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836.2 Respondent’s right to attorney’s fees and costs from the Complainant

[See Sec. 860 re: right to attorney’s fees and costs for defending frivolous claims]

[Ed. note: Some of the decisions collected under this topic concerning the right of Respondents to receive attorney’s fees and costs from a Complainant as a sanction for a frivolous claim are also collected in sec. 860. Decisions concerning the right of either party to receive an award of attorney’s fees and costs from the other party as a discovery sanction are collected in sec. 745.]

The Labor and Industry Review Commission has no authority to grant a Respondent attorney’s fees and costs where the Complainant withdrew her complaint prior to answering the Respondent’s discovery. Equal Rights Division rules allow Complainants to withdraw their complaints at any time and require the Division to dismiss complaints upon request. They do not authorize the Division to award sanctions or fees against a Complainant for making such a request. The WFEA allows for sanctions against a Complainant in only two circumstances, (1) where a Complainant has failed to obey an order to provide or permit discovery, and (2) where there is a finding that a hearing or claim was frivolous. Oldigs v. Pine Valley Residential Servs. (LIRC, 12/15/16).

Complainants cannot be ordered to pay attorney’s fees incurred for the defense of a discrimination claim by Respondents who have prevailed on the merits. While the purpose for allowing such orders would be the hope that they would deter persons from making frivolous complaints of discrimination, the stronger countervailing policy is that such orders could also deter persons from bringing valid complaints which might be hard to prove and, therefore, should not be issued. However, ordering a Complainant who has wrongfully refused to cooperate in discovery to pay attorney’s fees incurred by a Respondent in connection with the Complainant’s refusal, has different purposes than ordering payment of all of a Respondent’s fees based on the fact that the Respondent prevailed in the proceeding. Such a limited attorney’s fee award does not risk the effect of deterring Complainants from bringing complaints. It deters only unreasonable refusal to cooperate in discovery. Dobbs v. Super 8 Motel (LIRC, 10/15/96).

The Wisconsin Fair Employment Act does not allow the Department to order any type of relief for a prevailing employer, including an award of attorney’s fees. Kasonda v. Aldridge, Inc. (LIRC, 11/30/93).

Neither the Department nor the Labor and Industry Review Commission have any authority to grant attorney's fees to prevailing employers, or in fact to order any type of relief for a prevailing employer other than dismissing the complaint, irrespective of the arguable frivolousness of a claim. Sec. 814.025(1), Stats., does not apply in administrative proceedings. However, a circuit court may properly award reasonable attorney’s fees to a prevailing employer if it finds that any single claim of a petitioner in an Equal Rights matter is frivolously brought before the court for judicial review. Tatum v. LIRC, 132 Wis. 2d 411, 392 N.W.2d 840 (Ct. App. 1986).

The Labor and Industry Review Commission has no authority to award attorney’s fees to an employer after the Complainant withdraws her complaint of employment discrimination. Sec. 814.025, Stats., does not authorize the Commission to make determinations of frivolousness or to assess costs and reasonable attorney’s fees against Complainants in favor of Respondents. Jeffries v. Cameo Convalescent Ctr. (LIRC, 08/09/85); aff’d sub nom. Cameo Convalescent Ctr. v. LIRC (Milwaukee Co. Cir. Ct., 09/02/86).

The Wisconsin Fair Employment Act does not impliedly authorize the Labor and Industry Review Commission to award attorney's fees to prevailing employers in employment discrimination actions. Sec. 814.025, Stats., relating to awards of fees for bringing a frivolous claim in courts, applies only to court proceedings. Niles v. Fleet Farm of Green Bay (LIRC, 07/25/85); aff’d sub nom. Fleet Farm of Green Bay v. LIRC (Ct. App., Dist. III, unpublished summary disposition, 07/16/86).

A prevailing employer is not entitled to an award of attorney’s fees under the Wisconsin Fair Employment Act. Rick v. Fore Way Express (LIRC, 07/25/85).

DILHR is without authority to award attorney’s fees to a prevailing Respondent after the Complainant’s failure to appear at the hearing resulted in the dismissal of the complaint. Dantzler v. Briggs & Stratton (LIRC, 02/19/85).