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*********************************************** 
CARMEN LOPEZ v. WILLIAM RAVEIS

REAL ESTATE, INC., ET AL.

(SC 20574)

Robinson, C. J., and D’Auria, Mullins, Ecker and Keller, Js.

Syllabus

Pursuant to statute (§ 46a-64c (a) (1)), it is a discriminatory practice ‘‘[t]o

refuse to sell or rent after the making of a bona fide offer, or to refuse

to negotiate for the sale or rental of, or otherwise make unavailable

or deny, a dwelling to any person because of . . . lawful source of

income . . . .’’

Pursuant further to statute (§ 46a-64c (a) (3)), it is a discriminatory practice

‘‘[t]o make, print or publish, or cause to be made, printed or published

any notice, statement, or advertisement, with respect to the sale or rental

of a dwelling that indicates any preference, limitation, or discrimination

based on . . . lawful source of income . . . or an intention to make

any such preference, limitation or discrimination.’’

The plaintiff sought to recover damages for alleged housing discrimination

in connection with certain statements that the defendant H, a real estate

salesperson, made regarding the plaintiff’s participation in the Section

8 Housing Choice Voucher Program. H served as an independent contractor for the named defendant, R Co., a real estate broker. R Co., through

H, entered into a listing contract with the defendant V for the exclusive

right to lease an apartment owned by V and his wife. Thereafter, the

plaintiff, through her real estate agent, B, submitted an application and

offer to lease the apartment. After receiving the documents and speaking

with V, who wanted the apartment rented by April 1, 2017, H notified

B that they were ‘‘all set’’ for a lease commencing on that date. B

then sent H blank section 8 paperwork to accompany the plaintiff’s

application. H and B then proceeded to exchange e-mails and text messages, in which H repeatedly indicated that she was not aware that the

plaintiff would be using a section 8 voucher, that she would have to

speak to V, that the decision was up to V, and that she was not sure if

V would want to wait for the section 8 approval process. H eventually

texted B that V had received a competing offer for the apartment, and,

several hours later, H texted B that V had accepted the competing offer.

The plaintiff alleged that H violated § 46a-64c (a) (1) and (3) by denying

her the opportunity to rent the apartment on the basis of her lawful

source of income and by making statements that indicated any preference, limitation, or discrimination on the basis of lawful source of

income, and, in addition, that R Co., V, and V’s wife were vicariously

liable for H’s statements. After a trial to the court, the trial court rendered

judgment for the defendants, concluding that the plaintiff had failed to

prove unlawful discrimination. Specifically, with respect to the plaintiff’s

claim under § 46a-64c (a) (3), the court determined that H’s statements

would not convey to an ordinary listener a rejection of or otherwise

disfavor a section 8 tenancy. On the plaintiff’s appeal from the trial

court’s judgment, held:

1. The trial court incorrectly concluded that H’s statements did not indicate

any preference, limitation, or discrimination based on lawful source of

income, in violation of § 46a-64c (a) (3):

a. Contrary to the plaintiff’s claim, the trial court properly applied the

ordinary listener standard in determining whether H’s statements conveyed an impermissibly discriminatory preference: this court considered

the statute’s legislative history, as well as cases interpreting federal fair

housing laws and the federal counterpart to § 46a-64c (a) (3), in particular, and concluded that, when a notice, statement, or advertisement that

allegedly violates § 46a-64c (a) (3) is plainly discriminatory on its face,

courts need not examine the surrounding context or the speaker’s intent

to determine whether the statement indicates any impermissible preference, limitation, or discrimination to the ordinary listener, but, when

such a notice, statement, or advertisement is not discriminatory on its

face, courts may consider context and the intent of the speaker to aid

in determining the way an ordinary listener would have interpreted it; in
the present case, the trial court apparently concluded that H’s statements

were not facially discriminatory, and, because this court agreed with

that determination, it was not improper for the trial court to consider

the context of H’s statements in determining whether they indicated

any preference, limitation, or discrimination based on lawful source

of income.

b. The trial court’s conclusion that H’s statements would not have conveyed to an ordinary listener an impermissible preference with respect to

lawful source of income was clearly erroneous: there was overwhelming

evidence in the trial court’s factual findings that supported the plaintiff’s

housing discrimination claim, as, after indicating that the plaintiff was

‘‘all set,’’ H stated four separate times that she was not aware that the

plaintiff intended to use a section 8 voucher to pay rent and that she

was not sure whether V would want to wait, H had already made two

of those statements before receiving the competing offer, meaning that

she could not reasonably rely on the competing offer to explain her

earlier statements, and, in context, H’s statements could not reasonably

be understood to mean anything other than that the plaintiff’s intention

to use her section 8 voucher to pay rent would be an obstacle to her

lease application; moreover, the trial court’s conclusion in favor of H

undercut the broad protections afforded by § 46a-64c (a) (3), which is

intended to protect against the psychic injury caused by discriminatory

statements, especially in light of this state’s public policy that landlords

may not discriminate against housing applicants who use section 8 assistance and the legislature’s manifest intent to afford low income families

access to the rental housing market; in the present case, the plaintiff

indicated that she was able to satisfy V’s interest in an April 1, 2017

tenancy, any preference to avoid the administrative process the section

8 program involved was an impermissible consideration under both subdivisions (1) and (3) of § 46a-64c (a), and this court was left with the

definite and firm conviction that the trial court’s conclusion that H’s

statements did not express a preference with respect to, or discriminate

on the basis of, the plaintiff’s lawful source of income was not simply

an alternative yet permissible view of the evidence.

2. Although the trial court did not address the issue of vicarious liability,

this court determined, as a matter of law, that R Co. was vicariously liable

for H’s statements but that V and his wife were not, and, accordingly,

this court reversed the judgment of the trial court and remanded the

case with direction to render judgment for the plaintiff as to liability

against H and R Co. under § 46a-64c (a) (3) and for further proceedings

to determine, inter alia, the damages to which the plaintiff was entitled:

the parties stipulated, and the trial court found, that R Co. is a real

estate broker and that H is R Co.’s independent contractor, and, because

H acted on behalf of R Co. when she executed the listing contract with

V and her statements were made in furtherance of that contract, R Co.

was liable to the same extent as if H were its employee pursuant to the

statute (§ 20-312a) governing the vicarious liability of real estate brokers;

moreover, although V and his wife had an independent contractor relationship with H, there was no evidence that the listing contract gave V

any control over H, and, in the absence of any exception to the general

rule that employers are not liable for the torts of their independent

contractors, V and his wife were not vicariously liable for any of H’s

statements.

Argued October 14, 2021—officially released April 19, 2022

Procedural History

Action to recover damages for alleged housing discrimination, and for other relief, brought to the Superior

Court in the judicial district of Danbury, where the case

was tried to the court, Kowalski, J.; judgment for the

defendants, from which the plaintiff appealed. Reversed

in part; further proceedings.

Jeffrey Gentes, for the appellant (plaintiff).

Tracey Lane Russo, for the appellees (named defendant et al.).

JosephP.Sargent, for the appellees(defendant Anthony
Vaccaro et al.).
Opinion

ROBINSON, C. J. In this appeal, we consider the

standard for determining whether a statement made in

connection with the sale or rental of a dwelling violates

General Statutes § 46a-64c (a) (3)1 by indicating a ‘‘preference, limitation, or discrimination,’’ or an ‘‘intention

to make any such preference, limitation or discrimination,’’ on the basis of an individual’s ‘‘lawful source of

income . . . .’’ The plaintiff, Carmen Lopez, appeals2

from the judgment of the trial court rendered in favor

of the defendants, William Raveis Real Estate, Inc.

(Raveis), Sarah Henry, a licensed real estate salesperson, and Anthony Vaccaro and Eve Vaccaro,3

in this

action alleging housing discrimination in violation of

§ 46a-64c (a). On appeal, the plaintiff claims that the

trial court, in considering whether Henry violated § 46a64c (a) (3) by making certain statements in the course

of renting an apartment owned by the Vaccaros, improperly considered whether Henry had the subjective intent

to discriminate on the basis of lawful source of income

when she made those statements. The plaintiff specifically contends that she is entitled to judgment in her

favor because (1) Henry’s statements were facially discriminatory, rendering her subjective intent irrelevant

as a matter of law, and (2) even if we were to conclude

that Henry’s statements were not facially discriminatory, the trial court nevertheless incorrectly determined

that the statements, considered in context, did not convey an impermissible preference. We conclude that,

although the trial court applied the proper legal standard in considering the plaintiff’s claims under § 46a64c (a) (3), its ultimate conclusion as to liability on the

facts of this case was clearly erroneous with respect

to Henry. Accordingly, we reverse in part the judgment

of the trial court.

The record reveals the following relevant facts, as

found by the trial court, and procedural history. At all

relevant times, the Vaccaros owned a two family home

located at 5 Prince Street in Danbury. On January 28,

2017, Vaccaro entered into an exclusive right to lease

listing contract with Raveis, through its authorized representative, Henry, to lease a rental apartment located

in the two family home (rental apartment). Henry is a

real estate salesperson who is affiliated with Raveis, a

real estate broker, pursuant to an independent contractor agreement. Vaccaro informed Henry that he wanted

to ensure a new tenancy was in place for the rental

apartment by April 1, 2017. Henry listed the rental apartment on the multiple listing service database, and, on

March 9, the plaintiff, through her real estate agent,

Sarah Becker, submitted to Henry an application and

offer to lease the rental apartment. Henry received the

documents on March 11, and, despite the plaintiff’s

having left blank portions of the offer to lease,4 Henry

forwarded the offer to Vaccaro on March 12. The next
day, March 13, following a phone call with Vaccaro,

Henry e-mailed Becker: ‘‘[A]ll set for April 1st. I will

get the lease over to you. [It’s] one month rent and one

month security.’’

Later on March 13, Becker sent Henry blank paperwork for the Section 8 Housing Choice Voucher Program

(section 8) to accompany the plaintiff’s application to

lease the rental apartment. After Henry received the

section 8 documents on March 15, the following conversation occurred:

At 8:29 a.m., Henry e-mailed Becker: ‘‘I wasn’t aware

that this was a [s]ection 8 tenant. I have to speak with

[Vaccaro] today. [He] is looking for a security deposit

for this rental . . . . I will give you a call later today.’’

At 9:46 a.m., Becker e-mailed Henry: ‘‘To whom

should [the] check be made out . . . . I can be there

for [the] housing inspection if you like, but [I] will need

access to [the] basement. It’s oddly one of the best

parts of [my] working with housing—free inspections.

I had a state paid tenant in one of my buildings for

[more than eight] years (not [section] 8 but similar),

the direct deposit payments and yearly inspections were

great really—that agency monitored the condition of

the apartment, and they kept a paper trail and photos.

No disagreements over who did what to a place, plus

I knew I’d get paid [which made it] easier to sleep at

night. Plus to get a voucher the state has already

checked out the tenant financially and their background, so that is a huge benefit to a landlord as well.

Win-win. [Vaccaro] hasn’t had anyone with voucher

assistance before? You can let him know that most of

the rent will come from the tenant, and a part from the

state via direct deposit, and other than that it’s pretty

normal. Let me know how I can help. . . . Will need

to get paperwork in ASAP so [we] can have [the] place

inspected fast to meet [the] April 1 start date. Usually

a place may fail the first time on a stuck/broken window

or no [ground fault circuit interrupter (GFCI)] outlets,

basic safety issues that should be in place for any tenant,

and then passes on [the] second trip. If [the] windows

function OK and [there are GFCI] outlets by [the] sinks,

[it] should be in good shape, place looks nice.’’

At 10:41 a.m., Henry texted Becker: ‘‘Good morning

I was not aware of the [s]ection 8 when I spoke with

you I’m not sure [Vaccaro] would want to wait. I know

it takes a couple of weeks for the process and he wants

to [rent] it by April 1st I will speak with him today and

let you know thanks.’’ (Emphasis added.)

At 12:31 p.m., Henry texted Becker: ‘‘I will speak

with [Vaccaro] later today to make a decision about

the rental.’’

At 1:36 p.m., Henry texted Becker: ‘‘You did not

inform me of section 8 when I spoke with you about

the offer. I have to present that to [Vaccaro]. [I’m] not
sure if [he] wants to [wait] through the process. It is

up to my client. We do not have a signed offer yet.’’

(Emphasis added.)

At 1:50 p.m., Henry texted Becker: ‘‘[Vaccaro] has

another offer he’s also looking at we do not have an

offer without a signed lease. You were not upfront with

me with [s]ection 8 and I didn’t [present it] to [Vaccaro]

that way as well. It’s up to [Vaccaro] what he would

like to do with the offers as well as the waiting. I will

get back to you tonight thank you.’’ (Emphasis added.)

At 1:52 p.m., Becker texted Henry: ‘‘It is not necessary

to identify [my] client as having a voucher to all places

she applies to, I respect her privacy, only that income

is sufficient.’’

At 2:23 p.m., Henry texted Becker: ‘‘Yes, it is necessary by law. It needs to be on the offer if paying from

a [third] party. [Vaccaro] will let me know tonight

either way thanks.’’ (Emphasis added.)

At 7:09 p.m., Henry texted Becker: ‘‘Hi, [Vaccaro] has

decided to go with the other offer, [s]orry.’’

As reflected in the conversation, Henry received a

second offer to lease on behalf of Everton Thompson

and Saudia Dyer (Thompson and Dyer offer) on March

15, 2107, at 11:37 a.m. The Thompson and Dyer offer

was accompanied by a completed rental application. It

also proposed a lease term beginning on March 15, 2017,

and ending on February 28, 2018, a lease price of $1500

per month, and a security deposit of $3000, and identified no contingencies. Vaccaro instructed Henry to

accept the Thompson and Dyer offer and had a fully

executed lease for the rental apartment by March 18.

The plaintiff subsequently brought this action for,

inter alia, compensatory damages, punitive damages,

and declaratory and injunctive relief, claiming that the

defendants violated § 46a-64c (a) by (1) denying her the

opportunity to rent property on the basis of her lawful

source of income,5

in violation of subdivision (1) of

§ 46a-64c (a), and (2) making a statement with respect

to the rental of a dwelling that indicated a preference,

limitation, or discrimination on the basis of lawful source

of income, in violation of subdivision (3) of § 46a-64c (a).

The case was tried to the court over four days. The trial

court issued a memorandum of decision and rendered

judgment in favor of the defendants, concluding that

the plaintiff failed to prove that the defendants had

discriminated against her on the basis of her lawful

source of income in light of Henry’s statements. Given

its conclusion as to Henry’s liability, the trial court also

declined to reach the plaintiff’s derivative claims against

Raveis and the Vaccaros.

Subsequently, the plaintiff filed a motion for reargument and reconsideration on the grounds that the trial

court either failed to analyze her § 46a-64c (a) (3) claims

or improperly analyzed those claims under the mixed
motive analysis applicable to § 46a-64c (a) (1) claims.

The trial court granted the plaintiff’s motion and issued

an addendum to its memorandum of decision, further

explaining its judgment in favor of the defendants on

the plaintiff’s § 46a-64c (a) (3) claims. Specifically, the

trial court stated in that addendum that it ‘‘must determine whether Henry’s statements convey a preference

against Lopez to an ordinary listener, hearing the statements in context.’’ Applying that standard, the trial

court ultimately concluded that Henry’s statements did

‘‘not convey a rejection [of] or disfavor[ing] . . . a section 8 tenancy’’ and, therefore, did not violate § 46a64c (a) (3).6 This appeal followed.

On appeal, the plaintiff asks us to direct judgment in

her favor, claiming that Henry’s statements were

facially discriminatory on the basis of her lawful source

of income, in violation of § 46a-64c (a) (3), rendering

it unnecessary to consider the context of those statements. The plaintiff further claims that the record supports a conclusion as a matter of law that the other

defendants, Raveis and the Vaccaros, are vicariously

liable for Henry’s statements. We address each claim

in turn.

I

We begin with the plaintiff’s claims with respect to

whether the trial court correctly determined that Henry’s statements did not violate § 46a-64c (a) (3). Specifically, the plaintiff argues that (1) the trial court applied

an improper legal standard in considering this claim,

and (2) the trial court’s finding that Henry’s statements

did not convey a discriminatory message to an ordinary

listener was clearly erroneous.

A

We first address the plaintiff’s claim that the trial

court improperly applied the ordinary listener standard

articulated by the United States Court of Appeals for

the Second Circuit in Soules v. United States Dept. of

Housing & Urban Development, 967 F.2d 817 (2d Cir.

1992), when it considered the context surrounding Henry’s statements in determining whether they stated a

preference or discriminated on the basis of lawful

source of income, in violation of § 46a-64c (a) (3). Relying on the Second Circuit’s subsequent decision in

Rodriguez v. Village Green Realty, Inc., 788 F.3d 31

(2d Cir. 2015), the plaintiff argues that, under Soules,

the proper analysis of facially discriminatory statements like those made by Henry is limited to whether

an ordinary listener would infer that the speaker had

stated a preference against a member of the protected

class, and does not take into account whether the

speaker had the subjective intent to discriminate. To

this end, the plaintiff also argues that the trial court

improperly failed to decide at the outset whether Henry’s statements were facially discriminatory in determin-
ing whether it was appropriate to consider their context, instead concluding that it is always appropriate

to consider context in determining whether a statement

violates § 46a-64c (a) (3).

In response, Raveis and Henry argue that the plaintiff

misreads Soules and that, under that case, the trial court

properly considered context in determining whether

Henry’s statements violated § 46a-64c (a) (3). The Vaccaros, relying on several federal district court decisions

following Soules, namely, Thurmond v. Bowman, 211

F. Supp. 3d 554, 566 (W.D.N.Y. 2016), appeal dismissed,

Docket No. 16-3545, 2016 WL 10100759 (2d Cir. November 1, 2016), Short v. Manhattan Apartments, Inc., 916

F. Supp. 2d 375, 394 (S.D.N.Y. 2012), and Mancuso v.

Douglas Elliman LLC, 808 F. Supp. 2d 606, 625

(S.D.N.Y. 2011), argue that the trial court properly

applied the ordinary listener test, as utilized in the Second Circuit, because the ordinary listener always considers statements in their context. We agree with the

plaintiff’s argument that the ordinary listener considers

context only when necessary to analyze a notice, statement, or advertisement that is not clearly discriminatory on its face, but, applying that standard, we conclude that the trial court properly considered context

in the present case.

Whether the trial court applied the proper standard

for analyzing the statements under § 46a-64c (a) (3)

presents an issue of statutory construction that raises a

question of law, over which we exercise plenary review.

See, e.g., Boisvert v. Gavis, 332 Conn. 115, 141, 210

A.3d 1 (2019). ‘‘It is well settled that we follow the plain

meaning rule pursuant to General Statutes § 1-2z in

construing statutes to ascertain and give effect to the

apparent intent of the legislature.’’ (Internal quotation

marks omitted.) Ledyard v. WMS Gaming, Inc., 338

Conn. 687, 696, 258 A.3d 1268 (2021).

As required by § 1-2z, we begin with the text of the

statute, which provides in relevant part that it is ‘‘a

discriminatory practice’’ to ‘‘make, print or publish, or

cause to be made, printed or published any notice,

statement, or advertisement, with respect to the sale

or rental of a dwelling that indicates any preference,

limitation, or discrimination based on . . . lawful

source of income . . . or an intention to make any

such preference, limitation or discrimination.’’ General

Statutes § 46a-64c (a) (3); see footnote 1 of this opinion

(complete text of § 46a-64c (a) (1) and (3)).

Section 46a-64c (a) (3) is silent as to the proper standard by which to analyze statements alleged to violate

the statute, leaving the statute susceptible to multiple,

plausible interpretations as to the proper standard. See

Thomas v. Dept. of Developmental Services, 297 Conn.

391, 400, 999 A.2d 682 (2010) (silence as to scope of

provision rendered statute ambiguous with respect to

its scope because there was more than one plausible
interpretation). When silence renders a statutory provision ambiguous ‘‘with respect to [the issue at hand],

our analysis is not limited by . . . § 1-2z . . . . In

addition to the words of the statute itself, we look 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.’’ (Citation omitted; internal quotation marks omitted.) Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 407, 944 A.2d 925 (2008).

Turning to the legislative history, we note that then

state Senator Richard Blumenthal described the bill that

was enacted in 1990 as the Connecticut Discriminatory

Housing Practices Act as having ‘‘all the standards and

assurances that exist under federal law’’ and ‘‘incorporat[ing] the federal [Fair Housing Act, 42 U.S.C. 3601

et seq. (federal act)] into our state statute . . . .’’ 33

S. Proc., Pt. 2, 1990 Sess., p. 3494. With no on point

discussion in the legislative history of the provision

enacted as § 46a-64c (a) (3), we are left to consider

how the state fair housing act relates to common-law

principles and federal fair housing laws. In interpreting

our state fair housing laws, ‘‘we are guided by the cases

interpreting federal fair housing laws . . . despite differences between the state and federal statutes.’’ (Citation omitted.) Miko v.Commission on Human Rights &

Opportunities, 220 Conn. 192, 202, 596 A.2d 396 (1991);

see, e.g., Curry v. Allan S. Goodman, Inc., supra, 286

Conn. 407 (‘‘this court previously has determined that

Connecticut antidiscrimination statutes should be interpreted in accordance with federal antidiscrimination

laws’’). We find particularly instructive the constructions of the federal act by the United States Court of

Appeals for the Second Circuit in the absence of a

United States Supreme Court decision on point. See

Feehan v. Marcone, 331 Conn. 436, 478, 204 A.3d 666

(‘‘[i]n considering claims of federal law, it is well settled

that, when the United States Supreme Court has not

spoken, we find decisions of the Second Circuit particularly persuasive’’), cert. denied, U.S. , 140 S. Ct.

144, 205 L. Ed. 2d 35 (2019). Accordingly, we will look

to cases interpreting 42 U.S.C. § 3604 (c),7 which is the

federal counterpart to § 46a-64c (a) (3), even though

the state statute is unique insofar as it includes lawful

source of income as a protected class.

Our analysis begins with the Second Circuit’s decision in Ragin v. New York Times Co., 923 F.2d 995 (2d

Cir.), cert. denied, 502 U.S. 821, 112 S. Ct. 91, 116 L. Ed.

2d 54 (1991), in which that court analyzed the statutory

language of 42 U.S.C. § 3604 (c) in upholding the denial

of a motion to dismiss an action claiming that a newspaper had violated the federal act by publishing real estate

advertisements that featured virtually no black models,

thus indicating a preference for white purchasers. See

id., 998–1000. ‘‘Beginning [its] analysis with the statu-
tory language, [the Second Circuit noted that] the first

critical word is the verb ‘indicates.’ Giving that word

its common meaning, [the court] read the statute to be

violated if an ad for housing suggests to an ordinary

reader that a particular race is preferred or dispreferred

for the housing in question.’’ Id., 999.

‘‘[The court] read the word ‘preference’ to describe

any ad that would discourage an ordinary reader of a

particular race from answering it.’’ Id., 999–1000. ‘‘Moreover, the statute prohibits all ads that indicate a racial

preference to an ordinary reader whatever the advertiser’s intent. To be sure, the intent of the creator of an

ad may be relevant to a factual determination of the

message conveyed . . . but the touchstone is nevertheless the message. If, for example, an advertiser seeking

to reach a group of largely white consumers were to

create advertisements that discouraged potential black

consumers from responding, the statute would bar the

ads, [regardless of] whether the creator of the ad had

a subjective racial intent.’’8

(Citation omitted; emphasis

added.) Id., 1000. The court also noted that the ‘‘ordinary

reader is neither the most suspicious nor the most insensitive of our citizenry.’’ Id., 1002. Considering the advertisement at issue in the context of twenty years of

advertisements, the Second Circuit determined that it

presented a viable claim of a violation of 42 U.S.C.

§ 3604 (c) by stating racial preferences in the context

of the sale of real estate, emphasizing ‘‘a long-standing

pattern of publishing real estate ads in which models

of potential consumers are always white while black

models largely portray service employees, except for

the exclusive use of black models for housing in predominantly black neighborhoods.’’ Id., 1001.

Subsequently, the Second Circuit more clearly delineated when and why the ordinary listener considers evidence beyond the statement itself in Soules v. United

States Dept. of Housing & Urban Development, supra,

967 F.2d 817. In Soules, the court considered whether

a real estate agent violated the federal act by asking a

prospective tenant how old her child was because ‘‘an

elderly person lived in the first floor unit, and . . . she

did not want an upstairs resident who would make too

much noise.’’ Id., 820. The court stated that, ‘‘[i]n cases

[in which statements] are clearly discriminatory, a court

may look at [the statement] and determine whether it

indicates an impermissible preference to an ordinary

reader, and inquiry into the author’s professed intent

is largely unnecessary.’’ Id., 824. The court also stated

that, because written content does not communicate

the inflection of the speaker, ‘‘courts must turn to other

evidence in determining whether a violation of the [federal act] occurred.’’ Id., 825. ‘‘[Fact finders] may examine intent . . . because it helps determine the manner

in which a statement was made and the way an ordinary

listener would have interpreted it.’’ Id. Deeming the real

estate agent’s statement not facially discriminatory, the
court stated that the context and intent of the speaker

could either expose an impermissible preference or

simply explain why the statement was made, and upheld

the administrative law judge’s conclusion that the statements at issue were made to determine whether the

prospective tenants were noisy.9

Id., 825–26; see also

Jancik v. Dept. of Housing & Urban Development, 44

F.3d 553, 554–55 (7th Cir. 1995) (considering context,

including two statements that indicated express preference against children and teenagers, to determine that

‘‘ ‘mature person preferred’ ’’ advertisement expressed

impermissible preference).

Significantly, the Second Circuit also suggested in

Soules that context is particularly helpful when there

may be a legitimate reason for inquiring into one’s status

as a protected class, observing that, ‘‘whereas [t]here

is simply no legitimate reason for considering an applicant’s race . . . there are situations in which it is legitimate to inquire about the number of individuals interested

in occupying an apartment and their ages.’’ (Internal

quotation marks omitted.) Soules v. United States Dept.

of Housing & Urban Development, supra, 967 F.2d 824.

‘‘In [Soules], for example, [the real estate agent] asked

[the perspective tenant] whether her child was noisy

and later stated that an elderly tenant ‘would probably

not be able to take a noisy child running around.’ Depending on the context and intent of the speaker, the latter

question either could intimate an impermissible preference or simply might explain—to a desired tenant—

why the first question had been asked. It also might

send a message that a tenant with a noisy child will

probably be confronted with regular complaints from

the elderly tenant making the apartment less attractive

to the prospective tenant.’’ Id., 825.

Finally, in Rodriguez v. Village Green Realty, Inc.,

supra, 788 F.3d 36–39, the Second Circuit considered

whether there was sufficient evidence to raise a genuine

issue of material fact as to whether a real estate agent

had violated 42 U.S.C. § 3604 (c) by making certain

comments with respect to the tenants’ disabled child.

Concluding that 42 U.S.C. § 3604 (c) could be violated

even if the person who was the subject of the statements

did not actually qualify as disabled under the federal

act; id., 41; the court explained that it would contradict

the language of 42 U.S.C. § 3604 (c) to hold that the

inquiry depended on the speaker’s subjective state of

mind. See id., 53. Rather, the inquiry under 42 U.S.C.

§ 3604 (c) depends on whether the challenged statement conveyed a prohibited preference to the ordinary

listener, with the ‘‘ ‘touchstone’ ’’ of the inquiry being

the message itself.10 Id. Section 3604 (c) prohibits all

ads that indicate an impermissible preference to an

ordinary reader, regardless of intent. See id. However,

when the message does not convey an impermissible

preference on its face, courts may turn to evidence

beyond the message to determine whether the ordinary
reader would, in fact, interpret the message to violate

the statute. See id.

Guided by this Second Circuit case law, we conclude

that, when a notice, statement, or advertisement that

allegedly violates § 46a-64c (a) (3) is plainly discriminatory on its face, courts need not examine the surrounding context or the speaker’s intent to determine

whether the statement indicates any impermissible

preference, limitation, or discrimination to the ordinary

listener. When, however, such a notice, statement, or

advertisement is not facially discriminatory, courts may

consider the context and intent of the speaker to aid

in determining the way an ordinary listener would have

interpreted it.11 In the present case, the trial court did

not expressly conclude whether the statements were

facially discriminatory, stating only that ‘‘Henry made

no statement that conveys the message that she was

disinclined to proceed with a prospective . . . tenancy

[by the plaintiff] because of section 8 program participation.’’ We understand that statement to mean that the

court concluded that the statements were not facially

discriminatory—a conclusion with which we agree.

Thus, it was not improper for the trial court to consider

the context of the statements in determining whether

they stated a preference with respect to lawful source

of income, in violation of § 46a-64c (a) (3).12

B

We now turn to the plaintiff’s contention that the trial

court incorrectly concluded that Henry’s statements,

even when considered in context, would not have conveyed an impermissible preference to an ordinary listener. Under Second Circuit case law, the ordinary listener inquiry is one of fact. See, e.g., Ragin v. Harry

Macklowe Real Estate Co., 6 F.3d 898, 906 (2d Cir. 1993)

(‘‘[T]he inquiry directed by Ragin [v. New York Times

Co., supra, 923 F.2d 995] is whether a hypothetical ordinary reader would find that a defendant’s ads expressed

an impermissible racial preference. Like the inquiry in

negligence cases concerning whether a defendant’s conduct conformed with that of the reasonable person, this

question is one that the [fact finder] can answer by viewing the ads and the defendants’ conduct and then applying common sense.’’ (Emphasis in original.)); Soules v.

United States Dept. of Housing & Urban Development,

supra, 967 F.2d 825 (‘‘[i]t is for this reason that [fact

finders] may examine intent, not because a lack of

design constitutes an affirmative defense to [a] . . .

violation [of the federal act], but because it helps determine the manner in which a statement was made and

the way an ordinary listener would have interpreted

it’’); Ragin v. New York Times Co., supra, 1000 (‘‘the

intent of the creator of an ad may be relevant to a factual

determination of the message conveyed’’ (emphasis

added)); Gilead Community Services, Inc. v. Cromwell, 432 F. Supp. 3d 46, 68 (D. Conn. 2019) (‘‘whether
the various statements . . . ‘convey a prohibited preference or discrimination to the ordinary listener’ . . .

should be determined by the jury’’ (citation omitted;

emphasis in original)).

‘‘A finding of fact is clearly erroneous when there is

no evidence in the record to support it . . . or when

although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.’’

(Emphasis added; internal quotation marks omitted.)

McKay v. Longman, 332 Conn. 394, 417, 211 A.3d 20

(2019). Further, ‘‘[b]ecause it is the trial court’s function

to weigh the evidence and [to] determine credibility,

we give great deference to its findings. . . . In

reviewing factual findings, [w]e do not examine the

record to determine whether the [court] could have

reached a conclusion other than the one reached. . . .

Instead, we make every reasonable presumption . . .

in favor of the trial court’s ruling.’’ (Internal quotation

marks omitted.) Connecticut Light & Power Co. v. Proctor, 324 Conn. 245, 259, 152 A.3d 470 (2016).

We begin with the facts that the trial court included

in its addendum discussing the plaintiff’s § 46a-64c (a)

(3) claim. As support for its conclusion that Henry’s

statements did not violate § 46a-64c (a) (3), the trial

court cited the fact that Henry forwarded a sample

lease to the plaintiff after finding out about her section

8 status. We fail to see the significance of this fact in

light of the overwhelming evidence in the trial court’s

findings that support the plaintiff’s § 46a-64c (a) (3)

claim.13 Immediately prior to learning about the plaintiff’s section 8 status, Henry had communicated that

the deal was ‘‘all set for April 1st.’’ After Henry learned

of the plaintiff’s section 8 status, she abruptly shifted

gears to inform Becker that (1) they did ‘‘not have an

offer without a signed lease,’’ (2) Henry was ‘‘not sure

[Vacarro] would want to wait,’’ as she knew it took ‘‘a

couple of weeks for the process,’’ and (3) according to

Henry, Vaccaro had to decide ‘‘whether he would want

to wait for the section 8 program process to run its

course given his expressed desire to have the [rental

apartment] rented by April 1, 2017,’’ as the trial court

stated. In the hours following her receipt of the plaintiff’s section 8 forms, Henry stated four separate times

that she was not previously aware of the plaintiff’s

intention to use a section 8 voucher to pay the rent.

The Vaccaros argued that the fact that the plaintiff’s

initial paperwork was incomplete was also relevant to

place Henry’s statements in context, as was the existence of the competing offer from Thompson and Dyer.

The facts, however, undermine the strength of this argument. After the plaintiff’s initial submission of incomplete paperwork, Henry had stated that the deal was

still ‘‘all set for April 1st.’’ In regard to the competing

offer, the trial court found that it was e-mailed to Henry
at 11:37 a.m. on March 15, 2017. By that time, Henry

had already made two of the four statements at issue

and had stated that she was not sure Vaccaro would

want to wait. The chronology of events does not reasonably permit her to rely on the competing offer to explain

the statements that she made earlier that morning.

Thus, the trial court’s ultimate finding that the ordinary

listener would not have inferred that Henry’s statements

indicated any preference, limitation or discrimination

was inconsistent with all but one of the subordinate

facts it found. Put differently, Henry’s statements could

not reasonably be understood in context to mean anything other than that the plaintiff’s intention to use her

section 8 voucher to pay the rent would be a stumbling

block to completing the transaction.

Beyond being inconsistent with the other facts it

found, the trial court’s conclusion undercuts the broad

protections provided by § 46a-64c (a) (3). As the plaintiff argues, the purpose of 42 U.S.C. § 3604 (c), the

federal provision on which § 46a-64c (a) (3) is modeled,

‘‘is to protect against the ‘psychic injury’ caused by

discriminatory statements made in relation [to] the

housing market.’’14 See R. Schwemm, ‘‘Discriminatory

Housing Statements and § 3604 (c): A New Look at

the Fair Housing Act’s Most Intriguing Provision,’’ 29

Fordham Urb. L.J. 187, 249–50 (2001); see also United

States v. Space Hunters, Inc., 429 F.3d 416, 424–25

(2d Cir. 2005) (‘‘[T]he [D]istrict [C]ourt’s view that [the

provision’s] purpose is to ‘prevent expressions that

result in the denial of housing’ is too narrow. The statute

also ‘protect[s] against [the] psychic injury’ caused by

discriminatory statements made in connection with the

housing market. . . . If that were not so, Congress

likely would not have made [the provision] applicable

to dwellings that are otherwise exempt from [the act’s]

prohibition on discrimination.’’ (Citations omitted.)).

Our statute mirrors the broad language of the federal

provision and differs only in its inclusion of additional

protected classes, such as lawful source of income. See

footnotes 1 and 7 of this opinion.

The protections against psychic injury provided by

§ 46a-64c (a) (3) are particularly significant with respect

to lawful source of income. ‘‘Unlike the federal provisions governing section 8, the provisions of § 46a-64c,

which require landlords to accept otherwise qualified

tenants whose lawful source of income may include

section 8 housing assistance, are mandatory. Pursuant

to this statute, it is a part of the public policy of this state

that landlords may not discriminate against housing

applicants because such applicants, otherwise qualified

as potential tenants, look to section 8 assistance for

payment of the stipulated rent.’’15 (Emphasis added.)

Commission on Human Rights & Opportunities v.

Sullivan Associates, 250 Conn. 763, 774, 739 A.2d 238

(1999). The statute reflects ‘‘the legislature’s manifest
intent to afford low income families access to the rental

housing market.’’ Id., 782. Given the mandatory nature

of the section 8 program in Connecticut, landlords may

not justify disfavoring housing vouchers, which are a

lawful source of income, by claiming reluctance to undertake the various administrative burdens that attend participation, such as undergoing rental unit inspections.16

See id., 778–82 (rejecting claim that exception existed

under antidiscrimination provision allowing landlords

not to participate in section 8 program by refusing use of

statutorily mandated lease); see also DiLiddo v. Oxford

Street Realty, Inc., 450 Mass. 66, 77, 876 N.E.2d 421

(2007) (declining to carve out exception to mandatory

section 8 program in Massachusetts for landlords facing

substantial economic harm from compliance with its

requirements).

Thus, given that the plaintiff indicated that she would

have been able to meet Vaccaro’s desired occupancy

date of April 1, 2017, particularly with Becker’s demonstrated desire to expedite the transaction, any preference to avoid the administrative process of the section

8 program in this transaction could not have been a

determinative consideration in Vaccaro’s rental decision under § 46a-64c (a) (1), which, ipso facto, renders

it impermissible under § 46a-64c (a) (3) for Henry to

express that Vaccaro planned to consider the length of

the section 8 process in his rental decision.17 Henry

stated that she was ‘‘not sure if [Vaccaro] wants to

[wait] through the process’’ and that it was up to him.

By expressing that Vaccaro may not want to participate

in the section 8 approval process, and that the transaction may not proceed after Becker had surprised her

with the plaintiff’s section 8 status, Henry indicated

that the administrative process would be a significant

consideration in Vaccaro’s rental decision, which is a

clear indication of an intention to make a preference

based on lawful source of income.

The trial court ultimately concluded that Henry’s

statements ‘‘would not have been understood as discriminatory by an ordinary listener . . . .’’ However, a

violation of § 46a-64c (a) (3) does not require discriminatory animus. Nor does it require a rejection of or

disfavoring a lawful source of income. Section 46a-64c

(a) (3) bars statements that a reasonable listener would

understand to convey an intention to make any such

‘‘preference, limitation, or discrimination . . . .’’ In

light of the broad language of § 46a-64c (a) (3) and the

abundance of facts supporting an inference that the

ordinary listener would have understood Henry’s statements to fall within the reach of the statute, we are left

with a definite and firm conviction that the trial court’s

conclusion was not simply an alternative yet permissible view of the evidence. See, e.g., American Diamond

Exchange, Inc. v. Alpert, 101 Conn. App. 83, 96, 920

A.2d 357 (‘‘whe[n] there are two permissible views of

the evidence, the [fact finder’s] choice between them
cannot be clearly erroneous’’ (internal quotation marks

omitted)), cert. denied, 284 Conn. 901, 931 A.2d 261

(2007). It was clear error for the trial court to find that

Henry’s statements did not indicate even so much as

an intention to make an impermissible consideration

of section 8 in the rental decision. Accordingly, we

conclude that the plaintiff is entitled to judgment as a

matter of law as to liability on her § 46a-64c (a) (3)

claim against Henry,18 with remand to the trial court

necessary for consideration of the plaintiff’s claims for

damages, attorney’s fees, and declaratory and injunctive

relief. See, e.g., Channing Real Estate, LLC v. Gates,

326 Conn. 123, 132–33, 161 A.3d 1227 (2017).

II

Because the trial court rendered judgment in favor

of the defendants on the basis of its conclusion as

to Henry’s statements, it did not reach the plaintiff’s

derivative liability claims. The plaintiff argues that there

is sufficient evidence in the record to conclude as a

matter of law that, pursuant to General Statutes § 20-

312a,19 Raveis is vicariously liable for Henry’s conduct.

The plaintiff also asserts that, by virtue of authorizing

Raveis and Henry to list a unit that he and his wife

owned, Vaccaro created an agency relationship with

the Vaccaros as the principals and Raveis and Henry

as their agents, and, thus, the Vaccaros are vicariously

liable for the tortious acts of Raveis and Henry. In

response, the defendants claim that agency law requires

a fact intensive inquiry, and, because the trial court

did not adjudicate the vicarious liability claims against

them, there is no record for this court to consider. We

agree with the plaintiff that Raveis is vicariously liable

for Henry’s statements as a matter of law but disagree

with respect to the Vaccaros.

This court need not remand the case for the trial

court’s decision on the issue of vicarious liability if it

can be determined as a matter of law on the record

before us. See Hudson Wire Co. v. Winsted Brass Workers Union, 150 Conn. 546, 552, 191 A.2d 557 (1963). In

other words, if the evidence necessary for resolution

is undisputed, then this court can decide the issue as

a matter of law without need for a remand for factual

findings. See, e.g., Salmon v. Dept. of Public Health &

Addiction Services, 259 Conn. 288, 309–310, 788 A.2d

1199 (2002); see also Allstate Ins. Co. v. Palumbo, 296

Conn. 253, 267–68, 994 A.2d 174 (2010) (citing cases).

Again, turning to cases interpreting the federal act,

we note that the United States Supreme Court has stated

that the federal statute incorporates ‘‘ordinary [tort

related] vicarious liability rules . . . .’’ Meyer v. Holley,

537 U.S. 280, 285, 123 S. Ct. 824, 154 L. Ed. 2d 753

(2003). As applied in the state law context, under this

court’s well established vicarious liability jurisprudence, an employer is liable for the negligent and wilful

torts of an employee that occurred within the scope
of employment and were done in furtherance of the

employer’s business. E.g., A-G Foods, Inc. v. Pepperidge

Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 (1990); see

Matthiessen v. Vanech, 266 Conn. 822, 840 n.16, 836

A.2d 394 (2003) (‘‘an employer generally is liable for

intentional torts committed by his employees to the

same extent that he is liable for damages arising out of

the negligent or reckless conduct of those employees’’).

In Connecticut, the vicarious liability of a real estate

broker is governed by § 20-312a, which provides: ‘‘In

any action brought by a third party against a real estate

salesperson affiliated with a real estate broker as an

independent contractor, such broker shall be liable to

the same extent as if such affiliate had been employed

as a real estate salesperson by such broker.’’ The parties

stipulated to the fact that Raveis is a broker and that

Henry is a real estate salesperson associated with

Raveis by an independent contractor agreement. The

trial court also made these findings in its memorandum

of decision. Thus, under § 20-312a, Raveis is liable to

the same extent as if Henry were its employee.

The trial court found that Henry acted on behalf of

Raveis when she executed the exclusive right to lease

listing contract with Vaccaro in relation to the rental

apartment. It cannot reasonably be contended that

statements made about the plaintiff’s prospective tenancy in the Vaccaros’ rental apartment were not in

furtherance of the listing contract, and there is no evidence to suggest that Henry’s conversations with

Becker in regard to the rental apartment were outside

the scope of that engagement. Therefore, we conclude

as a matter of law that Raveis is vicariously liable for

Henry’s statements in violation of § 46a-64c (a) (3).

The plaintiff also asserts that, having authorized

Raveis and Henry to list a unit that he and his wife

owned, Vaccaro created an agency relationship with

the Vaccaros as the principal and Raveis and Henry as

their agents, and, thus, the Vaccaros are vicariously

liable for the wrongful acts of those agents. At oral

argument before this court, counsel for the Vaccaros

argued that Vaccaro hired Henry as an independent

contractor and provided no training, tools, equipment

or instructions, other than the desired amount of rent,

and, thus, cannot be held liable for her wrongful acts.

We agree with the Vaccaros and conclude that Henry

had an independent contractor relationship with them

for purposes of their vicarious liability.

A principal is generally liable for the authorized acts

of their agent. E.g., Rich-Taubman Associates v. Commissioner of Revenue Services, 236 Conn. 613, 619, 674

A.2d 805 (1996). Agency is ‘‘the fiduciary relationship

[resulting] from [the] manifestation of consent by one

person to another that the other shall act on his [or

her] behalf and subject to his [or her] control, and

consent by the other so to act . . . .’’ (Internal quota-
tion marks omitted.) Fiano v. Old Saybrook Fire Co.

No. 1, Inc., 332 Conn. 93, 102, 209 A.3d 629 (2019). ‘‘The

test of the [agency] relationship is the right to control.

It is not the fact of actual interference with the control,

but the right to interfere, that makes the difference

between an independent contractor and a servant or

agent.’’ (Internal quotation marks omitted.) Tianti v.

William Raveis Real Estate, Inc., 231 Conn. 690, 697,

651 A.2d 1286 (1995). Further, ‘‘[a]n independent contractor has been defined as one who, exercising an

independent employment, contracts to do a piece of

work according to his own methods and without being

subject to the control of his employer, except as to the

result of his work.’’ (Internal quotation marks omitted.) Id.

Turning to the record, we observe that the listing

contract Henry executed between Raveis and Vaccaro

stated that ‘‘[Raveis] will use reasonable efforts to lease

the [rental apartment].’’ This provision does not state

or imply that the Vaccaros had the right to intervene

as to the means or methods by which to lease the listed

property. Outside of the limited terms of the listing

contract, there is no evidence to suggest that Vaccaro

had the right to control anything other than the result,

namely, the terms of the lease and which offer he

accepted.20 Accordingly, we conclude that Vaccaro and

Henry had an independent contractor relationship as a

matter of law.

Generally, an employer is not liable for the torts of

its independent contractors. E.g., Gazo v. Stamford,

255 Conn. 245, 257, 765 A.2d 505 (2001). ‘‘The explanation for [this rule] most commonly given is that, [because]

the employer has no power of control over the manner

in which the work is to be done by the contractor, it is

to be regarded as the contractor’s own enterprise, and

[the contractor], rather than the employer, is the proper

party to be charged with the responsibility of preventing

the risk, and bearing and distributing it.’’ (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska

Construction Co., 264 Conn. 509, 517–18, 825 A.2d 72

(2003).

The plaintiff raised an exception to this general principle in its brief to this court, at least as to Eve Vaccaro.

Relying on Alexander v. Riga, 208 F.3d 419, 432–33 (3d

Cir. 2000), cert. denied, 531 U.S. 1069, 121 S. Ct. 757,

148 L. Ed. 2d 660 (2001), the plaintiff argues that the

duty not to discriminate is nondelegable in nature. This

court has previously stated that ‘‘[t]he nondelegable

duty doctrine is . . . an exception to the rule that an

employer may not be held liable for the torts of its

independent contractors.’’ Gazo v. Stamford, supra, 255

Conn. 257. The United States Supreme Court, however,

has held that the duty not to discriminate under the

federal act is not nondelegable in nature because a

conclusion to the contrary would extend vicarious lia-
bility beyond the ordinary tort principles imposed by

the federal act. See Meyer v. Holley, supra, 537 U.S.

286; see also id., 290. Having concluded that Henry was

an independent contractor, and, in the absence of an

exception to the general rule that employers are not

liable for the torts of their independent contractors, we

conclude that the Vaccaros are not vicariously liable

for any of Henry’s statements that constitute a violation

of § 46a-64c (a) (3).21

The judgment is reversed in part and the case is

remanded with direction to render judgment for the

plaintiff as to liability against the defendants Sarah

Henry and William Raveis Real Estate, Inc., in connection with the plaintiff’s claim under § 46a-64c (a) (3)

and for further proceedings in accordance with this

opinion; the judgment is affirmed with respect to the

trial court’s determination that the defendants Anthony

Vaccaro and Eve Vaccaro were not liable to the plaintiff.

In this opinion the other justices concurred.

1 General Statutes § 46a-64c (a) provides in relevant part: ‘‘It shall be a

discriminatory practice in violation of this section:

‘‘(1) To refuse to sell or rent after the making of a bona fide offer, or to

refuse to negotiate for the sale or rental of, or otherwise make unavailable

or deny, a dwelling to any person because of race, creed, color, national

origin, ancestry, sex, gender identity or expression, marital status, age, lawful

source of income, familial status or status as a veteran.

* * *

‘‘(3) To make, print or publish, or cause to be made, printed or published

any notice, statement, or advertisement, with respect to the sale or rental

of a dwelling that indicates any preference, limitation, or discrimination

based on race, creed, color, national origin, ancestry, sex, gender identity

or expression, marital status, age, lawful source of income, familial status,

learning disability, physical or mental disability or status as a veteran, or

an intention to make any such preference, limitation or discrimination. . . .’’

2 The plaintiff appealed from the judgment of the trial court to the Appellate

Court, and we subsequently granted the plaintiff’s motion to transfer this

appeal from the Appellate Court pursuant to General Statutes § 51-199 (c)

and Practice Book § 65-2.

3 For purposes of convenience, we refer to the defendants individually as

appropriate. Consistent with the trial court’s memorandum of decision, we

refer to Anthony Vaccaro individually as ‘‘Vaccaro’’ and to Eve Vaccaro by

her full name.

4 The trial court found the following facts with respect to the plaintiff’s

offer to lease: ‘‘The offer to lease identified [the plaintiff] as the tenant,

Prince Street as the premises, a lease term starting on April 1, 2017, ending

‘[one] year, may renew,’ and a lease price of $1500 per month, but left a

blank where it would have been indicated that an initial deposit was tendered

with the offer. There were other blanks that were not filled in on the offer

to lease, including two consecutive lines that were left blank, as follows:

‘‘Security Deposit: Payable to Landlord or Landlord’s Agent upon Signing

of Lease: $

‘‘Additional Rent: Payable to Landlord or Landlord’s Agent upon Signing

of Lease: $

‘‘Although these lines were left blank, the words ‘AS REQUESTED’ were

handwritten next to the additional rent line. . . . The offer to lease further

provided that it would expire at midnight ‘ASAP’ if not accepted by all parties

and identified as a contingency ‘kitchen sink faucet leaking, needs repair.’ ’’

5 By way of background, General Statutes § 46a-63 (3) defines ‘‘lawful

source of income’’ as ‘‘income derived from Social Security, supplemental

security income, housing assistance, child support, alimony or public or

state-administered general assistance.’’ (Emphasis added.) ‘‘[T]he lawful

sources of income protected from discrimination by § 46a-64c include ‘section 8 rental subsidies as a form of housing assistance.’ ’’ Commission on

Human Rights & Opportunities v. Sullivan Associates, 250 Conn. 763, 775,

739 A.2d 238 (1999).
6

In reaching this conclusion, the trial court focused extensively on Becker

and her communications with the plaintiff. The trial court stated: ‘‘[F]rom

Becker’s messages and conduct on March 15, it appears that Becker immediately jumped to the conclusion that [the plaintiff’s] section 8 participation

was a problem. . . .

‘‘Then, in an exchange of messages between Becker and [the plaintiff]

beginning at 10:59 a.m., Becker asked [the plaintiff] if she could call her

housing contact because ‘the landlord is a flight risk’ and is ‘trying to back

off which is illegal and I will report them.’ . . . By 1:35 p.m., Becker messaged [the plaintiff] that ‘[she] called the president of the real estate board.

If they do continue with the other offer (that suddenly exists) you have [a]

legal case against [the] landlord [and] his agent. Minimum fine is around

[$5000] to them.’ By 9:05 p.m., Becker told [the plaintiff] that she had a

‘perfect paper trail on this discrimination case and [was] reporting [it] to

[the relevant state authorities]’ and had identified counsel who was willing

to help her pursue a discrimination claim.’’

7 Section 3604 (c) of title 42 of the 2018 edition of the United States Code

provides that it is unlawful ‘‘[t]o make, print, or publish, or cause to be

made, printed, or published any notice, statement, or advertisement, with

respect to the sale or rental of a dwelling that indicates any preference,

limitation, or discrimination based on race, color, religion, sex, handicap,

familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.’’

8

In responding to the plaintiff’s reliance on Ragin v. New York Times

Co., supra, 923 F.2d 995, Raveis and Henry set forth this quoted language

without analysis or context. Having considered it, we understand the Second

Circuit to mean that the analysis must begin with the message itself, with

the speaker’s subjective intent only relevant when a court must look beyond

the plain language of the statement at issue to determine whether it conveys

an impermissible preference.

9 The Vaccaros argue that the court in Soules stated the proper inquiry

was whether the ordinary listener, in light of all the circumstances, would

have interpreted the statement to indicate an impermissible preference. It

is true that the court stated such, but it did so in a portion of the decision

immediately preceding this section, which distinguished the statements in

question from those that are facially discriminatory and discussed the distinct analysis that facially discriminatory statements warrant. See Soules v.

United States Dept. of Housing & Urban Development, supra, 967 F.2d 824.

10 The defendants argue that the court in Rodriguez did not articulate a

standard for facially discriminatory statements. However, the court

expressly stated that, ‘‘[u]nder [42 U.S.C. §] 3604 (c), the speaker’s subjective

belief is not determinative. What matters is whether the challenged statements convey a prohibited preference or discrimination to the ordinary

listener.’’ (Emphasis omitted.)Rodriguez v. Village Green Realty, Inc., supra,

788 F.3d 53.

11 The three federal District Court cases cited by the Vaccaros do not

support their argument that the ordinary listener always considers context

in evaluating an allegedly discriminatory statement. In Mancuso, the court

proceeded to a consideration of context only following its initial assessment

that the statement in question did ‘‘not clearly convey an impermissible

preference to an ordinary person.’’ Mancuso v. Douglas Elliman, LLC, supra,

808 F. Supp. 2d 626; see Short v. Manhattan Apartments, Inc., supra, 916

F. Supp. 2d 394 (reciting standard from Mancuso, in which statements in

question were not clearly discriminatory and, thus, warranted consideration

of context). Further, although the court in Thurmond stated that the ‘‘ordinary listener hears the statement in context,’’ it proceeded to forgo a consideration of the context as the statements at issue therein were ‘‘plainly’’ in

violation of the federal act. Thurmond v. Bowman, supra, 211 F. Supp. 3d

566; see id., 567 (‘‘[the] statements, in and of themselves, are enough to

trigger liability under [42 U.S.C.] § 3604 (c), because the intent of the speaker

is not determinative of liability’’).

12 We note that the plaintiff claims that the trial court’s finding that Henry

did not subjectively intend to discriminate was clearly erroneous. We need

not consider this claim because, although it would have been proper for

the trial court to consider Henry’s subjective intent insofar as the statements

were not facially discriminatory, we nevertheless agree with Raveis and

Henry that the trial court did not do so in its § 46a-64c (a) (3) analysis.

Indeed, in its memorandum of decision, the trial court focused on the

plaintiff’s § 46a-64c (a) (1) claim, including in its findings. It does not address

whether the trial court found that Henry intended to indicate a preference
in her statements to Becker. The trial court’s addendum, which specifically

addresses the § 46a-64c (a) (3) claim, similarly lacks a finding as to whether

Henry intended her statements to Becker to be discriminatory. The addendum relies on context only to determine how the ordinary listener would

have interpreted the nonfacially discriminatory statements.

13 The trial court also spent a significant portion of its discussion on

text messages exchanged between Becker and the plaintiff subsequent to

Becker’s receipt of the text messages from Henry. See footnote 6 of this

opinion. We disagree with the trial court’s extensive reliance on these statements because Becker’s subjective reaction to Henry’s statements hardly

informs how an ordinary listener would understand Henry’s statements.

14 We note that 42 U.S.C. § 3604 (c) is itself broader than the other federal

antidiscrimination laws on which it is modeled, namely, Title VII of the

Civil Rights Act, which provides in relevant part: ‘‘It shall be an unlawful

employment practice for an employer . . . to print or publish or cause to

be printed or published any notice or advertisement relating to employment

. . . indicating any preference, limitation, specification, or discrimination,

based on race, color, religion, sex, or national origin . . . .’’ 42 U.S.C.

§ 2000e-3 (b) (2018). Section 3604 (c) expanded those protections into the

fair housing context by adding ‘‘statement[s]’’ to the practices banned by

the provision and by adding language that brought even stated intentions

under the protection of fair housing laws. 42 U.S.C. § 3604 (c) (2018). That

expansion was consistent with an overarching goal of the federal act, which

is to promote ‘‘truly integrated and balanced living patterns.’’ 114 Cong. Rec.

3422 (1968), remarks of Senator Walter F. Mondale.

15 In contrast, in states with voluntary section 8 programs, statutes banning

lawful source of income discrimination often have been read to allow landlords to refuse a section 8 tenant for legitimate business reasons related to

compliance with that program’s requirements. See, e.g., Dussault v. RRE

Coach Lantern Holdings, LLC, 86 A.3d 52, 60 (Me. 2014) (‘‘We recognize the

. . . purpose [of the Maine Human Rights Act] to protect public assistance

recipients’ rights to secure decent housing. We will not, however, read into

[that act] a mandate that landlords accept terms of tenancy that are otherwise

required only if the landlord chooses to participate in a voluntary federal

program.’’); Edwards v. Hopkins Plaza Ltd. Partnership, 783 N.W.2d 171,

177 (Minn. App. 2010) (‘‘Minnesota law does not require property owners

in Minnesota to participate in [s]ection 8 programs. . . . And we conclude

that refusal to participate in a voluntary program for a legitimate business

reason does not constitute discrimination under the [Minnesota Human

Rights Act].’’ (Citations omitted.)).

16 However, ‘‘nothing in the statutes forbidding discrimination against tenants receiving section 8 rental subsidies requires landlords to accept tenants

who may be unqualified to rent for nondiscriminatory reasons such as, for

example, a poor rental history, poor references, or poor credit. The target of

the statutes is, instead, the unspoken presumption that section 8 assistance

recipients, by virtue only of their source of income, are undesirable tenants

for a landlord’s rental properties.’’ (Footnote omitted.) Commission on

Human Rights & Opportunities v. Sullivan Associates, supra, 250 Conn.

776.

17 This is not to say that the plaintiff’s status as a section 8 voucher

holder automatically required the Vaccaros to rent the apartment to her, or

otherwise privilege her application over other applications. Indeed, the trial

court found credible Vaccaro’s testimony that Thompson and Dyer presented

a better offer. This illustrates the distinction between the protections offered

by subdivisions (1) and (3) of § 46a-64c (a). Subdivision (3) prohibits all

statements that express even an intention to indicate a preference or limitation based on any of the protected classes. As a result, there can be a

violation of § 46a-64c (a) (3) even in the absence of a violation of § 46a-64c (a)

(1). Put differently, the defendants did not violate the housing discrimination

statute by the act of communicating and taking a better offer. Rather, Henry

violated the statute by making a statement that an ordinary listener surely

would understand to mean that the section 8 approval process could be

a determinative consideration in the rental decision, when, as previously

discussed, it cannot be.

18 Although there are instances in which a reversal by this court based

on a holding of clear error required a new trial as an appellate remedy; see,

e.g. McDermott v. State, 316 Conn. 601, 611, 113 A.3d 419 (2015) (determining

that requirement of different legal standard generally entitles parties to new

trial); Naples v. Keystone Building & Development Corp., 295 Conn. 214,

225, 990 A. 2d 326 (2010) (trial court’s damages award was clearly erroneous
and case was remanded for new trial limited to determining adequate damages); a review of our case law does not require a new trial as to liability

in the present case. We find persuasive our recent decision in Bilbao v.

Goodwin, 333 Conn. 599, 217 A.3d 977 (2019). In that case, we reviewed

the trial court’s factual determination that an agreement was not supported

by consideration. See id., 617. In determining that the trial court’s finding

was clearly erroneous and that the agreement was supported by consideration, this court cited inconsistent facts and facts supporting the contrary

conclusion, as well as the trial court’s improper reliance on certain case

law. See id., 617–20. Rather than remanding the case for a new trial, this

court remanded with direction to render the judgment the trial court would

have rendered in the absence of its clearly erroneous factual finding. See

id., 623; see also Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 556–57,

893 A.2d 389 (2006) (concluding that trial court’s agency determination was

clearly erroneous and directing judgment consistent with lack of agency

relationship); Echavarria v. National Grange Mutual Ins. Co., 275 Conn.

408, 419–20, 880 A.2d 882 (2005) (concluding that trial court’s finding of

actual notice was clearly erroneous and directing judgment consistent with

lack of notice).

19 General Statutes § 20-312a provides: ‘‘In any action brought by a third

party against a real estate salesperson affiliated with a real estate broker

as an independent contractor, such broker shall be liable to the same extent

as if such affiliate had been employed as a real estate salesperson by

such broker.’’

20 The plaintiff also did not provide any support for holding an owner

liable for the wrongful acts of a real estate salesperson. The case cited by the

plaintiff purporting to do so in its posttrial memorandum actually involved

vicarious liability for the actions of an agent acting as a property manager.

Although it is well established that, under the federal act, ‘‘owners of real

estate may be held vicariously liable for discriminatory acts by their agents

and employees’’; (internal quotation marks omitted) United States v. Hylton,

944 F. Supp. 2d 176, 190 (D. Conn. 2013), aff’d, 590 Fed. Appx. 13 (2d Cir.

2014); the plaintiff does not provide any authority for the proposition that

real estate salespersons who are hired as independent contractors under

circumstances similar to those in the present case are deemed to be agents

for purposes of tort liability, and our independent research does not

reveal any.

21 Because we conclude that Vaccaro, the contracting owner involved in

the transaction, is not vicariously liable, we can assume without deciding that

Eve Vaccaro, a noncontracting owner of the rental apartment, is similarly

not subject to vicarious liability.