Wisconsin Lawyer: "In Part" versus "Determining Factor":

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April 09, 2008

"In Part" versus "Determining Factor"

Judicial and administrative application of the in-part and determining factor tests the WFEA decisions has not enjoyed uniform clarity. Read why.

"In Part" versus "Determining Factor"

Judicial and administrative application of the in-part and determining factor tests the WFEA decisions has not enjoyed uniform clarity. Read why.

In Hoell v. LIRC, the court of appeals held that the mixed-motive or in-part test applies "to cases arising out of the WFEA."¹ More recently, however, in Nelson v. State Historical Society of Wisconsin,² a 2-1 LIRC majority opined that the "`a factor' vs. `determining factor' analysis" as articulated in Puetz Motor Sales Inc. v. LIRC³ and Kovalic v. DEC International Inc.⁴ "is still viable" in WFEA cases.⁵ Nelson's position despite the holding in Hoell invites consideration of past applications of the in-part and determining-factor tests, whether and how the two tests differ, and which test applies to WFEA cases.

Judicial and administrative application of the in-part and determining-factor tests in WFEA decisions has been neither uniform nor clear. Recognizing the determining-factor test, Puetz and Kovalic cited to La Montagne v. American Convenience Products Inc.,⁶ an age discrimination case that equated the determining-factor test with but-for causation: A complainant "must prove not that age was the sole factor motivating the employer to discharge him but that age was a `determining factor,' in the sense that he would not have been discharged `but for' his employer's motive to discriminate against him because of his age."⁷ However, as the Nelson dissent correctly noted, "the reference to the `determining factor' test in those decisions [Puetz and Kovalic] was in the nature of dicta," because "neither Puetz nor Kovalic actually presented the issue of how to evaluate situations in which a challenged decision was in part because of a permissible reason and in part because of an impermissible reason."⁸

One year after the court of appeals decided Puetz, the supreme court in Federated Rural Electric Insurance Co. v. Kessler⁹ recognized but did not decide the question of whether the in-part test applies in claims arising under the WFEA. Noting that the in-part test had been adopted in Muskego-Norway Consolidated Schools Joint School District No. 9 v. Wisconsin Employment Relations Board¹⁰ for cases involving anti-union animus arising under municipal and state employment relations law,¹¹ the dissent in Federated Rural stated it would apply the in-part test to WFEA claims. The following year, in Abbyland Processing v. LIRC, the court of appeals held that "the commission could reasonably interpret the Act to conclude that the `in part' standard applies to the Fair Employment Act."¹² However, Abbyland is unpublished.

Since Muskego-Norway was issued, LIRC has recognized both the in-part and determining-factor tests in WFEA cases but has not consistently equated the determining-factor test with the but-for meaning articulated in La Montagne.¹³ In Jones v. Dy-Dee Wash, LIRC discussed the drawbacks of the but-for standard and expressly rejected its application to WFEA cases in favor of the in-part test.¹⁴ Other LIRC decisions have rejected the but-for standard and adopted the in-part test but used the terminology "in part" and "determining factor" interchangeably. For instance, Maline v. Wisconsin Bell recognized that "[t]he holding of the Wisconsin Supreme Court in Muskego-Norway … that an employe may not be fired when any one of the motivating factors is a statutorily protected one, is applicable to issues arising under the Fair Employment Act…."¹⁵ But Maline added that the court of appeals' holding in Puetz "that a termination is unlawful if age is a determining factor in the termination decision, is also consistent with this rule."¹⁶ And Gee v. Asaa Technology Inc.¹⁷ cited decisions that used both "in part" and "determining factor" terminology to support Gee's express recognition of the in-part test in WFEA cases.

Hoell v. LIRC is the sole published appellate decision that squarely addressed whether the in-part test applies to the WFEA, and it resolved the issue in the affirmative.¹⁸ Nelson and Hoell are arguably distinguishable because the essential basis for the Nelson majority's decision was its view that race may be considered as one factor among others in making an employment decision in situations in which a bona fide affirmative action plan is involved. Thus, the Nelson majority's remarks about the status of the determining-factor test in light of Hoell are dicta. Even if Hoell were interpreted to conflict with Nelson or other LIRC decisions, Hoell is controlling precedent. But to what extent do the in-part and determining-factor tests truly differ?

If "determining factor" were given a but-for construction, the in-part and determining-factor tests sometimes would yield different results when applied to identical facts. Hoell instructed that discrimination claims are actionable under the WFEA whenever an employee is terminated in part because of an impermissible motivating factor and in part because of other motivating factors, but that the available remedies vary depending on whether the employee would have been terminated in the absence of the impermissible motivating factor.¹⁹ In situations in which "the termination would not have occurred in the absence of the impermissible motivating factor,"²⁰ the determining-factor test is met and is in accord with the in-part test; the language quoted from Hoell is simply another way of saying that but for the impermissible motivating factor, the termination would not have occurred.

It is in those situations in which "the termination would have taken place in the absence of the impermissible motivating factor"²¹ that the in-part and determining-factor tests diverge. Under the in-part test in such a situation, actionable discrimination under the WFEA has occurred, though the remedy is limited to "a cease and desist order and attorney's fees."²² By contrast, under a but-for construction of the determining-factor test, no actionable discrimination has occurred and the limited remedy recognized in Hoell is not recoverable. Hoell thus resolved any conflict between the in-part test and a but-for construction of the determining-factor test in situations in which an adverse employment action would have taken place in the absence of an impermissible motivating factor.

Though the terms determining factor and in part have appeared side by side in WFEA decisions for decades, applying the in-part test and supplanting determining-factor with in-part terminology in future decisions would have several advantages. First, discontinuing the use of the term determining factor would obviate any ambiguity regarding its meaning and its application in past decisions. Second, doing so would ensure that Hoell is followed as controlling precedent in those situations in which Hoell's in-part test would compel a finding of actionable discrimination with a limited remedy, while a but-for construction of the determining-factor test would not. Lastly, bidding farewell to the term determining factor would preserve the congruency between the WFEA and state and federal law in other contexts.²³

Endnotes

¹Hoell v. LIRC, 186 Wis. 2d 603, 611, 522 N.W.2d 234 (Ct. App. 1994).

²Nelson v. State Historical Soc'y of Wis. (LIRC, March 31, 2005).

³Puetz Motor Sales Inc. v. LIRC, 126 Wis. 2d 168, 172-73, 376 N.W.2d 372 (Ct. App. 1985).

⁴Kovalic v. DEC Int'l Inc., 161 Wis. 2d 863, 874, 469 N.W.2d 224 (Ct. App. 1991).

⁵Nelson v. State Historical Soc'y of Wis. (LIRC, March 31, 2005).

⁶La Montagne v. American Convenience Prods. Inc., 750 F.2d 1405 (7th Cir. 1984).

⁷Id. at 1409 (emphasis added).

⁸Nelson v. State Historical Soc'y of Wis. (LIRC, March 31, 2005).

⁹Federated Rural Elec. Ins. Co. v. Kessler, 131 Wis. 2d 189, 192-93, 388 N.W.2d 553 (1986).

¹⁰Muskego-Norway Consolidated Schs. Jt. Sch. Dist. No. 9 v. Wisconsin Employment Relations Bd., 35 Wis. 2d 540, 151 N.W.2d 617 (1967).

¹¹See also Department of Employment Relations v.WERC, 122 Wis. 2d 132, 142-44, 361 N.W.2d 660 (1985).

¹²Abbyland Processing Inc. v. LIRC, 1987 WL 267469, at 2.

¹³Decisions in which LIRC citedPuetz and recognized the "determining factor" test include Lowe v. City of Appleton (LIRC, Jan. 11, 1995), Rutherford v. J & L Oil, Inc. (LIRC June 6, 1997), andNelson v. State Historical Society of Wisconsin (LIRC, March 31, 2005). Decisions in which LIRC endorsed the in-part test include Stanton v. Abbyland Meat Processing Inc. (LIRC, May 30, 1985), Maline v. Wisconsin Bell (LIRC, Oct. 30, 1989), Jones v. Dy-Dee Wash (LIRC, Nov. 4, 1988), and Lohse v. Western Express (LIRC, Feb. 4, 1986).

¹⁴Jones v. Dy-Dee Wash (LIRC, Nov. 4, 1988).

¹⁵Maline v. Wisconsin Bell (LIRC, Oct. 30, 1989) (citations omitted).

¹⁶Id.

¹⁷Gee v. Asaa Tech. Inc. (LIRC, Jan. 15, 1993).

¹⁸Hoell, 186 Wis. 2d at 611.

¹⁹Id. at 609-10.

²⁰Id. at 610.

²¹Id. (emphasis added).

²²Id.

²³See, e.g., id. at 609 (noting that as added by the Civil Rights Act of 1991, an unlawful employment practice is established under Title VII when the complaining party demonstrates that a prohibited factor was "a motivating factor for any employment practice, even though other factors also motivated the practice. 42 U.S.C. § 2000e-2(m) (1994)"); Parker v. Columbia Pictures Indus., 204 F.3d 326, 336-37 (2d Cir. 2000) (observing that a number of circuits "have held that the mixed-motive analysis available in the Title VII context applies equally to cases brought under the ADA."); Muskego Norway, 35 Wis. 2d at 562 (applying the in-part test to cases involving state and municipal employees' claims of anti-union animus); Department of Employment Relations, 122 Wis. 2d at 142-44 (same);Great Northern Corp. v. LIRC, 189 Wis. 2d 313, 525 N.W.2d 361 (Ct. App. 1994) (holding that worker's compensation statute subjecting employer to liability for unreasonable refusal to rehire injured employee was applicable to employer who terminated employees pursuant to attendance policy that included absences due to compensable work-related injuries as part of total number of absences allowed before termination).