EMPLOYMENT DISCRIMINATION LAWS

                                                                               by

                                                              Attorney Steven R. Olson

                  For additional Information: link to Radosevich, Mozinski, Cashman & Olson LLP

Federal employment discrimination laws are located in several sections of the United States Code. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex, race, national origin and religious affiliation, to name a few.  The Federal Age Discrimination in Employment Act prohibits discrimination against someone over the age of 40. The Americans with Disabilities Act prohibits discrimination under certain circumstances against someone who has a disability which effects a major life function.  There are several less known Federal anti-discrimination laws as well.

Wisconsin, by contrast, has placed all state anti-discrimination laws in the same place: the Wisconsin Fair Employment Act (WFEA).  Wisconsin prohibits discrimination based on the same factors as federal laws, however, also bans discrimination in several additional categories.  Wisconsin prohibits discrimination based on marital status, i.e., whether you are married or not married.  However, the ban on marital status discrimination does not prohibit discrimination based on whom you are married to.  In addition, Wisconsin also prohibits discrimination based on a person's sexual orientation, i.e, whether gay, lesbian or heterosexual.  Wisconsin also bans discrimination based on an employee's use of lawful products.  For example, this means if the employee is a smoker, the employer may prohibit smoking in the workplace, however, may not take action against the employee because he or she smokes at home.  However, there are exceptions to the lawful products ban, such as for firefighters and employees of the American Cancer Society.  The exceptions permit discrimination if the focus of the group's activity or specific requirements for the employee are adverse to the lawful product at issue.

The remedy (money award) available to an employee who has been discriminated against is different under Wisconsin and Federal law. Under the WFEA, a successful employee entitled to have his or her attorney paid for by the guilty employer.  In addition, if the employee has been fired, he or she will be reinstated under Wisconsin law, along with receiving  back pay and lost benefits.  If the work environment would be so difficult from the employee and employer's perspective if the employee was reinstated, in limited circumstances front pay without reinstatement is also available.

Depending upon the Federal law involved, Federal remedies can be greater than under State law.  Under Title VII's (sex, race, national origin, etc.), the successful employee will receive their reasonable attorneys fees, back pay and reinstatement.  Then, depending on the facts, Title VII also permits a damage award to the employee for emotional distress or punitive damages.    The Americans with Disabilities Act has the same remedies.  The Age Discrimination in Employment Act offers reasonable attorneys fees to the successful employee, back pay, front pay and reinstatement.  However, emotional distress or punitive damages are not available, rather, back pay owed may be doubled if the court finds that the employer's discrimination was 'willful'.

Remedies differ between Wisconsin and Federal law, generally being greater under federal law.  However, given courts interpret those laws differently, for strategic reasons, employees who believe they have been discriminated against may be better served by Wisconsin law, depending upon the facts of their case.

                  For additional Information: link to Radosevich, Mozinski, Cashman & Olson LLP