On April 25, 2018, a Connecticut state court judge issued a decision giving a more expansive definition to the term “discipline” as it is used in Connecticut General Statutes § 31-51q (“Section 31-51q”). In doing so, the Court departed from the majority of previous state court decisions addressing this issue.
Section 31-51q prohibits an employer from subjecting “any employee to discipline or discharge on account of the exercise of such employee of rights guaranteed by the first amendment of the United States Constitution or section 3, 4, or 14 of article first of the Constitution of the state.” Section 31-51q, however, does not include a definition of “discipline” or “discharge” and thus our state courts have been left to interpret the statute to give each of those terms their intended meanings. With respect to “discipline,” the majority of courts in Connecticut have held that that term is limited to affirmative acts of punishment or acts that diminished the status or happiness of the recipient rather than the failure to enhance that status or happiness. Thus, for example, if an employee is suspended without pay and claims that such a suspension was because of her protected speech, such a claim would fall within the ambit of “discipline” under Section 31-51q. On the other hand, if an employee did not receive a promotion (i.e. a job enhancement) that she had no right to receive, that action would not be considered “discipline” under Section 31-51q.
In this recent case, however, the Court found that the definition of “discipline” as employed by Section 31-51q and as ascertained from the text of the statute itself and its relationship to other statutes is broader than previously viewed. According to the Court, “discipline” refers to “any adverse material consequence relative to a right, term, condition, or benefit of employment that existed at the time of the protected speech.” Thus, under the Court’s new interpretation, an employee may be able to maintain a claim under Section 31-51q if, for example, she engaged in protected speech and shortly thereafter was denied a benefit previously promised to her, like the benefit of a continually renewed employment contract.
Because there appears to be no appellate authority in Connecticut regarding the definition of “discipline” as contemplated by Section 31-51q, this may be an issue that will remain in flux for some time and may make it difficult for employers to succeed early on in any litigation based on arguments that the allegations do not include a disciplinary action.