142 Affirmative action efforts found permissible

Pursuant to the terms of its affirmative action plan, an interview panel considered an applicant’s race in addition to a variety of different and relevant reasons other than race for its hiring decision. The Respondent did not violate the Wisconsin Fair Employment Act when the Complainant would still have been a less qualified candidate based on these other neutral factors. Race can be considered to have been merely “a factor,” and not a “determining factor,” in the hiring decision. Nelson v. State Historical Soc’y of Wis. (LIRC, 03/31/05).

It was not sex discrimination to use expanded certification to increase the number of women who gained access to interviews where it was used in conjunction with an approved affirmative action plan which complied with the requirements of ch. 230, Stats., and ch. ER 43, Wis. Adm. Code. Gygax v. DOR & DER (Wis. Pers. Comm’n, 12/14/94).

No discrimination was shown with respect to the employing agency’s letter directing the interview panelists to contact the affirmative action officer before making a hiring decision where the panelists understood there was no requirement to hire women. There was only a requirement, in the event a male was recommended for hire, to explain why a woman was not recommended. The affirmative action officer had approved the hire of non-targeted groups in other selection decisions when justified (for example, by the interviewer’s opinion that another person was the best candidate for the particular vacancy). Gygax v. Wisconsin DOR & DER (Wis. Pers. Comm’n, 12/14/94).

Discrimination does not automatically occur where a member of an under-utilized group identified in an approved affirmative action plan is hired even though the successful candidate has a post-interview rank which is below other candidates who were not members of the under-utilized group. Gygax v. DOR & DER (Wis. Pers. Comm’n, 12/14/94).

Expanded certification is permissible in civil service hiring if it is used in conjunction with an approved affirmative action plan. In this case, the employer did not violate the Wisconsin Fair Employment Act when it considered sex as a factor in the final selections it made from among those on the certification list. The female who was hired was a member of a group identified in an approved affirmative action plan as an underutilized group. The Respondent clearly showed that the individual who was hired was qualified for the job and that the interview process was otherwise free of discrimination. Gygax v. DOR (Wis. Pers. Comm’n, 12/14/94).

In differentiating among well-qualified candidates for a position, it was not evidence of discrimination to consider the goals of a proper affirmative action plan as a selection criterion. Byrne v. DOT & DMRS (Wis. Pers. Comm’n, 09/08/93); aff’d sub nom. Byrne v. Wis. Pers. Comm’n (Dane Co. Cir. Ct., 08/15/94).

It was not a violation of the Wisconsin Fair Employment Act for an employer to implement an affirmative action plan that called for departure from strict seniority in layoff to allow black school psychologists and social workers who would otherwise be laid off due to their seniority to be retained while more senior, Caucasian, employees in the classification were laid off. Voluntary affirmative action programs which modify the seniority rights of majority members do not constitute unlawful discrimination when certain conditions are met. Those conditions include: (1) The lay-off plan seeks to prevent the loss of minority hiring gains achieved through affirmative action; (2) the plan is temporary; (3) the plan does not require the retention of unqualified employees; (4) the plan does not require the lay-off of only white employees; (5) the plan does not replace whites with newly hired minorities; and (6) the plan does not bar laid off white employees from re-employment with the employer. Piotrowski v. Milwaukee Bd. of Sch. Dir. (LIRC, 05/02/85).

A male employee had been hired to work as a bobcat operator and all the bobcat work had been completed. It was not unlawful sex discrimination for the Respondent to lay off the male employee and recall a female employee in order to fulfill its affirmative action goals, rather than transfer the male employee to laborer’s duties. In Steelworkers v. Weber, 443 U.S. 193, 61 L. Ed. 2d 480, 99 S. Ct. 2721 (1979), the U.S. Supreme Court recognized that in order to meet the purposes of Title VII, employees must be able to deal with the effects of past discrimination. That case held that an affirmative action plan is permissible if the plan: (1) was voluntary, (2) was designed to break down old patterns of discrimination, (3) did not unnecessarily trammel the interests of male workers, (4) did not require the discharge of males and their replacement by females, and (5) was temporary. The Respondent’s plan in this case met these requirements. Ott v. L.S. Lunder Constr. (LIRC, 04/16/81).

An employer created a special position in its Trades Training Program (TTP) for the most qualified female applicant. This position was created solely in an effort to fulfill the Respondent’s affirmative action obligations under a federal Executive Order. Male employees continued to be eligible for regular TTP positions as they became available. The male Complainant could not be said to have been unlawfully deprived of any promotional opportunities when he was denied this position because the position in question would not have existed but for the employer’s affirmative action obligations. Grenier v. Scott Paper (LIRC, 01/15/81).

An employer did not discriminate against a male in promoting a qualified female with 20 years less experience where affirmative action was required by Title VII, Executive Order 11246 and a consent decree filed in federal court. Maline v. Wis. Tel. (LIRC, 10/22/79).