1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3

4 _______________

5

6 August Term, 2002

7

8 (Argued December 2, 2002 Decided: July 21,2003)

9

10 Docket No. 02-7425

11

12 _______________

13

14 DONALD BEASON,

15

16 Plaintiff-Appellant,

17

18 v.

19

20 UNITED TECHNOLOGIES CORPORATION, Hamilton Standard Division,

21

22 Defendant-Appellee.

23

24 _______________

25

26 Before:

27 VAN GRAAFEILAND, CARDAMONE, and JACOBS,

28 Circuit Judges.

29

30 _______________

31

32 Plaintiff Donald Beason appeals from a judgment of the

33 United States District Court for the District of Connecticut

34 dated March 19, 2002 (Droney, J.), granting defendant United

35 Technologies Corporation's motion for summary judgment as to

36 plaintiff's discrimination claims under the Connecticut Fair

37 Employment Practices Act and the Americans with Disabilities Act. 

38 The district court also denied plaintiff's motion for

39 reconsideration, which he also appeals.

40

41 Affirmed.

42

43 _______________

44

45
1 _______________

2

3 PETER GOSELIN, Hartford, Connecticut (Gregg D. Adler, Livingston,

4 Adler, Pulda, Meiklejohn & Kelly, P.C., Hartford,

5 Connecticut, of counsel), for Plaintiff-Appellant.

6

7 HENRY A. PLATT, Washington, D.C. (Anessa Abrams, Schmeltzer,

8 Aptaker & Shepard, P.C., Washington, D.C.; Edward J.

9 Dempsey, Labor Counsel, United Technologies Corporation,

10 Hartford, Connecticut, of counsel), for Defendant-Appellee.

11

12 _______________

13

14 Charles Krich, Hartford, Connecticut (Philip A. Murphy, Jr.,

15 Commission Counsel, Connecticut Commission on Human Rights

16 and Opportunities, Hartford, Connecticut, of counsel), filed

17 a brief on behalf of Connecticut Commission on Human Rights

18 and Opportunities as Amicus Curiae.

19

20 _______________
2

1 CARDAMONE, Circuit Judge:

2 To resolve this appeal, we must construe a Connecticut

3 statute prohibiting discrimination in employment practices in

4 that state. Statutes are not empty vessels into which courts,

5 under the guise of construing a statute, pour meaning. Not

6 because it would spoil the statute in the same sense as pouring

7 new wine into old wineskins "bursts the skins," spills the wine

8 and spoils the skins, Mark 2:22 (R.A. Knox), but because it is

9 the obligation of the courts instead to ascertain the

10 legislature's purpose in enacting the law, as the elected

11 representatives of the people. Such is what we propose to do in

12 this case.

13 Donald Beason (plaintiff, employee, or appellant) appeals

14 from a judgment of the United States District Court for the

15 District of Connecticut dated March 19, 2002 (Droney, J.), that

16 granted a motion for summary judgment made by his employer, the

17 United Technologies Corporation, Hamilton Standard Division

18 (defendant, employer, Hamilton Standard, or company) and

19 dismissed his discrimination claim. Plaintiff alleges that the

20 company perceived him to be disabled and based on that

21 misperception discriminated against him. Although we affirm, we

22 do so for different reasons than those relied upon by the

23 district court.

24 BACKGROUND
3

1 Beason was employed at Hamilton Standard from December 1979

2 until September 1992 when he was injured while working. A

3 mirror, intended to help company employees see around a turn,

4 fell and struck him on the head, injuring his cervical spine,

5 back, head, and other parts of his body, as well as causing him

6 to lose consciousness temporarily. After suffering this injury,

7 plaintiff applied for and received workers' compensation benefits

8 and, except for a brief attempt to return to work, remained on

9 medical leave until he was laid off, due to a lack of work, in

10 March 1993. Beason and his employer settled his workers'

11 compensation claim by stipulation for $35,000 in 1994.

12 Following his layoff, plaintiff's health improved to the

13 point where he was able to return to work. In September 1995 he

14 was recalled by Hamilton Standard, but was instructed to report

15 first to the company's medical center for evaluation. The

16 position that Beason was conditionally recalled for was referred

17 to as a Commuter Blade Worker. Under the union's collective

18 bargaining agreement, this position was categorized as demanding

19 an intermediate level of physical effort, necessitating sustained

20 periods of moderate physical effort and the occasional exertion

21 of considerable effort involving heavy tools and materials. 

22 After his evaluation by the Hamilton Standard medical staff,

23 Beason was informed that he could not return to work because of

24 medical restrictions related to the injuries he had sustained in

25 the September 1992 on-the-job accident.
4

1 In 1995 the employee's union filed a grievance on his

2 behalf, and also on behalf of four other Hamilton Standard

3 employees who were not recalled to work, alleging that the

4 company violated the non-discrimination clause contained in the

5 collective bargaining agreement. The matter was submitted to

6 arbitration and the grievance was denied.

7 While the union grievance was pending, plaintiff filed a

8 charge of disability discrimination with the Connecticut

9 Commission on Human Rights and Opportunities (Connecticut

10 Commission) and the Equal Employment Opportunity Commission

11 (EEOC). An investigation by the Connecticut Commission

12 determined there was reasonable cause to believe that Hamilton

13 Standard, by failing to recall Beason to work, discriminated

14 against him in violation of the Americans with Disabilities Act

15 (ADA), 42 U.S.C. § 12101 et seq., and the Connecticut Fair

16 Employment Practices Act (CFEPA), Conn. Gen. Stat. § 46a-51 et

17 seq.

18 Subsequently, plaintiff filed a complaint in district court

19 asserting that Hamilton Standard had incorrectly perceived him as

20 disabled and discriminated against him as a disabled person in

21 violation of the ADA and the CFEPA. The company initially moved

22 for judgment on the pleadings, urging that plaintiff's complaint

23 be dismissed because discrimination claims under the collective

24 bargaining agreement are subject to arbitration, and that his

25 claim was barred by the prior decision of the arbitrator denying
5

1 his grievance. In an opinion dated February 10, 1999, the

2 district court denied Hamilton Standard's motion. Beason v.

3 United Techs. Corp., 37 F. Supp. 2d 127, 128 (D. Conn. 1999). It

4 reasoned that because plaintiff's claims are statutory, not

5 contractual, they are not subject to arbitration. Id. at 129-30.

6 The company then moved for summary judgment, which was

7 granted by Judge Droney in an opinion dated March 15, 2002,

8 disposing of all of plaintiff's claims. Beason v. United Techs.

9 Corp., 213 F. Supp. 2d 103, 116 (D. Conn. 2002). Ruling against

10 Beason, the district court held that a reasonable juror could

11 find that Hamilton Standard regarded him as suffering from a

12 physical impairment, but concluded he had not established that

13 the company regarded him as having a physical impairment that

14 substantially limits a major life activity, as required by the

15 ADA. See id. at 109, 114. After observing that Connecticut

16 courts look to federal law for guidance on the enforcement of

17 state anti-discrimination statutes, the district court dismissed

18 plaintiff's CFEPA claim for the same reasons it had dismissed his

19 federal cause of action. See id. at 115-16. A motion for

20 reconsideration was denied on April 23, 2002. This appeal

21 ensued.

22 Before turning to the merits, we dispose of a jurisdictional

23 question raised by Hamilton Standard. It notes that while

24 plaintiff filed a notice of appeal following the district court's

25 grant of summary judgment in the company's favor, he did not file
6

1 an amended notice of appeal following the district court's denial

2 of his motion for reconsideration as required by Fed. R. App. P.

3 4(a)(4)(B)(ii). Hamilton Standard contends this deficiency

4 deprives us of jurisdiction to hear Beason's legal arguments that

5 were raised, in the first instance, in connection with his motion

6 for reconsideration.

7 As a general rule, "a federal appellate court does not

8 consider an issue not passed upon below." See Singleton v.

9 Wulff, 428 U.S. 106, 120 (1976). This rule, however, is

10 prudential, see Lo Duca v. United States, 93 F.3d 1100, 1104 (2d

11 Cir. 1996), and "we have chosen to exercise such discretion in

12 cases where the issues not addressed below involved purely legal

13 questions," see J.C. v. Reg'l Sch. Dist. 10, 278 F.3d 119, 125

14 (2d Cir. 2002). The problem here is not that Beason raises

15 issues that have not been considered and passed upon by the

16 district court; rather, the difficulty is that Beason's notice of

17 appeal pre-dates the district court's judgment on his motion for

18 reconsideration, and thus his notice of appeal does not

19 technically encompass that judgment. Under these circumstances,

20 where the district court has had, in fact, an opportunity to rule

21 on the substantive issues and where such issues are purely legal,

22 we choose to exercise our discretion and to credit in this appeal

23 before us the arguments Beason first made in support of his

24 motion for reconsideration.

25 DISCUSSION
7

1 I Overview and Standards

2 Although appellant initially pursued claims under both the

3 ADA and the CFEPA, he now appeals only the district court's

4 dismissal of his CFEPA cause of action, contending that the grant

5 of summary judgment in favor of his employer constituted an error

6 of law. Beason asserts the ADA's definition of disability is

7 different from -- and much narrower than -- the applicable CFEPA

8 definition of physical disability. He maintains that the trial

9 court's decision, which employed ADA standards to evaluate his

10 CFEPA claim, was thus in error. The appellant is joined in this

11 argument by the Connecticut Commission, which filed an amicus

12 curiae brief advising that the trial court erred in applying an

13 analysis lifted from the Americans with Disabilities Act to a

14 claim of discrimination on the basis of physical disability under

15 Connecticut state law.

16 Hamilton Standard does not dispute Beason's argument that it

17 was an error to employ the ADA's definition of disability to

18 decide a CFEPA claim. The company instead urges that the

19 district court committed a separate error of law by recognizing a

20 cause of action for perceived (or "regarded as") disability

21 discrimination, which, the company insists, is contemplated by

22 the ADA, but not by the CFEPA.

23 Our review of the district court's grant of summary judgment

24 is de novo. Zalewska v. County of Sullivan, 316 F.3d 314, 318

25 (2d Cir. 2003). In the case at hand we must answer two
8

1 questions: (1) whether the CFEPA definition of physical

2 disability differs substantively from the ADA's definition of

3 disability, and (2) whether the CFEPA provides a cause of action

4 for perceived physical disability discrimination. We take up

5 each of these questions of Connecticut law and attempt to

6 ascertain how Connecticut's highest court would answer them,

7 hindered in resolving them by the absence of any direct precedent

8 from the Connecticut Supreme Court, the state's highest court,

9 but aided by several lower state court decisions. Sprint PCS

10 L.P. v. Conn. Siting Council, 222 F.3d 113, 115-16 (2d Cir. 2000)

11 (finding that the question of whether Connecticut state law

12 required a party to exhaust additional administrative remedies

13 was "a quintessential question of statutory interpretation

14 requiring de novo review" and a "predict[ion as to] how the forum

15 state's highest court would decide the issue[]").

16 Although the Connecticut Supreme Court has not directly

17 considered the issues we address today, its precedent on

18 statutory construction gives us considerable direction. The

19 court, in its recent decision State v. Courchesne, 262 Conn. 537

20 (2003), clarified its approach to statutory interpretation. In

21 so doing, it rejected what has come to be called the "plain

22 meaning rule" and adopted instead a process that the court

23 characterized as "a reasoned search for the intention of the

24 legislature." Id. at 577 (adopting the formulation for statutory

25 interpretation developed in Bender v. Bender, 258 Conn. 733, 741
9

1 (2001)). According to the Connecticut Supreme Court, it begins

2 the task of statutory interpretation with "a searching

3 examination of the language of the statute, because that is the

4 most important factor to be considered." Id. It insists,

5 however, that the process does not end with language. Rather,

6 after examining the language of the statute to determine a range

7 of plausible meanings and those that appear most probable, it

8 endeavors further to inform its understanding of the statute by

9 looking "to the legislative history and circumstances surrounding

10 its enactment, to the legislative policy it was designed to

11 implement, and to its relationship to existing legislation and

12 common law principles governing the same general subject matter." 

13 Id. (quoting Bender, 258 Conn. at 741).

14 Beyond the general guidance provided to us by the decision

15 in Courchesne, the Connecticut Supreme Court has also identified

16 in its jurisprudence several relevant principles of statutory

17 construction that are specific to the interpretation of the

18 state's anti-discrimination statutes. First, it has indicated

19 that it interprets remedial statutes "liberally in order to

20 effectuate the legislature's intent." Comm'n on Human Rights &

21 Opportunities v. Sullivan Assocs., 250 Conn. 763, 782 (1999). 

22 Second, it has revealed a willingness to "review federal

23 precedent concerning employment discrimination for guidance in

24 enforcing [the state's] own anti-discrimination statutes," Levy

25 v. Comm'n on Human Rights & Opportunities, 236 Conn. 96, 103
10

1 (1996), but has cautioned that it is not bound by federal

2 interpretation and that, under certain circumstances, federal law

3 "defines the beginning and not the end of [Connecticut courts']

4 approach to the subject," State v. Comm'n on Human Rights &

5 Opportunities, 211 Conn. 464, 470 (1989). Third, Connecticut's

6 highest Court has also declared that, when comparing comparable

7 state and federal statutes, it employs "the usual rule in

8 statutory interpretation that the difference between the state

9 and federal acts was purposeful and is meaningful." Evening

10 Sentinel v. Nat'l Org. For Women, 168 Conn. 26, 34-35 n.5 (1975).

11 II CFEPA Definition of "Physically Disabled"

12 With this overview of the state Supreme Court's approach to

13 statutory interpretation, we turn to the questions before us. We

14 fully recognize that affirmance may rest entirely on the

15 discussion in Part III but undertake the following analysis in

16 Part II in the interest of completeness. The district court

17 dismissed appellant's CFEPA claim without lengthy analysis. It

18 observed that federal law concerning employment discrimination

19 guides the enforcement of Connecticut's anti-discrimination

20 statutes and then reasoned that, because appellant could not make

21 out a prima facie case of discrimination under the ADA, his CFEPA

22 claim necessarily failed as well. This analysis, however,

23 assumed that there are no substantive differences between the

24 scope of the ADA and the CFEPA and required, for both claims,

25 that the appellant demonstrate that he was perceived to have a
11

1 physical impairment that substantially limits a major life

2 activity. We think this was error.

3 Following the Connecticut Supreme Court's lead, we begin our

4 analysis with an examination of the plain text of the CFEPA,

5 comparing it to the relevant text of the ADA. Under the CFEPA it

6 is a prohibited practice for an employer -- except in the case of

7 a bona fide occupational qualification or need -- to refuse to

8 hire or employ or to discharge from employment an individual

9 because of the individual's physical disability. Conn. Gen.

10 Stat. § 46a-60(a)(1). The CFEPA defines the term "[p]hysically

11 disabled" as "refer[ring] to any individual who has any chronic

12 physical handicap, infirmity or impairment." Conn. Gen. Stat.

13 § 46a-51(15) (emphasis added). The ADA also prohibits

14 disability-based discrimination and similarly defines disability

15 as "a physical or mental impairment." But, significantly, it

16 adds a requirement that the impairment "substantially limit[] one

17 or more of the major life activities of [the] individual." 42

18 U.S.C. § 12102(2)(A) (emphasis added).

19 We have ruled that the ADA's requirement that a physical

20 disability substantially limit a major life activity is "a

21 significant threshold for seeking redress under the ADA." Felix

22 v. N.Y. City Transit Auth., 324 F.3d 102, 107 (2d Cir. 2003). 

23 Absent similar language in the CFEPA, we believe the Connecticut

24 Supreme Court would decline to find the CFEPA possesses the same

25 restrictive threshold. Such view is consistent with both the
12

1 Connecticut Supreme Court's precedent that the most important

2 factor to be considered when interpreting a statute is its

3 language, see Courchesne, 262 Conn. at 577, and with its view

4 that remedial statutes should be construed liberally, see

5 Sullivan Assocs., 250 Conn. at 782.

6 Our conclusion that Connecticut and federal laws do not

7 provide coextensive disability discrimination coverage is

8 bolstered by legislative history. The Connecticut General

9 Assembly first made disability discrimination an unlawful

10 employment practice in 1973 under the CFEPA. See An Act

11 Concerning the Rights of the Blind and Otherwise Physically

12 Disabled, 1973 Conn. Acts 503 (Reg. Sess.). The state

13 legislature added a specific definition of physical disability to

14 the statute the following year, see An Act Defining Physically

15 Disabled, 1974 Conn. Acts 970 (Reg. Sess.), and then amended the

16 definition again in 1975, so that the present definition of

17 physical disability has been in force, unchanged save for a minor

18 technical adjustment, since 1975. See An Act Defining Physically

19 Disabled, 1975 Conn. Acts 330 (Reg. Sess.); An Act Implementing a

20 Technical Revision of the Statutes Concerning Human Rights and

21 Opportunities, 1980 Conn. Acts 586 (Reg. Sess.).

22 The ADA was not enacted until 1990, see Americans with

23 Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327

24 (1990), but its definition of disability borrows heavily from a

25 definition contained in the Rehabilitation Act, see
1 The relevant definition from the Rehabilitation Act has not

changed substantively but the term "individual with a disability"

is now used in place of the term "handicapped individual." See

29 U.S.C. § 705(20)(B)(I).

13

1 Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355

2 (1973) (codified as amended at 29 U.S.C. § 701 et seq.), which

3 was enacted by Congress in 1973 and amended in 1974 to define a

4 "handicapped individual" as a person who has "a physical or

5 mental impairment which substantially limits one or more of such

6 person's major life activities." Rehabilitation Act Amendments

7 of 1974, Pub. L. No. 93-651, § 111(a), 89 Stat. 2-3, 2-5 (1974)

(emphasis added).1 8 Given that the definition of disability used

9 by the ADA essentially pre-dates the definition of physical

10 disability promulgated by the Connecticut General Assembly for

11 the CFEPA, the General Assembly, had it wished to do so, could

12 have adopted the ADA definition. The fact that the General

13 Assembly chose not to adopt that language readily supports an

14 inference that the Connecticut legislature appreciated the scope

15 of the ADA definition and intended the CFEPA definition to be

16 different. See Evening Sentinel, 168 Conn. at 34-35 n.5.

17 Moreover, the case law on point, although not extensive,

18 uniformly confirms our belief that the CFEPA's definition of

19 physical disability is broader than the ADA's. For example, in

20 Shaw v. Greenwich Anesthesiology Assocs., P.C., 137 F. Supp. 2d

21 48 (D. Conn. 2001), the district court dismissed a plaintiff's

22 ADA claim on summary judgment finding that her arthritis did not
14

1 substantially limit a major life activity, see id. at 54, but

2 refused to grant summary judgment with respect to the plaintiff's

3 CFEPA claim, ruling that "[t]o be 'disabled' under Connecticut

4 law is different from being 'disabled' under the ADA." Id. at

5 65. The district court in Shaw cited as authority Venclauskas v.

6 State, No. CV 960471879, 1997 Conn. Super. LEXIS 1643 (Conn.

7 Super. Ct. May 14, 1997). In Venclauskas a Connecticut Superior

8 Court rejected a defendant's assertion that a CFEPA plaintiff,

9 "by analogy to federal anti-discrimination statutes," could not

10 be considered disabled within the meaning of the CFEPA. Id. at

11 *1. Instead the state court held that, without reference to

12 whether plaintiff's physical impairment substantially limited a

13 major life activity, plaintiff had alleged sufficient facts to

14 support a finding that he was disabled within the meaning of

15 Connecticut state law. Id. at *3, *6-*7. At least two other

16 Connecticut Superior Courts have similarly ruled plaintiffs to be

17 disabled pursuant to the CFEPA without considering or mentioning

18 whether those plaintiffs were substantially limited in a major

19 life activity. See Gilman Bros. Co. v. Conn. Comm'n on Human

20 Rights & Opportunities, No. CV 950536075, 1997 Conn. Super. LEXIS

21 1311, *8-*10 (Conn. Super. Ct. May 13, 1997); Tordonato v. Colt's

22 Mfg. Co., No. CV 970481610S, 2000 Conn. Super. LEXIS 3615, *13-

23 *14 (Conn. Super. Ct. Dec. 26, 2000).

24 Moreover, the Connecticut Commission on Human Rights and

25 Opportunities, which enforces the CFEPA in administrative
15

1 proceedings, has recognized the difference between Connecticut

2 and federal law regarding the definition of disability. See,

3 e.g., CHRO ex rel. Kowalczyk v. City of New Britain, CHRO No.

4 9810482, at *25-*26 (Mar. 15, 2002) ("The definitions of

5 'disability' in the ADA and [C]FEPA -- and the interpretive case

6 law -- differ significantly . . . . [C]FEPA, unlike the ADA, does

7 not require the complainant to prove that she is substantially

8 limited in a major life activity."); CHRO ex rel. Saksena v.

9 State, CHRO No. 9940089, at *10 (Aug. 9, 2001) (same); CHRO ex

10 rel. Secondo v. Hous. Auth., CHRO No. 9710713, at *24 (June 9,

11 2000) ("Although the complainant is not disabled under the ADA

12 . . . the broader definition of disability under state law yields

13 a different result than the federal definition.").

14 We note, in addition, that the New York Human Rights Law,

15 N.Y. Exec. Law § 290 et seq., a state anti-discrimination statute

16 that, like the CFEPA, lacks any mention of the ADA's

17 "substantially limit a major life activity" language in its

18 definition of disability, see id. § 292(21), has been interpreted

19 by the New York Court of Appeals as providing relief to a broader

20 range of impairments than does the ADA. See State Div. of Human

21 Rights v. Xerox Corp., 65 NY2d 213, 218-19 (1985); see also

22 Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 155

23 (2d Cir. 1998) (discussing the standard for finding a protected

24 disability under New York law).
16

1 In sum, the trial court -- by relying on the ADA's standard

2 for determining whether a person is disabled within the meaning

3 of that state statute -- committed an error of law that resulted

4 in its improperly dismissing Beason's CFEPA claim.

5 III CFEPA and "Regarded As" Disability Discrimination

6 Our conclusion that the district court erroneously construed

7 the scope of the CFEPA definition of physical disability does not

8 end the inquiry into whether the grant of summary judgment for

9 the employer was proper. Hamilton Standard avers that, the

10 relevant definition of physical disability aside, the appellant

11 actually benefitted from another error of law committed by the

12 district court, namely, the district court's recognition of a

13 cause of action for "regarded as" or "perceived" physical

14 disability discrimination. The company urged this point before

15 the trial court, which remained unpersuaded. That court declared

16 instead that Connecticut has recognized the claims of those

17 persons who have been discriminated against based on the

18 perception of a disability, rather than an actual disability.

19 Beason, 213 F. Supp. 2d at 115. The employer insists that it was

20 rightfully granted summary judgment on its employee's CFEPA claim

21 because the trial court erred in recognizing such a cause of

22 action in the first place. We agree that Connecticut law does

23 not provide a cause of action for perceived physical disability

24 discrimination.

25 A. Statutory Language
17

1 As in our discussion of the first issue, analysis begins

2 with a close reading of the statute in question. The exact

3 language of the relevant provision of the CFEPA reads as follows

4 It shall be a discriminatory practice in

5 violation of this section: 

6

7 For an employer, by the employer or the

8 employer's agent, except in the case of a

9 bona fide occupational qualification or need,

10 to refuse to hire or employ or to bar or to

11 discharge from employment any individual or

12 to discriminate against such individual in

13 compensation or in terms, conditions or

14 privileges of employment because of the

15 individual's race, color, religious creed,

16 age, sex, marital status, national origin,

17 ancestry, present or past history of mental

18 disability, mental retardation, learning

19 disability or physical disability, including,

20 but not limited to, blindness.

21

22 Conn. Gen. Stat. § 46a-60(a)(1).

23 Because the statute makes no mention of prohibiting

24 discrimination on the basis of an individual's perceived physical

25 disability, focus shifts to the statutory definition of physical

26 disability, to assess whether that definition contemplates

27 protecting individuals who are perceived to be -- but are not

28 actually -- disabled. The CFEPA definition of physical

29 disability, in its entirety, states

30 "Physically disabled" refers to any

31 individual who has any chronic physical

32 handicap, infirmity or impairment, whether

33 congenital or resulting from bodily injury,

34 organic processes or changes or from illness,

35 including, but not limited to, epilepsy,

36 deafness or hearing impairment or reliance on

37 a wheelchair or other remedial appliance or

38 device.

39
18

1 Conn. Gen. Stat. § 46a-51(15). Thus, the statute defines

2 "[p]hysically disabled" only by using the active verb "has."

3 Conspicuously absent from this definition is any mention of

4 the perception of a physical disability. This absence stands in

5 stark contrast to the definition of disability employed by the

6 ADA. The federal statute provides that the term disability

7 "means, with respect to an individual -- (A) a physical or mental

8 impairment that substantially limits one or more of the major

9 life activities of such individual; (B) a record of such an

10 impairment; or (C) being regarded as having such an impairment." 

11 42 U.S.C. § 12102(2) (emphasis added); see also 29 U.S.C.

12 § 705(20)(B) (similarly defining "individual with a disability"

13 for the Rehabilitation Act). Because the specific language of

14 CFEPA makes no mention of a cause of action for "perceived" or

15 "regarded as" physical disability discrimination, we do not

16 believe it was part of the Connecticut legislature's purpose that

17 such a cause exist.

18 B. Legislative History

19 Another foray into the legislative history of the CFEPA

20 provides substantiation for this view. First, as stated above in

21 Section II, the Rehabilitation Act's definition of a handicapped

22 individual -- the precursor to the modern ADA definition of

23 disability -- was approved by Congress in 1974, one year before

24 Connecticut enacted the CFEPA definition of physical disability

25 that, in substance, has survived until this day. Significantly,
19

1 the Rehabilitation Act's definition, which originated the federal

2 requirement that an impairment substantially limit a major life

3 activity in order to qualify as a disability, also amended the

4 Act to extend its protections to individuals "regarded as having"

5 such a substantially limiting impairment. See Rehabilitation Act

6 Amendments of 1974, Pub. L. No. 93-651, § 111, 89 Stat. 2-3, 2-5

7 (1974).

8 Consistent with the notion that the Connecticut General

9 Assembly, if it had wanted to do so, could have adopted the

10 Rehabilitation Act's "substantially limit a major life activity"

11 language, we similarly think that the Connecticut legislature --

12 had that been its purpose -- could have expressly adopted a cause

13 of action for perceived physical disability discrimination. The

14 absence of any reference to such a claim in the CFEPA strongly

15 suggests that the present difference between Connecticut and

16 federal law with respect to "regarded as" physical disability

17 discrimination "was purposeful and is meaningful." Evening

18 Sentinel, 168 Conn. at 34-35 n.5.

19 A second indication of legislative aim may be derived from

20 the observation that, despite the absence of "regarded as"

21 language from the CFEPA definition of physical disability, the

22 Connecticut legislature has, in at least two instances, otherwise

23 chosen to employ equivalent language in the state's anti24 discrimination statutes. In 1991, for instance, the General

25 Assembly approved a statute that prohibits certain kinds of
20

1 discrimination against people because of their sexual

2 orientation. See Conn. Gen. Stat. §§ 46a-81a - 46a-81r. In

3 using the term sexual orientation, the legislature defined it

4 broadly as "having a preference for heterosexuality,

5 homosexuality or bisexuality, having a history of such preference

6 or being identified with such preference." Conn. Gen. Stat.

7 § 46a-81a (emphasis added).

8 The General Assembly has also introduced the element of

9 perception into the state's anti-discrimination laws via the

10 CFEPA definition of "mental disability." That term, undefined

11 until 2001, has since been defined by the Connecticut legislature

12 as referring to "an individual who has a record of, or is

13 regarded as having one or more mental disorders." Conn. Gen.

14 Stat. § 46a-51(20) (emphasis added). We also are aware that,

15 despite the introduction of a bill in both 1999 and 2000 --

16 backed by the Connecticut Commission -- that would have made a

17 similar change to the definition of physical disability, the

18 Connecticut legislature declined to amend the law. See An Act

19 Concerning Discrimination on the Basis of Disability,

20 Discriminatory Practice Complaints and Discrimination and

21 Prohibiting Age Discrimination in Health Insurance Policies, H.B.

22 6970 § 1(21) (1999).

23 C. Appellant's Contentions

24 Despite the plain language of the CFEPA and the legislative

25 history recounted above, appellant insists that the Connecticut
21

1 Supreme Court, if presented with the question, would nonetheless

2 decide that the CFEPA provides a cause of action for perceived

3 physical disability discrimination. In support of his assertion,

4 Beason cites a handful of relevant cases, points to the

5 Connecticut Commission's longstanding position that the Act does

6 indeed provide such a cause of action, suggests that finding such

7 a cause of action is the only reasonable interpretation of the

8 statute, and invokes various public policy arguments.

9 With respect to the relevant case law, of which there is

10 actually very little, we do not think it readily undermines our

11 conclusion that the CFEPA does not recognize a cause of action

12 for perceived physical disability discrimination. Only four

13 courts have addressed the issue. The district court in the

14 instant case is one of them. It held, of course, that the CFEPA

15 recognizes a cause of action for perceived physical disability

16 discrimination. It made that determination without any analysis,

17 simply relying on a lone citation to Shaw, 137 F. Supp. 2d at 66

18 n.22. See Beason, 213 F. Supp. 2d at 115. The relevant part of

19 Shaw was itself premised upon only a single case, CHRO ex rel.

20 Tucker v. General Dynamics Corp., No. 517054, 1991 Conn. Super.

21 LEXIS 2704 (Conn. Super. Ct. Nov. 22, 1991). The district court

22 also recently held in Connor v. McDonald's Restaurant that a

23 cause of action for perceived disability discrimination exists,

24 relying exclusively on citations to Shaw and Tucker. See Connor,

25 No. 3:02 CV 382, 2003 U.S. Dist. LEXIS 4108, at *12-*13 (D. Conn.
22

1 Mar. 17, 2003). While no Connecticut case contradicts the

2 Superior Court's holding in Tucker, no state court has considered

3 the issue since and, in fact, no Connecticut case has even cited

4 Tucker. In light of this scant precedent premised entirely on a

5 single state trial court opinion we are not persuaded that our

6 analysis is wrong.

7 We similarly find the position of the Connecticut

8 Commission, the agency charged with administering the CFEPA, to

9 be unpersuasive authority. Although it is a well established

10 practice of the Connecticut Supreme Court to "accord great

11 deference to the construction given a statute by the agency

12 charged with its enforcement," see Starr v. Comm'r of Envtl.

13 Prot., 226 Conn. 358, 372 (1993), such deference is not absolute. 

14 The Connecticut Commission has consistently ruled in its

15 administrative decisions that the CFEPA implies a cause of action

16 for perceived or "regarded as" physical disability

17 discrimination. See, e.g., CHRO ex rel. Abney v. City of

18 Waterbury, CHRO No. 9037286, at *15 (July 14, 1992); Williams v.

19 Town of Stratford, CHRO No. 850296, at *7 (Aug. 24, 1990). The

20 Connecticut Supreme Court has nonetheless held that deference to

21 an administrative agency is unwarranted when the construction of

22 a term or phrase is "a question of law that ha[s] not previously

23 been subject to judicial scrutiny." Bridgeport Hosp. v. Comm'n

24 on Human Rights & Opportunities, 232 Conn. 91, 110 (1995) (citing

25 Dep't of Admin. Servs. v. Employees' Review Bd., 226 Conn. 670,
23

1 679 (1993)). Whether the CFEPA includes a cause of action for

2 perceived physical disability discrimination is precisely such a

3 question of law and, given the absence of any ambiguity, we

4 decline to defer to the Connecticut Commission's view. See

5 Lieberman v. State Bd. of Labor Relations, 216 Conn. 253, 263-64

6 (1990) (declining to defer to board's view because, in part, "the

7 board's interpretation of the statutory scheme at issue is a

8 question of law that has not previously been subjected to

9 judicial scrutiny").

10 Of the appellant's remaining arguments, his invocation of

11 various public policy rationales and his contention that finding

12 a cause of action for perceived physical disability

13 discrimination is the only reasonable interpretation of the

14 statute are closely related. In essence, he maintains that given

15 the public policy reasons that support recognition of such a

16 cause of action, it is unreasonable to interpret the statute to

17 operate otherwise. There may be strong arguments in favor of

18 outlawing perceived disability discrimination, but such arguments

19 must be evaluated by the legislature. See Thibodeau v. Design

20 Group One Architects, LLC, 260 Conn. 691, 715 (2002) (noting

21 that, "just as the primary responsibility for formulating public

22 policy resides in the legislature[,] so, too, does the

23 responsibility for determining, within constitutional limits, the

24 methods to be employed in achieving those policy goals"). We

25 must construe the statute presented to us, and the construction
24

1 we adopt today cannot be said to be unreasonable, unworkable,

2 difficult, or bizarre. Cf. Butler ex rel. Skidmore v. Hartford

3 Technical Inst., Inc., 243 Conn. 454, 461-62 (1997) (rejecting

4 statutory interpretation that yielded bizarre and difficult

5 results).

6 Absent these untenable results and, even assuming that the

7 lack of such a cause of action is a legislative oversight, we

8 nevertheless must adhere to the plain language of the CFEPA,

9 which makes no mention of a cause of action for perceived

10 physical disability discrimination. The Connecticut Supreme

11 Court instructs that "the more strongly the bare text of the

12 language suggests a particular meaning, the more persuasive the

13 extratextual sources will have to be in order for us to conclude

14 that the legislature intended a different meaning." Courchesne,

15 262 Conn. at 574. Although our ultimate holding is reached by

16 reasoning that varies from the interpretation advanced by the

17 district court and the Connecticut Commission, and is perhaps a

18 trifle at odds with the view that Connecticut's remedial statutes

19 should be construed liberally, see Sullivan Assocs., 250 Conn. at

20 782, the holding is nonetheless consistent with legislative

21 history and, more significantly, the language of the statute --

22 the factor considered by the Connecticut Supreme Court to be the

23 most important for interpreting a statute, see Courchesne, 262

24 Conn. at 577. In consequence, we conclude that no cause of
25

1 action for perceived disability discrimination presently exists

2 under Connecticut law.

3 CONCLUSION

4 Accordingly, for the reasons stated, the grant of summary

5 judgment in favor of Hamilton Standard is affirmed.