Opinion
No. CV-93-0457003-S
December 6, 1994
RULING ON DEFENDANT'S MOTION TO STRIKE FROM JURY DOCKET
The defendant has moved to strike this case from the jury list, raising what appears to be the yet undecided issue of whether a plaintiff alleging employment discrimination in violation of General Statutes § 46a-100 has a right to a jury trial under that provision.
The plaintiff, who is a former employee of the defendant, alleges that he was discharged because of his age in violation of General Statutes § 46a-60(a)(1). He brings this lawsuit pursuant to General Statutes § 46a-100 after having obtained a timely release from the Connecticut Commission on Human Rights and Opportunities.
The plaintiff claimed this case to the jury docket and the defendant now moves, pursuant to Practice Book § 282, to strike it from the docket. The defendant's argument is twofold. First, it points out that the legislature has not specifically provided for a jury trial in actions brought pursuant to General Statutes § 46a-100. Second, relying on the constitutional analysis set forth in Bishop v. Kelly, 206 Conn. 608, 618, 539 A.2d 108 (1988) and Associated Investments Co. v. Limited Partnership, 230 Conn. 148 (1994), the defendant argues that Article I, Section 19 of the Connecticut Constitution does not mandate a jury trial in this matter because no similar cause of action for which there was a right to a jury trial existed at common law in 1818 when the Connecticut Constitution was adopted.
This court's inquiry must begin with whether § 46a-100, properly construed, gives the plaintiff the right to a jury trial. It will be necessary to consider whether the Connecticut Constitution provides such a right only if the court finds that no such right is provided by the statute. "Established wisdom counsels us to exercise `self-restraint' so as to `eschew unnecessary determinations of constitutional questions.'" McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 702, 553 A.2d 596 (1989).
I.
General Statutes § 46a-100 creates a cause of action for any employee who has been the victim of a discriminatory employment practice in violation of General Statutes § 46a-60. Section 46a-60 prohibits discrimination in the hiring, discharge and conditions of employment on the basis of certain enumerated characteristics including race, age, sex, marital status and physical and mental disability.
Sec. 46a-100 states that:
Any person who has timely filed a complaint with the commission on human rights and opportunities in accordance with section 46a-82, alleging a violation of section 46a-60 and who has obtained a release from the commission in accordance with section 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford/New Britain.
General Statutes § 46a-60(a) provides:
It shall be a discriminatory practice in violation of this section:
(1) For an employer, by himself or his agent except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability, including, but not limited to, blindness;
General Statutes § 46a-81c prohibits discrimination in employment based on sexual orientation.
General Statutes § 46a-104, in turn, provides that "[t]he court may grant a complainant in an action brought in accordance with section 46a-100 such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorney's fees and court costs." (Emphasis added.) The dispositive question arising out of the use of the word "court", therefore, is whether the legislature intended "court" to include both judge and jury, or judge alone.
"We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." Lauer v. Zoning Commission, 220 Conn. 455, 459-60, 600 A.2d 310 (1991). Statutory language is to be given its plain and ordinary meaning, and if such language is unambiguous it is assumed that the language expresses the intent of the legislature. 2A N. Singer, Sutherland Statutory Construction § 45.01 (4th ed. 1984 Rev.).State v. Blasko, 202 Conn. 541, 522 A.2d 753 (1987). If the language is ambiguous then resort is made to extrinsic aids, such as the legislative history and the circumstances and purpose surrounding the statute's enactment. Id.
In Bishop v. Kelly, supra, 206 Conn. 616, the Supreme Court concluded that "[i]n legal usage, authority conferred upon a `court' normally contemplates action by a judge and not by a jury." Acknowledging that it has, "in rare circumstances, construed the term "court" in other statutes to include the jury"; Id.; the Court concluded that "ordinary usage . . . mandating action by the `court'" does not include action by the jury. Id.
According to Black's Law Dictionary (6th ed. 1990) one legal definition of court states that "[t]he words `court' and `judge', or `judges' are frequently used in statutes as synonymous." Other federal and state courts which have considered this issue have concluded that in certain circumstances "court" may include "jury". In Olearchick v. American Steel Foundries, 73 F. Sup. 273, 280 (W.D. Pa. 1947), the District Court interpreted section 216 of the Fair Labor Standards Act of 1938, 29 U.S.C. § 216(b), which stated that the "court . . . shall allow a reasonable attorney's fees" to "include and mean the court and jury, if the case is tried before a jury." Likewise, in Rucker v. Wabash R.R., 418 F.2d 146, 152 (7th Cir. 1969), the court stated that "[t]he term `court' need not always be construed as referring to the judge in the performance of his duties. It also has an institutional meaning and may sometimes refer to the deliberative body of jurors." See, also, Beesley v. Hartford Fire Insurance Co., 723 F. Sup. 635 (N.D. Ala. 1989).
The Court distinguished the two cases in which it determined that "court" included the jury, noting that in one of the cases;Miles v. Strong, 68 Conn. 273 (1896); the statute construed in that case was later described in Standard Co. v. Young, 90 Conn. 133, 137 (1916); as a "peculiar statute . . . that establishes a novel mode of judicial procedure." The Court noted that the second case; Banks v. Watrous, 134 Conn. 592 (1948); relied onMiles v. Strong, and had not subsequently been "cited on this point of construction. Bishop v. Kelly, 206 Conn. 608, 616 n. 5 (1988).
The legislative history of § 46a-100 sheds little light on the question of whether the legislature intended to provide plaintiffs with the right to a jury trial. While it is clear that the legislature was concerned with reducing the backlog of cases at the Commission on Human Rights and Opportunities; see, e.g., 34 H.R. Proc., Part 23 1991 Session p. 8918, Remarks of Representative Rell; "[m]any of the cases before [CHRO] simply cannot be handled . . .; there was no explicit discussion during either the floor debate or the committee hearings concerning the availability of a jury trial. Instead, reference was repeatedly made to the "court" or to the "judicial system". "This allows for direct access to the court". Id. "Employee discrimination complaints would only be taken to court after the CHRO had acted". Remarks of Representative Adamo, Id., 8908; "I think it's only fair to the parties that they have full access to the court system". Remarks of Representative Coleman, Id., 8918. Reference to the legislative history, in short, provides little assistance in discerning the meaning of the word "court" as used in § 46a-104.
Conn. Joint Standing Committee Hearings, Labor and Public Employment, Pt. 1, 1991 Sess., pp. 60-62; 119-120; 167-69. See,In Re Valerie D., 223 Conn. 492, 518 n. 19 6133 A.2d 748 (1992) (approving "consideration of testimony in committee of individual addressing proposed enactment when such testimony provides particular illumination for subsequent legislative actions on proposed bills"). (Citation omitted; internal quotation marks omitted.)
Finally, it is appropriate to make reference to the use of the word "court" in the other anti-discrimination provisions contained in Chapter 814. "Ordinarily we read the same terms in the same statute to have the same meanings"; AirKaman, Inc. v. Groppo, 221 Conn. 751, 758, 607 A.2d 410 (1992); and the meaning of a particular phrase in a statute is to be determined by reference to the use of that phrase in other parts of the same statute. Doe v. Institute of Living, Inc., 175 Conn. 49, 392 A.2d 491 (1978).
General Statutes § 46a-89(a) authorizes the Commission on Human Rights and Opportunities to "bring a petition in equity in the superior court" for the purpose of "seek[ing] temporary injunctive relief" on behalf of a complainant who may suffer irreparable harm as a result of a discriminatory practice. Section 46a-89a provides that "the court, or any judge thereof, after hearing, shall issue a temporary injunction upon finding that irreparable loss of damage will result to the complainant. . ." As used in 46a-89a the term "court" can only refer to a judge as injunctive relief is an equitable remedy entrusted to the discretion of a judge, not a jury. Pet v. Department of Health Services, 207 Conn. 346, 542 A.2d 672 (1988).
Application of the doctrine that the same words in the statute should be accorded the same meaning; Doe v. Institute of Living, supra; suggests that the legislature intended that "court" in 46a-104 signify the judge and not the jury. While the usual and customary definition of "judge"; Bishop v. Kelly, supra; also suggests the legislature did not intend to provide a jury trial, the absence of any explicit discussion of this issue in the legislative debate tempers that conclusion. In short, the evidence suggests, but hardly compels the conclusion that the legislature did not intend to provide the right to a jury trial in actions brought pursuant to General Statutes § 46a-100. In light of this, it is necessary to consider whether the right to a jury trial is guaranteed by Article I, Section 19 of the Connecticut Constitution.
II
Article I, Section 19 of the Connecticut Constitution provides that "The right of trial by jury shall remain inviolate." The standards for determining whether a party is entitled to a trial by jury under the Connecticut Constitution and General Statutes § 52-215 are well established. "[W]e must ascertain whether the action being tried . . . has roots in the common law, and if so, whether the remedy involved was one in law or equity. If the action existed at common law and involved a legal remedy, the right to a jury trial exists and the legislature may not curtail that right either directly or indirectly.Associated Investment Co. v. Williams Associates, supra, 230 Conn. 152 (Katz, J., dissenting), quoting United States Fidelity Guaranty Co. v. Spring Brook Dairy Inc., 135 Conn. 294, 297 64 A.2d 39 (1949).
General Statutes § 52-215 provides that "the following-named classes of cases shall be entered in the docket as jury cases upon written request of either party . . . civil actions involving such an issue of fact, as prior to January 1, 1880, would not present a question properly cognizable in equity . . ." Whether the claim for a jury trial is made under the statute or Article I, Section 19 of the Connecticut Constitution, the same analysis is applied. Ford v. Blue Cross Blue Shield of Connecticut Inc., 216 Conn. 40, 51 (1990).
"We have held, therefore, that the right to a jury trial exists both in cases in which it existed at common law at the time of the adoption of the constitutional provisions preserving it and in cases substantially similar thereto." Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 50 578 A.2d 1054 (1990). (Emphasis in the original.) "We are not implying that the right to a jury trial does not exist in any cause of action that was not specifically recognized at common law in 1818. The historical test we apply is flexible and may require a jury in a new cause of action, not in existence in [1818], if it involves rights and remedies of the sort traditionally enforced in an action at law or if its nearest historical analogue is an action at common law." Skinner v. Angliker, 211 Conn. 370, 377 n. 2, 559 A.2d 701 (1989). (Internal quotations and citations omitted.)
Consideration of the defendant's claim in this case requires, therefore, a two part analysis. The first question is whether the cause of action established in § 46a-100 was triable to the jury prior to 1818, or is substantially similar to cause of action triable to a jury prior to 1818. The second question is whether § 46a-100 provides an equitable or legal remedy.
A
Neither party claims that a cause of action based on unlawful employment discrimination existed at common law prior to 1818. Both agree, however, that the closest common law analogue to the cause of action established in § 46a-100 is an action for wrongful discharge. Because this cause of action was not recognized until recently; Sheets v. Teddy Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980); the defendant argues that the right to trial by jury does not attach to a § 46a-100 action. The available historical evidence casts doubt on the defendant's position.
Beginning in the 14th century in feudal England, the paternalistic relationship between lord and servant provided the foundation for the evolving legal relationship between employer and employee. As originally codified in the Ordinance of Labourers, 23 Edward II, c. 2 (1349), lord and servant had imposed on them reciprocal rights and responsibilities designed to protect their relationship. 1 W. Blackstone, Commentaries on the Law of England 413 (1969 ed.). The Ordinance of Labourers provided that the employer could not "put away his cause", and that apprentices could be discharged only for "reasonable cause." Id., 413-14, n. 124.
In the sixteenth century, a subsequent statute "prohibited an employer from discharging an employee `unless it be for some reasonable and sufficient cause or matter.'" Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 561, 479 A.2d 781 (1984), quoting Statute of Labourers, 5 Eliz. C. 4 (1562) (reprinted in 6 Pickering's Statutes 159-60 (1763)). Although this statute was subsequently repealed, English common law adhered to the doctrine that a contract of employment for an indefinite duration was presumptively for a term of one year; Id.; and that a wrongfully discharged employee had a available a number of remedies including: (1) an action in assumpsit for quantum meruit; (2) an action in indebitatus assumpsit; or (3) an action for breach of contract for wrongful discharge. See, generally, Note, "A Reexamination of the Constitutional Right to A Jury Trial Under Title VII of the Civil Rights Act of 1964", 26 Tulsa L.J. 571, (1991); and Beesley v. Hartford Fire Insurance Co., supra.
In his Commentaries; 1 W Blackstone, Commentaries on the Law of England 413 (1969 ed.); Blackstone wrote in 1765 that:
[t]he contract between them and their masters arises upon the hiring. If the hiring be general without any particular time limit, the law construes it to be a hiring for a year; upon a principal of natural equity, that the servant shall serve, and the master maintain him, throughout all the revolution of the respective seasons; as when there is work to be done, as when there is not; but the contract may be made for any larger or smaller term.
While the English rule allowing a discharged employee to maintain a wrongful termination action against his employer was the predominant American rule throughout the eighteenth century; 1 C. Labatt, Commentaries on the Law of Master and Servant § 156 (2d ed. 1913); Feinman, "The Development of the Employment at Will Rule," 20 Amer. J. Leg. Hist. 118 (1976); it is unclear whether Connecticut adhered to it. What is certain is that the employment at will doctrine was not propounded until the late nineteenth century when reference was first made to it in H. Wood, A Treatise on the Law of Master and Servant § 134, (1877). The employment at will doctrine, which holds that "an employment contract of indefinite duration was terminable at the will of either party `for good cause, for no cause or even for cause morally wrong'"; Magnan v. Anaconda Industries Inc., supra, 563, quoting Payne v. Western Atlantic R. Co., 81 Tenn. 507, 519-20 (1915); was not expressly adopted in Connecticut until 1915. Boucher v. Godfrey, 119 Conn. 622, 178 A.2d 655 (1935).
In connection with the question whether Connecticut adopted the English rule allowing a cause of action for wrongful discharge, Justice Shea notes, with apparent incredulity, that "Without citation of supporting authority, Tapping Reeve boldly claimed that Connecticut had no such practice as adopted in England."Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 562 n. 7 (1984). Justice Shea indicates that New York adhered to the English rule as late as 1891. Id., quoting Adams v. Fitzpatrick, 125 N.Y. 124, 26 N.E. 143 (1891).
"Scholars and jurists unanimously agree that Wood's pronouncement in his treatise, Master and Servant § 134 (1877), was responsible for nationwide acceptance of the rule. They also agree that his statement of the rule was not supported by the authority upon which he relied, and that he did not accurately depict the law as it then existed." Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 562 n. 7 (1984).
Commentators and courts now agree that the employment at will: doctrine was "fostered by the predominant laissez-faire economic philosophy of the period." Note, "Wrongful Discharge in Connecticut," 21 Conn. L. Rev. 467, 470 n. 11 (1989). See, also, Blades, "Employment at Will v. Individual Freedom: On Limiting Abusive Exercise of Employer Power," 67 Colum. L. Rev. 1404 (1967); and Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 563 n. 8 (1984).
Connecticut's employment at will rule remained intact until 1970 when Connecticut, like most other jurisdictions that recognized the severity of the employment at will doctrine; Note, "Protecting at Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith," 93 Harv. L. Rev. 1816 (1980); approved a common law cause of action in tort for discharge "where the discharge contravenes a clear mandate of public policy." Sheets v. Teddy's Frosted Foods, Inc., supra 179. Although the Sheets ruling was described as "a radical change in the law"; Mooney and Pingpank, "Wrongful Discharge: A "New" Cause of Action?", 54 Conn. B.J. 213, 214 (1980); when placed in its historical context it can more appropriately be described as "back to the future."
Not surprisingly, plaintiff's then counsel in Sheets, now Superior Court Judge Robert F. McWeeny, preferred to describe the Sheets decision as "the better view". McWeeny, "Out of the Fog: A Different View on Retaliatory Employee Discharge," 54 Conn. L.J. 235, 243 (1980).
While the historical evidence is not without ambiguity it suggests that the law governing employer-employee relations and the causes of action arising out of that relationship has not been static, but rather has evolved in response to changing conditions and attitudes. Feinman, "The Development of the Employment at Will Rule," supra. The stronger and more persuasive evidence indicates that prior to 1818 the majority American rule recognized a cause of action for wrongful discharge;Magnan v. Anaconda Industries, Inc., supra, 562; Note, "Implied Contract Rights to Job Security," 26 Stan. L. Rev. 335 (1974). With the exception of Tapping Reeves "boldly claim[ing]" in 1846 "[w]ithout citation of supporting authority"; Magnan v. Anaconda Industries, Inc., supra, 562 n. 7; that Connecticut did not adhere to the majority view, there is no evidence to support the argument that at common law prior to 1818 Connecticut, consistent with the prevailing American rule, did not recognize a cause of action for wrongful discharge. An early Connecticut case on this subject, although involving a contract of employment for a fixed term, suggests that a cause of action alleging wrongful discharge actions was recognized. Champion v. Hartshorne, 9 Conn. 564, 567 (1833) ("And not only so, but if the dismissal was without cause, he had given the defendant a right to demand the payment of his wages as fully as though every stipulation in the contract had been performed on his part").
The historical evidence also demonstrates that the employment at will doctrine was not adopted in America until 1875; Wood, A Treatise on the Law of Master and Servant § 156, supra;Magnan v. Anaconda Industries, Inc., supra; and was not recognized by the Connecticut Supreme Court until 1935. Boucher v. Godfrey, supra. Although the right to a jury trial depends, in part, on "an abstruse historical search for the nearest 18th century analog"; Tull v. United States, 481 U.S. 412, 421 (1987), quoting Ross v. Bernhard, 396 U.S. 531, 538 n. 10 (1970); that search discloses a sufficient basis for concluding that an action under § 46a-100 is substantially similar to an action recognized at common law prior to the adoption of the Connecticut Constitution in 1818.
The Seventh Amendment to the United States Constitution provides that, "[i]n Suit at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . ." The United States Supreme Court has construed this language to require a jury trial on the merits in those actions that are analogous to "suits at common law." Tull v. United States, 481 U.S. 412, 417, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987). This formulation requires the Court to "compare the statutory action to 18th century actions brought prior to the merger of the courts of law and equity." Id. This "abstruse historical search"; Id., 421; has prompted the call to eliminate the historical analogue requirement; Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558 110 S.Ct. 1339, 1350 (1990) (Brennan, J. concurring) and has resulted in the Supreme Court concluding that the second prong of the inquiry — whether the remedy is legal or equitable — is "more important." Granfinanciera S.A. v. Nordberg, 492 U.S. 33 (1989).
Our Supreme Court has recognized the similarity between the analysis employed under the seventh amendment and the Connecticut Constitution. "In determining whether there is a right to a jury trial under the seventh amendment, the United States Supreme Court applies a historical test in which it looks to see whether a similar cause of action was triable to a jury when the constitution was adopted in 1791. Although the seventh amendment constitutional guarantee of a right to a jury trial applies only in the federal courts; the similarity between the state and federal tests was recognized in Swanson v. Boschen." Skinner v. Angliker, supra, 378. (Internal quotations and citations omitted).
This conclusion finds support in Connecticut precedent and federal decisions. See, e.g., Ford v. Blue Cross and Blue-Shield of Connecticut Inc., supra, 40, affirming the right to a jury trial under General Statutes § 31-290 and concluding that an action to redress a retaliatory firing for seeking benefits under the Worker's Compensation Act has its roots in the common law. "It should be recalled that our modern law of torts has its origins in the common law of trespass and trespass on the case. W. Prosser W. Keeton, Torts (5th Ed. 1984) § 6, pp. 28-31. We conclude, therefore, that because the classical theory upon which recovery is based brought pursuant to § 31-290a was redressable at common law, the plaintiff's action was properly tried to a jury." Id., 52-53.
The defendant argues that the analysis applied in Ford v. Blue Cross v. Blue Shield, Inc., 216 Conn. 40 (1990) is no longer valid in light of the Supreme Court's most recent decision on the right to trial by jury; Associated Investment Co. v. Williams Associates, 230 Conn. 148 (1994,) (Katz, J., dissenting). While the defendant's position does have a textual basis; ("[t]he majority's conclusion represents a shift from the well established test we have articulated for determining whether the right to a jury trial in a particular case is constitutionally required"); 230 Conn. at 165 (Katz, J., dissenting); both the majority and the dissent appear to agree that an historical analysis is required.
Finally, although the United States Supreme Court has not decided whether there is a right to a jury trial under Title VII of The Civil Rights Act of 1964; 42 U.S.C. § 2000a-2000h; (1988); Lytle v. Household Manufacturing, Inc., 110 S.Ct. 1331 (1990); some federal courts have likened the Title VII unlawful employment practice cause of action to common law causes of action. See, e.g., Ochoa v. American Oil Company, 338 F. Sup. 914, 919 (S.D. Texas 1972) ("It clearly appears from this that the Title VII action for the unlawful employment practice of discriminatory discharge . . . finds its historical counter-part in the common law action for breach of contract by wrongful discharge, which was, of course, tried to a jury.) Likewise, Mr. Justice Marshall has observed that "[a]n action to redress racial discrimination may also be likened to an action for defamation or intentional infliction of emotional distress. Indeed, the contours of the latter tort are still developing, and it has been suggested that `under the logic of the common law development of a law of insult and indignity, racial discrimination might be treated as a dignitary tort.'" Curtis v. Loether, 415 U.S. 189, 195 n. 10, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), quoting C. Gregory H. Kalven, Cases and Materials on Torts 961 (2nd ed. 1969).
Title VII of the Civil Rights Act of 1964; 42 U.S.C. § 2000e-1-17 (1988) prohibits discrimination in employment. Specifically, an employer may not "fail or refuse to hire or discharge any individual, or otherwise discriminate with respect to his compensation, terms, conditions, or privileges of employment on the basis of race, sex, religion, or national origin." Prior to 1992, virtually every Circuit and District Court was asked to decide whether a plaintiff had the right to a jury trial. See, Note, "Is There A Jury Trial Right in Title VII Actions?", 33 Ariz. L.Rev. 655 (1991) (collecting cases); and Comment, "The Seventh Amendment and Civil Rights Statutes: History Adrift in a Maelstrom," 68 Nw. U.L. Rev. 503 (1973). Although most courts denied the right to a jury trial; Culpepper v. Reynolds Metals Co., 296 F. Sup. 1232, 1240 (N.D. Ga. 1969), rev'd on other grounds, 421 F.2d 888 (5th Cir. 1970); c.f., Beesley v. Hartford Fire Insurance Co., 723 F. Sup. 635 (N.D. Ala. 1989); principally on the ground that Title VII provides only equitable remedies;Lorillard v. Pons, 434 U.S. 575 (1978); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); the United States Supreme Court never "ruled on the question whether a plaintiff seeking relief under Title VII has a right to a jury trial." Lytle v. Household Manufacturing, Inc., 110 S.Ct. 1331, 1335 n. 1 (1990). Recently, however, Congress has resolved any ambiguity by amending the Civil Rights Act to explicitly confer the right to trial by jury in any action in which compensatory or punitive damages are requested. Civil Rights Act of 1991, § 794, P.L. No. 102-166, 105 Stat. 1071.
The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621, which prohibits discrimination in employment on the basis of age, has been construed to provide the right to a jury trial. Lorillard v. Pons, 434 U.S. 575 (1978).
While the historical analysis required under Article I, Section 19 is necessarily impressionistic, the evidence points to the conclusion that an action under 46a-100 is substantially similar to common law cause of action available in Connecticut prior to 1818. Accordingly, the first prong of the analysis required under Skinner v. Angliker, supra, is satisfied.
B
The second prong of the Article I, Section 19 analysis is whether the remedy provided in § 46a-100 and § 46a-104 is legal or equitable. "Because at common law only legal claims were tried to a jury the state constitutional right to a trial by jury does not extend to equitable claims." Associated Investment Co. v. Williams Associates, supra, 153. § 46a-104 states that "[t]he court may grant a complainant in an action brought in accordance with section 46a-100 such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorney's fees and court costs" (emphasis added).
Equity is "a system of positive jurisprudence founded upon established principles which can be adapted to new circumstances where a court of law is powerless to give relief." Harper v. Adametz, 142 Conn. 218, 223, 113 A.2d 136 (1955). The hallmark of equitable remedies is the discretion vested in the court:
Equity is a roguish thing: for law we have a measure, know what to trust; equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. `Tis all one, as if they should make his foot the standard for measure we call a Chancellor's foot; what an uncertain measure would this be! One Chancellor has a long foot, another a short foot, a third an indifferent foot; `tis the same thing in the Chancellor's conscience.
26 Tulsa L. J. 571, 596 n. 167 (1991), quoting Gee v. Pritchard, 36 Eng. Rep. 670, 679 (1818).
The distinction between legal and equitable claims was not always clear. "[T]he line between law and equity (and therefore between jury and non-jury trial) was not a fixed and static one. There was a continual process of borrowing by one jurisdiction from the other; there was less frequent instances of sloughing off of older functions. . . This led to a very large overlap between law and equity." James, Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655, 657-663 (1963).
Connecticut has abolished the distinction between legal and equitable causes of action; General Statutes § 52-97; C.P.B. § 133; as has the federal system. Fed.R.Civ.Proc. 18.
Although § 46a-104 does not identify the specific remedies available to a prevailing plaintiff, presumably the full range of remedies historically available to victims of employment discrimination could be considered by the court and jury. These would include reinstatement, back pay, including the amount of overtime, raises or promotions that would have accrued; DiSalvo v. Chamber of Commerce, 568 F.2d 593 (8th Cir. 1978); and "front pay" to compensate the victim for the future loss of remuneration that will occur before the victim can attain her rightful place; and injunctive relief. See, generally, 2 C. Sullivan, M. Zimmer R. Richards, Employment Discrimination § 14.4.1 (2d ed. 1988). At the very least, in view of the express legislative purpose of allowing complainants to bypass the beleaguered Commission on Human Rights and Opportunities; 34 H.R. Proc., Part 23, 1991 Sess., pp. 8918 et seq.; a prevailing plaintiff would be entitled to the same relief available after an administrative hearing. See, General Statutes § 46a-86(b), providing that, "In addition to any other action taken hereunder, upon a finding of a discriminatory employment practice, the presiding officer may order the hiring or reinstatement of employees, with or without back pay. . ."; and General Statutes § 46a-89a, authorizing the granting of temporary injunctive relief.
The legislature's express grant of authority to award "legal relief" is dispositive of the question whether § 46a-104 provides a legal remedy. Although no Connecticut case has addressed this precise issue, it has been the subject of ongoing litigation in the federal courts with respect to Title VII of the Civil Rights Act; 42 U.S.C. § 2000e et seq.; and the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. See, note 14, supra. It is appropriate to look to those cases and statutes for guidance. Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 510 A.2d 972 (1986).
In Lorillard v. Pons, 434 U.S. 576, 98 S. Ct 866 (1977), the Supreme Court concluded that the ADEA authorized legal relief and therefore provided the right to trial by jury. Emphasizing that § 626(c) of the Act by its terms authorizes private civil actions for "such legal or equitable relief as will effectuate the purposes of" the ADEA, the Court held that, "[t]he word `legal' is a term of art: In cases in which legal relief is available and legal rights are determined, the Seventh Amendment provides a right to jury trial. Where words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country they are presumed to have been used in that sense unless the context compels to the contrary." Id., 583.
Although the Supreme Court explicitly decided in Lorillard v. Pons, 434 U.S. 580 (1970), that the Age Discrimination in Employment Act; 29 U.S.C. § 621 et seq. conferred the right to a jury trial, it never decided whether Title VII confers the right to a jury trial. Curtis v. Loether, 415 U.S. 189 (1974), supra. However, in Lorillard v. Pons, supra, the Court distinguished Title VII from the ADEA with respect to the type of relief provided under each Act. "[W]e note that that Congress specifically provided for both `legal or equitable' relief in the ADEA, but did not authorize `legal' relief in so many words under Title VII." Id., 584. Specifically, 42 U.S.C. § 2000e-5(g) provides that a "court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate." The simultaneous use of the word "equitable's and absence of the word "legal" is the basis for most courts concluding that Title VII does not carry a right to jury trial. See, Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) and note 14, supra.
In a similar context the Supreme Court has ruled that the right to jury trial is guaranteed even if the statute, like § 46a-104, provides both legal and equitable relief. "If the action is properly viewed as one for damages only, our conclusion that this is a legal claim obviously requires a jury trial on demand. And if this legal claim is joined with an equitable claim, the right to a jury trial on both claims remains intact. The right cannot be abridged by characterizing the legal claim as "incidental' to the equitable relief sought." Dairy Queen, Inc. v. Wood, 369 U.S. 469, 470 (1962).
Because § 46a-104 specifically provides for "legal relief" the statute provides for a legal remedy within the meaning of Skinner v. Angliker, supra. The defendant urges that Associated Investment Co. v. Williams Associates, supra, requires a different conclusion. In that case, the court, in determining that there is not a right to jury trial under the Connecticut Unfair Trade Practices Act; General Statutes § 42-110a et seq.; emphasized the equitable nature of the remedies available to a CUTPA claimant, including injunctive relief, attorney's fees and punitive damages. "These comprehensive remedies . . . are significantly broader than those generally available at common law." Id., 160.
The Associated case is distinguishable from the present matter. First, by their terms the remedy provisions of § 42a-110a and § 46a-104 are not identical. As previously noted, § 46a-104 specifically authorizes the court to provide "legal and equitable relief." § 42a-110g(a) authorizes a plaintiff to "recover actual damages" and allows the court, in its discretion to "award punitive damages and . . . such equitable relief as it deems necessary or proper."
For purposes of Seventh Amendment analysis the United States Supreme Court has indicated that if, as a general matter, "the complaint requests a money judgment it presents a claim which is unquestionably legal." Dairy Queen v. Wood, 369 U.S. 469, 476 (1962). In a later case, however, it cautioned that, "[w]e need not, and do not, go so far as to say that any award of monetary relief must necessarily be legal relief." Curtis v. Loether, 415 U.S. 189, 196 (1974).
Second, and more important, the Associated analysis was expressly predicated on its conclusion that CUTPA has its roots in the Federal Trade Commission Act and should be interpreted in accordance with decisions construing the FTCA. Id., 159. It is likely that if called upon to construe § 46a-100 the Supreme Court would likewise look to comparable federal employment discrimination law such as the ADEA to assist in its determination. Joo v. Capitol Switch, Inc., 231 Conn. 328 (1994). Such a comparison may very well result in the determination that in accordance with the terms of the statute, § 46a-104 involves a legal remedy.
IV
In conclusion, under § 46a-100 and § 46a-104 the plaintiff is entitled to a trial by jury as guaranteed to him by Article I, Section 19 of the Connecticut Constitution. Admittedly, this is a close question, but the available historical evidence coupled with the cherished and unique role of the jury in our system of justice requires the conclusion that Article I, Section 19 provides the right to a jury trial in actions alleging unlawful employment discrimination under § 46a-100. "Maintenance of the jury as a fact finding body is of such importance and occupies so firm a place in our history that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care." Dimick v. Schiedt, 293 U.S. 474, 486 (1935). For the foregoing reasons the defendant's motion to strike from the jury docket is denied.
SO ORDERED.
ROBERT L. HOLZBERG JUDGE, SUPERIOR COURT