- M. Lee Smith Publishers

<font size="1">Excerpted from Connecticut Employment Law Letter and written by attorneys at the law firms of Jorden Burt LLP </font><br /><br />By now, you know that the old "sticks and stones" schoolyard adage is way off: Words can hurt you. You may be surprised to find out how few words (in this case, a 12-word phrase in an e-mail) it takes to really hurt an employer that's facing a discrimination claim. <br /><strong><br /><br />Facts<br /></strong><br />In October 2003, Lynn Kucharski began working at Cort Furniture Rental, a national furniture rental business, as a commercial account executive. In January 2004, she accepted a newly created account executive position servicing accounts in a smaller geographic territory. Also in January 2004, she informed her superiors that she was pregnant, with a June due date, and inquired about the company's leave policy. She was told company policy allowed four weeks of unpaid leave. Kucharski didn't qualify for leave under the Family and Medical Leave Act because she had been employed less than a year. <br /><br /><br /><strong>Medical complications arise<br /></strong><br />In April 2004, Kucharski submitted a doctor's note indicating that she had been diagnosed with a high-risk pregnancy, prescribed bed rest, and would be unable to work until further notice. She offered to work from home using a laptop, but her manager rejected the offer, noting that her position required her to travel within her sales territory. <br />Cort Furniture informed Kucharski that her allotted leave would expire on May 3 and that thereafter, if she failed to report to work, she would be terminated. She failed to report back to work and, as promised, was terminated. <br /><br /><br /><strong>Legal complications arise<br /></strong><br />Kucharski sued Cort Furniture, alleging "sex and pregnancy discrimination" in violation of both Title VII of the Civil Rights Act of 1964 and the Connecticut Fair Employment Practices Act (CFEPA). Specifically, she claimed that the decision to terminate her was based, in whole or in part, on her sex and pregnancy. She also claimed that she was discriminated against on the basis of her medical complications because of her pregnancy in violation of the Americans with Disabilities Act (ADA) and CFEPA. <br /><strong><br /><br />A split decision is born<br /></strong><br />Cort Furniture filed a request with the court asking that all Kucharski's claims be dismissed. The court agreed with the company that her pregnancy complications didn't constitute a disability within the meaning of the ADA. Under the ADA, disability is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of the individual." <br /><br />Kucharski claimed she was substantially limited in her major life activity of "working." The court concluded that an impairment rises to the level of a disability only when (1) it significantly restricts a person from performing a broad range of jobs or (2) the duration of the impairment goes beyond a "temporary restriction" in one's ability to perform work. It found that Kucharski's condition lasted only about two months (ceasing after she gave birth), so the pregnancy complications amounted to merely a temporary restriction. Moreover, the court found that her condition didn't restrict Kucharski from performing a "broad class of jobs." <br /><br />Likewise, the court agreed with Cort Furniture that Kucharski's condition didn't rise to the level of a "chronic physical handicap, infirmity or impairment" as the term "physically disabled" is defined under CFEPA. Thus, it dismissed her disability claims under the ADA and CFEPA. <br /><br />The court did agree with Kucharski that her claims of gender and pregnancy discrimination under both Title VII and CFEPA shouldn't be dismissed before trial. First, it looked to an April 27, 2004, e-mail written by Kucharski's superior stating that she was terminated "due to her inability to work due to complications from her pregnancy." Kucharski contended that the e-mail was "direct evidence" of discrimination. Cort Furniture contended that it merely reflected the fact that her termination was because of an inability to work and that the reason for the inability to work was incidental. Noting that the employer's motivation is at issue in discrimination charges, the court found that the parties' dispute over the meaning of the e-mail would have to be resolved by a jury. It refused to dismiss the gender and pregnancy discrimination claims on that basis. <br /><br />The court also offered a second reason for its refusal to dismiss the gender and pregnancy discrimination claims. It noted that because Kucharski was able to demonstrate a prima facie case of gender or pregnancy discrimination, the burden fell on her employer to prove that her termination was the result of a "legitimate, nondiscriminatory business reason" for the alleged discrimination. <br /><br />Cort Furniture asserted that its nondiscriminatory business reason for the termination was Kucharski's inability to fulfill the tasks required of her position. She countered with evidence that she claimed established that the company could have covered her position while she was unable to work. Citing the parties' conflicting evidence, the court held that the dispute would have to await resolution by a jury, so it refused to dismiss the gender and pregnancy discrimination claims under Title VII and CFEPA. <br /><br /><br /><strong>Lesson: Anything you say can and will be held against you<br /></strong><br />While this case provides useful lessons about what qualifies as a disability, a more basic lesson emerges from the weight the court placed on a single phrase used in an e-mail. Evidence of motivation is generally found in the words and actions we choose. Because no court or jury can ever truly know what a person is or was thinking, consider the impact your words may have. Had Kucharski's superior simply noted in his e-mail that she was terminated because of her inability to work (which was ultimately Cort Furniture's legal position) without also noting that the inability to work was "due to complications from her pregnancy," Kucharski's discrimination claims would have been substantially weaker and may not have survived the request seeking their dismissal. In this case, less would have been more. <br /><br /><br /><font size="1"><br />Copyright 2008 M. Lee Smith Publishers LLC. CONNECTICUT EMPLOYMENT LAW LETTER . CONNECTICUT EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather seeks to provide information about current developments in Connecticut law. It is provided as a means of conveying accurate, but general, information. It is not intended as legal advice, which must always be tailored to individual needs and particular circumstances. Questions about individual problems should be addressed to the attorney of your choice. The State Bar of Connecticut does not designate attorneys as board certified in employment, and we do not claim certification in any listed area. </font><br />