COMMISSION ON HUMAN RIGHTS & OPPORTUNITIES v. ECHO HOSE AMBULANCE et al., SC 19496

Judicial District of New Britain

 Employment Discrimination; Whether Federal “Remuneration” Test or State Common-Law “Right of Control” Test Should Apply in Determining Whether Person an “Employee” Under Connecticut Fair Employment Practices Act.  The complainant, an African-American female, filed a claim with the Commission on Human Rights and Opportunities (CHRO) alleging that the defendant city and the defendant ambulance company discriminated and retaliated against her because of her race and color in violation of the Connecticut Fair Employment Practices Act (CFEPA) and Title VII of the Civil Rights Act of 1964.  She claimed that while she was participating in a volunteer program with the ambulance company, the defendants allowed her to be subjected to a hostile work environment and unfair discipline, which culminated in her termination from the program.  The city moved to strike the claim, arguing that the complainant could not bring a claim under CFEPA because she was not an employee of the city or of the ambulance company.  A CHRO referee granted the motion to strike, and the trial court upheld that ruling, finding that the referee had properly determined that the complainant was not an employee because she had not received “direct or indirect remuneration” from the ambulance company.  The complainant appealed, arguing that the court improperly applied the federal remuneration test rather than Connecticut's common-law “right of control” test in determining whether she was an employee under CFEPA.  The Appellate Court (156 Conn. App. 239) disagreed and affirmed the trial court's judgment.  The court noted that CFEPA’s definition of “employee” is ambiguous and that the common-law right of control test, which generally is applied to distinguish between employees and independent contractors, does not answer the question of whether an individual is an employee for purposes of CFEPA.  That test provides that one is an employee of another when he or she renders a service for the other that is subject to the will of the other in the manner in which it is to be completed and in the means to be employed in its accomplishment, as well as in the result to be attained.  The Appellate Court stated that the right of control test fails to answer the antecedent question of whether an individual had been hired in the first instance, and it found that the trial court properly looked to federal law and properly applied the remuneration test that is applied by the United States Court of Appeals for the Second Circuit in determining whether an individual is an employee for purposes of Title VII of the Civil Rights Act of 1964.  The remuneration test requires a putative employee to establish that he or she has received direct or indirect remuneration from the alleged employer.  The complainant appeals, and the Supreme Court will determine whether the Appellate Court properly applied the remuneration test rather than the right of control test in determining whether the complainant was an employee under CFEPA.