141 Generally

An employer is not required to offer a position to a woman when it is underutilized for females. To impose such a requirement would convert an affirmative action goal into a quota, which is prohibited. Kelley v. DOR (LIRC, 09/23/05)

Although absolute racial preferences may be unlawful, race may be considered as one factor among others in making an employment decision where a bona fide affirmative action plan is involved. Byrne v. Wis. Pers. Comm’n (Dane Co. Cir. Ct., 08/15/94).

A public employer must ensure that it has convincing evidence that remedial action is warranted before it embarks on an affirmative action program. It must possess sufficient evidence to justify the conclusion that there has been prior discrimination. Here, there was nothing in the record to indicate that the affirmative action plan of the Respondent met the criteria established in Wygart v. Jackson Bd. of Educ., 476 U.S. 267 (1986) and Johnson v. Transp. Agency, 480 U.S. 616 (1987). Therefore, the Complainant was entitled to a hearing on his claim that he was discriminated against on the basis of his race when he did not receive adjusted seniority as minority employees did by virtue of a consent decree. Samolinski v. DILHR (Milwaukee Co. Cir. Ct., 07/03/91).

It was improper for the Labor and Industry Review Commission to rely upon the factual findings made in a consent decree when that consent decree was not properly admitted in evidence. The Complainant had agreed to the admission of the consent decree for the limited purpose of showing (1) that a consent decree was issued, and (2) that the Respondent was abiding by the consent decree. LIRC inappropriately relied on factual findings in the consent decree to conclude that the consent decree was justified by an underutilization of minorities in the Respondent’s workforce. Samolinski v. DILHR (Milwaukee Co. Cir. Ct., 07/03/91).

An employer need not have been found guilty of past discrimination before it can make a sex-conscious hiring decision. It need only point to a conspicuous imbalance in traditionally segregated job categories. For jobs that require no special expertise, the percentage of minorities or women in the employer’s work force may be compared with the percentage in the area labor market or general population, and where the job requires special training, the comparison should be with those in the labor force who possess relevant qualifications. Gordon v. City of Milwaukee (LIRC, 10/16/87).

When a Complainant has established a prima facie case that race or sex has been taken into account in an employment decision, the employer may meet its burden of articulating a non-discriminatory rationale for its decision by pointing to the existence of an affirmative action plan. That reliance on an affirmative action plan is not to be treated as an affirmative defense requiring the employer to carry the burden of proving the validity of the plan; the burden of proving its invalidity remains on the Complainant. Where the Complainant offered no evidence regarding the percentage of women in the labor market, he did not meet his burden of proving the invalidity of an affirmative action plan favoring women used by the Respondent. Gordon v. City of Milwaukee (LIRC, 10/16/87).