On February 21, 2012, the Wisconsin Assembly completed the final legislative steps in eliminating the availability of compensatory and punitive damages for violations of the Wisconsin Fair Employment Act. The bill, passed last November by the Wisconsin Senate as Senate Bill 202, repeals a law from 2009 that created the availability of such damages for discrimination, unfair honesty testing, or unfair genetic testing claims. The Wisconsin Assembly concurred with Senate Bill 202 on party lines, moving the bill to the Governor’s desk for approval. Governor Scott Walker is expected to sign the bill into law.
The Wisconsin Fair Employment Act protects applicants and employees from discrimination on the basis of age, ancestry, arrest record, color, conviction record, creed, disability, genetic testing, honesty testing, marital status, military service, national origin, pregnancy or childbirth, race, sex, sexual orientation, and use or nonuse of lawful products off the employer’s premises during nonworking hours. When a complainant raises a claim of discrimination with the Wisconsin Department of Workforce Development based on one of these protected class statuses, that individual can receive back pay, reinstatement, costs, and attorneys’ fees as part of the administrative process remedy. Under current law, a complainant who is successful in alleging a violation of the Wisconsin Fair Employment Act through the administrative process may also then recover compensatory and punitive damages through an action brought in a Wisconsin circuit court. For an employer in Wisconsin with over 500 employees, these damages could be ordered up to $300,000. Senate Bill 202 eliminates these compensatory and punitive damages available through a circuit court action and limits a complainant’s recovery to the damages available through the administrative process.