In recent years, there’s been a dispute bubbling up in federal court discrimination cases as to what level of proof is required for an employee to win.  Does the employee need to show that “but for,” say, racial animus, he or she would not have been subject to an adverse employment action or does the employee only need to show that racial animus was a “motivating factor” in that action?

A Connecticut Appellate Court case recently answered that question when analyzing state discrimination claims brought under the Connecticut Fair Employment Practices Act (“CFEPA”).  Under Connecticut law, an employer has committed illegal discrimination when it, among other things, refuses to hire or employ an individual “because of” the individual’s membership in a protected class. The Appellate Court held that when an employee sues an employer for violating the CFEPA, the employee must prove only that illegal discrimination was a cause (i.e., a “motivating factor”) rather than the cause (i.e., the “but for” cause), of the adverse employment action taken against the employee.

Employers should take note of this decision, because an employee bringing a claim for disability discrimination under the CFEPA will have a lower burden of proof than they would face when bringing a claim under the Americans with Disabilities Act (“ADA”), which requires the employee to prove that illegal discrimination was the “but for” cause of the employment decision.  This, in turn, may continue the trend of employees bringing more claims of discrimination to state court, rather than federal court.

In the case before the Court, Wallace v. Caring Solutions LLC, the Plaintiff, a certified nursing assistant who is hard of hearing, sued a home health agency for discrimination claiming she was not hired following a job interview at the agency in which she mentioned that she had a hearing disability and was subsequently asked about her ability to communicate with the agency’s clients. At trial, the agency explained that it did not hire the Plaintiff because of her sporadic work history, her reliability, and a fax that was sent to the agency by the Plaintiff’s mother immediately following the Plaintiff’s job interview, which contained information about employment discrimination. The trial court determined that the Plaintiff had not proven that she was not hired was “because of” her hearing disability, and that the agency’s reasons for not hiring her were not due to intentional discrimination.

On appeal, the Plaintiff argued that the trail court incorrectly required her to show that her hearing disability was the “but for” cause for the agency’s decision not to hire her and that, under the CFEPA, she only needed to prove that her hearing disability was a “motivating factor” in the agency’s decision.

In its ruling, the Appellate Court agreed with the Plaintiff that, under CFEPA, an employee need only to prove that illegal discrimination was a motivating factor in the employer’s decision to take an adverse action against the employee. The Court also found that the agency had established that the record from the trial court supported the conclusion that the Plaintiff’s hearing disability did not play any role in the agency’s decision not to hire her.

What’s the takeaway for employers? Understand that discrimination claims can still be won by employers with proof that there was a legitimate nondiscriminatory reason for the adverse action.  Ensuring that the employer’s decision is supported by facts and documents can further bolster the employer’s chances of prevailing at trial.