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Vol. 71, No. 3, March
1998
Worker's Compensation Act
No Longer Protects Against
Employment Discrimination Claims
WCA and federal claims
Generally parallel state and federal laws address employment discrimination
for Wisconsin employees. (See the accompanying sidebar article.) While Wisconsin's
Worker's Compensation Act does not bar federal discrimination claims brought
under Title VII of the Civil Rights Act or the Age Discrimination ![]() in Employment Act
(ADEA), for example, many employees cannot avail themselves of the relief
afforded by the federal laws. Employers with fewer than 15 employees are
not subject to Title VII, the ADEA, or the Americans with Disabilities Act
(ADA), so those employees typically have only one avenue of relief from
discrimination ­ the WFEA, a state statute. These small employers will
be the most noticeably affected by Byers, because they now can be
sued under WFEA, regardless of any worker's compensation claim their employees
may have. Byers also will affect larger employers, because many claimants,
often unemployed, cannot afford to pursue federal discrimination claims
in state or federal court, and thus are forced to proceed under the WFEA,
regardless of their employers' size.
Where do we go from here?
The Byers court did not reach the issue of double recovery, a
possibility because the same set of circumstances may form the basis for
a claim under both the WCA and the WFEA. An award of lost wages under the
WCA, for example, overlaps an award of backpay under the WFEA.
The nature and degree of emotional injury may dictate
whether filing a claim under the WCA is wise. For example, if harassment
results in severe emotional injury such that the claimant is unable to work
at all, worker's compensation may be the only source of "prompt"
relief. The claimant will not be entitled to unemployment compensation,
as he or she will not be "available for work." In a perfect world,
worker's compensation is "prompt and assured relief"; that is,
a claim for temporary wage loss and medical treatment is supposed to be
paid without undue delay or protracted litigation, as liability is
 |
Carol Nolan Skinner, Indiana-Bloomington
1984, represented Janet Byers in Byers v. LIRC. She practices with
Bakke Norman in New Richmond. |
not premised upon fault of the employer. (However, in reality, many WCA
emotional injury claims are hotly contested.) Later damages recovered in
a discrimination suit can be offset for whatever wages were paid under the
WCA. If the emotional injury is long lasting or permanent, and the employer
is not subject to Title VII, which provides for compensatory damages, the
only way a claimant can receive redress for such injury would be a loss
of earning capacity claim under the WCA.
The downside of filing a worker's compensation claim while awaiting the
discrimination hearing is that the employer may argue issue and/or claim
preclusion. A determination of certain facts by the Worker's Compensation
administrative law judge, for example, could be binding in the discrimination
proceeding either at the administrative level or in state or federal court.
Attorneys should ensure that their clients are well represented in any WCA
proceeding, and attempt to limit that proceeding to WCA issues only (that
is, whether the claimant sustained an injury that arose out of the employment,
and not whether the employer took appropriate action to eliminate
harassment in the workplace). Although the Equal Rights Division administrative
law judge in Byers denied the employer's claim of issue preclusion,
neither LIRC nor any court reviewed that decision because Byers settled.
Undoubtedly, this issue will appear before the supreme court in the future.
Conclusion
The impact of Byers is far-reaching. The exclusive remedy provision
of the Worker's Compensation Act will no longer protect employers against
employment discrimination claims. After Byers, employees of small
employers will not be barred from bringing state law discrimination claims
simply because the discrimination caused, or was the result of, a work-related
injury. Further, employees of any size employer who cannot bear the expense
of litigating a federal discrimination claim may have their day in court.
Endnotes
1Schachtner v. DILHR, 144 Wis. 2d 1,
422 N.W.2d 906 (Ct. App. 1988).
2Norris v. DILHR, 155 Wis. 2d 337,
455 N.W.2d 665 (Ct. App. 1990).
3 Byers
v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997).
4 Wis.
Stat. §§ 111.31 - 111.77.
5Byers v. LIRC, 200 Wis. 2d 728, 547
N.W.2d 788 (Ct. App. 1996).
6 See County of La Crosse v. WERC,
182 Wis. 2d 16, at 30, 513 N.W.2d 579, at 583 (1994).
7 Holze v. American Family Mut. Ins. Co.,
(LIRC 5/4/90); Wright v. Computer People Unlimited, (LIRC 3/28/95);
Byrne v. West Allis-West Milwaukee School Dist., (LIRC 9/18/91).
8 Cameranesi v. John Charles Hair Designs
Inc., (LIRC 3/7/94); Petri v. Midwest Lodging PTR 7, (LIRC 9/20/94);
Genger v. Waukesha County Technical College, (LIRC 9/21/94).
9 Marson v. LIRC, 178 Wis. 2d 118,
503 N.W.2d 582 (Ct. App. 1993).
10 Finnell v. DILHR, 186 Wis. 2d 187,
519 N.W.2d 731 (Ct. App. 1994).
11County of La Crosse v. WERC, 182
Wis. 2d 16, 513 N.W.2d 579 (1994).
12Byers v. LIRC, 208 Wis. 2d at 401;
561 N.W.2d at 683.
13Id. at 399; 561 N.W.2d at 682.
14 Id. at 406, note 13; 561 N.W.2d
at 685, note 13.
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