannot work atFenn. Ms. Rose promptly left Fenn, and did not return to herwork until after she had delivered her baby.

As a result of Fenn's actions, Ms. Rose suffered pain andhumiliation and was not paid from March 31 through July 9,1983-the period in which she would have continued to workbefore the birth of her baby had she not been forced to walkaway to protect the health of her fetus. Her lost wages forthat entire period were calculated by the Hearing Officer to be$6,555.78. In addition, she paid $50 to consult with a lawyerand lost an additional $739.76 in wages attending hearings onher claim.

Based on these findings, the Hearing Officer concluded thatFenn had violated Ms. Rose's rights under Section 46a-60(a)(7)(E) by refusing to permit her to work away from herdesk when spray painting was being done in her area. First,he determined that by the time Ms. Rose walked awayfrom her job in late March of 1983, she had developed areasonable belief that continued employment in that jobmight threaten the health of her fetus. This well conceivedbelief, he found, was reasonably based on two sources ofinformation on which any responsible mother could rely: herpersonal experience on the job and the thorough research



she had conducted as to the chemical composition of anddangers associated with exposure to the zinc chromate primer.From her personal experience, Ms. Rose had learned thatshe would not be able to avoid inhaling fumes from thezinc chromate primer if she were forced to stay in herwork area during spray painting. From her investigation andresearch, including her examination of the primer's label andMSDS and her consultations with her physician, she hadlearned that the primer contained toxic chemicals which noperson should inhale, especially during pregnancy. In viewof this state of her information and belief, Ms. Rose wasentitled, in the judgment of the Hearing Officer, to haveFenn accommodate her by providing her with a safeworking environment free from spray painting which wouldbe potentially dangerous to her fetus.

*5 The Hearing Officer's second principal conclusion wasthat Fenn could have satisfied its statutory obligation to Ms.Rose under Section 46a-60(a)(7)(E) by simply allowing herto work elsewhere whenever spray painting was being donein her area. The spray painting process, he found, took amaximum of 2 to 3 minutes from start to finish and occurredno more than twice each working day, with all potentiallyhazardous fumes being safely cleared from the area throughthe factory's ventilating system within 5 to 10 minutes of eachuse. Thus Fenn could have accommodated any employee whocould not be exposed to the fumes by letting her do her workelsewhere for less than 15 minutes once or twice each day.As a stockroom coordinator, Ms. Rose already moved aroundconsiderably in her job. Indeed, not only did nothing in herjob description require her to perform her work in one fixedlocation, but for at least two months she had been allowedto perform it elsewhere during spray painting. For thosereasons, the Hearing Officer concluded that Fenn's refusal toso accommodate her was a discriminatory practice withinthe meaning of Section 46a-60(a)(7)(E). On that basis heentered orders that Fenn pay Ms. Rose damages and legalinterest as enumerated above.

On this appeal Fenn presents several related claims oferror: first, that the Hearing Officer employed incorrect legalstandards and made erroneous findings of fact in deciding thatMs. Rose had a reasonable belief that continued employmentin her existing position might cause injury to herself and herfetus; second, that the Hearing Officer employed incorrectlegal standards and made erroneous findings of fact indeciding that Fenn failed to make a reasonable effort totransfer [Ms. Rose] to any suitable temporary position whichmay [then have] be[en] available for her; and third, that

the Hearing Officer exceeded his statutory authority when heawarded back pay and damages for emotional distress toMs. Rose as a result of the acts here complained of. For thefollowing reasons, this Court dismisses this appeal insofar asit challenges the Hearing Officer's finding that Fenn engagedin a discriminatory practice in violation of Section 46a-60(a)(7)(E) and decision that it should compensate Ms. Rose forlost wages, but sustains the appeal insofar as it challengesthe Hearing Officer's decision to award her damages foremotional distress.

I

General Statutes 46a-94a(a) provides that [t]hecommission, any respondent or any complainant aggrieved bya final order of a presiding officer ... may appeal therefromin accordance with section 4-183.... General Statutes 4-183(a) provides that [a] person who has exhausted alladministrative remedies available within the agency and whois aggrieved by a final decision may appeal to the superiorcourt as provided in this section. The Hearing Officer'sDecision is a final decision within the meaning of Section4-183(a). Fenn is aggrieved by that Decision because it hasthereby been ordered to pay Ms. Rose money damages.See, e.g., Hartford Federal Savings & Loan v. Tucker,13 Conn.App. 239, 246 (1988). This Court therefore hasjurisdiction to decide this appeal.

II

*6 Judicial review of final agency decisions is governed byGeneral Statutes 4-183(j), which provides in pertinent partas follows:

The court shall not substitute itsjudgment for that of the agency asto the weight of the evidence onquestions of fact. The court shallaffirm the decision of the agencyunless the court finds that substantialrights of the person appealinghave been prejudiced because theadministrative findings, inferences,conclusions, or decisions are: (1) Inviolation of constitutional or statutoryprovision; (2) in excess of the statutoryauthority of the agency; (3) made



upon unlawful procedure; (4) affectedby other error of law; (5) clearlyerroneous in view of the reliable,probative, and substantial evidence onthe whole record; or (6) arbitrary orcapricious or characterized by abuseof discretion or clearly unwarrantedexercise of discretion.

Under this standard of review, findings of fact are to beaccorded considerable weight by the courts, Levinson v.Connecticut Bd. of Chiropractic Examiners, 211 Conn. 508,521 (1989), and the agency's decision must be affirmed unlessthe findings are clearly erroneous based on the record or thefindings are arbitrary or capricious or characterized by abuseof discretion. On appeal, the findings of the hearing officers,as to the facts, if supported by substantial and competentevidence, shall be conclusive. Bd. of Ed. v. CHRO, 176Conn. 533, 539 (1979).

Substantial and competent evidence is that which carriesconviction. It is such as a reasonable mind might accept asadequate to support a conclusion. It means something morethan a mere scintilla and must do more than create a suspicionof the existence of the fact to be established. Id. at 538. Thecourt cannot adjudicate the facts, substitute its own discretionfor that of the tribunal or try the case de novo. Id. at 538-39.

On the other hand, cases presenting questions of law turningupon the interpretation of statutes invoke a broader standardof review. See, e.g., Board of Ed. of the Town of Avon v.Connecticut State Employees Retirement Comm'n, 210 Conn.531, 540 (1989). Thus it has generally been observed that

[c]onclusions of law reached bya referee cannot stand ... if thecourt determines that they resultedfrom an incorrect application of thelaw to the facts found or couldnot reasonably or logically followfrom such facts (citations omitted)....[W]e have recognized that ourstandards of review in administrativeproceedings must allow for judicialscrutiny of claims of constitutionalerror, jurisdictional error, or errorin construction of an agency'sauthorizing statute.

Finkelstein v. Administrator Unemployment CompensationAct, 192 Conn. 104, 113 (1984). Where, especially, theconstruction of a statute [is] on an issue that has not previouslybeen subjected to judicial scrutiny[, ...] an administrativeruling is not entitled to special deference. SchlumbergerTechnology Corporation v. Dubno, 202 Conn. 412, 423(1987).

III

A

*7 Fenn's initial claim is that the Hearing Officer appliedan incorrect legal standard when he ruled that in late Marchof 1983, when Ms. Rose walked away from her job toavoid inhaling fumes from the zinc chromate primer, shereasonably believed that continued employment in that jobmight cause injury to herself or her fetus. Arguing that apregnant employee's honest, good faith belief that she orher fetus is endangered by her working environment cannotqualify as a reasonabl[e] belie[f] under Section 46a-60(a)(7)(E) unless it is supported by objective, scientific proofthat the perceived danger is real and substantial, Fenn claimsthat the Hearing Officer's failure to require such proof inthis case both violated the statute and created a dangerousprecedent.

According to Fenn, there are several important reasons whythe statute must be read to require objective, scientific proofthat the workplace actually poses a real and substantialdanger to maternal and fetal health before an employer'sstatutory obligation to make a reasonable effort to transfera pregnant employee can be triggered. First, it argues thatthe legislature's use of the term reasonable to qualifythe type of belief a pregnant employee must have toinvoke the statute's protections clearly indicates a legislativeintent to assess the legitimacy of the employee's belief byobjective standards. The failure, it claims, to give measurable,identifiable content to those standards by tying them toobjective, scientific proof will effectively deprive them oftheir objectivity, make them unknowable and unworkable,and thereby unjustifiably expose even the most fair-mindedemployers to unfounded claims of discrimination which theywill be powerless to anticipate and avoid. Thirdly, Fennargues that since an employer's statutory obligation maybe triggered either by the employee's or the employer'sreasonabl[e] belie[f] that continued employment in her



position may cause injury to the employee or her fetus, theadoption of a less-than-objective reasonable-belief standardwill enable an unscrupulous employer to rid itself of itspregnant workers on the pretense, unsupported by scientificfact, that their continued employment might harm themselvesor their fetuses. Claiming that such a construction of thestatute would bring it into direct conflict with Title VII ofthe Civil Rights Act of 1964, which has recently been heldto prohibit an employer's implementation of a fetal protectionplan without objective, scientific evidence to justify it, seeInternational Union, UAW v. Johnson Controls, 111 S.Ct.1196, 1204 (1991), Fenn urges this Court to avoid such aconflict, and thus to avoid the partial invalidation of thisstatute, by reading an objective scientific proof requirementinto Section 46a-60(a)(7)(E).

The CHRO agrees that Section 46a-60(a)(7)(E) does notrequire an employer to transfer a pregnant employee merelybecause the employee has the honest, good faith belief thatshe or her fetus will be endangered if she continues to workin her present position. It argues, however, that the properstandard for assessing the objective reasonableness of anemployee's belief that either she or her fetus will be soendangered should not [be] that of the reasonable scientist,but that of the reasonable employee. Brief of the CHROdated October 27, 1992 (hereinafter CHRO Brief), p. 9.

*8 The purpose of the statute, it argues, is to empowerpregnant women to make decisions of choice concerningtheir own and their fetus's health based upon reasonablefactors. While such factors may surely include scientificevidence, the absence of [such] evidence [should] not defeata finding of reasonable belief under the law. Id. Thus, whena pregnant employee perceives a danger to herself or her fetusin the workplace, she has the right to expect that her employerwill accommodate her by making a reasonable effort totransfer her to any suitable temporary position that may thenbe available for her as long as her belief in the existenceof that danger is one that other reasonable employees in hercircumstances would share. Were it otherwise, the CHROargues, the employee would be forced to make an intolerablechoice which our legislature sought to spare her: either tostop working, at the risk of dismissal or demotion, in orderto protect her own health or that of her fetus; or to continueworking, at potentially lethal risk to herself and/or her fetus,in order to preserve her income and benefits at the time sheneeds them most. Human beings, it concludes, should not berequired to become human guinea pigs, suffering the veryharms the law entitles them to avoid, before [their] refusal

to work in the presence of hazardous substances can be foundreasonable. Id. at 9-10.

B

When interpreting and applying a statute, a court must firstexamine the text of the statute to determine if its plainlanguage gives clear, unambiguous guidance as to the intentof the legislators who enacted it. If it does, then the courtmust apply the legislative enactment according to [its] plainterms and cannot read into th[ose] terms ... something whichmanifestly is not there in order to reach what the court thinkswould be a just result. Johnson v. Manson, 196 Conn. 309,315 (1985), quoting Rosnick v. Aetna Casualty & Surety Co.,172 Conn. 416, 422 (1977).

Whenever a statute expressly defines any term or phraseused within it, that term or phrase must be construed andapplied in precise accordance with its statutory definition.Plasticrete Block & Supply Corporation v. Commissioner,216 Conn. 309, 315 (1985), cert. denied, 474 U.S. 1063(1986). When, however, disputed statutory language is not soexpressly defined, its meaning must be ascertained by othermeans reasonably designed to shed light on the legislators'purpose for its use.

Those means, of course, may include an examination of thestatute's legislative history, an evaluation of the legal andhistorical context in which the statute was first enacted, orany other inquiry that may help to clarify the legislators'understanding of their own words. Clearly, however, themost reliable, effective method for discovering what thelegislators intended by their words is to derive thewords' usual and accepted meanings from sources presumablyknown to the [legislators at the time,] including their [prioror contemporaneous] use in other legal contexts and indictionary definitions. Johnson v. Manson, supra at 316-17,quoting Commonwealth v. Zone Book, Inc., 372 Mass. 366,369 (1977). Plainly recognizing the accuracy and utility ofthis method, our legislature has expressly mandated its use byenacting the following rules of construction, which are nowcodified in General Statutes 1-1(a):

*9 In the construction of statutes,words and phrases shall be construedaccording to the commonly approvedusage of the language; and technicalwords and phrases, and such as have



acquired a peculiar and appropriatemeaning in the law, shall be construedand understood accordingly.

C

Because the term reasonable belief is not expressly definedin the text of Section 46a-60(a)(7)(E), this Court must find itsmeaning elsewhere. To that end, as previously noted, it mustfirst examine the full text of the statute to determine if thecorrect meaning of that term is thereby clearly established.Then, if ambiguity remains, it should resort to the standardtools of statutory construction described in case law andcodified in General Statutes 1-1(a).

The text of Section 46a-60(a)(7)(E) gives much usefulguidance as to what the legislature intended when itconditioned the availability of the statute's transfer remedy ona pregnant employee's reasonabl[e] belie[f] that continuedemployment in her current position may cause injury toherself or her fetus. Of special note in this regard are threedistinct features of the statute's triggering mechanism.

The first of these is the use of the term belief to describethe measure of conviction which the employee must haveas to the existence of a workplace danger before she caninvoke the statute's protections. A belief that one facesa particular danger is clearly different from knowledgethat such a danger exists. Whereas knowledge, in commonparlance, is a subjective state of certitude as to a fact thatis demonstrably true, belief is but a firm commitment toor acceptance of the truth of a given proposition, with orwithout the corresponding ability to prove by any standardthat it is true. Though a person cannot know what he doubtsor cannot prove, he can readily believe it, notwithstandinghis uncertainties. Therefore, by expressly providing that anemployer's obligation to accommodate an employee underthis statute is triggered by the employee's reasonable beliefthat continued employment in her current position may causeinjury to herself or her fetus, the legislature must be foundto have intended that pregnant employees should be entitledthe statute's protections even when they cannot prove, byobjective, scientific evidence or otherwise, that the dangersthey seek to avoid are real and substantial.

This conclusion is further supported by the statute'ssubstantive description of what an employee must believebefore she can invoke the statute's protections. She must,

to reiterate, believe that continued employment in [hercurrent] position may cause injury to [herself] or [her]fetus. Id. (Emphasis supplied.) A belief that a particularworkplace danger may exist is obviously different from,and even more uncertain than, a belief that such a dangerdoes exist. While the latter, as previously noted, suggestsa firm commitment to or acceptance of the truth of a givenproposition, the former suggests but an acceptance of therealistic possibility that the proposition in question may betrue. By conditioning the operation of Section 46a-60(a)(7)(E) on a pregnant employee's entertainment of such a less-than-certain belief in the possible existence of a maternalor fetal danger in the workplace, the legislature plainly didnot intend that her very uncertainty about the existenceof such a danger should defeat her right to relief. To thecontrary, the adoption of this lower standard suggests that thelegislature thereby intended to make the statute's protectionsavailable to all pregnant workers who reasonably apprehenda meaningful potential for danger to themselves or theirfetuses in the workplace. Fenn's argument that no such beliefshould be deemed sufficient to invoke the statute's protectionsunless it is supported by objective, scientific proof that thedanger sought to be avoided is real and substantial is simplyinconsistent with the statute's plain language.

*10 This conclusion is not altered by the legislature's use ofthe term reasonable to qualify the sort of employee beliefwhich will trigger an employer's statutory obligations. Forthough the parties agree that such qualifying language wasincluded in the statute to lessen employer exposure to baselessrequests for transfer and frivolous claims of discrimination byrequiring the evaluation of employee concerns for workplacesafety by an objective standard, there is nothing in thestatute to suggest that that standard must be tied to objective,scientific evidence. Nowhere in the statute is there anyreference to such a requirement. Nowhere, in fact, does thestatute explicitly require that the employee's belief in thepossible existence of workplace danger be corroborated inany way, much less that it be validated by information of aparticular type or quality, derived from a particular source,and/or developed by a particular mode of inquiry. In sum,apart from the word reasonable itself, the statute does notdescribe or qualify the type of belief an employee must haveto invoke the statute's protections.

In common speech, the word reasonable means rationaland logical, based on reason rather than bias or surmise.In the absence of other qualifying language in the statute,it would therefore appear that the statute's remedies should



be available to any pregnant employee who rationally andlogically believes that she or her fetus may be injured if shecontinues to work in her current position. Though such abelief need not be based on objective, scientific proof that thedanger feared to exist is real and substantial, it must at least bebased on reason-that is, upon a rational and logical evaluationof all the facts and circumstances which would have beenknown to and taken into account by another reasonable personin the employee's situation. If the employee's belief is one thatwould be shared by other reasonable people in her situation,it is a reasonabl[e] belie[f] within the meaning of Section46a-60(a)(7)(E).

The foregoing, plain-language analysis of Section 46a-60(a)(7)(E) is confirmed by our Supreme Court's longstandinginterpretation of the term reasonable belief in othercommon-law and statutory contexts prior to the enactment ofSection 46a-60(a)(7)(E) by the 1979 Connecticut Legislature.Because the term reasonable belief had thereby acquired apeculiar and appropriate meaning in the law prior to 1979,it should logically be given the same meaning in this statuteabsent compelling evidence of a contrary legislative intent.

In tort law and in criminal law, the term reasonable beliefhas long been used to define key elements of the defense ofself-defense. Thus it has long been held that a person who usesphysical force to defend himself against another person mayjustify his conduct, and avoid all civil and criminal liabilitytherefor, by showing that the force he used was a reasonableresponse to what he reasonably believed to be the otherperson's use or imminent use of physical force against him.

*11 In this context, the question has sometimes arisenwhether a defendant who has employed force to defendhimself against a perceived danger that did not in fact existcan legitimately maintain such a defense. Stated differently,can a defendant's claimed belief in the necessity of using forceto counter another's supposed attack be held reasonablewhen it is later shown that the other person neither attackedhim nor intended to attack him in the manner apprehended atthe time?

This, in fact, is the very question which our Supreme Courtof Errors addressed in Morris v. Platt, 32 Conn. 75 (1864),a civil trespass action in which a defendant claiming self-defense sought to overturn the trial court's judgment againsthim based on the trial judge's failure to instruct his jury thatsuch a mistake, if reasonable, would not defeat his claim.

The Morris Court agreed with the defendant's position in thefollowing language:

A man who is assailed, and under such circumstances asto authorize a reasonable belief that the assault is withdesign to take his life, or do him extreme bodily injurywhich may result in death, will be justified in the eye ofthe criminal law if he kill his assailant, and in an actionof trespass, if he unsuccessfully attempt to kill him, andhe surviving brings his action, for the killing would havebeen lawful and of course the attempt lawful; and noman is liable in a civil suit or criminal prosecution for aninjury lawfully committed in self-defense upon an actualassailant. Doubtless the question whether the belief wasreasonable or not, must, in either proceeding, be ultimatelypassed upon by a jury; and the assailed judges at the time,upon the force of the circumstances, when he forms andacts upon his belief, at the peril that a jury may thinkotherwise and hold him guilty. But in the language of JudgeBronson, in the thoroughly considered case of Shorter v.The People (2nd Comstock, 193), he will not act at theperil of making that guilt, if appearances prove false, whichwould be innocence if they proved true. And such is thelaw as cited by Judge Swift (2 Swift Dig., 285), fromSelfridge's case, and as held on a careful review of all thecases in Shorter v. The People, and in numerous other caseswhich may be found cited there, and in Bishop on CriminalLaw, vol. 2nd, page 561, and it is the law of the land.

Morris v. Platt, supra at 83-84.

The upshot of the Morris decision, as our Supreme Courtwould frequently reiterate in the 115 years between itsissuance and the passage of Section 46a-60(a)(7)(E), is thatthe reasonableness of a person's belief depend[s] on thesituation as it reasonably appeared to [him] ... at the time [ofhis acts] rather than on the circumstances actually existing.Laffin v. Apalucci, 130 Conn. 153, 155 (1943). For as JusticeHammersly cogently put it:

The right of self defense includes theright of protection against a reasonablyapprehended danger; otherwise theright of self-defense would in mostcases be an impotent right. A well-grounded apprehension of danger,as well as a certainly existingdanger, may justify a killing in self-defense. The lawfulness of the actis determined, not by the fact of an



actually existing danger, but by thefact of an honest, reasonable and well-grounded belief in its existence.

*12 State v. Yanz, 74 Conn. 177, 186 (1901) (Hammersly, J.,dissenting). Accord, Ford v. Glennon, 74 Conn. 6, 10 (1901)(Such a necessity [as will justify the use of force in self-defense] need not be a real one, if at the time it appeared tobe real to the person who did the injury.) Hanauer v. Coscia,157 Conn. 49, 54 (1968) (A defendant is justified in actingas he did if he acted on the reasonable belief that the plaintiffintended to do him bodily harm whether or not the dangerwhich gave rise to the belief actually existed if, in resorting toself-defense, he reasonably believed in the existence of sucha danger.)

In 1969, the Connecticut legislature incorporated most ofConnecticut's pre-existing common-law crimes and defensesinto a unified Connecticut Penal Code by the passage ofPublic Act 69-828. Sections 16 through 23 of that Act,which are now codified at General Statutes 53a-16 to53a-23, carried forward into the Penal Code the defense ofself-defense and a host of related defenses which authorizedefendants to use reasonable physical force when theyreasonably believe that one or another particular sets ofcircumstances exists. 6

Though each of these statutes carefully delineates theparticular set of circumstances which a defendant mustreasonably believe to exist before he may assert a defensethereunder, none in any way describes or defines what itmeans to have such a reasonable belief. This, however, wasno mere oversight or omission, creating needless ambiguityin a penal statute. To the contrary, it was a clear indicationthat the term reasonable belief should be construed inaccordance with the peculiar and appropriate meaning ithad already acquired at common law. General Statutes 1-1(a). This is so for two reasons. First, it is a well establishedrule of construction that, [n]o statute is to be construedas altering the common law, further than its words import[and that a statute] is not to be construed as making anyinnovation upon the common law which it does not fairlyexpress. State v. Sanchez, 204 Conn. 472, 479 (1987),quoting Shaw v. Rail Co., 101 U.S. 557, 565, 25 L.Ed. 892(1879). That rule plainly applies to the justification statutes,including, particularly Section 53a-19, defining self-defense,since the term reasonable belief is simply used thereinwithout modification or refinment.

This conclusion is supported, moreover, by the relevantCommentary of the Commission to Review the CriminalStatutes, which on this topic made the following usefulobservations:

Sections 53a-16 to 53a-23 state therules of law under which the use offorce is justified and thus not criminal.For the most part they attempt torestate the common law. They shouldbe read in the light of their commonlaw background, and the fact that anindividual section does not fully statethe relevant common law rule, withall its pollible applications, exceptionsor implications, should not prevent acourt from reading it as incorporatingthe full body of common law rulesrelevant thereto.

28 C.G.S.A. at 219. Continuing, the Commission madethe following more particular note of the 1971 GeneralAssembly's insertion of the word reasonable into thejustification statutes before the phrase physical force:

The purpose of this insertion wasto emphasize that in all casescontemplated by these sections thereasonableness of the force used mustbe judged objectively in the light ofall the circumstances then obtaining aswell as in the light of the actor's belief.

*13 Id.

Against this background, two conclusions are inescapable:first, that the term reasonable belief was to be construedin accordance with its settled common-law meaning; andsecond, that in view of that construction, the reasonablenessof a defendant's belief was to be assessed in the light ofall of the circumstances then obtaining. If a reasonableperson in the defendant's circumstances would believe whatthe defendant believed, his belief would be a reasonablebelief within the justification statutes. Otherwise, he wouldnot be able to maintain a defense thereunder.

Not surprisingly, in the years since the enactment of Sections53a-16 to 53a-23, Connecticut courts have consistentlyenforced the common-law standard in assessing thereasonableness of a defendant's belief in the existence of



circumstances claimed to justify the use of physical forcein self-defense. The test, it has often been observed, is asubjective-objective one. State v. DeJesus, 194 Conn. 376,389 n. 13 (1984). It ... focuses on the ... defendant ... claimingself defense. It focuses on what he reasonably believes underthe circumstances. State v. Corchado, 188 Conn. 653, 663(1982). Self defense thus requires the trier of fact to measurethe justifiability of the defendant's actions from a subjectiveperspective. State v. Hall, 213 Conn. 579, 586 (1990).Ultimately, however, it requires that the defendant's belief befound to be reasonable. State v. DeJesus, supra.

In assessing reasonableness, the Court recognizes that theremay be significant differences between what a defendantreasonably believes and what is true in fact. As at commonlaw, however, this question is so resolved as not to punisha person for mistaken impressions which others in likecircumstances would have shared. Thus the Appellate Courthas stated that in determining the reasonableness of adefendant's belief,

the danger or apparent danger claimedby the defendant is to be determinedfrom his standpoint at the time ofthe attack and under all the existingcircumstances, the act leading to thedefendant's claim of self-defense neednot be an actual threat or assault.The test is not what the otherperson actually intended but what theaggressor's act caused the defendant toreasonably believe was his intention.

State v. Hester, 28 Conn.App. 469, 473 (1992) (quoting withapproval the relevant instructions of the trial judge).

*14 The significance of these legislative enactments andtheir subsequent interpretation for the purpose of this inquirycan hardly be overstated. By making it clear, just eightyears before the passage of Section 46a-60(a)(7)(E), that theterm reasonable belief was to be construed in accordancewith its settled, common-law meaning, the legislature gaveoverwhelming evidence that it should be so construed inevery other statute where compelling evidence of a contraryintent does not appear. Because there is no evidence of acontrary intent in the text of Section 46a-60(a)(7)(E), thephrase reasonable belief must here be accorded the samemeaning it had at common law, to wit: a well-groundedapprehension of danger, State v. Yanz, supra at 186, honestlyand reasonably entertained by the pregnant employee in view

of the situation as it reasonably appeared to [her] ... at thetime ... rather than on the circumstances actually existing.Laffin v. Apalucci, supra at 155. Under this definition, thereasonableness of an employee's belief does not depend onthe depth of her personal conviction that she is in dangeror the degree to which she can prove she is in dangerbased on objective, scientific evidence. Rather, as the CHROHearing Officer correctly concluded, it depends on whethera reasonable person in her situation would have shared herbelief she was in danger under all the circumstances she knewor should have known at the time.

Fenn, as previously noted, has presented no affirmativeevidence that the 1979 Connecticut Legislature intended toalter the settled meaning of the term reasonable belief whenit used that term in the text of Section 46a-60(a)(7)(E). 7Instead, it has argued that that term should now be morenarrowly construed to require validation of an employee'sreasonable belief with objective, scientific proof in order toavoid bringing the statute into conflict with Title VII of theCivil Rights Act of 1964, as recently interpreted and appliedin International Union, UAW v. Johnson Controls, supra, a1991 decision of the U.S. Supreme Court. Johnson Controlsfocused on the permissible ways for dealing with fetalhazards under federal anti-discrimination law. The SupremeCourt there held that Title VII, as amended, forbids sex-specific fetal protection policies. Johnson Controls, 111S.Ct. at 1204. A state cannot mandate special treatmentof pregnant workers based on stereotypes or generalizationsabout their needs and abilities. California Federal Savings& Loan Ass'n v. Guerra, 479 U.S. 272, 285 n. 17 (1987).In Johnson Controls, the High Court ruled that employerscannot implement fetal protection plans designed to protectthe health of fetuses by preventing pregnant women fromworking in jobs believed to be hazardous unless they canpoint to objective, scientific proof that the hazard is real andsubstantial.

Under Fenn's analysis, this Court's failure to read such anobjective, scientific-proof requirement into the triggeringmechanism of Section 46a-60(a)(7)(E) will require theinvalidation of that statute to the extent it authorizesemployers to transfer or dismiss pregnant workers withoutobjectively reliable proof of maternal or fetal danger. For thefollowing reasons, the Court is unpersuaded by this argument.

*15 First, though Section 46a-60(a)(7)(E) clearly requiresan employer to make a reasonable effort to transfer apregnant employee whenever either it or the employee comes



reasonably to believe that her continued employment in hercurrent position may cause injury to herself or her fetus, itdoes not authorize the employer to force the employee fromher job against her will. The employee retains full controlover her decision whether or not to work for two reasons.Initially, if she declines to inform her employer in writingthat she is pregnant, the statute's provisions simply do notapply to her at all. One who wishes to preserve her privacyand autonomy in matters of her own health and that of herfetus thus may do so by her silence. Furthermore, though theemployer must make reasonable efforts to transfer her to asuitable temporary position if she or it reasonably believesthat continued employment in her current position may causeinjury to herself or her fetus, nothing in the statute requiresher to accept a proposed transfer if one is offered to her. Thestatute thus empowers workers who wish both to work duringpregnancy and to avoid maternal and fetal hazards in theworkplace to do so by having reasonable options to continueworking elsewhere to avoid those hazards. Unlike a fetalprotection plan, however, it does not deprive the pregnantworker of the power to make her own ultimate assessmentof the relevant risks and available options if and when theyare identified. For that reason, this Court's decision not toread a requirement of objective, scientific proof into Section46a-60(a)(7)(E) cannot violate Title VII because it does notin any sense deprive a pregnant woman either of her right towork during pregnancy or her power to make personal choicesconcerning the health and upbringing of her children. JohnsonControls, supra at 1207.

Secondly, even if it were somehow determined that thisCourt's interpretation of the reasonable belief requirementof Section 46a-60(a)(7)(E) did conflict with Title VII, asinterpreted and applied in the Johnson Controls decision, theonly effect of that decision would be to invalidate that portionof Section 46a-60(a)(7)(E) which authorizes involuntary,employer-initiated transfers. Such a result would obviouslyhave no effect in this case, since here it is the employee herselfwho sought a transfer and claims discrimination based on heremployer's failure to so accommodate her.

Thirdly, this is not a case in which the legislature canfairly be thought to have anticipated a possible constitutionalconflict between the language it inserted in the statute andthe supervening terms of a federal statute or constitutionalprovision, and thus to have intended a construction ofits words designed to avoid such a constitutional conflict.Though the portion of Title VII construed in JohnsonControls was enacted some 15 years before the passage of

Section 46a-60(a)(7)(E), the Johnson Controls decision brokesignificant new ground under that statute, and came nearly 12years after Section 46a-60(a)(7)(E) first became law. It cannotreasonably be concluded that in passing Section 46a-60(a)(7)(E), the General Assembly intended that its terms be read inlight of an unanticipated U.S. Supreme Court decision thathad not yet been issued.

*16 In sum, the Court concludes that Fenn's invocationof the Johnson Controls decision is inapposite to Section46a-60(a)(7)(E), both in general and as it applies to this case.For that reason, the Hearing Officer's interpretation of theterm reasonable belief, as it is used in that statute, is bothcorrect and constitutional, and must stand.

IV

Fenn's next set of claims challenge the factual findings ofthe Hearing Officer, both as to his ultimate conclusion thatMs. Rose had a reasonable belief that continued employmentin her current position might cause harm to herself and herfetus and as to certain of his preliminary factual findings onwhich he based that conclusion. 8 In particular, it claims thatMs. Rose's belief cannot be found to have been reasonablewhen the record reveals that by the time she walked awayfrom her job she knew or should have known both thatthe only chemicals she feared-halogenated and chlorinatedhydrocarbons-were not in the zinc chromate primer, and thatthe area in which she worked was too large to make theconcentration of fumes to which she might be exposed reachdangerous levels. Ms. Rose knew or should have known aboutthe absence of halogenated and chlorinated hydrocarbonsfrom the zinc chromate primer from two sources: the MSDSshe possessed and information received directly from FennSafety Officer Richard Brooks. She knew or should haveknown that the area in which she worked was too large forthe small amount of spray paint used in her area to harm herbecause here as well, Mr. Brooks had so informed her basedon his own investigation and information he had receivedfrom Travelers personnel.

The Court must first observe that findings of fact or failuresto find fact based on assessments of witness credibility willnot be disturbed on appeal. Conn. Light & Power Co. v.DPUC, 216 Conn. 627, 639 (1990). Thus, even where theadministrative record contains uncontradicted testimony as tothe existence of a given fact, the Hearing Officer's failure tofind that fact must be understood as a discretionary decision



not to believe or accept the testimony of the witness insteadof an abuse of its sound discretion.

In fact, the scope of factual review on an administrative appealis very restricted. Bd. of Ed. v. FOIC, 208 Conn. 442, 452(1988). The Court must not substitute its own judgment forthat of the agency, Lawrence v. Kozlowski, 171 Conn. 705,707-08, cert. denied, 431 U.S. 969 (1977), and it must accordconsiderable weight to the agency's determination of facts.Levinson v. Connecticut Bd. of Chiropractic Examiners, 211Conn. 508, 521, 560 A.2d 403, 410 (1989). On appeal, thefunction of the court is [limited] to examin[ing] the record ...to determine whether the conclusions reached are supportedby the evidence that was before [the agency]. O'Donnell v.Police Comm., 174 Conn. 422, 415 (1978). An administrativefinding is supported by substantial evidence if the recordprovides a substantial basis of fact from which the fact inissue can be reasonably inferred. Lawrence v. Kozlowski,171 Conn. at 713. The court must take into account [thatthere may be] contradictory evidence in the record ... butthe possibility of drawing two inconsistent conclusions fromthe evidence does not prevent an administrative agency'sfinding from being supported by substantial evidence. Huckv. Inland Wetlands & Watercourses Agency, 203 Conn. 525,542 (1987).

*17 On this record, there is substantial evidence to supportthe Hearing Officer's finding that Ms. Rose's belief that sheor her fetus might be injured by her continued employmentin her current position was a reasonable belief which wouldbe shared by another, reasonable person in her situation. Shepersonally smelled the primer's fumes and had an adversereaction thereto. Then she consulted with her own doctor, aswould any reasonable person in her position, and was toldto stay away from aerosols and petroleum products of allkinds, not just the halogenated and chlorinated hydrocarbonsmentioned in the booklet, A Doctor Discusses Pregnancy.She then obtained the MSDS for the substance she wasconcerned about, and again shared it with her doctor. Notonly did the MSDS explicitly warn against exposure to itscontents, but it specifically warned that the primer shouldbe kept away from children. In addition to raising her ownlevel of concern about inhaling the fumes from this dangerousproduct, it obviously raised her doctor's concerns as well, forthereafter he wrote two separate notes explaining that sheshould not be exposed to hydrocarbons on the job, including,explicitly, those contained in the zinc chromate primer.

Though the foregoing efforts were surely those of areasonable expectant mother, Ms. Rose went further,obviously doing everything in her power as a layperson tofully understand the true measure of risk associated with herexposure to the primer. Upon making these efforts, however,the most she could learn was that even if OSHA could conducta proper inspection of her area, it could not inform her whatlevel of exposure to the zinc chromate primer would presentan undue risk to a pregnant mother or her fetus. Hardlyrelieved by that news, she reasonably concluded that a transferto another suitable temporary position was essential to protecther unborn child from risks apparently associated with herinhalation of the primer's fumes. Against this background, itcan surely not be stated that the Hearing Officer's finding wasclearly erroneous or characterized by an abuse of his sounddiscretion.

As for Fenn's more narrow challenges to the Hearing Officer'sfindings of fact, it must first be noted that the Hearing Officermade no finding that Mr. Brooks actually advised Ms. Roseof his own or the Travelers inspector's findings that her healthwould not be in danger because the concentration of fumesin her area would be too low to affect her. Even, however, ifsuch a finding had been made, there would be nothing in sucha communication so powerful, convincing or informative asto disabuse a reasonable expectant mother in Ms. Rose'ssituation of her reasonable belief that continued exposure tothose fumes would endanger herself or her fetus, whether ornot they contained halogenated or chlorinated hydrocarbons.Weighted against the continuing, seemingly informed adviceof her doctor, who had seen the MSDS and was aware ofthe primer's contents, the assurances of a potentially self-interested agent of her employer, unsupported by anythingmore than hearsay from an inspector who had not seen herdepartment in operation during spray painting, could hardlyhave had much persuasive force.

*18 For all of the foregoing reasons, the Court finds thatthe Hearing Officer's finding of reasonable belief must besustained.

V

Fenn next claims error in the Hearing Officer's determinationthat upon learning of Ms. Rose's reasonable belief in thepossible existence of work place danger to herself or her fetus,it violated her rights under Section 46a-60(a)(7)(E) by failingto provide her with a safe working environment free from



spray painting. It objects, more particularly, to the HearingOfficer's conclusion that it could and should have satisfied itsstatutory obligation to Ms. Rose by permitting her to workaway from her normal work station during spray painting.

Under Section 46a-60(a)(7)(E), Fenn argues, its onlyobligation to Ms. Rose upon learning of her above-describedreasonable belief was to make a reasonable effort totransfer [her] to any suitable temporary position whichmay [then have] be[en] available for her. To satisfy thisobligation, it claims, it need only have made an effort whichwas reasonable under all the circumstances to place Ms.Rose temporarily in any position which was both suitablefor her and available to her at the time.

A position, Fenn argues, is a job. A position is suitablefor a pregnant employee when, in view of her qualificationsand current job specifications, she can be placed in thatposition without compromising her employer's businessneeds or unduly disrupting the terms and conditions of herexisting employment. A suitable position is available' for theemployee if it actually exists and is open to be filled by her inthe relevant time frame. Therefore, Fenn claims, an employercannot be found to have violated its statutory obligation to apregnant employee without proof and a proper finding that itfailed or refused to place her in some open, existing job whichwas substantially similar to her existing job.

In this case, Fenn contends, the Hearing Officer erred byruling that it violated Ms. Rose's statutory rights without firstfinding, or having any evidentiary basis upon which to find,that some suitable temporary position was actually availablefor her at the time she walked away from her job. Indeed, itclaims that the Hearing Officer expressly declined to makesuch a finding when he made the following observation:

Based upon the factual evidence presented here it was notnecessary for the Respondent to find a suitable temporaryposition for Mrs. Rose. It was only required to relocatephysically her assigned work place or allow her to leavethe room while spraying was taking place at least until theair cleared of all toxic fumes.

Decision at 22. This observation, Fenn argues, is clearevidence that the Hearing Officer based his ruling on anoverbroad interpretation of its statutory obligation. As aresult, it contends, it has been faulted for refusing to dosomething which the statute clearly did not require it to do.

*19 Had the correct legal standard been employed, Fennargues, the Hearing Officer would necessarily have concludedthat it did not violate the statute, for the evidence of recorddoes not show that any suitable temporary position was in factavailable for Ms. Rose. Indeed, it claims, Ms. Rose herself sotestified, and the CHRO offered no evidence to the contrary.For all of these reasons, Fenn insists that the Hearing Officer'sdetermination that it violated Ms. Rose's statutory rights mustbe reversed.

The CHRO implicitly agrees with Fenn that an employercannot be found to have violated its statutory duty to apregnant employee under Section 46a-60(a)(7)(E) withoutproof and a proper finding that some suitable temporaryposition was actually available for her at the time she soughtto avoid exposure to workplace danger. It disagrees, however,with Fenn's contention that the Hearing Officer neitherfound nor could have found that such a suitable temporaryposition actually existed at the time of Ms. Rose's originalcomplaint in this case. To the contrary, it contends that themodified version of Ms. Rose's existing job, in which she hadpreviously worked outside her normal work area during spraypainting, was just such a suitable temporary position.

The CHRO bases its argument on its reading of the statutoryterm position to mean either a job, in the ordinary senseof that word, or the physical location in which a job isperformed. With that definition in mind, it argues that thereare two types of suitable temporary position to which anemployer may appropriately attempt to transfer a pregnantemployee to satisfy its obligation to accommodate her underSection 46a-60(a)(7)(E): either a different job with differentduties, or the same job performed in a different physicallocation.

Here, the CHRO argues, the Hearing Officer properly ruledthat Fenn's failure to grant Ms. Rose permission to leaveher normal work area during spray painting constituteda violation of its statutory duty under Section 46a-60(a)(7)(E) for the following reasons. First, the granting ofsuch permission for a maximum of 10-15 minutes eachworking day would not in any way have compromised Fenn'slegitimate business needs. Ms. Rose, it claims, moved aroundconsiderably in her job, and the record contains no evidencethat the granting of such permission had ever detracted orwould ever detract from her own job performance or theefficient operation of her department. Second, the making ofthis minimal accommodation would have alleviated Ms.Rose's legitimate fears of workplace danger, and thus have



enabled her to continue working throughout her pregnancy.On this basis, the CHRO argues, Fenn's refusal to soaccommodate Ms. Rose was properly held to have violatedher rights under Section 46a-60(a)(7)(E).

A

To resolve the parties' conflict as to the true nature of anemployer's duty to accommodate a pregnant employee underSection 46a-60(a)(7)(E), the Court must first examine thetext of that previously uninterpreted statute. There it finds,as the parties have agreed, that an employer's only duty to apregnant employee upon learning of her reasonable belief inthe possible existence of workplace danger to herself or herfetus if to make a reasonable effort to transfer [her] to anysuitable temporary position which may [then] be availablefor her. Id.

*20 So phrased, the statute obviously does not impose onemployers either a general duty to protect their pregnantemployees from workplace danger or a specific duty tomove them out of potentially dangerous positions duringtheir pregnancies. Instead, by explicitly providing that theonly remedy an employer must make a reasonable effort toafford its employee is a transfer to any suitable temporaryposition which may be available for her, the statute plainlycontemplates that in certain cases no such accommodationneed be made. Where, more particularly, it appears that nosuitable temporary position is available for the employeedespite her employer's reasonable effort to find her one, theemployer need not take any other action to accommodate theemployee because the statute, quite simply, does not requireit. The statute thereby seeks to strike a fair balance betweenthe employee's powerful interest in avoiding workplacedanger during pregnancy and the employer's legitimate needto maintain efficiency in the operation of its workplace.

Against this background, the true measure of an employer'scompliance with Section 46a-60(a)(7)(E) must be thereasonableness of its effort to transfer the employee to anysuitable temporary position which may be available for her.Though the term reasonable effort is not defined in thestatute and has not yet been construed by our courts, itsmeaning can readily be gleaned from the text of the statuteitself.

An effort, in common parlance, is an attempt to accomplisha definite goal or purpose. A reasonable effort must

therefore be the kind of effort which a reasonable person inthe actor's situation would rationally and logically make toaccomplish that goal or purpose.

Because the goal or purpose prescribed by Section 46a-60(a)(7)(E) is totransfer the pregnant employee to any suitabletemporary position which may be available for her, areasonable effort to accomplish that goal or purpose mustlogically be made in two stages. First, the employer mustmake a reasonable effort to identify any suitable temporaryposition which may then be available for the employer in itsworkforce. Second, if this initial reasonable effort leads to theidentification of a temporary position which is both suitablefor the employee and available to her, it must take immediatesteps to place the employee in that position.

The Court agrees with Fenn that the term position, as usedin Section 46a-60(a)(7)(E), means a job. This is because inanother part of the same Public Act by which that subsectionbecame law, the terms position and job were expresslyequated as follows:

[It shall be a discriminatory practicefor an employer, by himself orhis agent,] to fail or refuse toreinstate ... [a pregnant] employee[who has taken a pregnancy-relatedleave of absence] to her originaljob or to an equivalent positionwith equivalent pay and accumulatedseniority, retirement, fringe benefitsand other service credits....

*21 Conn.Gen.Stat. 46a-60(a)(7)(D) (emphasis added).By making such interchangeable use of the terms job andposition, and ascribing to each the common characteristicsof a job, in the ordinary sense of that word, the enactorsof Section 46a-60(a)(7)(E) gave clear notice that those termsshould be given a common meaning whenever they were usedin the statute.

The Court also agrees with Fenn, as does the CHRO, inits analysis of the terms suitable and available, as theyare used in the statute. Consistent with the Legislature'smanifest intent to strike a fair balance between the reasonableinterests of employers and employees alike in fashioningappropriate employer responses to reasonable employeebeliefs in the possible existence of workplace danger, thesuitability of any position to which the employee mayappropriately be transferred must obviously be assessed from



two perspectives. From the employer's perspective, a positionis suitable for the employee if she is capable of performingall of the tasks associated with it in a manner that suits itsbusiness needs. From the employee's perspective, a positionis suitable if her placement in it will not unduly disrupt theterms and conditions of her existing employment. Therefore,just as an employer cannot satisfy its statutory obligationby attempting to transfer a pregnant employee to a positionwhose terms, conditions and essential job requirements arenot substantially similar to her own, it cannot be faulted forfailing to offer her such a demonstrably unsuitable positioneven if it is available for her in the relevant time frame.

A position is available for the pregnant employee if, as theparties agree, it actually exists and is open to the employeeat the time she harbors her reasonable belief. The inclusionof this limitation in the statute gives clear notice that anemployer need not create a wholly new position for a pregnantemployee, even if that position would be suitable for her.

Notwithstanding the Court's agreement with Fenn as tothe meanings of the foregoing statutory terms, it agreeswith the CHRO that an employer can satisfy its statutoryduty to its employee by making a reasonable effort totransfer her either to an entirely different position in itsworkforce which is both suitable and available for her,or to a modified version of her existing position which isno less suitable and available for her. The latter, likethe former, is obviously a position-that is, a job with adefinite set of responsibilities associated with it. It will besuitable for the pregnant employee as long as it is sostructured as to enable her to perform all of her assigned taskscompetently and efficiently, for its terms and conditions areobviously identical to those of her existing position. Finally,a modified version of the employee's existing position willbe available for the employee as long as her existingposition is sufficiently flexible to permit the modificationin question without compromising her employer's businessinterests. The recognition of flexibility in an employee'sexisting job does not constitute the creation of an entirelynew job, which the statute does not require. Instead, it mustfairly be deemed to constitute the transfer of the employeeto a suitable temporary position which is available to theemployee because it exists, she already occupies it, and it canproperly be performed in a modified manner.

*22 In view of the foregoing analysis, an employer'sreasonable initial effort to find its employee a suitabletemporary position to which she might appropriately be

transferred under Section 46a-60(a)(7)(E) must include thefollowing steps. First, the employer must closely examinethe employee's existing position to determine whether or notthere is sufficient flexibility in it to permit her to performher assigned tasks in a modified manner without eithercompromising her job performance or exposing herself andher fetus to the workplace danger she reasonably seeks toavoid. If such a modified version of her existing positioncan be so identified, the employer must immediately make itpossible for her to be placed in that position until the dangershe fears has been eliminated or her pregnancy is at an end.

If the employee's existing position is not sufficiently flexibleto permit such a temporary modification of it to accommodateher reasonable belief in the possible existence of workplacedanger, the employer must next attempt to determine if adifferent suitable temporary position is currently availablefor her in its workforce. To that end, it must first examineits entire workforce to determine what positions are or maysoon become available for the pregnant employee. Thenit must decide if any such position might be suitable forher by comparing the employee's known qualifications andcredentials and the terms and conditions of her existingposition with the minimum qualifications for and terms andconditions of any available position to which she mightappropriately be transferred. Only by conscientiously makingsuch a thorough, good faith effort to find an appropriatematch between the pregnant employee and any positionwhich is or may become available for her can the employer,which is uniquely well positioned to know its own workforceand to assess its own business needs, make a meaningfuldetermination whether a suitable temporary position isactually available for the pregnant employee in the relevanttime frame. Because an employer's failure or refusal to makesuch a reasonable initial effort to find its pregnant employeea suitable temporary position will make it difficult at bestfor an employee to prove that such a position was in factavailable for her, an employer which fails to make such aneffort must be held to have violated its statutory duty to theemployee no less than an employer which fails or refusesto place its employee in a suitable temporary position whichclearly existed.

B

In this case, then, there are two independent bases upon whichthe Hearing Officer's finding that Fenn violated Ms. Rose'srights under Section 46a-60(a)(7)(E) must be upheld. First,



the record clearly supports the Hearing Officer's essentialfinding that Fenn made no effort whatsoever to find Ms.Rose a suitable temporary position in its workforce. Havingcome to the firm view that Ms. Rose's belief in the possibleexistence of workplace danger was baseless, it devotedconsiderable energy to disabusing her of that belief, but neveronce gave ground on its basic position, most clearly voicedby Mr. Brooks in his last meeting with her: If you can't workin your department, you can't work at Fenn.

*23 It is doubtless true that Fenn's supervisory and industrialrelations personnel were thoroughly convinced that Ms. Rosecould not reasonably have believed what she claimed tohave believed concerning the possible existence of workplacedanger, despite her express reliance on the MSDS, theprimer's label and the repeated advice of her obstetrician. Still,by committing itself to resisting her every effort to seek asafe alternative to working in her existing position, it tookthe calculated risk that its unyielding resistance would laterbe treated as a total failure to make any effort, much less areasonable effort, to transfer her to any suitable temporaryposition which may then have been available for her. Even,then, if the record in this case contained no evidence thatsuch a suitable temporary position was available for Ms. Rosewhen she walked away from her job, the Court would beunable and unwilling to draw the conclusion that no suchposition could ever have been found. In sum, because therecord clearly shows that Fenn failed to make even the mostpreliminary effort to find Ms. Rose a suitable temporaryposition in its workforce, the Hearing Officer's finding that itviolated Ms. Rose's statutory rights under Section 46a-60(a)(7)(E) must be upheld.

The second basis upon which the Hearing Officer's findingof a statutory violation must be upheld is that the recordamply supports his alternative finding that Fenn failed toplace Ms. Rose in a suitable temporary position which infact was available for her. That position, of course, was themodified version of Ms. Rose's existing position in which,in the early months of her pregnancy, Fenn had admittedlypermitted her to work away from her normal work stationwhen the zinc chromate primer was being used to spraypaint aircraft parts in her work area. That job, as the HearingOfficer correctly found, was sufficiently flexible to permitsuch a minor adjustment without in the least bit compromisingFenn's legitimate business interests. It was a job she couldperform competently and without disrupting the work of herdepartment, for she had done so without incident from lateNovember of 1982 through late February of 1983. It was a job,

moreover, in which she already moved around considerably.Had Fenn relented by simply granting her the continuing rightto work away from her desk a short 10-15 minutes each day, itwould not only have alleviated her legitimate concerns for thehealth and safety of herself and her fetus, but in the bargainwould have retained the competent services of a competent,qualified employee for at least three months.

In conclusion, this modified version of Ms. Rose's existingposition was clearly both suitable for her and available toher in the final months of her pregnancy. Fenn's refusal totransfer her to that suitable temporary position constituteda clear violation of Section 46a-60(a)(7)(E). Therefore, theHearing Officer's finding that Fenn should have placed her inthat position to fulfill its statutory duty should be upheld.

VI

*24 Fenn's final two claims of error relate to the HearingOfficer's awards of damages to Ms. Rose for the wages shelost and the emotional distress she suffered as a result ofits failure to make a reasonable effort to transfer her to asuitable temporary position, and her resulting decision towalk away from her job to protect the health of her fetus. Bothclaims arise under Section 46a-86 of the Connecticut GeneralStatutes, which provides in pertinent part as follows:

(a) If, upon all the evidence presented at the hearingconducted pursuant to section 46a-84, the presiding officerfinds that a respondent has engaged in any discriminatorypractice, the presiding officer shall state his findings of factand shall issue and file with the commission and cause to beserved on the respondent an order requiring the respondentto cease and desist from the discriminatory practice andfurther requiring the respondent to take such affirmativeaction as in the judgment of the presiding officer willeffectuate the purpose of this chapter.

(b) In addition to any other action taken hereunder, upona finding of a discriminatory employment practice, thepresiding officer may order the hiring or reinstatementof employees, with or without back pay, or restorationto membership in any respondent labor organization,provided, liability for back pay shall not accrue froma date more than two years prior to the filing orissuance of the complaint and, provided further, interimearnings, including unemployment compensation andwelfare assistance or amounts which could have beenearned with reasonable diligence on the part of the person



to whom back pay is awarded shall be deducted from theamount of back pay to which such person is otherwiseentitled. The amount of any such deduction for interimunemployment compensation or welfare assistance shallbe paid by the respondent to the commission which shalltransfer such amount to the appropriate state or localagency.

(c) In addition to any other action taken hereunder,upon a finding of a discriminatory practice prohibitedby section 46a-58, 46a-59, 46a-64, 46a-64c, 46a-81b,46a-81d or 46a-81e, the presiding officer shall determinethe damage suffered by the complainant, which damageshall include but not be limited to the expense incurred bythe complainant for obtaining alternate housing or space,storage of goods and effects, moving costs and other costsactually incurred by him as a result of such discriminatorypractice and shall allow reasonable attorney's fees andcosts.

A

With respect to the Hearing Officer's decision to award Ms.Rose back pay, Fenn's argument under Section 46a-86 ispresented in two parts. First, it argues that because specialprovision for the awarding of back pay is made in the textof subsection (b) of the statute, the parallel, affirmativeaction remedy provided for in subsection (a) of the statutecannot be read to give rise to an independent right to backpay under circumstances not covered by subsection (b).A contrary conclusion, Fenn contends, would violate thefundamental maxim of statutory construction that no wordor phrase used in a statute should be so construed as to giveit no independent purpose or meaning in the statute. If theaffirmative action language of subsection (a) were read toauthorize the awarding of back pay, it claims, the separateback pay provisions of subsection (b) would have no meaningor purpose.

*25 The second part of Fenn's argument is that the textof subsection (b) of Section 46a-86 expressly restricts theawarding of back pay to cases in which the discriminatorypractice to be remedied involves the wrongful discharge ofan employee or the wrongful failure to hire a qualified jobapplicant. This is so, it claims, because the only circumstancesin which the statute authorizes the awarding of back pay are

those in which the remedies of hiring or reinstatement are alsoordered. Insisting that this is not a case involving a claim ofwrongful discharge or failure to hire, Fenn concludes that theHearing Officer exceeded his statutory authority by awardingback pay to Ms. Rose.

The CHRO responds that the provisions of Section 46a-86(a)and (b), read individually or together, create a broad rightin the employee to be returned to the economic status shewould have had had it not been for the discriminatoryconduct of her employer. Subsection (b) thus specificallyacknowledges the propriety of awarding back pay to remedyproven employment discrimination, and the affirmativeaction language of subsection (a) has been held to be broadenough to authorize what the CHRO describes as both backpay and front pay in the case of State v. CHRO, 211 Conn.464, 478 (1989). For the following reasons, the Court agreeswith the CHRO that the awarding of back pay is indeed aproper remedy in this case.

The Connecticut Supreme Court has long held that underSection 46a-86(a), a CHRO hearing officer who finds that anemployer has discriminated against its employee must

render a decree which will, so far as possible, eliminatethe discriminatory effects of the past as well as bar likediscrimination in the future, Wroblewski v. LexingtonGardens, Inc., [188 Conn. 44,] 66-67 (Parskey, J.,dissenting); Albemarle Paper Co. v. Moody, 422 U.S. 405,418, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975).

Civil Service Commission v. CHRO, 195 Conn. 226, 231(1988). Ideally, of course, this means to restore [theemployee] to the position he would have attained absentthe unlawful discrimination. Id. at 230. Where, however,such relief can only be afforded by the creation of anew position or the bumping of an innocent beneficiary ofunlawful discrimination from his or her job, the hearingofficer must find other ways to remedy the discrimination,including, where appropriate, the granting of retroactive andprospective monetary relief. Id. at 230.

Applying these principles to the case before it, the Court inCivil Service Commission v. CHRO struck down the order of aCHRO hearing officer which required the City of Waterburyto create a new fire lieutenant's position for a firefighter whowas not promoted to such a position when the City used adiscriminatory tie-breaking method to choose between himand another employee for the job. Instead, it ordered that thecase be remanded to the hearing officer who decided it so



that he could determine what other relief might appropriatelybe awarded under the circumstances to keep the complainanton a par with the other employee who got the job. Id. at231. In so doing, the Court recognized that a major portionof the relief, which the hearing officer might originally haveconsidered awarding to the complainant would no longerappropriate, for in the interim the complainant had beenpromoted to captain. Still, the Court declined to rule that thecase was entirely moot, for the complainant had made certainclaims for monetary relief, and those claims remain[ed]unresolved. Id. at 232, n. 4.

*26 The special significance of this case is that it explicitlyrecognized the appropriateness of awarding back pay or paydifferentials to remedy proven employment discriminationwhere such relief is necessary to put a victim of employmentdiscrimination on a par with other similarly situatedemployees who have suffered no such discrimination.Because, more particularly, it authorized the granting of suchrelief in a case not involving either a wrongful terminationor a wrongful failure to hire, it directly undermines Fenn'sargument that back pay can only be awarded in such cases.

By a similar logic, the Supreme Court subsequently uphelda CHRO hearing officer's decision to award monetary reliefto a male retiree whose pension benefits in the early yearsof his retirement were unlawfully made lower than thoseof similarly situated female retirees by using a sex-basedactuarial table. State v. CHRO, supra. Holding that the relieftherein ordered, including the payment to the complainantof all monies he would have received had his benefitsbeen calculated properly by using a unisex actuarial table,was plainly command[ed] by the mandatory language ofSection 31-127, now codified at Section 46a-86(a), State v.CHRO, supra at 481, the Court explained the logic of itsdecision as follows:

The relief is intended to restore those wronged to theirrightful economic status absent the effects of the unlawfuldiscrimination.... We are under a duty to render relief whichwill eliminate the discriminatory effects of the past aswell as bar like discrimination in the future. Louisianav. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822,13 L.Ed.2d 709 (1966).... (Citations omitted.) [Rosenv. Public Service Electric & Gas Co., 477 F.2d 90 (3dCir.1973).]

State v. CHRO, supra at 484. This case, then, like CivilService Commission v. CHRO, provides strong support forthe proposition that regardless of the context, a victim of

unlawful employment discrimination is entitled to monetaryrelief to restore [her] to [her] rightful economic status absentthe effects of the unlawful discrimination. Id. Whetherthe wrong has been done by terminating the employee,refusing to hire her in the first place, or otherwise, monetaryrelief may appropriately be ordered either to eliminatethe discriminatory effects of the past ... [or to] bar likediscrimination in the future. Id. (Citation omitted.)

This reading of subsection (a) of Section 46a-86 doesnot render meaningless the limiting language of Section46a-86(b). Read together, the two subsections must fairly beunderstood to place a two-year limit on the maximum periodfor which back pay can be awarded, and otherwise to requirethat deductions be made from any back pay award for anyinterim earnings which the employee either received or couldhave received in that two-year period from any of the sourceslisted in the statute. Otherwise, however, the Supreme Court'sprior interpretations of Section 46a-86(a) plainly refute Fenn'sargument that back pay can only be awarded to an employeewho has been wrongfully terminated or wrongfully refusedemployment in the first place.

*27 The question thus becomes whether or not Ms.Rose's lost wages are so fairly attributable to Fenn's provendiscriminatory conduct as to justify the Hearing Officer'sdecision to award them. For the following reas

Fenn Mfg v Commission on Human Rights and Oppurtunities

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