767 Presentation of evidence regarding remedy

A Complainant who disagrees with the Administrative Law Judge’s rulings should proceed with the hearing to preserve her objections to such rulings. If the Complainant refuses to proceed with the hearing due to her objections to the rulings and her complaint is dismissed as a result, she will be deemed to have waived her objections to those rulings. McCarthy v. Dunargin Wis., LLC (LIRC, 2/28/14).

The usual practice in discrimination cases is to issue a generally-worded back pay order if a statutory violation is proved, and then to hold a hearing to determine the specific amount of back pay owed if the parties cannot agree. Achilli v. Sienna Crest Assisted Living (LIRC, 01/28/09).

The Respondent contended that, because the practice in proceedings before the Equal Rights Division is to bifurcate the hearing process (i.e., to hear the case on the merits and, if the Complainant prevails, to remand the case for a remedy hearing), the case should be remanded for a remedy hearing where the Respondent should be allowed to argue that the Complainant failed to mitigate her damages. However, the asserted usual practice of bifurcated hearings does not justify the Respondent’s failing to plead the affirmative defense of failure to mitigate damages in its answer; nor does it support the contention that the affirmative defense could first be pleaded after the hearing on liability. Therefore, the Respondent is not entitled to raise the issue of mitigation of damages as a part of a hearing on remedy in this case. Radlinger v. Kentucky Fried Chicken (LIRC, 06/20/03).

Where the Department affirmatively limited the hearing to the issue of whether discrimination had occurred, it was patently unfair to punish the Respondent for failing to produce evidence on the issue of remedy. Milwaukee Bd. of Sch. Dir. v. LIRC (Milw. Co. Cir. Ct., 06/14/00).

The usual practice in discrimination cases is to conduct a hearing on the question of whether a statutory violation occurred and to issue a generally worded back pay order if a violation is proven, and then to hold a second hearing if the parties cannot agree on the amount of back pay owed. Kaczynski v. WSR Corp. (LIRC, 10/29/97).

In discrimination cases arising under the Act, the usual practice is to conduct hearings on the question of a statutory violation but not to take evidence on the specific amount of monetary damages. If a statutory violation is proven, generally-worded back pay orders direct the violator to pay that back pay which the victim would have received but for the violation, less the statutory set-offs. If the parties cannot agree on the exact amount of back pay owing, a subsequent hearing is held to make that determination. Toonen v. Brown Co. (LIRC, 10/15/82).

A DILHR hearing under the Wisconsin Fair Employment Act is not a “class two” proceeding since back pay is not a sanction or penalty, and a DILHR examiner may therefore preside at a supplemental hearing to determine a remedy. Appleton Elec. v. LIRC (Kreider) (Dane Co. Cir. Ct., 05/12/81).