841 Refusal to hire

Generally, the failure to promote an employee will not be construed as a failure to hire, except in rare cases where the position sought by an employee and the position offered by the employer are so different that the employer's action can be considered a failure to hire rather than to promote. Marten Transport v. DILHR, 176 Wis. 2d 1012, 501 N.W.2d 391 (1993).

The evidence showed that the Complainant, who was ranked third on the list of candidates, would not have been offered the vacant position even absent the discrimination of the Respondent. The Complainant's argument that the consequences of the Respondent’s actions would still lessen his promotional opportunities in the future was deemed speculative, and relief was therefore restricted to a cease and desist order. Holmes v. DILHR (Wis. Personnel Comm’n, 04/15/87).

Where a job applicant’s score for her oral interview was discriminatory, she was given a score based upon the average for all those who had passed the interview, and the employer was ordered to determine the position she would have had on the hiring list if she had received that score and to pay her back pay if she would have thereafter been certified to a hiring authority. Bullock v. Milwaukee County (LIRC, 10/15/82).

Where the employer denied a teacher a position as a volleyball coach because she had a wage discrimination complaint pending, the employer should reimburse the teacher for all back wages and offer her the next year's volleyball coach position. If another person is already under contract for the coming year, the employer shall have the option of paying the teacher the amount of the coach’s salary for the year and offering her the position for the year following. Hayward Community Sch. v. DILHR (Hedin) (Sawyer Co. Cir. Ct., 05/04/82).

Where a job applicant was discriminatorily denied a position because of his age, he is entitled to the next available position and back wages minus his interim earnings. He is also entitled to the money he would have received in unemployment compensation benefits during periods he would have been laid off with the employer, lost medical benefits and contributions to a pension fund, but any unemployment compensation actually received was offset against his award and the employer should pay those amounts to the Unemployment Compensation Reserve Fund. Vicherman v. Neuendorf Transp. (LIRC, 06/08/81), aff’d sub nom. Neuendorf Transp. v. LIRC (Dane Co. Cir. Ct., 05/07/82).

LIRC ordered the employer to cease discrimination, put the applicant back in the exam process regardless of his handicap and, if the applicant passed either exam, to appoint him to the next available position. To require the Complainant to be hired immediately would put the applicant in a better position than he would have had absent discrimination. City of Madison v. LIRC (Scott) (Dane Co. Cir. Ct., 10/22/79).

The employer's refusal to enroll the applicant in its welder training school entitled the applicant to an award of back pay until he was offered a welder trainee position and either rejected it or failed to complete the training program. A.O. Smith v. LIRC (Perry) (Milwaukee Co. Cir. Ct., 12/13/79).

To remedy an employer’s discriminatory hiring practices, it is within DILHR’s power to order the employer to hire a job applicant with all rights, benefits, privileges, pay increases and seniority that he would have had if he had been employed when he first applied. Int’l Harvester v. DILHR (Ham) (Dane Co. Cir. Ct., 05/15/78), aff’d, (Ct. App., Dist. IV, unpublished opinion, 11/06/79).

An employer who discriminatorily failed to contact a qualified black applicant for two years was required to offer the applicant the next available general factory job with all rights, privileges and wages she would have earned from the date of her original application until the date she was hired. Easter v. AMC (DILHR, 07/27/76), aff’d sub nom. AMC v. DILHR (Dane Co. Cir. Ct., 04/05/78).

DILHR did not exceed its authority in ordering an employer to offer a job applicant the next available position where the employer had unlawfully refused to hire him rather than simply refusing to certify him on the eligibility list. Dep’t of Agric. v. LIRC (Anderson) (Dane Co. Cir. Ct., 05/25/78).

A qualified black applicant was awarded an offer of the next available position and back pay from the date a white co-applicant was hired to the date the black applicant was offered the position. Buchanan v. Barkow (DILHR, 03/11/77).

Where a job applicant was discriminatorily denied hire after being certified to four positions, the employer was ordered to offer her the next available position with all seniority rights and benefits she would have been entitled to had she been hired when originally certified, and back pay from that date to the date of the final DILHR order. Janssen v. Milwaukee County (LIRC, 10/12/76), aff’d sub nom. Milwaukee County v. DILHR (Dane Co. Cir. Ct., 10/20/77).

A white male applicant discriminatorily denied consideration for civil service employment as a steamfitter apprentice was not entitled to back pay, reinstatement in the application process, or hire to a like position where certification for the position was withdrawn and the position was never filled. Gibson v. DOA (DILHR, 12/13/76).

A white male applicant who was discriminatorily denied consideration for civil service employment as a painter apprentice was awarded the right to take the competitive exam and, if he passed, to be hired into the next available painter apprentice position. Patzer v. DOA (DILHR, 12/13/76).