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 DESROSIERS v. DIAGEO NORTH AMERICA, INC., ET AL.—DISSENT

   ZARELLA, J., dissenting. I agree with the majority
that the language of General Statutes § 46a-60 (a) (1)
is plain and unambiguous. I part ways with the majority,
however, to the extent that it further concludes that
applying the plain meaning of the statute to the facts
of the present case would yield absurd or unworkable
results. Accordingly, I respectfully dissent.
    The majority correctly concludes that the language
of § 46a-60 (a) (1) is plain and unambiguous in that it
does not protect individuals ‘‘regarded as having’’ a
physical disability. As the majority aptly notes, the con-
trast between the statutory language prohibiting an
employer’s discrimination on the basis of a physical
disability versus a mental disability makes clear that
the legislature did not intend to prohibit discrimination
on the basis of perceived physical disabilities. General
Statutes § 46a-51 (20) expressly includes within the defi-
nition of ‘‘ ‘[m]ental disability’ ’’ individuals ‘‘regarded
as having’’ a mental disorder, whereas the definition
of ‘‘ ‘[p]hysically disabled’ ’’ in § 46a-51 (15) does not
include individuals ‘‘regarded as having’’ a physical dis-
ability. In light of this difference, it is apparent that the
legislature did not intend to provide the same protection
to those with perceived physical disabilities as it did
to those with perceived mental disabilities. The fact
that other legislatures have made similar distinctions
suggests that the absence of the phrase ‘‘regarded as
having’’ from the definition of ‘‘ ‘[p]hysically disabled’ ’’
in § 46a-51 (15) was not mere happenstance but, rather,
an intentional decision by our legislature. Compare Wis.
Stat. § 111.32 (8) (c) (2011–12) (defining ‘‘ ‘[i]ndividual
with a disability’ ’’ as including individuals ‘‘perceived
as having’’ physical or mental impairment), with Ga.
Code Ann. § 45-19-22 (3) (Supp. 2013) (definition of
‘‘ ‘[d]isability’ ’’ does not include perceived physical or
mental disabilities). It is not our role to speculate about
why the legislature decided to include the phrase
‘‘regarded as having’’ in § 46a-51 (20) but not in § 46a-
51 (15). If the legislature intended to protect individuals
with perceived physical disabilities, it is, of course, free
to amend § 46a-51 (15) to include within the definition
of ‘‘ ‘[p]hysically disabled’ ’’ individuals ‘‘regarded as
having’’ a physical disability.
   After concluding that the language of § 46a-60 (a)
(1) is plain and unambiguous, the majority posits that
applying the plain meaning of § 46a-60 (a) (1) in the
present case would lead to a bizarre result. More specifi-
cally, it posits that, ‘‘under the plain language of § 46a-
60 (a) (1), if an employee has a chronic disease, the
employer may not discharge the employee on that basis.
If, however, the employee is undergoing testing that
leads his employer to believe that he has a chronic
disease, the literal terms of § 46a-60 (a) (1) do not pro-
tect the employee from discharge on that basis, despite
the fact that the employer’s action, in both cases, was
premised on the same discriminatory purpose. . . .
That scenario is contrary to the very idea of an anti-
discrimination statute and is inconsistent with the legis-
lature’s clear statement ‘that discrimination based on
a physical disability is prohibited.’ ’’ I disagree.
   In my view, the majority misses the point. The legisla-
ture’s clear statement is that ‘‘discrimination based on
a physical disability is prohibited’’; (emphasis added;
internal quotation marks omitted); not that discrimina-
tion based on a perceived disability is prohibited.
Although the majority’s interpretation of the relevant
statutory language may be the better public policy, and
although the legislature might adopt that policy if the
matter is brought to its attention, that is not sufficient
reason for abandoning the plain and unambiguous
directive in the statute itself. The fact that a better
public policy exists does not mean that the expressed
public policy ‘‘yields absurd or unworkable results
. . . .’’ General Statutes § 1-2z.
   Section 46a-60 (a) (1) affords an employee or pro-
spective employee protection against an employer who
refuses to hire or employ, or who bars or discharges
from employment, ‘‘any individual . . . because of the
individual’s race, color, religious creed, age, sex, gender
identity or expression, marital status, national origin,
ancestry, present or past history of mental disability,
intellectual disability, learning disability or physical dis-
ability, including, but not limited to, blindness . . . .’’
Thus, there are two groups of persons whom an
employer might discriminate against: those who are
members of the classes set forth in the statute, and
those who are not members of a class set forth in the
statute, but whom an employer mistakenly believes to
be members of a protected class. The majority agrees
that, according to its plain and unambiguous meaning,
the statute protects those who fall within the first group
but not the second. The majority then goes on to claim
that the statute must be read to protect the second
group because an employer that discriminates must
harbor the same animus toward the second group that
it did to the first. Thus, according to the majority, distin-
guishing between discrimination against the first and
second groups would produce absurd results.
   This distinction, however, is neither absurd nor
unworkable. It simply does not provide as broad a pro-
tection as the majority wishes. Indeed, the legislature
is free to make this exact type of distinction in passing
legislation. See, e.g., Batte-Holmgren v. Commissioner
of Public Health, 281 Conn. 277, 300, 307–308, 914 A.2d
996 (2007) (upholding as constitutional statute prohib-
iting smoking in restaurants and cafes but not in casinos
or private clubs). Statutory language often reflects com-
promises that are made in order to garner the support
necessary to obtain passage. Simply because a statute
does not go as far as this court may wish does not make
such compromises absurd. In fact, decisions like today’s
may have a chilling effect on similar, future legislation.
Legislators who may be willing to support narrower
legislation than that originally proposed might be
unwilling to reach that compromise for fear that this
court would upset that compromise under the guise
that it produces ‘‘absurd’’ results.
  The test under § 1-2z for what constitutes an absurd
or unworkable result does not revolve around what the
majority of this court determines to be better public
policy. For this reason, I respectfully dissent.
