831.44 Unavailability for work

Because the Complainant could not return to his job due to the conditions of his probation, which prohibited him from having any unsupervised contact with minors, no reinstatement or back pay was granted as a remedy. Ionetz v. Dolgencorp LLC (LIRC, 08/6/15), rev’d on other grounds sub nom. Ionetz and Dolgen Corp., LLC v. LIRC (Jefferson Co. Cir. Ct. 08/25/16), aff’d (Ct. App. Dist. IV, 07/14/17, summary decision).

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).

The concept of make-whole relief does not include reinstating the Complainant into a job that he would have been unable to keep even in the absence of any discrimination by the Respondent. There is no reason to distinguish between an employee who loses his job because of unavailability to work related to criminal conduct and one who loses his job because of unavailability to work due to illness. The relevant point is that, due to circumstances over which the Complainant had no control, the Complainant would have been completely unable to perform any work over a prolonged period of time. Assuming that the Respondent can establish that it would have discharged the Complainant based upon his unavailability for work, the Complainant’s right to reinstatement would be cut off at the point when he would have been unavailable to work. (Because the Complainant was completely unable to work, the only accommodation that would have been available for his disability was a leave of absence. The Respondent would not have been required to hold a job open indefinitely by way of reasonable accommodation if there was no foreseeable return to work date.) Knight v. Walmart Stores East (LIRC, 10/11/12).

The Complainant testified that he had not looked for work after the time that he was discharged from the employer who hired him after he was discharged by the Respondent. He indicated that he was planning to enroll in school on a full-time basis and to help out at a family-run business without pay. The Complainant was not entitled to back pay from the Respondent while he was a full-time student or where he had otherwise removed himself from the labor market. Robertson v. Family Dollar Stores (LIRC, 10/14/05).

A Complainant’s decision to relocate to another state does not sever her entitlement to a back pay award. In this case, the Respondent did not establish that the Complainant failed to exercise reasonable diligence in seeking employment after she moved out of state. Further, the Respondent did not establish that it ever extended her an offer of reinstatement, whether before or after her move. Miller v. Oak-Dale Hardwood Prod. (LIRC, 12/13/94), aff’d sub nom. Oak-Dale Hardwood Prod. v. LIRC (Pierce Co. Cir. Ct., 02/16/96).

The Respondent’s argument that a back pay award should not have extended until the date the Complainant (who was discharged because of pregnancy) delivered because it was not “logical” to believe she would have worked up to her delivery date embodies the same type of preconceptions about the effects of pregnancy on the employee’s abilities as was found to have violated the Wisconsin Fair Employment Act. Howard v. The Cloisters (LIRC, 08/24/90).

Where a Complainant stated at the hearing that she had no interest in returning to work for the Respondent and that she had abandoned her search for other work at a definite point in time after her termination by the Respondent, this was sufficient to eliminate the Complainant’s right to reinstatement and to cut off her right to back pay as of the point at which she abandoned her search for work. Kelm v. Watertown Pub. Library (LIRC, 07/19/85).

The discharged employee was awarded back pay until the date he enlisted in the U. S. Army and was therefore no longer available for employment with the employer. Scheidel v. Am. Council of the Blind (LIRC, 04/06/82).

It was discrimination to discharge a retail counselor in her third month of pregnancy on the unsupported speculation that pregnant employees are frequently ill, and she was awarded back pay from the date of her discharge to the date her doctor indicated she would have had to stop work. Chojnacki v. Rental Directory (DILHR, 01/13/77).