On February 21, 2012, the Wisconsin Assembly passed legislation that would eliminate
compensatory and punitive damage awards as potential remedies for violations of the Wisconsin Fair Employment Act (WFEA). The bill passed the Senate in November 2011 and is expected to be signed by Republican Governor Scott Walker. The law would repeal 2009 legislation, which provided for compensatory and punitive damages under a capped scheme similar to Title VII.
The WFEA prohibits a person from refusing to hire an individual, terminating an individual’s
employment, or discriminating against an individual in promotion, compensation, or in terms,
conditions, or privileges of employment based on the individual’s age, race, creed, color, disability, marital status, sex, sexual orientation, national origin, ancestry, arrest or conviction record, military service, use or nonuse of a lawful product off the employer’s premises during non-working hours, or based on the use of unfair honesty or genetic testing. Prior to 2009, the Department of Workforce Development (DWD) could order reinstatement or front pay, back pay for up to two years before the filing of the complaint, and attorneys’ fees and costs to remedy violations of the WFEA. Effective July 1, 2009, the WFEA was amended to permit the DWD or an individual discriminated against under the WFEA, following exhaustion of all administrative and judicial appeals, to bring an action in circuit court to also recover compensatory and punitive damages. Under the 2009 legislation, if the circuit court finds that a defendant had committed such an act of discrimination, it must order the defendant to pay compensatory and punitive damages in an amount the circuit court finds appropriate (subject to damage caps based on employer size similar to Title VII).
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