Wisconsin Lawyer: Requirement to Exhaust Administrative Steps Extends Process:

Requirement to Exhaust Administrative Steps Extends Process

The WFEA falls short by requiring employees to exhaust all administrative steps before taking their cases into state courts, adding years to the process and requiring employees to essentially retry their cases.

The Wisconsin Legislature may have had the best of intentions with 2009 Wisconsin Act 20, but the Act will not help the targets of discrimination for a long time – if ever.

While Fair Employment Act reform was on the legislative agenda, the State Bar of Wisconsin’s Individual Rights and Responsibilities Section (IRR) and the Wisconsin Employment Lawyers Association (WELA) lobbied hard for inclusion in the legislation of a private cause of action that would allow employees to take their cases directly into state courts for jury trials, without the requirement of administrative exhaustion. Some discrimination victims would probably want to file their claims with the Equal Rights Division (ERD) for investigation or even adjudication, but the requirement that employees climb every step of the administrative ladder before they can bring their cases into state court unduly extends the process. It is not unusual for these administrative steps to take three or four years.

The new law requires that complainants try these cases in the ERD to obtain equitable relief and then survive the administrative appeal process before they can file actions in state court for their compensatory and punitive damages. There, they finally get to have a judge or jury. They will have to, essentially, retry their cases, because to show a jury how egregious the behavior was and show that the complainant is owed substantial damages, the complainant will have to go through the same evidence as was provided to the administrative law judge in the administrative proceedings. Trying a case twice is a waste of resources for both the complainant and the respondent.

Brenda L. Lewison, U.W. 1995, practices labor and employment law with the Law Office of Arthur Heitzer in Milwaukee. She is a member of the State Bar Individual Rights and Responsibilities Section.