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OLR Bill Analysis
sSB 420
AN ACT CONCERNING THE STATE WORKFORCE AND
DISCRIMINATION AND RETALIATION IN THE WORKPLACE.
SUMMARY
This bill requires most branches and agencies of the state government
to adopt a zero-tolerance policy for using managerial authority to
discriminate or retaliate against employees who complain of
discrimination. The bill (1) requires each state employer to ensure that
it is safe for employees to make formal or informal complaints and (2)
makes any violation of the bill a discriminatory employment practice as
defined in state law. Existing state law prohibits the state as an employer
from discrimination or retaliation in the workplace and authorizes the
Commission on Human Rights and Opportunities (CHRO) to
investigate complaints.
The bill also establishes the Office of the Racial Justice
Ombudsperson (ORJO). It requires the ombudsperson to, among other
things, (1) institute a diverse slate initiative that requires Black or
African American and Hispanic or Latinx job candidates to be
prioritized for interviews using a hiring or promotional process that
meets certain requirements and (2) create a mechanism to deliver
antiracism and bias trainings to all state employees, managers, state
vendors, and consultants. Under existing law, unchanged by the bill,
CHRO oversees the affirmative action hiring enforcement for all state
agencies.
EFFECTIVE DATE: January 1, 2023
§§ 1 & 2 — ZERO-TOLERANCE POLICY FOR DISCRIMINATION AND
RETALIATION
Under existing law, unchanged by the bill, it is a discriminatory
employment practice to discriminate against anyone in compensation or 2022SB-00420-R000431-BA.DOCX
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employment terms, conditions, or privileges, or to bar or terminate them
from employment, due to race; color; religious creed; age; sex; gender
identity or expression; marital status; national origin; ancestry; present
or past history of mental disability, intellectual disability, learning
disability, or physical disability, including blindness; or status as a
veteran. There is also a similar provision in state law banning
employment discrimination based on sexual orientation.
Under the bill, “discrimination” means any adverse action taken
against an employee in whole or in part due to the race, color, religious
creed, sex, gender identity or expression, marital status, age, national
origin, ancestry, status as a veteran, intellectual disability, mental
disability, learning disability, or physical disability. (This definition
does not include sexual orientation.) “Manager” is any managerial
employee as defined in state employee collective bargaining law.
This bill requires all branches and agencies of state government
considered an employer under the state employee collective bargaining
law to adopt a zero-tolerance policy for using managerial authority to
discriminate or retaliate against employees who make discrimination
complaints. This covers the executive and judicial branches, as well as
the constituent units of higher education, quasi-public agencies, and any
related boards, departments, or commissions. It does not include the
legislative branch, State Board of Labor Relations, or State Board of
Mediation and Arbitration.
The zero-tolerance policy must:
1. forbid any manager from taking or threatening to take any
personnel action, retaliating, or discriminating against an
employee who makes a discrimination complaint and
2. include performance and other sanctions against managers who
(a) dissuade or seek to dissuade employees from filing
discrimination complaints or (b) fail to investigate complaints
objectively and fully, consistent with identified procedures after
an incident, including notifying the complainant about the
investigation’s status and outcome. 2022SB-00420-R000431-BA.DOCX
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Each state employer must ensure employees that it is safe for them to
formally or informally complain about managerial authority in violation
of the bill.
Enforcement
Any state employer who takes any action against a covered employee
in violation of the bill must be deemed to have committed a
discriminatory employment practice as defined in CHRO law and to be
in violation of the state’s anti-retaliation employment law. Any
employee who brings any action under any of these existing laws may
recover, in addition to all other damages available, treble damages for
any employment losses. (Presumably this refers to bringing civil action
in Superior Court, but the bill does not say.)
Under the bill, terminating an employee in violation of the bill must
be conclusively presumed to create irreparable harm for purposes of any
temporary or permanent injunction that may be brought to redress the
violation. And there must be an irrebuttable presumption that there is
not adequate remedy at law. (The bill does not provide a process to
determine whether there has been a violation of its provisions and it
does not name the person or agency that would make this
determination. The bill expressly states that a violation will be
conclusively presumed to create irreparable harm, but it does not state
more specifically what situation the presumption can be applied in.)
Under existing law, a court will generally not order an injunction
unless the party accused of the violation is notified and given the
opportunity to respond. But the law also allows a complainant to prove
to a court from the specific facts shown by affidavit or by verified
complaint that irreparable loss or damage will result to the complainant
before the matter can be heard and the injunction must be granted
immediately.
Additionally, under the bill the doctrine of exhaustion of
administrative remedies must not apply in any action to redress a
discharge or other termination of employment. 2022SB-00420-R000431-BA.DOCX
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Current law authorizes CHRO to investigate discrimination
complaints and discriminatory employment practices in the state
workforce (CGS Chap. 814c).
§ 3 — RACIAL JUSTICE OMBUDSPERSON
Beginning January 1, 2023, the bill establishes the ORJO and gives the
office several duties related to hiring and training state employees. The
bill does not specify how the ORJO authority interacts with the existing
statutory authority of (1) the Department of Administrative Services
regarding state hiring practices and (2) CHRO regarding discrimination
investigations.
Under the bill, the office must:
1. establish working definitions for all key terms and descriptors to
lay the foundation for its work;
2. institute a diverse slate initiative that requires Black or African
American and Hispanic or Latinx employment candidates to not
simply be among those considered, but prioritized for interviews
for positions using a hiring or promotional process that would
require the hiring manager to screen and interview all candidates
using a standard antiracist screening and interview protocol;
3. create a structure or mechanism to (a) deliver antiracism and bias
trainings to all state employees, managers, vendors, and
consultants and (b) track participation to show disaggregated
data by position, length of service, and demographic profile;
4. design a culture and climate survey to (a) assess the physical,
racial, linguistic, and cultural safety of everyone in an agency,
and (b) the extent to which each person feels valued and believes
the agency’s policies and practices are equitable and just;
5. submit a theory of action and plan for making constant progress
towards eliminating systemic racism in state government and
implementing strategies and structures to maintain a workplace
that (a) affords physical, racial, linguistic and cultural safety, and 2022SB-00420-R000431-BA.DOCX
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(b) privileges the ability of all employees to challenge racism and
aggressions (the bill does not specify to whom the theory of
action and plan should be submitted; it is not clear what the term
“privileges” means in this context);
6. ensure that all employees get full and fair grievance hearings,
without fear of retaliation, and ensure fair and racially just
outcomes (the bill does not legally connect the ORJO to any
employee hearing process);
7. foster a workplace where managerial authorities are accountable
to lead and model antiracist practices and make changes needed
to ensure an antiracist, equitable workplace for all;
8. track and review the performance review process and protocols
and performance reviews, to identify discrepancies between
white workers and black and brown workers in terms of
education, time in position, job education provided,
opportunities for professional development and growth to
immediately create remediation plans to address racial
disparities (performance reviews are generally confidential and
the bill does not expressly give ORJO access to them);
9. analyze and recommend solutions to hiring, training, and
promotion practices which have resulted in $10,000 pay
differentials between black and white workers;
10. focus on specific and actionable steps that those with supervisory
or managerial authority can implement within their workplace to
eliminate their unconscious or conscious racial biases; and
11. review complaints and administered discipline, and recommend
remediation plans where evidence of disparate discipline,
responses to complaints, and manner of investigation differed by
employees’ race.
The ombudsperson must (1) be appointed by a mutual agreement of
the State Employees Bargaining Agent Coalition (SEBAC) Racial Justice 2022SB-00420-R000431-BA.DOCX
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Committee and the governor and (2) be an expert in matters relating to
the history, root causes, manifestations and persistent effects of racism.
The bill does not explicitly authorize the ombudsperson to hire staff or
establish deadlines to complete the various tasks in the bill.
The ombudsperson must report to a joint committee consisting of the
SEBAC Justice Committee, the governor, or his designee, and the Labor
Committee.
COMMITTEE ACTION
Labor and Public Employees Committee
Joint Favorable
Yea 9 Nay 4 (03/24/2022)