UNITED STATES COURT OF APPEALS

1 FOR THE SECOND CIRCUIT 2 3

_______________ 4 5 August Term, 2002 6 7 (Argued December 2, 2002 Decided: July 21,2003) 8 9 Docket No. 02-7425 10 11

_______________ 12 13 DONALD BEASON, 14 15 Plaintiff-Appellant, 16 17 v. 18 19 UNITED TECHNOLOGIES CORPORATION, Hamilton Standard Division, 20 21 Defendant-Appellee

. 22 23

_______________ 24 25 Before: 26 VAN GRAAFEILAND, CARDAMONE, and JACOBS, 27 Circuit Judges

. 28 29

_______________ 30 31 Plaintiff Donald Beason appeals from a judgment of the 32 United States District Court for the District of Connecticut 33 dated March 19, 2002 (Droney, J.), granting defendant United 34 Technologies Corporation's motion for summary judgment as to 35 plaintiff's discrimination claims under the Connecticut Fair 36 Employment Practices Act and the Americans with Disabilities Act. 37 The district court also denied plaintiff's motion for 38 reconsideration, which he also appeals. 39 40 Affirmed. 41 42

_______________ 43 44 45_______________

1 2 PETER GOSELIN, Hartford, Connecticut (Gregg D. Adler, Livingston, 3 Adler, Pulda, Meiklejohn & Kelly, P.C., Hartford, 4 Connecticut, of counsel), for Plaintiff-Appellant

. 5 6 HENRY A. PLATT, Washington, D.C. (Anessa Abrams, Schmeltzer, 7 Aptaker & Shepard, P.C., Washington, D.C.; Edward J. 8 Dempsey, Labor Counsel, United Technologies Corporation, 9 Hartford, Connecticut, of counsel), for Defendant-Appellee

. 10 11

_______________ 12 13 Charles Krich, Hartford, Connecticut (Philip A. Murphy, Jr., 14 Commission Counsel, Connecticut Commission on Human Rights 15 and Opportunities, Hartford, Connecticut, of counsel), filed 16 a brief on behalf of Connecticut Commission on Human Rights 17 and Opportunities as Amicus Curiae

. 18 19

_______________ 202

CARDAMONE, Circuit Judge : 1 To resolve this appeal, we must construe a Connecticut 2 statute prohibiting discrimination in employment practices in 3 that state. Statutes are not empty vessels into which courts, 4 under the guise of construing a statute, pour meaning. Not 5 because it would spoil the statute in the same sense as pouring 6 new wine into old wineskins "bursts the skins," spills the wine 7 and spoils the skins, Mark 2:22 (R.A. Knox), but because it is 8 the obligation of the courts instead to ascertain the 9 legislature's purpose in enacting the law, as the elected 10 representatives of the people. Such is what we propose to do in 11 this case. 12 Donald Beason (plaintiff, employee, or appellant) appeals 13 from a judgment of the United States District Court for the 14 District of Connecticut dated March 19, 2002 (Droney, J.), that 15 granted a motion for summary judgment made by his employer, the 16 United Technologies Corporation, Hamilton Standard Division 17 (defendant, employer, Hamilton Standard, or company) and 18 dismissed his discrimination claim. Plaintiff alleges that the 19 company perceived him to be disabled and based on that 20 misperception discriminated against him. Although we affirm, we 21 do so for different reasons than those relied upon by the 22 district court. 23
BACKGROUND 243 Beason was employed at Hamilton Standard from December 1979 1 until September 1992 when he was injured while working. A 2 mirror, intended to help company employees see around a turn, 3 fell and struck him on the head, injuring his cervical spine, 4 back, head, and other parts of his body, as well as causing him 5 to lose consciousness temporarily. After suffering this injury, 6 plaintiff applied for and received workers' compensation benefits 7 and, except for a brief attempt to return to work, remained on 8 medical leave until he was laid off, due to a lack of work, in 9 March 1993. Beason and his employer settled his workers' 10 compensation claim by stipulation for $35,000 in 1994. 11 Following his layoff, plaintiff's health improved to the 12 point where he was able to return to work. In September 1995 he 13 was recalled by Hamilton Standard, but was instructed to report 14 first to the company's medical center for evaluation. The 15 position that Beason was conditionally recalled for was referred 16 to as a Commuter Blade Worker. Under the union's collective 17 bargaining agreement, this position was categorized as demanding 18 an intermediate level of physical effort, necessitating sustained 19 periods of moderate physical effort and the occasional exertion 20 of considerable effort involving heavy tools and materials. 21 After his evaluation by the Hamilton Standard medical staff, 22 Beason was informed that he could not return to work because of 23 medical restrictions related to the injuries he had sustained in 24 the September 1992 on-the-job accident. 254 In 1995 the employee's union filed a grievance on his 1 behalf, and also on behalf of four other Hamilton Standard 2 employees who were not recalled to work, alleging that the 3 company violated the non-discrimination clause contained in the 4 collective bargaining agreement. The matter was submitted to 5 arbitration and the grievance was denied. 6 While the union grievance was pending, plaintiff filed a 7 charge of disability discrimination with the Connecticut 8 Commission on Human Rights and Opportunities (Connecticut 9 Commission) and the Equal Employment Opportunity Commission 10 (EEOC). An investigation by the Connecticut Commission 11 determined there was reasonable cause to believe that Hamilton 12 Standard, by failing to recall Beason to work, discriminated 13 against him in violation of the Americans with Disabilities Act 14 (ADA), 42 U.S.C. § 12101 et seq ., and the Connecticut Fair 15 Employment Practices Act (CFEPA), Conn. Gen. Stat. § 46a-51 et 16
seq . 17 Subsequently, plaintiff filed a complaint in district court 18 asserting that Hamilton Standard had incorrectly perceived him as 19 disabled and discriminated against him as a disabled person in 20 violation of the ADA and the CFEPA. The company initially moved 21 for judgment on the pleadings, urging that plaintiff's complaint 22 be dismissed because discrimination claims under the collective 23 bargaining agreement are subject to arbitration, and that his 24 claim was barred by the prior decision of the arbitrator denying 255

his grievance. In an opinion dated February 10, 1999, the 1 district court denied Hamilton Standard's motion. Beason v. 2 United Techs. Corp. , 37 F. Supp. 2d 127, 128 (D. Conn. 1999). It 3 reasoned that because plaintiff's claims are statutory, not 4 contractual, they are not subject to arbitration. Id. at 129-30. 5 The company then moved for summary judgment, which was 6 granted by Judge Droney in an opinion dated March 15, 2002, 7 disposing of all of plaintiff's claims. Beason v. United Techs. 8 Corp. , 213 F. Supp. 2d 103, 116 (D. Conn. 2002). Ruling against 9 Beason, the district court held that a reasonable juror could 10 find that Hamilton Standard regarded him as suffering from a 11 physical impairment, but concluded he had not established that 12 the company regarded him as having a physical impairment that 13 substantially limits a major life activity, as required by the 14
ADA. See id. at 109, 114. After observing that Connecticut 15 courts look to federal law for guidance on the enforcement of 16 state anti-discrimination statutes, the district court dismissed 17 plaintiff's CFEPA claim for the same reasons it had dismissed his 18 federal cause of action. See id. at 115-16. A motion for 19 reconsideration was denied on April 23, 2002. This appeal 20
ensued. 21 Before turning to the merits, we dispose of a jurisdictional 22 question raised by Hamilton Standard. It notes that while 23 plaintiff filed a notice of appeal following the district court's 24 grant of summary judgment in the company's favor, he did not file 256

an amended notice of appeal following the district court's denial 1 of his motion for reconsideration as required by Fed. R. App. P. 2 4(a)(4)(B)(ii). Hamilton Standard contends this deficiency 3 deprives us of jurisdiction to hear Beason's legal arguments that 4 were raised, in the first instance, in connection with his motion 5 for reconsideration. 6 As a general rule, "a federal appellate court does not 7 consider an issue not passed upon below." See Singleton v. 8
Wulff, 428 U.S. 106, 120 (1976). This rule, however, is 9 prudential, see Lo Duca v. United States , 93 F.3d 1100, 1104 (2d 10 Cir. 1996), and "we have chosen to exercise such discretion in 11 cases where the issues not addressed below involved purely legal 12 questions," see J.C. v. Reg'l Sch. Dist. 10 , 278 F.3d 119, 125 13 (2d Cir. 2002). The problem here is notthat Beason raises 14 issues that have not been considered and passed upon by the 15 district court; rather, the difficulty is that Beason's notice of 16 appeal pre-dates the district court's judgment on his motion for 17 reconsideration, and thus his notice of appeal does not 18 technically encompass that judgment. Under these circumstances, 19 where the district court has had, in fact, an opportunity to rule 20 on the substantive issues and where such issues are purely legal, 21 we choose to exercise our discretion and to credit in this appeal 22 before us the arguments Beason first made in support of his 23 motion for reconsideration. 24
DISCUSSION 257 I Overview and Standards 1 Although appellant initially pursued claims under both the 2 ADA and the CFEPA, he now appeals only the district court's 3 dismissal of his CFEPA cause of action, contending that the grant 4 of summary judgment in favor of his employer constituted an error 5 of law. Beason asserts the ADA's definition of disability is 6 different from -- and much narrower than -- the applicable CFEPA 7 definition of physical disability. He maintains that the trial 8 court's decision, which employed ADA standards to evaluate his 9 CFEPA claim, was thus in error. The appellant is joined in this 10 argument by the Connecticut Commission, which filed an amicus 11 curiaebrief advising that the trial court erred in applying an 12 analysis lifted from the Americans with Disabilities Act to a 13 claim of discrimination on the basis of physical disability under 14 Connecticut state law. 15 Hamilton Standard does not dispute Beason's argument that it 16 was an error to employ the ADA's definition of disability to 17 decide a CFEPA claim. The company instead urges that the 18 district court committed a separate error of law by recognizing a 19 cause of action for perceived (or "regarded as") disability 20 discrimination, which, the company insists, is contemplated by 21 the ADA, but not by the CFEPA. 22 Our review of the district court's grant of summary judgment 23 is de novo . Zalewska v. County of Sullivan, 316 F.3d 314, 318 24 (2d Cir. 2003). In the case at hand we must answer two 258

questions: (1) whether the CFEPA definition of physical 1 disability differs substantively from the ADA's definition of 2 disability, and (2) whether the CFEPA provides a cause of action 3 for perceived physical disability discrimination. We take up 4 each of these questions of Connecticut law and attempt to 5 ascertain how Connecticut's highest court would answer them, 6 hindered in resolving them by the absence of any direct precedent 7 from the Connecticut Supreme Court, the state's highest court, 8 but aided by several lower state court decisions. Sprint PCS 9 L.P. v. Conn. Siting Council, 222 F.3d 113, 115-16 (2d Cir. 2000) 10 (finding that the question of whether Connecticut state law 11 required a party to exhaust additional administrative remedies 12 was "a quintessential question of statutory interpretation 13 requiring de novoreview" and a "predict[ion as to] how the forum 14 state's highest court would decide the issue[]"). 15 Although the Connecticut Supreme Court has not directly 16 considered the issues we address today, its precedent on 17 statutory construction gives us considerable direction. The 18 court, in its recent decision State v. Courchesne, 262 Conn. 537 19 (2003), clarified its approach to statutory interpretation. In 20 so doing, it rejected what has come to be called the "plain 21 meaning rule" and adopted instead a process that the court 22 characterized as "a reasoned search for the intention of the 23 legislature." Id. at 577 (adopting the formulation for statutory 24 interpretation developed in Bender v. Bender, 258 Conn. 733, 741 259

(2001)). According to the Connecticut Supreme Court, it begins 1 the task of statutory interpretation with "a searching 2 examination of the language of the statute, because that is the 3 most important factor to be considered." Id. It insists, 4 however, that the process does not end with language. Rather, 5 after examining the language of the statute to determine a range 6 of plausible meanings and those that appear most probable, it 7 endeavors further to inform its understanding of the statute by 8 looking "to the legislative history and circumstances surrounding 9 its enactment, to the legislative policy it was designed to 10 implement, and to its relationship to existing legislation and 11 common law principles governing the same general subject matter." 12
Id. (quoting Bender, 258 Conn. at 741). 13 Beyond the general guidance provided to us by the decision 14 in Courchesne, the Connecticut Supreme Court has also identified 15 in its jurisprudence several relevant principles of statutory 16 construction that are specific to the interpretation of the 17 state's anti-discrimination statutes. First, it has indicated 18 that it interprets remedial statutes "liberally in order to 19 effectuate the legislature's intent." Comm'n on Human Rights & 20 Opportunities v. Sullivan Assocs. , 250 Conn. 763, 782 (1999). 21 Second, it has revealed a willingness to "review federal 22 precedent concerning employment discrimination for guidance in 23 enforcing [the state's] own anti-discrimination statutes," Levy 24 v. Comm'n on Human Rights & Opportunities , 236 Conn. 96, 103 2510

(1996), but has cautioned that it is not bound by federal 1 interpretation and that, under certain circumstances, federal law 2 "defines the beginning and not the end of [Connecticut courts'] 3 approach to the subject," State v. Comm'n on Human Rights & 4 Opportunities , 211 Conn. 464, 470 (1989). Third, Connecticut's 5 highest Court has also declared that, when comparing comparable 6 state and federal statutes, it employs "the usual rule in 7 statutory interpretation that the difference between the state 8 and federal acts was purposeful and is meaningful." Evening 9 Sentinel v. Nat'l Org. For Women, 168 Conn. 26, 34-35 n.5 (1975). 10 II CFEPA Definition of "Physically Disabled" 11 With this overview of the state Supreme Court's approach to 12 statutory interpretation, we turn to the questions before us. We 13 fully recognize that affirmance may rest entirely on the 14 discussion in Part III but undertake the following analysis in 15 Part II in the interest of completeness. The district court 16 dismissed appellant's CFEPA claim without lengthy analysis. It 17 observed that federal law concerning employment discrimination 18 guides the enforcement of Connecticut's anti-discrimination 19 statutes and then reasoned that, because appellant could not make 20
out a prima faciecase of discrimination under the ADA, his CFEPA 21 claim necessarily failed as well. This analysis, however, 22 assumed that there are no substantive differences between the 23 scope of the ADA and the CFEPA and required, for both claims, 24 that the appellant demonstrate that he was perceived to have a 2511

physical impairment that substantially limits a major life 1 activity. We think this was error. 2 Following the Connecticut Supreme Court's lead, we begin our 3 analysis with an examination of the plain text of the CFEPA, 4 comparing it to the relevant text of the ADA. Under the CFEPA it 5 is a prohibited practice for an employer -- except in the case of 6

a bona fideoccupational qualification or need -- to refuse to 7 hire or employ or to discharge from employment an individual 8 because of the individual's physical disability. Conn. Gen. 9 Stat. § 46a-60(a)(1). The CFEPA defines the term "[p]hysically 10 disabled" as "refer[ring] to any individual who has any chronic 11 physical handicap, infirmity or impairment ." Conn. Gen. Stat. 12 § 46a-51(15) (emphasis added). The ADA also prohibits 13 disability-based discrimination and similarly defines disability 14 as "a physical or mental impairment." But, significantly, it 15 adds a requirement that the impairment "substantially limit[] one 16 or more of the major life activitiesof [the] individual." 42 17 U.S.C. § 12102(2)(A) (emphasis added). 18 We have ruled that the ADA's requirement that a physical 19 disability substantially limit a major life activity is "a 20 significant threshold for seeking redress under the ADA." Felix 21 v. N.Y. City Transit Auth. , 324 F.3d 102, 107 (2d Cir. 2003). 22 Absent similar language in the CFEPA, we believe the Connecticut 23 Supreme Court would decline to find the CFEPA possesses the same 24 restrictive threshold. Such view is consistent with both the 2512

Connecticut Supreme Court's precedent that the most important 1 factor to be considered when interpreting a statute is its 2 language, see Courchesne, 262 Conn. at 577, and with its view 3 that remedial statutes should be construed liberally, see 4 Sullivan Assocs. , 250 Conn. at 782. 5 Our conclusion that Connecticut and federal laws do not 6 provide coextensive disability discrimination coverage is 7 bolstered by legislative history. The Connecticut General 8 Assembly first made disability discrimination an unlawful 9 employment practice in 1973 under the CFEPA. SeeAn Act 10 Concerning the Rights of the Blind and Otherwise Physically 11 Disabled, 1973 Conn. Acts 503 (Reg. Sess.). The state 12 legislature added a specific definition of physical disability to 13 the statute the following year, seeAn Act Defining Physically 14 Disabled, 1974 Conn. Acts 970 (Reg. Sess.), and then amended the 15 definition again in 1975, so that the present definition of 16 physical disability has been in force, unchanged save for a minor 17 technical adjustment, since 1975. SeeAn Act Defining Physically 18 Disabled, 1975 Conn. Acts 330 (Reg. Sess.); An Act Implementing a 19 Technical Revision of the Statutes Concerning Human Rights and 20 Opportunities, 1980 Conn. Acts 586 (Reg. Sess.). 21 The ADA was not enacted until 1990, seeAmericans with 22 Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 23 (1990), but its definition of disability borrows heavily from a 24 definition contained in the Rehabilitation Act, see 251The 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 Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 1 (1973) (codified as amended at 29 U.S.C. § 701 et seq .), which 2 was enacted by Congress in 1973 and amended in 1974 to define a 3 "handicapped individual" as a person who has "a physical or 4 mental impairment which substantially limits one or more of such 5 person's major life activities ." Rehabilitation Act Amendments 6 of 1974, Pub. L. No. 93-651, § 111(a), 89 Stat. 2-3, 2-5 (1974) 7 (emphasis added). 1Given that the definition of disability used 8 by the ADA essentially pre-dates the definition of physical 9 disability promulgated by the Connecticut General Assembly for 10 the CFEPA, the General Assembly, had it wished to do so, could 11 have adopted the ADA definition. The fact that the General 12 Assembly chose not to adopt that language readily supports an 13 inference that the Connecticut legislature appreciated the scope 14 of the ADA definition and intended the CFEPA definition to be 15 different. See Evening Sentinel, 168 Conn. at 34-35 n.5. 16 Moreover, the case law on point, although not extensive, 17 uniformly confirms our belief that the CFEPA's definition of 18 physical disability is broader than the ADA's. For example, in 19 Shaw v. Greenwich Anesthesiology Assocs., P.C. , 137 F. Supp. 2d 20 48 (D. Conn. 2001), the district court dismissed a plaintiff's 21 ADA claim on summary judgment finding that her arthritis did not 2214

substantially limit a major life activity, see id. at 54, but 1 refused to grant summary judgment with respect to the plaintiff's 2 CFEPA claim, ruling that "[t]o be 'disabled' under Connecticut 3 law is different from being 'disabled' under the ADA." Id. at 4 65. The district court in Shawcited as authority Venclauskas v. 5
State, No. CV 960471879, 1997 Conn. Super. LEXIS 1643 (Conn. 6 Super. Ct. May 14, 1997). In Venclauskasa Connecticut Superior 7 Court rejected a defendant's assertion that a CFEPA plaintiff, 8 "by analogy to federal anti-discrimination statutes," could not 9 be considered disabled within the meaning of the CFEPA. Id. at 10 *1. Instead the state court held that, without reference to 11 whether plaintiff's physical impairment substantially limited a 12 major life activity, plaintiff had alleged sufficient facts to 13 support a finding that he was disabled within the meaning of 14 Connecticut state law. Id. at *3, *6-*7. At least two other 15 Connecticut Superior Courts have similarly ruled plaintiffs to be 16 disabled pursuant to the CFEPA without considering or mentioning 17 whether those plaintiffs were substantially limited in a major 18 life activity. See Gilman Bros. Co. v. Conn. Comm'n on Human 19 Rights & Opportunities , No. CV 950536075, 1997 Conn. Super. LEXIS 20 1311, *8-*10 (Conn. Super. Ct. May 13, 1997); Tordonato v. Colt's 21 Mfg. Co. , No. CV 970481610S, 2000 Conn. Super. LEXIS 3615, *13- 22 *14 (Conn. Super. Ct. Dec. 26, 2000). 23 Moreover, the Connecticut Commission on Human Rights and 24 Opportunities, which enforces the CFEPA in administrative 2515

proceedings, has recognized the difference between Connecticut 1 and federal law regarding the definition of disability. See, 2
e.g. , CHRO ex rel. Kowalczyk v. City of New Britain, CHRO No. 3 9810482, at *25-*26 (Mar. 15, 2002) ("The definitions of 4 'disability' in the ADA and [C]FEPA -- and the interpretive case 5 law -- differ significantly . . . . [C]FEPA, unlike the ADA, does 6 not require the complainant to prove that she is substantially 7 limited in a major life activity."); CHRO ex rel. Saksena v. 8
State, CHRO No. 9940089, at *10 (Aug. 9, 2001) (same); CHRO ex 9
rel. Secondo v. Hous. Auth. , CHRO No. 9710713, at *24 (June 9, 10 2000) ("Although the complainant is not disabled under the ADA 11 . . . the broader definition of disability under state law yields 12 a different result than the federal definition."). 13 We note, in addition, that the New York Human Rights Law, 14 N.Y. Exec. Law § 290 et seq ., a state anti-discrimination statute 15 that, like the CFEPA, lacks any mention of the ADA's 16 "substantially limit a major life activity" language in its 17 definition of disability, see id. § 292(21), has been interpreted 18 by the New York Court of Appeals as providing relief to a broader 19 range of impairments than does the ADA. See State Div. of Human 20 Rights v. Xerox Corp. , 65 NY2d 213, 218-19 (1985); see also 21 Reeves v. Johnson Controls World Servs., Inc. , 140 F.3d 144, 155 22 (2d Cir. 1998) (discussing the standard for finding a protected 23 disability under New York law). 2416 In sum, the trial court -- by relying on the ADA's standard 1 for determining whether a person is disabled within the meaning 2 of that state statute -- committed an error of law that resulted 3 in its improperly dismissing Beason's CFEPA claim. 4 III CFEPA and "Regarded As" Disability Discrimination 5 Our conclusion that the district court erroneously construed 6 the scope of the CFEPA definition of physical disability does not 7 end the inquiry into whether the grant of summary judgment for 8 the employer was proper. Hamilton Standard avers that, the 9 relevant definition of physical disability aside, the appellant 10 actually benefitted from another error of law committed by the 11 district court, namely, the district court's recognition of a 12 cause of action for "regarded as" or "perceived" physical 13 disability discrimination. The company urged this point before 14 the trial court, which remained unpersuaded. That court declared 15 instead that Connecticut has recognized the claims of those 16 persons who have been discriminated against based on the 17 perception of a disability, rather than an actual disability. 18
Beason, 213 F. Supp. 2d at 115. The employer insists that it was 19 rightfully granted summary judgment on its employee's CFEPA claim 20 because the trial court erred in recognizing such a cause of 21 action in the first place. We agree that Connecticut law does 22 not provide a cause of action for perceived physical disability 23 discrimination. 24
A. Statutory Language 2517 As in our discussion of the first issue, analysis begins 1 with a close reading of the statute in question. The exact 2 language of the relevant provision of the CFEPA reads as follows 3 It shall be a discriminatory practice in 4 violation of this section: 5 6 For an employer, by the employer or the 7 employer's agent, except in the case of a 8 bona fide occupational qualification or need, 9 to refuse to hire or employ or to bar or to 10 discharge from employment any individual or 11 to discriminate against such individual in 12 compensation or in terms, conditions or 13 privileges of employment because of the 14 individual's race, color, religious creed, 15 age, sex, marital status, national origin, 16 ancestry, present or past history of mental 17 disability, mental retardation, learning 18 disability or physical disability, including, 19 but not limited to, blindness. 20 21 Conn. Gen. Stat. § 46a-60(a)(1). 22 Because the statute makes no mention of prohibiting 23 discrimination on the basis of an individual's perceived physical 24 disability, focus shifts to the statutory definition of physical 25 disability, to assess whether that definition contemplates 26 protecting individuals who are perceived to be -- but are not 27 actually -- disabled. The CFEPA definition of physical 28 disability, in its entirety, states 29 "Physically disabled" refers to any 30 individual who has any chronic physical 31 handicap, infirmity or impairment, whether 32 congenital or resulting from bodily injury, 33 organic processes or changes or from illness, 34 including, but not limited to, epilepsy, 35 deafness or hearing impairment or reliance on 36 a wheelchair or other remedial appliance or 37 device. 38 3918

Conn. Gen. Stat. § 46a-51(15). Thus, the statute defines 1 "[p]hysically disabled" only by using the active verb "has." 2 Conspicuously absent from this definition is any mention of 3 the perception of a physical disability. This absence stands in 4 stark contrast to the definition of disability employed by the 5 ADA. The federal statute provides that the term disability 6 "means, with respect to an individual -- (A) a physical or mental 7 impairment that substantially limits one or more of the major 8 life activities of such individual; (B) a record of such an 9 impairment; or (C) being regarded as having such an impairment ." 10 42 U.S.C. § 12102(2) (emphasis added); see also29 U.S.C. 11 § 705(20)(B) (similarly defining "individual with a disability" 12 for the Rehabilitation Act). Because the specific language of 13 CFEPA makes no mention of a cause of action for "perceived" or 14 "regarded as" physical disability discrimination, we do not 15 believe it was part of the Connecticut legislature's purpose that 16 such a cause exist. 17
B. Legislative History 18 Another foray into the legislative history of the CFEPA 19 provides substantiation for this view. First, as stated above in 20 Section II, the Rehabilitation Act's definition of a handicapped 21 individual -- the precursor to the modern ADA definition of 22 disability -- was approved by Congress in 1974, one year before 23 Connecticut enacted the CFEPA definition of physical disability 24 that, in substance, has survived until this day. Significantly, 2519

the Rehabilitation Act's definition, which originated the federal 1 requirement that an impairment substantially limit a major life 2 activity in order to qualify as a disability, also amended the 3 Act to extend its protections to individuals "regarded as having" 4 such a substantially limiting impairment. SeeRehabilitation Act 5 Amendments of 1974, Pub. L. No. 93-651, § 111, 89 Stat. 2-3, 2-5 6 (1974). 7 Consistent with the notion that the Connecticut General 8 Assembly, if it had wanted to do so, could have adopted the 9 Rehabilitation Act's "substantially limit a major life activity" 10 language, we similarly think that the Connecticut legislature -- 11 had that been its purpose -- could have expressly adopted a cause 12 of action for perceived physical disability discrimination. The 13 absence of any reference to such a claim in the CFEPA strongly 14 suggests that the present difference between Connecticut and 15 federal law with respect to "regarded as" physical disability 16 discrimination "was purposeful and is meaningful." Evening 17 Sentinel, 168 Conn. at 34-35 n.5. 18 A second indication of legislative aim may be derived from 19 the observation that, despite the absence of "regarded as" 20 language from the CFEPA definition of physical disability, the 21 Connecticut legislature has, in at least two instances, otherwise 22 chosen to employ equivalent language in the state's anti23 discrimination statutes. In 1991, for instance, the General 24 Assembly approved a statute that prohibits certain kinds of 2520

discrimination against people because of their sexual 1 orientation. SeeConn. Gen. Stat. §§ 46a-81a - 46a-81r. In 2 using the term sexual orientation, the legislature defined it 3 broadly as "having a preference for heterosexuality, 4 homosexuality or bisexuality, having a history of such preference 5

or being identified with such preference ." Conn. Gen. Stat. 6 § 46a-81a (emphasis added). 7 The General Assembly has also introduced the element of 8 perception into the state's anti-discrimination laws via the 9 CFEPA definition of "mental disability." That term, undefined 10 until 2001, has since been defined by the Connecticut legislature 11 as referring to "an individual who has a record of, or is 12 regarded as havingone or more mental disorders." Conn. Gen. 13 Stat. § 46a-51(20) (emphasis added). We also are aware that, 14 despite the introduction of a bill in both 1999 and 2000 -- 15 backed by the Connecticut Commission -- that would have made a 16 similar change to the definition of physical disability, the 17 Connecticut legislature declined to amend the law. SeeAn Act 18 Concerning Discrimination on the Basis of Disability, 19 Discriminatory Practice Complaints and Discrimination and 20 Prohibiting Age Discrimination in Health Insurance Policies, H.B. 21 6970 § 1(21) (1999). 22
C. Appellant's Contentions 23 Despite the plain language of the CFEPA and the legislative 24 history recounted above, appellant insists that the Connecticut 2521

Supreme Court, if presented with the question, would nonetheless 1 decide that the CFEPA provides a cause of action for perceived 2 physical disability discrimination. In support of his assertion, 3 Beason cites a handful of relevant cases, points to the 4 Connecticut Commission's longstanding position that the Act does 5 indeed provide such a cause of action, suggests that finding such 6 a cause of action is the only reasonable interpretation of the 7 statute, and invokes various public policy arguments. 8 With respect to the relevant case law, of which there is 9 actually very little, we do not think it readily undermines our 10 conclusion that the CFEPA does not recognize a cause of action 11 for perceived physical disability discrimination. Only four 12 courts have addressed the issue. The district court in the 13 instant case is one of them. It held, of course, that the CFEPA 14 recognizes a cause of action for perceived physical disability 15 discrimination. It made that determination without any analysis, 16 simply relying on a lone citation to Shaw, 137 F. Supp. 2d at 66 17 n.22. See Beason, 213 F. Supp. 2d at 115. The relevant part of 18
Shawwas itself premised upon only a single case, CHRO ex rel. 19 Tucker v. General Dynamics Corp. , No. 517054, 1991 Conn. Super. 20 LEXIS 2704 (Conn. Super. Ct. Nov. 22, 1991). The district court 21 also recently held in Connor v. McDonald's Restaurantthat a 22 cause of action for perceived disability discrimination exists, 23 relying exclusively on citations to Shawand Tucker

. See Connor, 24 No. 3:02 CV 382, 2003 U.S. Dist. LEXIS 4108, at *12-*13 (D. Conn. 2522

Mar. 17, 2003). While no Connecticut case contradicts the 1 Superior Court's holding in Tucker, no state court has considered 2 the issue since and, in fact, no Connecticut case has even cited 3
Tucker . In light of this scant precedent premised entirely on a 4 single state trial court opinion we are not persuaded that our 5 analysis is wrong. 6 We similarly find the position of the Connecticut 7 Commission, the agency charged with administering the CFEPA, to 8 be unpersuasive authority. Although it is a well established 9 practice of the Connecticut Supreme Court to "accord great 10 deference to the construction given a statute by the agency 11 charged with its enforcement," see Starr v. Comm'r of Envtl. 12
Prot. , 226 Conn. 358, 372 (1993), such deference is not absolute. 13 The Connecticut Commission has consistently ruled in its 14 administrative decisions that the CFEPA implies a cause of action 15 for perceived or "regarded as" physical disability 16 discrimination. See, e.g. , CHRO ex rel. Abney v. City of 17 Waterbury, CHRO No. 9037286, at *15 (July 14, 1992); Williams v. 18
Town of Stratford, CHRO No. 850296, at *7 (Aug. 24, 1990). The 19 Connecticut Supreme Court has nonetheless held that deference to 20 an administrative agency is unwarranted when the construction of 21 a term or phrase is "a question of law that ha[s] not previously 22 been subject to judicial scrutiny." Bridgeport Hosp. v. Comm'n 23 on Human Rights & Opportunities , 232 Conn. 91, 110 (1995) (citing 24 Dep't of Admin. Servs. v. Employees' Review Bd. , 226 Conn. 670, 2523

679 (1993)). Whether the CFEPA includes a cause of action for 1 perceived physical disability discrimination is precisely such a 2 question of law and, given the absence of any ambiguity, we 3 decline to defer to the Connecticut Commission's view. See 4 Lieberman v. State Bd. of Labor Relations , 216 Conn. 253, 263-64 5 (1990) (declining to defer to board's view because, in part, "the 6 board's interpretation of the statutory scheme at issue is a 7 question of law that has not previously been subjected to 8 judicial scrutiny"). 9 Of the appellant's remaining arguments, his invocation of 10 various public policy rationales and his contention that finding 11 a cause of action for perceived physical disability 12 discrimination is the only reasonable interpretation of the 13 statute are closely related. In essence, he maintains that given 14 the public policy reasons that support recognition of such a 15 cause of action, it is unreasonable to interpret the statute to 16 operate otherwise. There may be strong arguments in favor of 17 outlawing perceived disability discrimination, but such arguments 18 must be evaluated by the legislature. See Thibodeau v. Design 19 Group One Architects, LLC, 260 Conn. 691, 715 (2002) (noting 20 that, "just as the primary responsibility for formulating public 21 policy resides in the legislature[,] so, too, does the 22 responsibility for determining, within constitutional limits, the 23 methods to be employed in achieving those policy goals"). We 24 must construe the statute presented to us, and the construction 2524

we adopt today cannot be said to be unreasonable, unworkable, 1 difficult, or bizarre. Cf

. Butler ex rel. Skidmore v. Hartford 2 Technical Inst., Inc. , 243 Conn. 454, 461-62 (1997) (rejecting 3 statutory interpretation that yielded bizarre and difficult 4 results). 5 Absent these untenable results and, even assuming that the 6 lack of such a cause of action is a legislative oversight, we 7 nevertheless must adhere to the plain language of the CFEPA, 8 which makes no mention of a cause of action for perceived 9 physical disability discrimination. The Connecticut Supreme 10 Court instructs that "the more strongly the bare text of the 11 language suggests a particular meaning, the more persuasive the 12 extratextual sources will have to be in order for us to conclude 13 that the legislature intended a different meaning." Courchesne, 14 262 Conn. at 574. Although our ultimate holding is reached by 15 reasoning that varies from the interpretation advanced by the 16 district court and the Connecticut Commission, and is perhaps a 17 trifle at odds with the view that Connecticut's remedial statutes 18 should be construed liberally, see Sullivan Assocs. , 250 Conn. at 19 782, the holding is nonetheless consistent with legislative 20 history and, more significantly, the language of the statute -- 21 the factor considered by the Connecticut Supreme Court to be the 22 most important for interpreting a statute, see Courchesne, 262 23 Conn. at 577. In consequence, we conclude that no cause of 2425

action for perceived disability discrimination presently exists 1 under Connecticut law. 2
CONCLUSION 3 Accordingly, for the reasons stated, the grant of summary 4 judgment in favor of Hamilton Standard is affirmed. 5