Should state government and UW employees have the same federal civil rights protections as other workers in the United States? You probably assume that they already enjoy the same safeguards as other government workers and private sector employees, but U.S. Supreme Court rulings handed down over the past decade have changed that and state-level legislation has been proposed to give state and UW employees the same rights as all other U.S. citizens under several federal civil rights laws.

Representative Cory Mason (D-Racine) has introduced AB 36, which would restore the federal protections afforded by several key federal laws (see list below) to state and UW employees (a Senate counterpart bill, SB 19, has also been introduced by Senator Lena Taylor).

While the State Bar has not taken a position on the legislation, the Individual Rights & Responsibilities Section (IRR) has publicly endorsed it. “It is important that Wisconsin take the initiative to restore the civil rights and protections against discrimination for state and UW employees under federal law that have been diminished by the Supreme Court,” IRR Legislative Chair Steve Porter was quoted as saying in a statement released by Rep. Mason.

The issue is linked to federal and Wisconsin constitutional provisions that limit suits against the state in circumstances where it has not specifically waived sovereign immunity. U.S. Supreme Court decisions have held that any state that has not done so may not be sued by its own employees under:

• The Americans with Disabilities Act of 1990 (ADA), which prohibits employers, including state governments, from discriminating against an individual on the basis of a disability;
• The Age Discrimination in Employment Act of 1967 (ADEA), which protects the rights of workers age 40 or older against discrimination based on age; and
• The Fair Labor Standards Act (FLSA), which requires overtime pay for most employees who work over 40 hours per week.

The U.S. Supreme Court also recently held that a state employee may sue for damages for a violation of the family leave provision of the federal Family and Medical Leave Act of 1993 (FMLA), regardless of whether the state has waived its sovereign immunity but did not rule on whether a state employee may sue for damages for a violation of the medical leave provision of the FMLA absent a waiver of sovereign immunity.

The State Bar’s Government Relations team will closely monitor this bill. Visit the Bar’s Government Relations page for the latest updates and links.

The State Bar of Wisconsin establishes and maintains sections for carrying on the work of the association, each within its proper field of study defined in its bylaws.  Each section consists of members who voluntarily enroll in the section because of a special interest in the particular field of law to which the section is dedicated.  Section positions are taken on behalf of the section only.

The views expressed on this issue have not been approved by the Board of Governors of the State Bar of Wisconsin and are not the views of the State Bar as a whole. These views are those of the Section alone.

If you have questions, please contact  Korbitz at akorbitz@wisbar.org  or (608) 250-6140.   

Adam Korbitz is a State Bar Government Relations Coordinator.