831.1 Entitlement to back pay, generally

A prevailing Complainant is presumed to be entitled to back pay, and a discriminating employer has the burden of proving otherwise through clear and convincing evidence. In this case, the employer alleged, but failed to prove, that the Complainant had a history of absenteeism or that there was some reason to believe she would not have continued to work the same number of hours had her employment continued. Olson v. Whatever Bar (LIRC, 03/12/13).

The Administrative Law Judge issued a decision concluding that the Complainant was not entitled to back pay because he had not established the amount of his damages at hearing. However, the parties had stipulated to the Complainant’s hourly wage, unemployment insurance benefits, and interim earnings at the start of the hearing. Given the stipulation made by the parties at the start of the hearing, together with the fact that the Complainant was proceeding pro se, the Administrative Law Judge had an obligation to raise the issue of back pay before concluding the hearing. While the stipulation of the parties was inadequate to determine the actual extent of the Complainant’s damages, the Complainant should not have been denied any back pay at all. The case was remanded to the Equal Rights Division for further fact-finding and a decision on the issue of back pay. Erwin v. Don & Cary’s Nokomis Inn (LIRC, 09/28/07).

Where an employee is terminated in part because of an impermissible motivating factor and in part because of other motivating factors, and where 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 following remedies: a cease and desist order, reinstatement, attorney's fees, back pay and interest. Stoughton Trailers v. LIRC, 2006 WI App 157, 295 Wis. 2d 750, 721 N.W.2d 102, aff’d, 2007 WI 105, 303 Wis. 2d 514, 735 N.W.2d 477.

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 and Mfg. (LIRC, 08/15/03).

In “mixed motive” 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, the employer is liable under the Act. However, the remedy may be modified depending upon whether the employment action 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, 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, such as back pay, reinstatement and attorney’s fees. Miles v. Regency Janitorial Serv. (LIRC, 09/26/02).

Back pay should be awarded in a failure to hire case unless the Respondent establishes by clear and convincing evidence that, even in the absence of discrimination, the rejected applicant would not have been selected for the open position. Where the Respondent did not present evidence to establish that other applicants were better qualified than the Complainant, or that there were other non-discriminatory reasons which would have rendered the Complainant ineligible for the job, it was appropriate to award the Complainant back pay, along with instatement into the position. Moore v. Milwaukee Bd. of Sch. Dir. (LIRC, 07/23/99).

If an employee is terminated solely because of an impermissible motivating factor, the employee normally should be awarded a cease and desist order, reinstatement, back pay, interest and attorney’s fees. 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. Finally, if an employee is terminated in part because of an impermissible motivating 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).

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).

Where an employee proved that an employer has violated the Act by basing an employment decision at least in part on an impermissible motivation, it is appropriate to give the employee a formal finding to that effect and to order payment of appropriate reasonable attorney’s fees. It may also be appropriate to provide further relief. However, if in such a case it is demonstrated by a preponderance of the evidence that the same employment action would have been decided on by the employer based on its legitimate motivating factors even in the absence of the impermissible motivating factor, no further remedy is appropriate. Baumgartner v. Tolibia Holdings (LIRC, 03/30/93), aff’d (Fond du Lac Co. Cir. Ct., 10/11/93).

An employee who was discriminated against in violation of the Wisconsin Fair Employment Act is not entitled to back pay and reinstatement after voluntarily quitting a job without being actually or constructively discharged by the employer. A voluntary resignation terminates the accrual of back pay and the employer’s obligation to reinstate. Marten Transport v. DILHR, 176 Wis. 2d 1012, 501 N.W.2d 391 (1993).

The Complainant’s entitlement to back pay was extinguished by her failure to accept an unconditional offer of reemployment communicated directly to her by the Respondent. An offer of reemployment does not need to be accompanied by an offer to make the Complainant whole for all financial losses in order to be “unconditional.” It may leave the question of back pay and similar remedies entirely uncovered. All that is necessary is that it offer employment, unconditioned on any requirement that the employee abandon her right to pursue further remedies. Frostman-Messier v. Nancy Lee Employment Agency (LIRC, 02/22/91).

Where Complainant would have been ranked second on the eligibility list for a position but was moved to third place when a lower rated black candidate was moved to first place in an affirmative action effort found to have violated the law, no remedy was provided the Complainant. His contention that he lost future promotional opportunities was too speculative to serve as the basis for awarding a higher pay range or back pay. Holmes v. DILHR (Wis. Pers. Comm’n, 04/15/87

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).