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

   PALMER, J., concurring. I agree with the result that
the majority reaches and most of its analysis, but, in
contrast to the majority, I also agree with the plaintiff,
Mireille Desrosiers, that General Statutes § 46a-60 (a)
(1) reasonably can be construed to prohibit discrimina-
tion on the basis of a perceived physical disability. In
my view, the statutory bar against discrimination on
account of physical disability can fairly be read to mean
that an employer is precluded from taking adverse
action against an employee by reason of any such dis-
ability. Under that construction of the statute, an
employee can prevail on a claim brought pursuant to
§ 46a-60 (a) (1) upon establishing that the employer’s
reason or motivation for discriminating was improper
even when, as in the present case, the employee did
not actually suffer from the protected disability.
   As the majority notes, under General Statutes § 46a-
51 (20), ‘‘ ‘[m]ental disability’ ’’ includes ‘‘an individual
who has a record of, or is regarded as having one or
more mental disorders, as defined in . . . the Ameri-
can Psychiatric Association’s ‘Diagnostic and Statistical
Manual of Mental Disorders,’ ’’ whereas § 46a-51 (15)
defines the term ‘‘ ‘[p]hysically disabled’ ’’ to include
only an ‘‘individual who has any chronic physical handi-
cap, infirmity or impairment . . . .’’ Although this defi-
nitional difference supports the contention of the
defendants Diageo North America, Inc., and Lawrence
D. Levine that § 46a-60 (a) (1) denies protection to indi-
viduals who are perceived to be physically disabled but,
in actuality, are not, it does not mandate that interpreta-
tion. In defining the term ‘‘mental disability,’’ the legisla-
ture may have taken special care to prohibit
discrimination on the basis of a perceived mental disor-
der because of the difficulty in discerning whether
symptoms or conduct associated with that disorder are
actually the product of the disorder. Alternatively, the
legislature may have used the term ‘‘regarded as’’ in
defining ‘‘mental disability’’ merely to indicate that a
formal diagnosis of a disability in accordance with the
Diagnostic and Statistical Manual of Mental Disorders
is not a necessary prerequisite to a discrimination claim
predicated on such a disability. In either case, it would
not necessarily follow that the legislature intended to
permit discrimination on the basis of a perceived physi-
cal disability. Because physical disabilities are often
more readily apparent or recognizable than mental disa-
bilities, the legislature simply may not have focused on
the need to articulate that additional protection
expressly with respect to physically disabled employ-
ees.
  In view of the fact that the language of § 46a-60 (a)
(1) does not plainly and unambiguously foreclose the
interpretation advanced by the plaintiff, we look to
extratextual evidence to determine whether that inter-
pretation is correct. See General Statutes § 1-2z. I fully
agree with the majority that the formally articulated,
time-tested and reasonable interpretation of § 46a-60
(a) (1) by the Commission on Human Rights and Oppor-
tunities as prohibiting discrimination on the basis of a
perceived physical disability is entitled to deference.
See, e.g., Longley v. State Employees Retirement Com-
mission, 284 Conn. 149, 166, 931 A.2d 890 (2007) (‘‘reaf-
firm[ing] the principle that courts should accord
deference to an agency’s formally articulated interpreta-
tion of a statute when that interpretation is both time-
tested and reasonable’’). In fact, this construction is
not just reasonable, but is by far the more reasonable
construction in light of the remedial purpose of the
Connecticut Fair Employment Practices Act, General
Statutes § 46a-51 et seq., to prohibit unfair discrimina-
tion in the workplace. I therefore concur.
