LUIS PATINO v. BIRKEN MANUFACTURING COMPANY, SC 18441

Judicial District of Hartford at Hartford

     Labor; Discrimination Based on Sexual Orientation; Hostile Work Environment; Whether a Hostile Work Environment Claim can be Asserted Under General Statutes § 46a-81c, Which Prohibits Sexual Orientation Discrimination in Employment; Whether the Evidence was Sufficient to Establish the Existence of a Hostile Work Environment.  The plaintiff, Luis Patino, was employed by the defendant, Birken Manufacturing Company (Birken), as a machinist.  Beginning in 1991, some of Patino's coworkers began calling him derogatory homosexual names.  The derogatory words were not spoken to Patino directly but were made in his presence.  In 2005, Patino commenced this action, alleging that Birken violated General Statutes § 46a-81c by failing to prevent its employees from creating a hostile work environment for Patino on the basis of his sexual orientation.  Section 46a-81c provides in relevant part: "It shall be a discriminatory practice . . . [f]or an employer, by himself or his agent, . . . to discriminate against [an individual] . . .  in terms, conditions or privileges of employment because of the individual's sexual orientation . . . ."  (Emphasis added.)  After trial, the jury returned a verdict in favor of the plaintiff.  Birken filed a motion to set aside the verdict, arguing that no cause of action exists for a hostile work environment claim under the plain and unambiguous language of § 46a-81c.  The trial court acknowledged the absence of an explicit hostile work environment provision in § 46a-81c but found that this was not dispositive.  Rather, the court opined that the answer to the question before it turned on the interpretation of the phrase "terms, conditions or privileges of employment" in § 46a-81c.  The court observed that in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), the United States Supreme Court, in the context of a sexual harassment claim under Title VII, broadly interpreted the phrase "terms, conditions or privileges of employment" to include protection from a hostile work environment.  Relying on Vinson, the trial court ruled that the phrase "terms, conditions, or privileges of employment" in § 46a-81c imposes liability on an employer who fails to prevent its employees from creating a hostile work environment for a coworker on account of his sexual orientation.  Next, Birken argued that the evidence was insufficient to establish a hostile work environment because the derogatory words Patino heard were not directed at him.  Relying on federal court precedent, the trial court ruled that discriminatory conduct does not have to be directed at the plaintiff or to his face to be actionable.  Thereafter, noting that Patino consistently overheard his coworkers making derogatory remarks about his sexual orientation in his presence, the court rejected Birken's insufficiency of the evidence claim, stating that Patino's workplace was both objectively and subjectively hostile.  Accordingly, the trial court denied Birken's motion to set aside the verdict.  On appeal, Birken contends that § 46a-81c does not provide a cause of action for a hostile work environment claim.  Alternatively, Birken claims that the evidence was insufficient to establish that the conduct of the coworkers created a hostile work environment for Patino.