LRB-1142/2
MED&GMM:kjf:kf
2015 - 2016 LEGISLATURE
May 1, 2015 - Introduced by Senators Hansen, Bewley, Carpenter, Erpenbach,
Harris Dodd, C. Larson, Lassa, Miller, Ringhand, Risser, Shilling, L.
Taylor
, Vinehout and Wirch, cosponsored by Representatives Sinicki, Barca,
Shankland, Zamarripa, Mason, Ohnstad, Barnes, Berceau, Billings, Bowen,
Brostoff, Considine, Danou, Doyle, Genrich, Goyke, Hebl, Hesselbein,
Hintz, Johnson, Jorgensen, Kahl, Kessler, Kolste, Meyers, Milroy, Pope,
Riemer, Sargent, Spreitzer, Stuck, Subeck, C. Taylor, Wachs, Young and
Zepnick. Referred to Committee on Judiciary and Public Safety.
SB145,1,4 1An Act to amend 111.39 (4) (d) and 814.04 (intro.); and to create 111.39 (5) (d)
2and 111.397 of the statutes; relating to: authorizing the circuit court to order
3a person who engages in discrimination in employment, unfair honesty testing,
4or unfair genetic testing to pay compensatory and punitive damages.
Analysis by the Legislative Reference Bureau
Under the current fair employment law, a person alleging discrimination in
employment or unfair honesty or genetic testing may file a complaint with the
Department of Workforce Development (DWD) seeking action that will effectuate
the purpose of the fair employment law, including reinstating the employee,
providing back pay, and paying costs and attorney fees. The fair employment law,
however, does not authorize DWD to award compensatory or punitive damages to a
complainant.
This bill permits DWD or a person who is alleged or was found to have been
discriminated against or subjected to unfair honesty or genetic testing to bring an
action in circuit court to recover compensatory and punitive damages caused by the
act of discrimination or unfair honesty or genetic testing. Those damages are in
addition to any back pay or other amounts awarded in any administrative
proceeding. The bill, however, does not permit an action for damages to be brought
against any local governmental unit or against any employer employing fewer than
15 individuals.
Under the bill, if the circuit court finds that a defendant has committed an act
of discrimination or unfair honesty or genetic testing, the circuit court must order the

defendant to pay to the person discriminated against compensatory and punitive
damages in an amount that the circuit court finds appropriate, subject to the
following limitations:
1. If the defendant employs 100 or fewer employees, $50,000.
2. If the defendant employs more than 100 but fewer than 201 employees,
$100,000.
3. If the defendant employs more than 200 but fewer than 501 employees,
$200,000.
4. If the defendant employs more than 500 employees, $300,000.
The bill requires DWD to annually revise these amounts based upon 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:
SB145,1 1Section 1. 111.39 (4) (d) of the statutes is amended to read:
SB145,2,152 111.39 (4) (d) The department shall serve a certified copy of the findings and
3order on the respondent, the order to have the same force as other orders of the
4department and be enforced as provided in s. 103.005. The department shall also
5serve a certified copy of the findings and order on the complainant, together with a
6notice advising the complainant about the right to seek, and the time for seeking,
7review by the commission under sub. (5); about the right to bring, and the time for
8bringing, an action for judicial review under s. 111.395; and about the right to bring,
9and the time for bringing, an action under s. 111.397 (1) (a).
Any person aggrieved
10by noncompliance with the order may have the order enforced specifically by suit in
11equity. If the examiner finds that the respondent has not engaged in discrimination,
12unfair honesty testing, or unfair genetic testing as alleged in the complaint, the
13department shall serve a certified copy of the examiner's findings served on the
14complainant, together with shall be accompanied by an order dismissing the
15complaint.
SB145,2
1Section 2. 111.39 (5) (d) of the statutes is created to read:
SB145,3,62 111.39 (5) (d) The commission shall serve a certified copy of the commission's
3decision on the complainant, together with a notice advising the complainant about
4the right to bring, and the time for bringing, an action for judicial review under s.
5111.395 and about the right to bring, and the time for bringing, an action under s.
6111.397 (1) (a).
SB145,3 7Section 3. 111.397 of the statutes is created to read:
SB145,3,21 8111.397 Civil action. (1) (a) Except as provided in this paragraph, the
9department or a person alleged or found to have been discriminated against or
10subjected to unfair honesty testing or unfair genetic testing may bring an action in
11circuit court against any employer, labor organization, or employment agency that
12is alleged or found to have engaged in that discrimination, unfair honesty testing,
13or unfair genetic testing to recover compensatory and punitive damages caused by
14the violation, plus reasonable costs and attorney fees incurred in the action. Those
15damages are in addition to any back pay or other amounts awarded under s. 111.39
16or 111.395. The department or a person alleged or found to have been discriminated
17against or subjected to unfair honesty testing or unfair genetic testing may not bring
18an action under this paragraph against any local governmental unit, as defined in
19s. 19.42 (7u), or against any employer, labor organization, or employment agency
20employing fewer than 15 individuals for each working day in each of 20 or more
21calendar weeks in the current or preceding year.
SB145,3,2522 (b) If a petition for judicial review of the findings and order of the commission
23concerning the same violation as the violation giving rise to the action under par. (a)
24is filed, the court shall consolidate the proceeding for judicial review and the action
25under par. (a).
SB145,4,13
1(2) (a) Subject to pars. (b) and (c), in an action under sub. (1) (a), if the circuit
2court finds that discrimination, unfair honesty testing, or unfair genetic testing has
3occurred, or if such a finding has been made by an examiner or the commission and
4not been further appealed, the court shall order the defendant to pay to the person
5discriminated against or subjected to unfair honesty testing or unfair genetic testing
6compensatory damages and punitive damages under s. 895.043, in an amount that
7the circuit court or jury finds appropriate, plus reasonable costs and attorney fees
8incurred in the action. Those damages are in addition to any back pay or other
9amounts awarded under s. 111.39 or 111.395. The sum of the amount of
10compensatory damages for future economic losses and for pain and suffering,
11emotional distress, mental anguish, loss of enjoyment of life, and other noneconomic
12losses and the amount of punitive damages that a circuit court may order may not
13exceed the following:
SB145,4,1614 1. In the case of a defendant that employs 100 or fewer employees for each
15working day in each of 20 or more calendar weeks in the current or preceding year,
16$50,000.
SB145,4,1917 2. In the case of a defendant that employs more than 100 but fewer than 201
18employees for each working day in each of 20 or more calendar weeks in the current
19or preceding year, $100,000.
SB145,4,2220 3. In the case of a defendant that employs more than 200 but fewer than 501
21employees for each working day in each of 20 or more calendar weeks in the current
22or preceding year, $200,000.
SB145,4,2523 4. In the case of a defendant that employs more than 500 employees for each
24working day in each of 20 or more calendar weeks in the current or preceding year,
25$300,000.
SB145,5,3
1(b) If the circuit court orders any payment under par. (a) because of a violation
2of s. 111.321, 111.37, or 111.372 by an individual employed by an employer, the
3employer of that individual is liable for the payment.
SB145,5,64 (c) 1. In this paragraph, "consumer price index" means the average of the
5consumer price index for all urban consumers, U.S. city average, as determined by
6the bureau of labor statistics of the federal department of labor.
SB145,5,197 2. Except as provided in this subdivision, beginning on July 1, 2016, and on
8each July 1 after that, the department shall adjust the amounts specified in par. (a)
91., 2., 3., and 4. by calculating the percentage difference between the consumer price
10index for the 12-month period ending on December 31 of the preceding year and the
11consumer price index for the 12-month period ending on December 31 of the year
12before the preceding year and adjusting those amounts by that percentage
13difference. The department shall publish the adjusted amounts calculated under
14this subdivision in the Wisconsin Administrative Register, and the adjusted amounts
15shall apply to actions commenced under sub. (1) (a) beginning on July 1 of the year
16of publication. This subdivision does not apply if the consumer price index for the
1712-month period ending on December 31 of the preceding year did not increase over
18the consumer price index for the 12-month period ending on December 31 of the year
19before the preceding year.
SB145,4 20Section 4. 814.04 (intro.) of the statutes is amended to read:
SB145,5,25 21814.04 Items of costs. (intro.) Except as provided in ss. 93.20, 100.195 (5m)
22(b), 100.30 (5m), 106.50 (6) (i) and (6m) (a), 111.397 (2) (a), 115.80 (9), 767.553 (4) (d),
23769.313, 802.05, 814.245, 895.035 (4), 895.044, 895.443 (3), 895.444 (2), 895.445 (3),
24895.446 (3), 895.506, 943.212 (2) (b), 943.245 (2) (d), 943.51 (2) (b), and 995.10 (3),
25when allowed costs shall be as follows:
SB145,5
1Section 5. Initial applicability.
SB145,6,42 (1) Employment discrimination damages. This act first applies to acts of
3employment discrimination, unfair honesty testing, or unfair genetic testing
4committed on the effective date of this subsection.
SB145,6,55 (End)
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