831.6 Respondent’s obligation for back pay payment, exceptions and limitations

While it might be satisfying to hold the individual who committed the sexual harassment of the Complainant financially responsible for his actions, the law does not sanction such a result. The employer is liable for any financial remedies ordered as a result of a violation of the law by an individual employed by that employer. (sec. 111.39(4)(c), Stats.). Powell v. Salter (LIRC, 07/11/97).

Sec. 111.39(4)(c), Wis. Stats., states that “[I]f an examiner awards any payment to an employee because of a violation of sec. 111.321 by an individual employed by the employer, under sec. 111.32(6), the employer of that individual is liable for payment.” The bill drafting file provides no hint as to the intended purpose of this language. It appears, however, that it is an attempt to hold employers responsible for the discriminatory acts of their agents, and to provide a “deep pocket” so that prevailing Complainants are able to collect back pay awarded to them. Ninham v. Oneida Tribe of Indians of Wis. (LIRC, 06/25/91).

The employer was responsible for paying the Complainant’s reasonable attorney’s fees and costs because it responded inadequately when it learned of a supervisor's acts of sexual harassment against the Complainant and because the supervisor was acting under color of his authority. Sec. 111.39(4)(c), Stats., provides that the employer should pay, and there is no authority for the proposition that a supervisor who is not an employer may be ordered to make payment to the Complainant. Nelson v. Waybridge Manor, Inc. (LIRC, 04/06/90).

The employer does not have a right to contribution from a union to offset its own liability for violations of the Act. There is no direct case precedent in Wisconsin that requires a union to bear such costs where an individual is adversely affected by a discriminatory practice sanctioned in a collective bargaining agreement. Austin v. Waukesha Joint School Dist. #1 (LIRC, 05/27/81).

Because the Wisconsin Constitution protects a county from liability for acts of its sheriff, an employee who was discriminatorily denied reemployment could not be awarded back pay even though the sheriff who was responsible for the denial was not vested by ordinance with authority to make such a decision. Algozino v. Waupaca County Law Enforcement Comm. (LIRC, 03/24/81).

Because the legislative intent is to narrowly construe exemptions from the coverage of the Act, a municipality not named as a party will be considered a party to a complaint which names only an agency created by the municipality, and the municipality may be liable for the back pay obligation of that agency even where the municipality was not added as a party until after the liability of the agency had been determined at a hearing. City of Milwaukee v. LIRC (Kirk) (Dane Co. Cir. Ct., 02/04/79).