Proposed legislation would dramatically increase damages available in Wisconsin in employment discrimination cases. Currently, Wisconsin law only allows a successful claimant the remedies of reinstatement (or front pay), back pay, attorneys fees and costs. 2009 Senate Bill 20, if enacted, would also permit a person discriminated against to bring a circuit court action to recover compensatory and punitive damages, and attorneys fees and costs related to the action. The circuit court action could be brought after completion of administrative proceedings before the Department of Workforce Development Equal Rights Division and the Labor and Industry Review Commission.
The legislation would provide that no such action could be brought against the state, state agencies, local governmental units or employers employing fewer than 15 individuals.
The legislation would put caps on the amount of damages awarded based on the number of employees employed by the defendant, as follows: $50,000 if there are 100 or fewer employees; $100,000 if there are more than 100 but fewer than 201 employees; $200,000 if there are more than 200 but less than 501 employees; and $300,000 if the defendant employs more than 500 employees.
In addition, the circuit court would be required to order the defendant to pay the court a fee 10% of the amount of damages awarded. Fifty percent of that fee would be transferred to the Department of Administration and credited to the Department of Workforce Development which administers the fair employment law, and fifty percent would be retained by the county treasurer to pay for circuit costs operating costs.
The fee provision may arguably be in the nature of a penalty or forfeiture for discriminatory conduct, which raises various issues regarding its legality. However, current Wisconsin case law allow government considerable latitude in imposing fees, where they can be shown to be reasonably related to the costs of operation of a regulatory system.