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2023 - 2024 LEGISLATURE
2023 ASSEMBLY BILL 537
October 18, 2023 - Introduced by Representatives SINICKI, SHANKLAND, OHNSTAD,
NEUBAUER, HAYWOOD, SUBECK, GOYKE, CONLEY, JOERS, HONG, STUBBS, CABRERA,
DOYLE, SNODGRASS, SHELTON, EMERSON, RATCLIFF, ORTIZ-VELEZ, J. ANDERSON,
CONSIDINE, C. ANDERSON, MOORE OMOKUNDE and PALMERI, cosponsored by
Senators L. JOHNSON, SMITH, LARSON, HESSELBEIN, ROYS, CARPENTER, WIRCH,
SPREITZER and PFAFF. Referred to Committee on Judiciary.
***AUTHORS SUBJECT TO CHANGE***
AN ACT to amend 111.39 (4) (d), 111.39 (5) (b) and 814.04 (intro.); and to create
111.39 (5) (d) and 111.397 of the statutes; relating to: actions in circuit court
alleging discrimination in employment, unfair honesty testing, or unfair
genetic testing.
Analysis by the Legislative Reference Bureau
Under current fair employment law, an individual who alleges that an
employer has violated employment discrimination, unfair honesty testing, or unfair
genetic testing laws may file a complaint with the Department of Workforce
Development seeking action to enforce fair employment law, including reinstating
the employee, providing back pay, and paying costs and attorney fees.
This bill permits DWD or an individual who is alleged or was found to have been
discriminated against or subjected to unfair honesty or genetic testing to, in addition
to or in lieu of filing an administrative complaint, bring an action in circuit court to
recover compensatory and punitive damages caused by the act of discrimination,
unfair honesty testing, or unfair genetic testing. The action in circuit court must be
commenced within 300 days after the alleged discrimination, unfair honesty testing,
or unfair genetic testing occurred.
Under the bill, if the circuit court finds that a defendant has committed an act
of employment discrimination, unfair honesty testing, or unfair genetic testing, the
circuit court may award back pay and any other relief that could have been awarded
in an administrative proceeding. In addition, the circuit court must order the
defendant to pay to the individual found to have been discriminated against or found
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to have received unfair genetic testing or unfair honesty testing compensatory and
punitive damages in the amount that the circuit court finds appropriate, except that
the total amount of damage awarded for future economic losses and for pain and
suffering, emotional distress, mental anguish, loss of enjoyment of life, and other
noneconomic losses and punitive damages is subject to the following limitations:
1. If the defendant employs 100 or fewer employees, no more than $50,000.
2. If the defendant employs more than 100 but fewer than 201 employees, no
more than $100,000.
3. If the defendant employs more than 200 but fewer than 501 employees, no
more than $200,000.
4. If the defendant employs more than 500 employees, no more than $300,000.
The bill requires DWD to annually revise these amounts on the basis of the
change in the consumer price index in the previous year, if any positive change has
occurred.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SECTION 1. 111.39 (4) (d) of the statutes is amended to read:
111.39 (4) (d) The department shall serve a certified copy of the findings and
order on the respondent, the order to have the same force as other orders of the
department and be enforced as provided in s. 103.005. The department shall also
serve a certified copy of the findings and order on the complainant, together with a
notice advising the complainant about the right to seek, and the time for seeking,
review by the commission under sub. (5); about the right to bring, and the time for
bringing, an action for judicial review under s. 111.395; and about the right to bring,
and the time for bringing, an action under s. 111.397 (1) (a). Any person aggrieved
by noncompliance with the order may have the order enforced specifically by suit in
equity. If the examiner finds that the respondent has not engaged in discrimination,
unfair honesty testing, or unfair genetic testing as alleged in the complaint, the
department shall serve a certified copy of the examiner's findings served on the
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complainant, together with shall be accompanied by an order dismissing the
complaint.
SECTION 2. 111.39 (5) (b) of the statutes is amended to read:
111.39 (5) (b) If no petition is filed the respondent or complainant does not file
a petition under par. (a) within 21 days from the date that a copy of the findings and
order of the examiner is mailed to the last-known address of the respondent served
on that party, the findings and order shall be considered final for purposes of
enforcement under sub. (4) (d). If a timely petition is filed, the commission, on review,
may either affirm, reverse, or modify the findings or order in whole or in part, or set
aside the findings and order and remand to the department for further proceedings.
Such actions shall be based on a review of the evidence submitted. If the commission
is satisfied that a respondent or complainant has been prejudiced because of
exceptional delay in the receipt of a copy of any findings and order it, the commission
may extend the time another 21 days for filing the petition with the department.
SECTION 3. 111.39 (5) (d) of the statutes is created to read:
111.39 (5) (d) The commission shall serve a certified copy of the commission's
decision on the respondent. The commission shall also serve a certified copy of the
commission's decision on the complainant, together with a notice advising the
complainant about the right to bring, and the time for bringing, an action for judicial
review under s. 111.395 and about the right to bring, and the time for bringing, an
action under s. 111.397 (1) (a).
SECTION 4. 111.397 of the statutes is created to read:
111.397 Civil action. (1) (a) Except as provided in this paragraph, the
department or an individual alleged or found to have been discriminated against or
subjected to unfair honesty testing or unfair genetic testing may bring an action in
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circuit court requesting the relief described in sub. (2) (a) against an employer, labor
organization, or employment agency that is alleged or found to have engaged in that
discrimination, unfair honesty testing, or unfair genetic testing.
(b) If a petition for judicial review of the findings and order of the commission
concerning the same violation as the violation giving rise to the action under par. (a)
is filed, the circuit court shall consolidate the proceeding for judicial review and the
action under par. (a).
(c) An individual alleged or found to have been discriminated against or
subjected to unfair honesty testing or unfair genetic testing is not required to file a
complaint under s. 111.39 or seek review under s. 111.395 in order for the department
or the individual to bring an action under par. (a).
(d) An action under par. (a) shall be commenced within 300 days after the
alleged discrimination, unfair honesty testing, or unfair genetic testing occurred.
(2) (a) Subject to pars. (b) and (c), in an action under sub. (1) (a), if the circuit
court finds that discrimination, unfair honesty testing, or unfair genetic testing has
occurred, or if such a finding has been made by an examiner or the commission and
not been further appealed, the circuit court may order any relief that an examiner
would be empowered to order under s. 111.39 (4) (c) after a hearing on a complaint
filed under s. 111.39. In addition, the circuit court shall order the defendant to pay
to the individual discriminated against or subjected to unfair honesty testing or
unfair genetic testing any other compensatory damages, and punitive damages
under s. 895.043 that the circuit court or jury finds appropriate, plus reasonable costs
and attorney fees incurred in the action. If any relief was ordered under s. 111.39 or
111.395, the circuit court shall specify whether the relief ordered under this
paragraph is in addition to or replaces the relief ordered under s. 111.39 or 111.395.
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The sum of the amount of compensatory damages for future economic losses and for
pain and suffering, emotional distress, mental anguish, loss of enjoyment of life, and
other noneconomic losses and the amount of punitive damages that a circuit court
may order may not exceed the following:
1. In the case of a defendant that employs 100 or fewer employees for each
working day in each of 20 or more calendar weeks in the current or preceding year,
$50,000.
2. In the case of a defendant that employs more than 100 but fewer than 201
employees for each working day in each of 20 or more calendar weeks in the current
or preceding year, $100,000.
3. In the case of a defendant that employs more than 200 but fewer than 501
employees for each working day in each of 20 or more calendar weeks in the current
or preceding year, $200,000.
4. In the case of a defendant that employs more than 500 employees for each
working day in each of 20 or more calendar weeks in the current or preceding year,
$300,000.
(b) If the circuit court orders a payment under par. (a) because of a violation of
s. 111.321, 111.37, or 111.372 by an individual employed by an employer, the
employer of that individual is liable for the payment.
(c) 1. In this paragraph, “consumer price index" means the average of the
consumer price index for all urban consumers, U.S. city average, as determined by
the bureau of labor statistics of the federal department of labor.
2. Except as provided in this subdivision, beginning on July 1, 2024, and on
each July 1 after that, the department shall adjust the amounts specified in par. (a)
1., 2., 3., and 4. by calculating the percentage difference between the consumer price
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index for the 12-month period ending on December 31 of the preceding year and the
consumer price index for the 12-month period ending on December 31 of the year
before the preceding year and adjusting those amounts by that percentage
difference. The department shall publish the adjusted amounts calculated under
this subdivision in the Wisconsin Administrative Register, and the adjusted amounts
shall apply to actions commenced under sub. (1) (a) beginning on July 1 of the year
of publication. This subdivision does not apply if the consumer price index for the
12-month period ending on December 31 of the preceding year did not increase over
the consumer price index for the 12-month period ending on December 31 of the year
before the preceding year.
SECTION 5. 814.04 (intro.) of the statutes is amended to read:
814.04 Items of costs. (intro.) Except as provided in ss. 93.20, 100.195 (5m)
(b), 100.30 (5m), 106.50 (6) (i) and (6m) (a), 111.397 (2) (a), 115.80 (9), 767.553 (4) (d),
769.313, 802.05, 814.245, 895.035 (4), 895.044, 895.443 (3), 895.444 (2), 895.445 (3),
895.446 (3), 895.506, 943.212 (2) (b), 943.245 (2) (d), 943.51 (2) (b), and 995.10 (3),
when allowed costs shall be as follows:
SECTION 6.0Initial applicability.
(1) EMPLOYMENT DISCRIMINATION DAMAGES. This act first applies to acts of
employment discrimination, unfair honesty testing, or unfair genetic testing
committed on the effective date of this subsection.
(END)
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