612 Burden of proof in mixed motive cases

The Respondent refused to hire the Complainant because of both his conviction record and his arrest record. To the extent the Respondent was motivated by arrest record it was discriminatory; the arrest record did not contain any pending criminal charges. To the extent it was motivated by conviction record, it was not discriminatory because the Respondent proved a substantial relationship between the conviction record and the circumstances of the job. The remedy was limited to a cease and desist order and attorney’s fees because the Complainant’s conviction record had the most influence on the Respondent’s decision not to hire. Kelly v. Multi-Serve, Inc. (LIRC, 08/13/19).

The Respondent did not meet its burden of proving that, even if it did discriminate against the Complainant because of arrest and conviction record, it would not have hired her in any event because of schedule availability issues. This is particularly so where there was no proof at all that the schedule availability issues were an actual reason for the challenged action. Hill v. Stanton Optical (LIRC, 09/26/14), dismissed by stipulation sub nom. Stanton Optical v. LIRC and (Hill) Martin (Dane Co. Cir. Ct. 08/17/15).

The mixed motive test applies where the record contains evidence showing that an employer was motivated by both prohibited and non-prohibited factors in taking an adverse employment action against an employee. Discriminatory intent is not part of the analytical paradigm of the mixed motive test. Stoughton Trailers v. LIRC, 2006 WI App 157, 295 Wis. 2d 750, 721 N.W.2d 102, aff’d sub nom. Stoughton Trailers v. Geen, 2007 WI 105, 303 Wis. 2d 514, 735 N.W.2d 477.

In order to prove discrimination, a Complainant must prove that a protected characteristic was a “determining factor” in the decision. A “determining factor” is more than “a factor.” Nelson v. State Historical Soc’y of Wis. (LIRC, 03/31/05).

The mixed motive test is applied in cases where an employer has made an employment decision in part due to a prohibited discriminatory reason and in part due to a legitimate business reason. An employer who has made such an employment decision is liable under the Wisconsin Fair Employment Act, but the remedy may be modified depending upon whether the termination would have taken place in the absence of the impermissible motivating factor. If the employer would have made the same employment decision in the absence of the impermissible discriminatory reason, the Complainant should be awarded only a cease and desist order and attorney’s fees. If, however, the employment decision would not have been made in the absence of the prohibited discriminatory reason, the Complainant can be awarded all of the remedies ordinarily allowed, such as back pay, reinstatement and attorney’s fees. Holman v. Empire Bucket & Mfg. (LIRC, 08/15/03).

The mixed motive test is applied in cases where an employer has made an employment decision in part due to a prohibited discriminatory reason and in part due to a legitimate business reason. If the employer would have made the same employment decision in the absence of the impermissible discriminatory reason, then the Complainant should be awarded only a cease and desist order and attorney’s fees. If, however, the employment decision would not have been made in the absence of the prohibited discriminatory reason, the Complainant can be awarded all of the remedies ordinarily allowed. Miles v. Regency Janitorial Serv. (LIRC, 09/26/02).

Although an employer cannot escape liability if a Complainant has been discriminated against “in part” on a prohibited basis, evidence that legitimate reasons also contributed to the employer’s decision can be considered in fashioning an appropriate remedy. In this case, although the Complainant’s marital status was a factor in the Respondent’s decision not to hire him, the Respondent would not have hired the Complainant for the position even if his marital status had not been a factor considered in its selection. Accordingly, the Complainant’s remedy is limited to a finding of discrimination, an order that the Respondent cease and desist from unlawfully discriminating against the Complainant because of his marital status, and an award of attorney’s fees. Larson v. Tomah Police Dep’t (LIRC, 07/20/94).

The “in part” test applied by the Supreme Court to mixed motive discharges under municipal and government employment laws also applies in private sector discrimination cases arising out of the Wisconsin Fair Employment Act. This test is also known as the “mixed motive” test. A mixed motive case is one in which the adverse employment decision resulted from a mixture of legitimate business reasons and a prohibited discriminatory motive. If an employee is terminated in part because of an impermissible motivating factor and in part because of other motivating factors, but the termination would not have occurred in the absence of the impermissible motivating factor, the Department has the discretion to award some or all of the remedies ordinarily awarded. However, if an employee is terminated in part because of an impermissible factor and in part because of other motivating factors, and the termination would have taken place in the absence of the impermissible motivating factor, the employee should be awarded only a cease and desist order and attorney’s fees. Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App. 1994).

In a case where an impermissible motive, if present at all, was a minor factor in the employer's motivations, the appropriateness of finding liability on the Muskego-Norway “mixed motive”/“in part” analysis is questionable. In this case, if there was an impermissible motive, it was not significant. The distinction is between a motivation which is “a factor” in a decision, and one which is a “determining factor.” Paxton v. Aurora Health Care (LIRC, 10/21/93).

In dual motive cases in which the “in part” test is applied, evidence that legitimate reasons contributed to the employer’s decision can be considered by the Department in fashioning an appropriate remedy. Baumgartner v. Tolibia Holdings (LIRC, 03/30/93), aff’d, (Fond du Lac Co. Cir. Ct., 10/11/93).

The Labor and Industry Review Commission has recently questioned the application of the "in part" test in mixed motive situations. Since the Wisconsin Supreme Court has specifically declined to rule on the question of whether that test should be applied in cases under the Wisconsin Fair Employment Act, the question is at best an open one. Notaro v. Kotecki & Radtke, SC (LIRC, 07/14/93).

In Wisconsin, the courts have adopted the “determining factor” standard under which, to prove discrimination in the first place, a Complainant must prove that a protected characteristic was a “determining factor” in the decision. A “determining factor” is more than “a factor.” Notaro v. Kotecki & Radtke, SC (LIRC, 07/14/93).

In a dual motive case in which the “in part” test is applied, evidence that legitimate reasons contributed to the employer's decision can be considered by the Department in fashioning an appropriate remedy. Gee v. ASAA Technology (LIRC, 01/15/93).

The Labor and Industry Review Commission has consistently held that the “in part” test is the appropriate one under the Wisconsin Fair Employment Act. Horton v. Hopkins Chem. Co. (LIRC, 06/08/92).

In mixed motive cases the employer’s actions are motivated by a mixture of discriminatory and legitimate reasons. The reference to case law involving mixed motive discharges under the Municipal Employment Relations Act (MERA) is questionable in a case brought under the Wisconsin Fair Employment Act, since MERA does not apply. Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

In order to prove discrimination, a Complainant must prove that a protected characteristic was a “determining factor in the decision. A “determining factor” is more than a “factor.” Kovalic v. DEC Int’l, 161 Wis. 2d 863, 874, 469 N.W.2d 224 (Ct. App. 1991).

LIRC declines to follow the test set forth in Price Waterhouse v. Hopkins in mixed motive cases. The applicable causation standard in mixed motive cases in Wisconsin is the “in part” test, which requires the employee to demonstrate that the employer’s action was based at least in part upon an impermissible consideration. The discriminatory reason must be a determining factor in the employer's decision, but it need not be the only determining factor. Maline v. Wis. Bell (LIRC, 10/30/89).

The Personnel Commission adopts the test set forth in Price Waterhouse v. Hopkins in mixed motive cases. Under this test, a Respondent who has considered an improper motive in an employment action can still avoid liability if it can establish that it would have reached the same result even in the absence of the improper motive. Jenkins v. DHSS (Wis. Pers. Comm’n, 06/14/89); see also, Kohl v. DOT (Wis. Pers. Comm'n, 05/01/91).

The “in part” causation standard is the appropriate standard to employ in mixed motive cases arising under the Wisconsin Fair Employment Act due to the weaknesses inherent in applying the “but for” standard. The “but for” standard appears to be based on two highly dubious assumptions: (1) that Title VII’s only goal is compensating “victims” and (2) that the only concerned parties are the plaintiff and defendant at bar. On the contrary, the purpose of Title VII is to eliminate discrimination in employment opportunities. Title VII cases involve the vindication of a major public interest. Jones v. Dy-Dee Wash (LIRC, 11/04/88).

It does not matter if a decision to terminate an employee is based, in part, on economic or business reasons if it is also based in part on a protected characteristic such as sex. An employee may not be fired when one of the motivating factors is a protected activity or class, no matter how many other valid reasons exist for the discharge. The “in part” standard enunciated in Muskego-Norway Consol. Joint Sch. Dist. No. 9 v. WERB, 35 Wis. 2d 540, 556-57, 151 N.W.2d 617, 625 (1967) applies under the Wisconsin Fair Employment Act. Abbeyland Processing, Inc. v. LIRC (Ct. App., District III, unpublished opinion, 02/03/87).

An employee may not be lawfully terminated if the termination was motivated in part by prohibited bias, even though valid reasons might exist for the discharge. Thus, after showing that a termination was caused at least in part by prohibited bias, the employer is not entitled to attempt to show that the Complainant would have been terminated in any event. Collins v. Madison Area Tech. College (LIRC, 12/19/86).

The “but for” test for causation articulated in the Mount Healthy case is not applicable under the Wisconsin Fair Employment Act. The appropriate causation standard is the “in part” test, requiring the employee to demonstrate that the employer’s action was based at least in part upon an impermissible basis. The discriminatory reason must be a determining factor in the employer’s decision, but the Complainant need not prove that it was the sole determining factor or that the employer's articulated legitimate reason is false. Lohse v. Western Express (LIRC, 02/04/86).

The Complainant need not prove that the employer's articulated reason was false. Instead, the Complainant must prove that a protected characteristic was a determining factor in the employer's decision. The employer's articulated reason may in fact have been true, but if a protected characteristic was also a determining factor in the employer's decision, discrimination has been demonstrated. Conduct complained of may not be upheld when one of the motivating factors is a discriminatory reason, no matter how many other valid reasons exist for such conduct. Lyckberg v. First Realty Group (LIRC, 09/25/85).

Where the employer discharged a female employee because she declined to “get more serious” in her relationship with her boyfriend, also an employee of the employer, the discharge was based at least in part on the Complainant’s gender, and was thus unlawful. The fact that the dispute between the two employees made the employer feel it had to terminate one of them, and that the male employee was a more valued employee because of his experience, skill and longevity, did not make the determination legal, since sex was at least one factor. Stanton v. Abbeyland Meat Processing, Inc. (LIRC, 05/30/85), aff’d sub nom. Abbeyland Processing v. LIRC (Taylor Co. Cir. Ct., 02/14/86).

A termination is unlawful if age is a determining factor in the termination decision. Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985).

Retaliatory motives need be shown to play only a part in an adverse employment action to support a finding of discrimination. Smith v. Univ. of Wis. (Wis. Pers. Comm’n, 06/21/82).

The holding of Muskego-Norway CSJSD No. 9 v. WERB, 35 Wis. 2d 540 (1967), that an employee may not be fired when any one of the motivating factors is a statutorily protected one, is applicable to issues arising under the WFEA. Pokrass v. LIRC (Applied Power) (Waukesha Co. Cir. Ct., 08/20/81).

The Complainant is entitled to a finding of discrimination where he can show that his handicap was one of the reasons for his non-hire, regardless of how legitimate the other reasons are. Dep’t of Agric. v. LIRC (Anderson) (Dane Co. Cir. Ct., 05/25/78).

An employee need only show that sex was a factor in the employment decision to prove that the decision was discriminatory. Appleton Elec. v. DILHR (Kreider) (Dane Co. Cir. Ct., 11/07/77).