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    Wisconsin Lawyer
    March 01, 1998

    Wisconsin Lawyer March 1998: Worker's Compensation Act No Longer Protects Against Employment Discrimination Claims 2


    Vol. 71, No. 3, March 1998

    Previous Page

    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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