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Recently Governor Scott Walker repealed 2009 Wisconsin Act 20, which allowed victims of employment discrimination to seek compensatory and punitive damages in state court. There has been a lot of talk about this Act and its repeal recently (the vast majority politically slanted one way or another). We thought we’d provide you with the straight facts about Governor Scott Walker’s repeal and the practical effects it will likely have. We’ll leave it to you to provide the opinion.

The Process

Wisconsin’s anti-discrimination law is the Wisconsin Fair Employment Act (WFEA). Under the WFEA, it’s illegal for employers to harass or discriminate against an applicant or employee because they belong to a protected class (examples include sex, race, age, arrest and conviction record, national origin, religion, etc.), or to engage in unlawful retaliation. The Department of Workforce Development – Equal Rights Division (ERD) is the State agency that administers the WFEA.

A summary of the Equal Rights Division (ERD) process:

  1. An individual files a discrimination/harassment/retaliation complaint (let’s just say it’s for discrimination) against their employer.
  2. The complaint is assigned to an investigator, who gathers information from the individual and their employer in an attempt to reach an initial determination. A determination is not final, but rather used to weed out claims that lack merit.

    The determination can be either:
    Probable Cause – more probable than not that discrimination occurred
    No Probable Cause – not probable that discrimination occurred

  3. If the the individual receives a Probable Cause determination, there is a Hearing on the Merits in front of an Administrative Law Judge (ALJ). During the hearing, the individual must prove to the ALJ that they were discriminated against by their employer.

Prior to the enactment of 2009 Wisconsin Act 20, an individual who received a Probable Cause determination and successfully proved to the ALJ that they were discriminated against was only entitled to:

  • Back pay (wages lost)
  • Job reinstatement (assuming the person had been fired)
  • Attorney fees and costs

After to the enactment of 2009 Wisconsin Act 20, an individual who received Probable Cause determination and successfully proved to the ALJ that they were discriminated against was (potentially) entitled to:

  • Back pay (wages lost)
  • Job reinstatement (assuming the person had been fired)
  • Attorney fees and costs
  • Compensatory damages (monetary compensation for pain and suffering)
  • Punitive damages (monetary punishment of the employer)

The Problem Prior to 2009 Wisconsin Act 20

Even if it was found that an individual had been discriminated against, the only way they could try to get compensatory and punitive damages was through federal court, which certainly is not cheap. Not only is federal court costly, but possibly too costly for some to bear. The bigger problem is that not all forms of discrimination covered by the WFEA are also covered by federal law. Translation: not all discrimination/harassment/retaliation cases can go to federal court.

The following forms of discrimination are only covered by the WFEA, not federal law:

  • Arrest record
  • Conviction record
  • Sexual orientation
  • Marital status
  • Use or nonuse of lawful products

Therefore, if an individual is found to have been discriminated against for any of the reasons above, they could never seek compensatory or punitive damages in federal court.

To illustrate, imagine 2 employees at the same company:

Both have been with the company 20 years, both were fired. The company fired Employee A because she was arrested (not convicted of anything), and fired Employee B because of her race.

Employee A could never get compensatory and/or punitive damages for being discriminated against because arrest record discrimination is only covered under the WFEA. On the other hand, Employee B could potentially get compensatory and/or punitive damages because race discrimination is covered under federal law. She would need to remove her case from the ERD to federal court.

The Solution

2009 Wisconsin Act 20 was enacted to give all victims of discrimination the ability to seek compensatory and punitive damages. Individuals seeking compensatory and punitive damages must:

  1. Receive Probable Cause determination
  2. Successfully prove to the ALJ that they were discriminated against
  3. Take the case to state court and successfully convince a state court judge or jury that compensatory and punitive damages should be awarded. If the the judge or jury is convinced compensatory and punitive damages should be awarded, they decide the amount to be awarded. The amount of compensatory damages allowed will mirror the amount allowed at the federal level.

2009 Wisconsin Act 20 did not change anything for individuals with discrimination cases covered in federal court. If they so chose, they can try to get compensatory and punitive damages through federal court, instead of going to the Wisconsin state court. They must remove their cases from the ERD and take it to federal court.

2011 Wisconsin Act 219 – The Repeal of 2009 Wisconsin Act 20

On April 5, 2012, Governor Scott Walker enacted 2011 Wisconsin Act 219, which repeals 2009 Wisconsin Act 20.

As a result, if an individual is found to have been discriminated against for any reason not covered by federal law, they can no longer seek compensatory or punitive damages through the Wisconsin State court. Forms of discrimination not covered by federal law:

  • Arrest record
  • Conviction record
  • Sexual orientation
  • Marital status
  • Use or nonuse of lawful products

If an individual is discriminated or retaliated against on the basis of race, sex, disability, age, or any other reason covered by federal law, they can now only seek compensatory or punitive damages through the federal court. They must remove their case from the ERD and take it to federal court, which again will not only be costly, but possibly too costly for some to bear.

What do you think about this?  Tell us what you think by leaving a comment!

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