WEAC Alert: A provision buried in the governor’s budget bill effectively eliminates remedies for discrimination and violations of family and medical leave act

The Wisconsin Fair Employment Act prohibits employment discrimination based upon race, age, gender, religion and disability. Employees who believe they are victims of discrimination have to prove it in federal court or through the Wisconsin Equal Rights Division. They have a far better chance of success with a lawyer, but often can’t afford it or find one who will accept payment only if the client wins.

Because of that, the Wisconsin Supreme Court has ruled that the employer must pay the employee’s reasonable attorney fees when found guilty of discrimination under the Equal Rights Division.

But under this proposal:

·       No attorney fees or costs will be awarded to victims if “no reinstatement, monetary relief, or other substantive or tangible benefit is ordered.” If this is enacted, an employer found guilty of unlawful discrimination who is ordered not to do it again – but with no financial penalty – would not be required to pay the victim’s reasonable attorney fees.

·       Victims who win discrimination cases could be forced to pay the attorney fees of the offending employer. If an employer serves an “offer of settlement” on a claimant and the claimant declines the offer in order to continue to a hearing, but does not receive a “more favorable award” than the settlement offer, the claimant does not receive any attorneys’ fees and cost reimbursements that the judge awards and must pay the employers’ attorneys’ fees and costs from the date of the offer.

·       The Budget Bill would add an identical “offer of settlement” rule to the Wisconsin Family and Medical Leave Act and thereby strip employees who can prove a violation of this law of an effective remedy.