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Employers Lose Defense to Discrimination Claims

Summer 1997

Our Labor & Employment Practice Group would be happy to assist you with any questions relating to this article.

A recent Wisconsin Supreme Court decision allows employees to assert a discrimination claim under the Wisconsin Fair Employment Act ("WFEA"), even where the circumstances of the claim also would be covered under the Worker's Compensation Act ("WCA"). Byers v. Labor and Industry Review Commission, 1997 WL 186763 (Wis. S. Ct. 1997).

Prior to Byers, if an employee filed an employment discrimination complaint under the WFEA, and the harm complained of (for example, physical or mental injury due to sexual harassment) was also compensable under the WCA, the Equal Rights Division of the Department of Workforce Development ("ERD") would routinely hold that it had no jurisdiction over the claim because the exclusivity provision of the WCA limited the employee's remedies to those available under that Act. Obviously, this was a good result for the employer: there need be only one proceeding rather than two, and the worker's compensation preceding, provided a more limited recovery for damages than a proceeding before the ERD.

In Byers, however, the Wisconsin Supreme Court held that the WCA's exclusivity provision does not prohibit employees from pursuing claims under the WFEA because the statutes were designed to address different workplace problems (employee injuries versus employer discriminatory actions) and provided different remedies.

Employers must be now be prepared to defend sexual harassment claims in which there is physical and/or mental harm and handicap claims where the handicap results from a work-related injury, in both worker's compensation and state fair employment proceedings. In addition, proceedings under federal discrimination laws can be commended before the Equal Employment Opportunity Commission and federal court.

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