LRB-2052/1
GMM:sac:rs
2013 - 2014 LEGISLATURE
June 17, 2013 - Introduced by Representatives Pope, Hesselbein, Sargent, Hebl,
Berceau, Barnes, Ohnstad, C. Taylor and Wright, cosponsored by Senator L.
Taylor
. Referred to Committee on Labor.
AB245,1,3 1An Act to amend 814.04 (intro.); and to create 103.08 and 893.997 of the
2statutes; relating to: prohibiting abusive work environments and permitting
3a person who has been subjected to such an environment to bring a civil action.
Analysis by the Legislative Reference Bureau
Current law. Under current law, worker's compensation is generally the
exclusive remedy of an employee against his or her employer, a coemployee, or the
employer's worker's compensation insurer for an injury sustained while performing
services growing out of and incidental to employment.
Civil action for abusive work environment. This bill provides an exception
to that exclusive remedy provision that permits an employee who alleges that he or
she has been injured by being subjected to an abusive work environment or by being
subjected to retaliation or a threat of retaliation for opposing an abusive work
environment or for initiating or in any manner participating in an investigation,
action, or proceeding to enforce the right not to be subjected to an abusive work
environment (collectively "unlawful employment practice") to bring an action in
circuit court against the employer or employee who allegedly engaged in the
unlawful employment practice for such relief as the court may consider appropriate.
Such an action must be commenced by the employee (aggrieved employee) within one
year after the last act constituting the unlawful employment practice occurred or be
barred.
Relief. If the circuit court finds that an employer or employee has engaged in
an unlawful employment practice, the court may enjoin the employer or employee

from engaging in that practice and may grant such other relief as the court may
consider appropriate, including reinstatement of the aggrieved employee, removal
of the person who engaged in the abusive conduct giving rise to the unlawful
employment practice from the aggrieved employee's work area, medical expenses,
back pay, front pay, compensation for emotional distress, punitive damages, and
reasonable costs and attorney fees. If the circuit court orders any payment of money
because of an unlawful employment practice engaged in by an employee, the
employer of the employee is liable for that payment. If an employer is found to have
engaged in an unlawful employment practice that did not result in an adverse
employment action against the aggrieved employee, the employer's liability for
compensation for emotional distress may not exceed $10,000 and the employer is not
liable for punitive damages.
Affirmative defenses. The bill permits an employer or employee against
whom an aggrieved employee brings an action for an unlawful employment practice
to plead affirmative defenses as follows:
1. If the alleged unlawful employment practice did not result in an adverse
employment action against the aggrieved employee, the employer may plead as an
affirmative defense that: a) the employer exercised reasonable care to prevent and
promptly correct the abusive conduct that was the basis for the aggrieved employee's
cause of action; and b) the aggrieved employee unreasonably failed to take advantage
of appropriate opportunities provided by the employer to prevent or correct that
abusive conduct.
2. If the alleged unlawful employment practice resulted in an adverse
employment action against the aggrieved employee, the employer may plead as an
affirmative defense that the aggrieved employee's complaint is based on: a) an
adverse employment action that was reasonably taken for poor performance,
misconduct, or economic necessity; b) an adverse employment action that was taken
in response to a reasonable performance evaluation; or c) a reasonable investigation
of a potentially illegal or unethical activity.
3. An employee who is alleged to have engaged in an unlawful employment
practice may plead as an affirmative defense that the employee engaged in that
practice at the direction of the employer under threat of an adverse employment
action against the employee for not engaging in that practice.
Definitions. For purposes of the bill:
1. "Abusive work environment" means a work environment in which an
employee is subjected to abusive conduct that is so severe that it causes tangible
harm, i.e., material impairment of physical or mental health or bodily integrity, to
the employee.
2. "Abusive conduct" means conduct, including acts or omissions, by an
employer or employee, with malice, i.e., intent to cause pain, injury, or distress to
another person without legitimate cause or justification, that a reasonable person
would find to be hostile based on the severity, nature, and frequency of the conduct.
"Abusive conduct" includes repeated infliction of verbal abuse such as derogatory
remarks, insults, and epithets; verbal or physical conduct that is threatening,
intimidating, or humiliating; sabotage or undermining of an employee's work

performance; or exploitation of an employee's known psychological or physical
vulnerability. "Abusive conduct," however, does not include a single act unless that
act is especially severe or egregious.
3. "Adverse employment action" means an action taken by an employer with
respect to an employee that has the effect, in whole or in part, of a penalty, including
dismissal or suspension from employment, demotion, denial of a promotion,
unfavorable transfer or reassignment, reduction in compensation, or denial of
increased compensation. "Adverse employment action" also includes a constructive
discharge, which is defined in the bill as a situation in which an employee resigns
from employment because the employee reasonably believes that he or she was
subjected to abusive conduct and, prior to resigning, the employee notified the
employer of the abusive conduct and the employer failed to take reasonable steps to
eliminate the abusive conduct.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB245,1 1Section 1. 103.08 of the statutes is created to read:
AB245,3,2 2103.08 Abusive work environments. (1) Definitions. In this section:
AB245,3,113 (a) "Abusive conduct" means conduct, including acts or omissions, by an
4employer or employee, with malice, that a reasonable person would find to be hostile
5based on the severity, nature, and frequency of the conduct. "Abusive conduct"
6includes repeated infliction of verbal abuse such as derogatory remarks, insults, and
7epithets; verbal or physical conduct that is threatening, intimidating, or
8humiliating; sabotage or undermining of an employee's work performance; or
9exploitation of an employee's known psychological or physical vulnerability.
10"Abusive conduct" does not include a single act unless that act is especially severe
11or egregious.
AB245,3,1412 (b) "Abusive work environment" means a work environment in which an
13employee is subjected to abusive conduct that is so severe that it causes tangible
14harm to the employee.
AB245,4,6
1(c) "Adverse employment action" means an action taken by an employer with
2respect to an employee that has the effect, in whole or in part, of a penalty, including
3dismissal or suspension from employment, demotion, denial of a promotion,
4unfavorable transfer or reassignment, reduction in compensation, or denial of
5increased compensation. "Adverse employment action" also includes a constructive
6discharge.
AB245,4,87 (d) "Aggrieved employee" means an employee who brings an action under sub.
8(3) alleging that he or she has been injured by an unlawful employment practice.
AB245,4,139 (e) "Constructive discharge" means a situation in which an employee resigns
10from employment because the employee reasonably believes that he or she was
11subjected to abusive conduct and, prior to resigning, the employee notified the
12employer of the abusive conduct and the employer failed to take reasonable steps to
13eliminate the abusive conduct.
AB245,4,1414 (f) "Employee" means an individual employed by an employer.
AB245,4,2015 (g) "Employer" means a person engaging in any activity, enterprise, or business
16in this state employing one or more persons on a permanent basis. "Employer"
17includes the state and any office, department, independent agency, authority,
18institution, association, society, or other body in state government created or
19authorized to be created by the constitution or any law, including the legislature and
20the courts.
AB245,4,2221 (h) "Malice" means the intent to cause pain, injury, or distress to another
22person, without legitimate cause or justification.
AB245,4,2423 (i) "Retaliate" means to take an action that negatively affects the terms,
24conditions, and privileges of an employee's employment.
AB245,5,2
1(j) "Tangible harm" means any material impairment of a person's physical or
2mental health or bodily integrity.
AB245,5,43 (k) "Unlawful employment practice" means an unlawful employment practice
4prohibited under sub. (2).
AB245,5,7 5(2) Abusive work environment prohibited. (a) It is an unlawful employment
6practice for an employer or employee to subject an employee to an abusive work
7environment.
AB245,5,108 (b) It is an unlawful employment practice for an employer or employee to
9retaliate or threaten to retaliate in any manner against an employee for any of the
10following reasons:
AB245,5,1111 1. Because the employee opposed an unlawful employment practice.
AB245,5,1512 2. Because the employee initiated, testified in, assisted in, or in any other
13manner participated in an investigation, action, or proceeding to enforce a right
14under this section, including any internal investigation or proceeding, any mediation
15or arbitration proceeding, or any court action.
AB245,5,1716 3. Because the employer believes that the employee engaged in conduct
17described in subd. 1. or 2.
AB245,5,1918 (c) The prohibitions under pars. (a) and (b) may be enforced only by a civil cause
19of action brought under sub. (3).
AB245,6,2 20(3) Civil cause of action. In addition to obtaining any other remedy provided
21by law, an employee who alleges that he or she has been injured by an unlawful
22employment practice may bring an action in circuit court against the employer or
23employee who allegedly engaged in the unlawful employment practice for such relief
24under sub. (5) as the court may consider appropriate. An action under this

1subsection shall be commenced within one year after the last act constituting the
2unlawful employment practice occurred or be barred.
AB245,6,5 3(4) Affirmative defenses. (a) If the alleged unlawful employment practice did
4not result in an adverse employment action against the aggrieved employee, the
5employer may plead as an affirmative defense that all of the following are true:
AB245,6,76 1. The employer exercised reasonable care to prevent and promptly correct the
7abusive conduct that was the basis for the aggrieved employee's cause of action.
AB245,6,108 2. The aggrieved employee unreasonably failed to take advantage of
9appropriate opportunities provided by the employer to prevent or correct that
10abusive conduct.
AB245,6,1411 (b) If the alleged unlawful employment practice resulted in an adverse
12employment action against the aggrieved employee, the employer may plead as an
13affirmative defense that the aggrieved employee's complaint is based on any of the
14following:
AB245,6,1615 1. An adverse employment action that was reasonably taken for poor
16performance, misconduct, or economic necessity.
AB245,6,1817 2. An adverse employment action that was taken in response to a reasonable
18performance evaluation.
AB245,6,1919 3. A reasonable investigation of a potentially illegal or unethical activity.
AB245,6,2320 (c) An employee who is alleged to have engaged in an unlawful employment
21practice may plead as an affirmative defense that the employee engaged in that
22practice at the direction of the employer under threat of an adverse employment
23action against the employee for not engaging in that practice.
AB245,7,9 24(5) Relief. (a) Subject to par. (b), if the circuit court finds that an employer or
25employee has engaged in an unlawful employment practice, the court may enjoin the

1employer or employee from engaging in that practice and may grant such other relief
2as the court may consider appropriate, including reinstatement of the aggrieved
3employee, removal of the person who engaged in the abusive conduct giving rise to
4the unlawful employment practice from the aggrieved employee's work area, medical
5expenses, back pay, front pay, compensation for emotional distress, punitive
6damages under s. 895.043, and, notwithstanding s. 814.04, reasonable costs and
7attorney fees. If the circuit court orders any payment under this paragraph because
8of an unlawful employment practice engaged in by an employee, the employer of the
9employee is liable for that payment.
AB245,7,1310 (b) If an employer is found to have engaged in an unlawful employment practice
11that did not result in an adverse employment action against the aggrieved employee,
12the employer's liability for compensation for emotional distress may not exceed
13$10,000 and the employer is not liable for punitive damages.
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