Wisconsin Lawyer
Vol. 82, No. 9, September 2009
On June 8, 2009, Gov. Jim Doyle signed 2009 Wisconsin Act 20, which allows circuit courts to award compensatory and punitive damages in cases of employment discrimination, unfair genetic testing, or unfair honesty testing. Act 20 took effect on July 1, 2009.
Background: Wisconsin Fair Employment Law
The Wisconsin Fair Employment Act (WFEA) prohibits employment discrimination based on age, ancestry, arrest record, conviction record, creed, color, disability, marital status, military service, national origin, race, sex, or use or nonuse of legal products during nonwork hours off the employer’s premises.1 Employment discrimination includes refusing to hire an individual, terminating an individual from employment, and discriminating against an individual in compensation, promotion, or other terms or conditions of employment on any of the bases described above.2 The WFEA also generally prohibits genetic testing and honesty testing in employment situations.3
The WFEA is administered by the state Department of Workforce Development (DWD).4 The administrative proceedings begin with the filing of a complaint with the DWD; such filing must take place within 300 days after the alleged violation of the WFEA occurred.5 The DWD may attempt to eliminate the discriminatory practice in cases in which the DWD finds probable cause that discrimination is being or has been committed.6 If the DWD does not eliminate the discriminatory practice, the next step in the administrative proceeding is a hearing before an examiner.7
If the hearing examiner finds that discrimination, unfair genetic testing, or unfair honesty testing occurred, the examiner may order remedies, including back pay, reinstatement of the employee, compensation in lieu of reinstatement, and attorney fees and costs.8 Back pay is limited to pay that accrued not more than two years before the complaint was filed with the DWD.9
Following the hearing, either party may appeal the examiner’s order or findings to the Labor and Industry Review Commission (LIRC).10 LIRC may affirm, modify, or reverse the examiner’s order or findings or may set aside the examiner’s order and findings and remand the case to the DWD.11 LIRC’s orders and findings may be subject to judicial review.12
Before Act 20 was passed, compensatory and punitive damages were not available remedies under the WFEA. However, such damages are available under federal law for employment discrimination. Title VII of the federal Civil Rights Act of 1964, as amended, provides that a complainant may recover compensatory and punitive damages for intentional employment discrimination.13 Title VII prohibits employment discrimination based on race, color, sex, religion, or national origin.14
2009 Wisconsin Act 20
Under Act 20, after the administrative proceeding for a violation of the WFEA has concluded, the DWD or the individual discriminated against or subjected to unfair genetic or honesty testing may bring a civil action in circuit court to recover compensatory and punitive damages against an employer, employment agency, or labor organization. Reasonable costs and attorney fees also are recoverable in a civil action under the Act. The amount of compensatory and punitive damages is determined by the court or jury. Punitive damages may be awarded under Wis. Stat. section 895.043, which provides, in part, that punitive damages may be awarded if the plaintiff shows that the defendant acted maliciously or with intentional disregard of the plaintiff’s rights.15 Any compensatory and punitive damages awarded are in addition to the remedies awarded in the administrative proceeding.
Jessica Karls-Ruplinger, Marquette 2006 cum laude, is a staff attorney with the Wisconsin Legislative Council, a nonpartisan legislative service agency in Madison. She is staff counsel to the Assembly committees on Labor and Elections and Campaign Reform; the Senate Committee on Public Health, Senior Issues, Long-Term Care, and Job Creation; and the joint Committee on Employment Relations. She can be contacted at jessica.karls@legis.wisconsin.gov.
A civil action for compensatory and punitive damages may not be brought against an employer, employment agency, or labor organization that has fewer than 15 employees or against a local governmental unit.16 Title VII also exempts employers with fewer than 15 employees.17
The total compensatory damages (for future economic losses, loss of enjoyment of life, emotional distress, pain and suffering, mental anguish, and other noneconomic losses) and punitive damages may not exceed $50,000 for employers that have 100 or fewer employees; $100,000 for employers with 101 to 200 employees; $200,000 for employers with 201 to 500 employees; and $300,000 for employers with more than 500 employees. Title VII contains the same monetary limits on compensatory and punitive damages.18 The monetary limits under the Act are indexed annually to increase with inflation.
The Act does not change the administrative proceedings under the WFEA, except in one respect: after a hearing examiner finds discrimination, unfair genetic testing, or unfair honesty testing or after LIRC affirms such a finding, the DWD or LIRC must notify the complainant that he or she may bring a civil action in circuit court to recover compensatory and punitive damages. The notification also must inform the complainant of the time within which a civil action must be commenced. The Act’s notification requirement was modeled after the “right to sue” notice in Title VII, which provides that, in some circumstances, the U.S. Equal Employment Opportunity Commission or the U.S. Department of Justice must notify a complainant that he or she may bring a civil action for employment discrimination.19
Under the Act, the time limit for commencing a civil action is 60 days after the hearing examiner’s final decision is mailed to the complainant or, if the examiner’s decision is reviewed by LIRC, 60 days after LIRC’s final decision is mailed to the complainant.
If a party seeks judicial review of LIRC’s order and findings regarding the same violation of the WFEA, the court must consolidate the judicial review and civil action into a single proceeding.
Conclusion
Compensatory and punitive damages now are available for employment discrimination, unfair genetic testing, and unfair honesty testing under the WFEA. An individual discriminated against or subjected to unfair genetic testing or unfair honesty testing on or after July 1, 2009, may be able to recover compensatory and punitive damages, in addition to other remedies available under the WFEA.
Endnotes
Wisconsin Lawyer
