Friday, April 6, 2012

Wisconsin Governor Scott Walker Repeals Law, Stripping Discriminated Employees of Right to Punitive and Compensatory Damages

As expected for weeks now, Wisconsin Governor Scott Walker signed 2011 Senate Bill 202 (SB 202) at the very last minute yesterday which repeals Wisconsin Statute sections 111.39 (5) (d), 111.397 and 893.995; and amended Wisconsin Statute sections 111.39 (4) (d) and 814.04 (intro.); relating to: elimination of compensatory and punitive damages for acts of employment discrimination or unfair honesty or genetic testing.  That is, employees who are able to prevail on discrimination claims before the Equal Rights Division are no longer able to seek punitive and compensatory damages in Wisconsin State Court.  If employees wish to seek such damages, they will have to do so in federal court now.

It's not exactly clear at this point but Section 6 of SB 202 seems to read that it applies to all claims currently active with the Equal Rights Division even though they were filed before these laws were repealed unless a claimant has received a final decision before the law was repealed.  Section 6 reads:

Section 6. Initial applicability.
(1) Elimination of employment discrimination damages.  This act first applies to an administrative proceeding under section 111.39 of the statutes concerning a violation of section 111.321, 111.37, or 111.372 of the statutes in which a copy of the final decision under section 111.39 (4) (d) or (5) (d) of the statutes is mailed to the last-known address of the complainant on the effective date of this subsection.  
This will probably cause a lot of cases to be re-thought and strategized and this will inevitably cause a spike in cases filed in federal court.  Allowing discriminated against employees the right to punitive and compensatory damages in State court was meant to serve as a deterrent against employers who violate the Wisconsin Fair Employment Act (WFEA) and to give proper damages to employees who suffered discrimination in the workplace.  As I discussed previously, it may not sound like a big deal to lay persons given punitive and compensatory damages are still available via federal court, but litigants often fail to consider or be aware that federal litigation is much more onerous, expensive and burdensome whereas pursuing claims through the State via the WFEA tends to be easier, cheaper and faster with nearly the same remedies available through federal anti-discrimination laws previously.  Now the Wisconsin Fair Employment Act lacks teeth once again.

1 comment:

  1. i had heard that our 2009 law wasn't really in line with what most other states allowed. does anyone know what other states--especially our neighbors here in the upper midwest--allow for compensatory damages thru state courts without having to pursue the more expensive & lengthy federal courts?