833 Reinstatement; hire

The employer eliminated the Complainants’ jobs and created new jobs which the Complainants were strongly discouraged from applying for, and for which they did not apply. The Administrative Law Judge found discrimination based upon the Complainants’ ages, but did not order reinstatement or back pay because the Complainants had not applied for the new jobs despite not having been prohibited from doing so. However, failure to apply for the newly posted jobs does not preclude a remedy. Where a Complainant is discouraged from applying for a job based upon discriminatory factors, he or she should be eligible for instatement and back pay unless the Respondent can establish by clear and convincing evidence that, due to a neutral, non-discriminatory reason, the Complainant would not have been hired for the position. Brown, et al. v. Chippewa Valley Tech. College (LIRC, 11/28/14).

There was some evidence that reinstatement would be unreasonable for both parties in this case. However, the Labor and Industry Review Commission determined that front pay is not available as an alternative to reinstatement, except in cases under sec. 111.322(2m), Stats. If the Respondent was not ordered to reinstate the Complainant and an award of front pay is unavailable as remedial relief, the Complainant would not be made “whole” for the Respondent’s discriminatory conduct. Furthermore, to not require the Respondent to reinstate the Complainant would only serve to reward the Respondent for its discriminatory conduct. In this case, the Complainant indicated that he would be willing to return to work for the Respondent. Under these circumstances, an order of reinstatement was appropriate. Suttle v. DOC(LIRC, 05/22/09) , aff’d sub nom. DOC & Suttle v. LIRC (Dane Co. Cir. Ct., 06/02/10).

Front pay in lieu of reinstatement is unavailable to a prevailing Complainant under the Wisconsin Fair Employment Act. Reinstatement (or, “instatement,” in the case where an individual was unlawfully denied hire) is the preferred remedy in discrimination cases. Reinstatement is not required where the result would be a working relationship fraught with hostility and friction. However, an employer must not be able to use its anger or hostility toward the Complainant for having filed a lawsuit as an excuse to avoid the Complainant’s reinstatement. In this case, the Respondent argued that the Complainant would not enjoy the confidence and approval of the current provost and chancellor of the university. However, there are factors which should lessen the Respondent’s stated concern. First of all, the Complainant already had a long history of employment with the Respondent. Secondly, since the current provost and chancellor are relatively new in their positions at the university, there is no reason to believe that there would be any obstacle preventing them from gaining confidence in the Complainant. If the Respondent was not ordered to reinstate the Complainant, the Complainant would not be made whole for the Respondent’s discriminatory conduct against him. A failure to order instatement should be considered only in the most unusual circumstances, which did not exist in this case. Venneman v. UW-La Crosse (LIRC, 12/17/09).

Since the Respondent operates several other facilities in Wisconsin, the fact that it no longer operates the facility in which the Complainants were employed did not serve as a bar to an offer of reinstatement. The tone and content of the hearing record suggested that there was some degree of mistrust and antagonism between the Complainants and the owners of the Respondent. However, given the protections of the Wisconsin Fair Employment Act and other anti-retaliatory statutes, this suggestion alone was an insufficient basis upon which to conclude that reinstatement would not be a viable remedy. Achilli v. Sienna Crest Assisted Living (LIRC, 07/18/08).

There is precedent under federal law for displacing (i.e., “bumping”) an incumbent employee in order to reinstate an individual who has been unlawfully discriminated against. One federal court case set forth a number of factors to consider in determining whether bumping is appropriate. They include the following: (1) the effect on the Complainant of the refusal to displace the incumbent; (2) the culpability of the incumbent; (3) the disruption to the incumbent; (4) the degree of culpability of the employer; (5) the uniqueness of the position and the availability of comparable positions; (6) the Complainant’s diligence in taking steps to assure that the position remains available should he prevail; and (7) whether there would be undue disruption of the employer’s business. Ramos v. Stoughton Trailers (LIRC, 08/16/01).

The criteria stated in the Wisconsin Family and Medical Leave Act relating to “equivalent employment positions” is not the same standard that is applied in cases under the Wisconsin Fair Employment Act, which requires that an offer of reinstatement be for a position which is “substantially equivalent.” Ramos v. Stoughton Trailers (LIRC, 08/16/01).

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 either before or after her move. Miller v. Oak-Dale Hardwood Products (LIRC, 12/13/94), aff’d sub nom. Oak-Dale Hardwood Prod. v. LIRC (Pierce Co. Cir. Ct., 02/16/96).

An Administrative Law Judge's award of reinstatement and back pay up to the time of reinstatement was improper where the Complainant expressly stated at the hearing that she was only asking that she be awarded back pay up to the time of the hearing. Given the Complainant's waiver of reinstatement, the Complainant was only entitled to be awarded back pay up to the time of the hearing. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93), remanded on other grounds sub nom. Oak-Dale Prod. v. LIRC (Pierce Co. Cir. Ct., 02/16/96).

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).

An employee who was unable to perform her job because of permanent medical restrictions was not entitled to reinstatement where the employer could not reasonably accommodate her restrictions. Macara v. Consumer Coop. of Walworth County (LIRC, 02/14/92).

If an employer is no longer operating a second shift, the Department’s order directing that the Complainant be reinstated to her second shift head inspector position does not require the employer to displace a head inspector on a different shift. The order requires that the employer place the Complainant in a substantially equivalent position if the second shift is no longer operating. Olson v. Phillips Plating (LIRC, 02/11/92).

In order to be a valid offer of reinstatement, the offer must be for the same or a substantially equivalent position. Comparability in salary is only one factor to be considered. In this case, the Respondent’s offer of a stripper position to the Complainant did not satisfy its obligation to reinstate the Complainant as a head inspector because the Complainant was not able to perform the stripper position due to a back problem. Olson v. Phillips Plating (LIRC, 02/11/92).

The Commission denied the Respondent’s request that the Commission modify its decision to add a requirement that the Complainant be required to pass a physical examination before reinstatement. Elemental fair play requires that the Complainant, having proven that the Respondent refused to hire him on the basis of a handicap which did not render him unable to perform the duties of the job, must be made whole with the next available opening and not merely another opportunity to run another medical gauntlet to get what should have been his in the first place. Hansen v. City of Kenosha (LIRC, 07/06/88).

Where the Commission found that the Complainant had been terminated because of his race, and awarded back pay to continue through reinstatement, the Commission did not order immediate reinstatement because such an order, which would probably displace a current employee, would be likely to result in animosities and other problems. Rather, the Commission ordered that the Complainant be reinstated in the next available position substantially equivalent to the position he held prior to his discharge, with back pay to continue until such time. Taylor v. Hampton Shell (LIRC, 06/27/88).

Back pay was awarded, but not reinstatement, because the employee was now employed elsewhere and was earning more than he did before his discharge, and because the animosity of the employer would prevent desirable working conditions. Krejci v. Jonathan Furniture (LIRC, 11/06/81).

A rule requiring pregnant employees to take a leave in their fifth month regardless of their physical or medical condition was arbitrary and sex-biased where the employer could not demonstrate a compelling interest in the rule, and an employee discharged for violating the five month rule should be reinstated even where the employer could also have discharged her for unsatisfactory work performance. Nursing Homes v. DILHR (Dane Co. Cir. Ct., 01/22/74).