836.11 Generally

The Respondent requested a reduction of the attorney fee award based on an argument that some of the Complainant’s attorney’s billing entries were in the form of “block-billing,” in which several items were lumped together in a single entry. However, “block billing” is not disallowed provided it is possible to discern from the billing entry what the general activities were and that they appear to be reasonable. 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).

Attorney’s fees or costs involving the Complainant’s federal claim were not reimbursable through the proceedings before the Equal Rights Division. Therefore, the Respondent did not have to pay the time attributed to telephone calls and communications with EEOC which were claimed in the Complainant’s attorney fee petition. Venneman v. UW-La Crosse (LIRC, 12/17/09).

An attorney’s fee award should not be reduced because the Complainant declined to settle the case prior to hearing by accepting the Respondent’s offer of payment of the amount of salary he had lost. The Complainant should not be penalized because he refused to accept a cash offer which would have compensated him for his lost salary, but which did not address his interest in pursuing the question whether the Respondent had discriminated against him. Lutze v. DOT (Wis. Pers. Comm’n, 02/26/01).

Any attorney’s fees or costs involving the Complainant’s federal claim are not reimbursable through the proceedings before the Equal Rights Division. Fields v. Cardinal TG Co. (LIRC, 02/16/01).

Where a union successfully prevented a school district from pursuing a published official policy of unlawful employment discrimination against certain of its members it was acting as a private attorney general to implement a public policy that the legislature considered to be of major importance. Even though the policy was never implemented, this was no mere “moral” or “technical” victory. The union was properly awarded attorney’s fees. Racine Unified Sch. Dist. v. LIRCM, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

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 (LIRC, 04/06/90).

Attorney's fees are allowable even though they were not demanded at the outset of the litigation. Rusch v. City of La Crosse Police & Fire Comm’n (LIRC, 12/19/88).

In a decision issued prior to the decision in Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984), the Commission found discrimination but denied a request for attorney's fees. That decision was affirmed in its entirety by the Circuit Court, was appealed to the Court of Appeals and ultimately affirmed, and then remanded to the Commission for determination of an appropriate remedy. In the interim, the Supreme Court decided the Watkins case, holding that prevailing Complainants were entitled to attorney’s fees. On remand, it was proper for the Commission to grant attorney’s fees. Brown County v. LIRC (Toonen) (Ct. App., Dist. III, unpublished opinion, 02/23/88).

The decision in Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984), was interpreting remedial language in the Wisconsin Fair Employment Act as it existed in 1975. That interpretation is applicable to cases commenced under that and similar language whether or not an express request for attorney’s fees was included in the complaint when filed. Eklund v. Tomah-Mauston Broad. Co. (LIRC, 09/19/86).

A Complainant who prevails on a complaint of discrimination under the Act should ordinarily be awarded attorney's fees in all but special circumstances. Eklund v. Tomah-Mauston Broad. Co. (LIRC, 09/19/86).

The Labor and Industry Review Commission has the authority to award attorney’s fees, without a prior hearing or determination on the matter by DILHR, in cases resolved by DILHR prior to the decision in Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984). Retrospective application of the Watkins decision was appropriate in cases that were still pending before LIRC at the time that decision was issued. Kelm v. Watertown Pub. Library (LIRC, 07/19/85).

The purpose of awarding attorneys fees is not only to “make whole” a prevailing Complainant who received no monetary award, but to discourage discriminatory practices as well. Ploetz v. Schirl, Inc. (LIRC, 01/28/85).

The Department has the authority to award reasonable attorney’s fees to a Complainant who prevails in an action brought pursuant to the Wisconsin Fair Employment Act. The authority to award reasonable attorney’s fees to a prevailing Complainant is necessary in order to fully enforce and give meaning to the rights created by the Act. One of the more invidious aspects of discrimination is that its targets are frequently the economically weak, who are often unable to afford the assistance of counsel. Without the assistance of counsel, the ability to vindicate one’s rights under the Act is so impaired that it renders the existence of those rights nearly meaningless. Placing the cost of vindicating the rights of a victim of discrimination on the party responsible for denying those rights, rather than on the person discriminated against, effectuates the legislative purpose of proscribing employment discrimination because it will deter employers from engaging in conduct prohibited under the Act. Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984).