635 Cases

The Complainant did not establish probable cause to believe that the employer’s requirement of passing a fitness test in order to be hired as a conservation warden had a disparate impact on individuals in the protected age group or that there was an alternative practice that was less onerous and would serve the employer’s interests. Mitchell v. State of Wis. Dep't of Nat. Res. (LIRC 10/30/23).

The Complainant alleged that she had been discriminated against by the Respondent on the basis of sex and age when it did not hire her for a position as a librarian. The Complainant appeared to offer a disparate impact theory of sex discrimination by offering data regarding the sex and age of certain people who were hired within the Respondent’s library system. However, disparate impact must be proved by statistical evidence, significant (in the statistical sense) to the competence level required by law, comparing the effect of an employer’s selection device or standard on employees in the different groups being compared. The Complainant failed to offer this type of statistical evidence, and any claim of disparate impact discrimination failed as a result.Rosneck v. UW-Madison (LIRC, 08/10/06). aff’d sub nom. Rosneck v. LIRC and UW-Madison (Dane Co. Cir. Ct., 01/22/07); aff’d (Ct. App., Dist. IV, unpublished opinion, 01/10/08).

The Complainant claimed that the Department of Corrections’ use of career executive reassignment had a significantly disproportionate effect on the opportunities of minorities to compete for open positions because the percentage of minorities in the DOC career executive program is less than the percentage of minorities available in the relevant labor pool. The Complainant’s claim rested upon his assertion that only 5.7% of the DOC career executives were minorities, as compared to 7.5% of qualified administrators in the general labor pool. The Complainant argued that the difference between 5.7% and 7.5% represents a significantly disparate impact because the federal government uses an “80% rule” in evaluating adverse impact for the purposes of affirmative action. The Wisconsin Personnel Commission was not required to adopt such a rule. Its conclusion that even the difference between 5.7% and 7.5% was not significant enough to establish a disparate impact in this case was a reasonable one. Oriedo v. Wis. Pers. Comm’n (Ct. App., Dist. IV, unpublished opinion, 04/25/02).

Where the selection device at issue was not pass/fail but involved the ranking of candidates, a balanced bottom line could be considered as a defense and a disproportionate distribution of blacks in the seniority rankings was not found to have a per se disparate impact. The Complainant did not establish unlawfully discriminatory disparate impact where he failed to present expert statistical evidence to demonstrate that the distribution of blacks (in terms of relative seniority) was different to a statistically significant degree from what might be expected to arise by chance. Moncrief v. Gardner Baking (LIRC, 07/01/92).

In seniority-based layoffs, 14 of the employer’s 26 white fire fighters were laid off while all 7 of the Respondent's non-white fire fighters were laid off. This established that the use of seniority of a selection method in layoff had a disparate impact on minority fire fighters. Where the Respondent offered no evidence that its reliance on seniority was related to successful employment as a fire fighter, it was concluded that an illegal discriminatory impact had been shown. Lopez v. Milwaukee County (LIRC, 11/04/86).

A written exam had a discriminatory impact where none of the 10 blacks but 38 of 55 white applicants passed, and the test was not a valid predictor of job performance and had not been validated. Turner & Poindexter v. Racine Co. (LIRC, 05/25/83).

Rejection of a job applicant because she failed to meet minimum height (5 feet, 8 inches) and weight (148 lbs.) requirements had a disparate impact on females and could not be justified where the employer did not consider each applicant's ability to pass the physical agility tests. Ruffin v. Village of West Milwaukee (DILHR, 02/02/77).

Non-validated tests and subjective promotion procedures are not per se discrimination and the employee failed to demonstrate that they had a statistically valid adverse impact on blacks. Greene v. DOA (DILHR, 09/21/76).

Where an employer had hired predominantly females into the custodial department, a requirement that only employees in that department forfeit seniority upon transferring perpetuated the effects of past discrimination by discouraging transfers and locking the females into lower paying, less desirable jobs; and the employer could not prove business necessity by reference to reduced training requirements or turnover. Haug v. Ohio Med. Prod. (DILHR, 08/05/75).

The prohibition in a union contract against the transfer out of janitress jobs had a disparate impact on females and constituted sex discrimination where the female employees showed that: no males have ever been employed in those jobs; although the employer could assign any employee to the jobs, it only assigned females; only females on layoff were informed of such job openings; and the title “janitress” has a female connotation and would foreseeably discourage more male than female applicants. Bruce v. Parker Pen (DILHR, 11/14/72).