122.6 Remedies

The Wisconsin Fair Employment Act makes it unlawful to discharge an individual based upon arrest record. The Respondent in this case argued that it did not discharge the Complainant based on the fact of his arrest record, but because he violated its Use of Technologies Policy. However, while the Complainant’s alleged violation of the policy was a factor in the discharge, the evidence also indicated that the Respondent was unhappy about the Complainant’s arrest and the attendant publicity and that a decision to discharge the Complainant was made before the Respondent discovered inappropriate material on the Complainant’s computer. The Respondent’s actions were in violation of the Wisconsin Fair Employment Act. However, the Respondent was genuinely concerned about inappropriate materials it found on the Complainant’s computer and his employment would have been terminated once those materials were discovered, even in the absence of the Complainant’s arrest record. Because the Complainant was discharged both for an impermissible reason (his arrest record) and a permissible reason (his violation of the Use of Technologies Policy), the only remedy awarded to the Complainant was an order for payment of reasonable attorney’s fees. Kraemer v. County of Milwaukee (LIRC, 10/11/12), aff’d sub nom. Kraemer v. LIRC (Milwaukee Co. Cir. Ct., 08/13/13), aff’d (Ct. App. Dist. I, unpublished opinion, 05/20/14).

The Respondent violated the Wisconsin Fair Employment Act by discharging the Complainant because of his arrest record. However, the Respondent established that it would have discharged the Complainant in any event based upon the fact that his driver’s license was suspended, and a valid driver’s license was a requirement for the job. This was, therefore, a “mixed motive” case. The Complainant would have been discharged even absent the Respondent’s consideration of his arrest record. He was only entitled to a cease-and-desist order. He was not entitled to reinstatement or back pay. Kammers v. Kraft Foods (LIRC, 08/11/11).

The Respondent violated sec. 111.322(2), Stats., when it posted a job advertisement that specific “no felonies,” because this expressed an intention to discriminate against individuals with conviction records. However, in this case, there was no basis to conclude that the Complainant would have received the job at issue but for the Respondent’s unlawful publication of a discriminatory advertisement. The evidence established that the Respondent ultimately never filled this job. Under the circumstances, the appropriate remedy was an order requiring the Respondent to cease and desist from printing or circulating such advertisements. Jackson v. Dedicated Logistics (LIRC, 07/29/11).

The Respondent was found to have violated the Wisconsin Fair Employment Act by discharging the Complainant because of arrest record; however, because the underlying criminal charges against the Complainant were not yet resolved, the Complainant was not entitled to a monetary remedy. The Respondent could have suspended the Complainant without pay or other benefits until the charges against him were resolved. The appropriate remedy was to order the Complainant reinstated to “suspended” status. Maline v. Wis. Bell (LIRC, 10/30/89).

Where the employer violated the Act by terminating an employee because of arrest, but where the acts the employee was arrested for were substantially related to her job so that suspension of the employee would have been permitted, and where the employer permanently went out of business prior to the resolution of the charges against the Complainant, no remedy of any sort was granted. No back pay was appropriate since the Complainant would have appropriately been on suspension for all time periods up to the closing of the business, and neither reinstatement nor a cease-and-desist order would be appropriate since the Respondent was permanently out of business. Shipley v. Town & Country Rest. (LIRC, 07/14/87).