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2011 - 2012 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
TO 2011 SENATE BILL 202
November 2, 2011 - Offered by Senators Taylor, Hansen, Miller, S. Coggs, C.
Larson, Holperin
and Carpenter.
SB202-SSA1,1,4 1An Act to amend 111.39 (4) (d), 111.39 (5) (d), 111.397 (1) (a), 111.397 (2) (a)
2(intro.) and 111.397 (2) (c) of the statutes; relating to: elimination of
3compensatory and punitive damages for acts of unfair honesty or genetic
4testing.
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. In addition, the fair
employment law permits DWD or a person who has 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 after the completion of all administrative
proceedings before DWD and the Labor and Industry Review Commission
concerning the violation. 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
certain limitations, as follows:

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.
This substitute amendment eliminates the awarding of compensatory and
punitive damages to persons who have been subjected to unfair honesty or genetic
testing. Under the bill, DWD may still award to such a person back pay, costs, and
attorney fees.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB202-SSA1, s. 1 1Section 1. 111.39 (4) (d) of the statutes is amended to read:
SB202-SSA1,2,172 111.39 (4) (d) The department shall serve a certified copy of the findings and
3order on the complainant and respondent, the order to have the same force as other
4orders of the department and be enforced as provided in s. 103.005. Any person
5aggrieved by noncompliance with the order may have the order enforced specifically
6by suit in equity. If the examiner finds that the respondent has not engaged in
7discrimination, unfair honesty testing, or unfair genetic testing as alleged in the
8complaint, the department shall serve a certified copy of the examiner's findings on
9the complainant, together with an order dismissing the complaint.
If the examiner
10finds that the respondent has engaged in discrimination, unfair honesty testing, or
11unfair genetic testing
as alleged in the complaint, the department shall also serve
12 a certified copy of the examiner's findings on the complainant, together with a notice
13advising the complainant that after the completion of all administrative proceedings
14under this section he or she may bring an action as provided in s. 111.397 (1) (a) to
15recover compensatory and punitive damages as provided in s. 111.397 (2) (a) and
16advising the complainant of the time under s. 111.397 (1) (b) within which the action
17must be commenced or be barred.
SB202-SSA1, s. 2
1Section 2. 111.39 (5) (d) of the statutes is amended to read:
SB202-SSA1,3,112 111.39 (5) (d) The commission shall serve a certified copy of its decision on the
3complainant and respondent.
If the commission affirms a finding that the
4respondent has engaged in discrimination, unfair honesty testing, or unfair genetic
5testing
as alleged in the complaint, the commission shall also serve a certified copy
6of the commission's decision
on the complainant, together with a notice advising the
7complainant that after the completion of all administrative proceedings under this
8section he or she may bring an action as provided in s. 111.397 (1) (a) to recover
9compensatory and punitive damages as provided in s. 111.397 (2) (a) and advising the
10complainant of the time under s. 111.397 (1) (b) within which the action must be
11commenced or be barred.
SB202-SSA1, s. 3 12Section 3. 111.397 (1) (a) of the statutes is amended to read:
SB202-SSA1,4,213 111.397 (1) (a) Except as provided in this paragraph, after the completion of all
14administrative proceedings under s. 111.39 concerning a violation of s. 111.321,
15111.37, or 111.372, the department or a person discriminated against or subjected to
16unfair honesty testing or unfair genetic testing
may bring an action in circuit court
17against any employer, labor organization, or employment agency that engaged in
18that discrimination, unfair honesty testing, or unfair genetic testing to recover
19compensatory and punitive damages caused by the violation, plus reasonable costs
20and attorney fees incurred in the action. Those damages are in addition to any back
21pay or other amounts awarded under s. 111.39. The department or a person
22discriminated against or subjected to unfair honesty testing or unfair genetic testing
23may not bring an action under this paragraph against any local governmental unit,
24as defined in s. 19.42 (7u), or against any employer, labor organization, or

1employment agency employing fewer than 15 individuals for each working day in
2each of 20 or more calendar weeks in the current or preceding year.
SB202-SSA1, s. 4 3Section 4. 111.397 (2) (a) (intro.) of the statutes is amended to read:
SB202-SSA1,4,134 111.397 (2) (a) (intro.) Subject to pars. (c) and (d), in an action under sub. (1)
5(a), the circuit court shall order the defendant to pay to the person discriminated
6against or subjected to unfair honesty testing or unfair genetic testing compensatory
7damages, and punitive damages under s. 895.043, in an amount that the circuit court
8or jury finds appropriate, plus reasonable costs and attorney fees incurred in the
9action. Those damages are in addition to any back pay or other amounts awarded
10under s. 111.39. The sum of the amount of compensatory damages for future
11economic losses and for pain and suffering, emotional distress, mental anguish, loss
12of enjoyment of life, and other noneconomic losses and the amount of punitive
13damages that a circuit court may order may not exceed the following:
SB202-SSA1, s. 5 14Section 5. 111.397 (2) (c) of the statutes is amended to read:
SB202-SSA1,4,1715 111.397 (2) (c) If the circuit court orders any payment under par. (a) because
16of a violation of s. 111.321, 111.37, or 111.372 by an individual employed by an
17employer, the employer of that individual is liable for the payment.
SB202-SSA1, s. 6 18Section 6. Initial applicability.
SB202-SSA1,4,2319 (1) Elimination of damages for unfair honesty or genetic testing. This act
20first applies to an administrative proceeding under section 111.39 of the statutes
21concerning a violation of section 111.37 or 111.372 of the statutes in which a copy of
22the final decision under section 111.39 (4) (d) or (5) (d) of the statutes is mailed to the
23last-known address of the complainant on the effective date of this subsection.
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