810 Burden of proof re: remedies

The Complainant made reasonable efforts to mitigate her loss of income by online job search methods. The Respondent did not establish that there was a reasonable likelihood that the Complainant might have found more comparable work than she did by exercising greater diligence. 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).

Instatement and back pay are the presumed remedy in a failure to hire case, and the discriminating employer bears the burden of establishing through clear and convincing evidence that such remedy should not be awarded. The Complainant did not bear the burden to prove that he would have been hired in the absence of discrimination. Zunker v. RTS Distributors (LIRC, 06/16/14).

In deciding what remedies are appropriate, uncertainties should be resolved against the discriminating employer. Lacking any reason to believe that the Complainant in this case would not have been offered a permanent store clerk position with the Respondent and, resolving any doubts on that question in her favor, the Labor and Industry Review Commission concluded that “make whole” relief for the Complainant had to include back pay extending beyond the date on which her temporary assignment would have ended. Nunn v. Dollar Gen. (LIRC, 03/14/08).

The goal in fashioning a remedy in a case under the Wisconsin Fair Employment Act is to recreate the conditions and relationships that would have existed had the unlawful discrimination not occurred, i.e., to determine how to make the employee “whole.” Powell v. SBC Ameritech (LIRC, 04/21/03).

In deciding what remedy is appropriate, uncertainties are resolved against the discriminating employer. Where the Respondent was clearly in the best position to establish what, if any, jobs were available at its facility, it was not reasonable to penalize the Complainant for the Respondent’s failure to present evidence on this point. Fields v. Cardinal TG Co. (LIRC, 02/16/01).

Where discrimination has been found and a remedial order relating to earnings the Complainant would have received but for the Respondent's discriminatory action has been made, the Respondent has the burden of proving that the Complainant's earnings would have differed from that of comparable employees. Uncertainties in that regard are to be resolved against the Respondent. Hill v. F.W. Woolworth (LIRC, 08/15/89).

The Respondent has the burden of showing that the Complainant did not make reasonable efforts to mitigate her damages, thereby cutting off the back pay period. Compton v. Great Wall RestaurantM (LIRC, 07/20/89).

The Personnel Commission is not constrained to consider only those remedies requested by a Complainant. Ingram v. UW-Milwaukee (Wis. Pers. Comm’n, 06/14/89).

Upon a finding that the Complainant was not promoted in part because of race, the Respondent has the burden of proving that relief should be limited because the Complainant would not have been promoted even in the absence of discrimination due to work performance problems. Jones v. Dy-Dee Wash (LIRC, 11/04/88).

Where discrimination had been found and the Commission was structuring a remedial order relating to the amount of overtime earnings a Complainant would have received but for a Respondent’s discriminatory action, the employer had the burden of proving that the employee’s overtime earnings would have differed from that of comparable employees. Am. Motors Corp. v. LIRC (Dane Co. Cir. Ct., 09/24/86).

Where a finding had been made that the Respondent discriminated against the Complainant in the hiring process, the Respondent had the burden of proving by clear and convincing evidence that the Complainant would not have been hired even in the absence of the unlawful discrimination. In determining this issue, uncertainties are resolved against the Respondent. Where the Respondent's evidence that the Complainant would not have been hired in any event was speculative, it was concluded that the Respondent had not met its burden. Silvers v. Madison Metro. Sch. Dist. (LIRC, 07/25/86).

While an employee has a duty to seek other employment in mitigation of damages, the employer has the burden of proof to establish that alternative employment was an available reality. Where there was evidence only that employment was available in the Complainant's field, but there was no comparison of pay, location, or other circumstances for the available positions, it was held that the employer failed to establish the existence of available alternative employment. UW-Whitewater v. LIRC (Ct. App., Dist. IV, unpublished opinion, 11/25/85).

An award of back pay should follow a finding of discrimination, unless the Respondent proves, by clear and convincing evidence, that the applicant would have been rejected for the position had there been no discrimination. Silvers v. LIRC (Madison Metro. Sch. Dist.) (Dane Co. Cir. Ct., 01/13/84).

Once an individual has proven discrimination, the burden shifts to the employer to show that, even absent the discrimination, the individual would not have received the promotion sought. Williams v. County of Milwaukee (LIRC, 04/15/81).