Employees in Wisconsin Can Now Seek Compensatory and Punitive Damages for Employment Discrimination
By: RICHARD A. ROSS
June 8, 2009
On June 8, 2009, Governor Jim Doyle of Wisconsin signed an amendment to the Wisconsin Fair Employment Act. This additional provision, will permit a person discriminated against or the Department of Workforce Development (DWD), to seek compensatory and punitive damages in Circuit Court, in addition to reinstatement to the job, back pay (up to two years), plus attorneys’ fees. This new law will apply to any person employed in Wisconsin, even if the company is headquartered in another state, provided the company employs at least 15 employees in 20 or more calendar weeks in the current or preceding year.
If an employee successfully pursues a discrimination claim against his or her employer, after the administrative proceedings have concluded, that person, or the DWD, can then commence a separate lawsuit against the employer in Circuit Court seeking compensatory and punitive damages and attorneys’ fees and costs. If the employer petitions the Circuit Court for judicial review of the Labor and Industry Commission’s (LIRC) findings and order concerning the same underlying violation, the Circuit Court will consolidate the two proceedings for judicial review.
If the Circuit Court finds that the employer violated the Fair Employment Act, it “shall” order the employer to pay to the person subjected to the discrimination, compensatory and punitive damages in an amount the Circuit Court or the jury finds appropriate. These compensatory and punitive damages are in addition to any back pay award or reinstatement. Also, included in the award will be attorneys’ fees and costs.
Compensatory damages under this new law will include damages for future economic losses and for pain and suffering, emotional distress, mental anguish, loss of enjoyment of life and other noneconomic losses. However, similar to Title VII, the new law does put a cap on the total amount of compensatory and punitive damages. Thus, the maximum amount which employers with 100 or less employees will be liable for is $50,000. For employers with more than 100, but fewer than 201 employees, the maximum amount will be $100,000. For employers with more than 200 employees, but less than 500 employees, the maximum amount will be $200,000. For employers with more than 500 employees, the maximum amount will be $300,000.
If the judgment in Circuit Court is against an individual employed by an employer (presumably the employer of the person discriminated against – although not specifically stated in the statute), then the employer of that “bad actor” will be liable to pay the damages.
The action for compensatory and punitive damages must be commenced within sixty (60) days after the date on which a copy of the final decision by the DWD or LIRC is mailed to the complainant’s last known address.
This new law is likely to generate many additional claims, many of which will be frivolous, since the potential for a significant judgment against an employer will now be potentially available. This law now mirrors, in effect, the damages available under most of the Federal anti-discrimination statutes. As a result, employers will now have even greater motivation to settle claims before proceeding to an administrative hearing, regardless of whether it is a probable cause or no probable cause hearing. Because the employees and the DWD will know that the potential amount of damages increases, the demands for settlement will correspondingly increase to include compensatory and punitive damages.