On April 6, 2012, Wisconsin employers celebrated as Governor Scott Walker signed into law legislation repealing a state law enacted in 2009 that permitted employees to recover compensatory and punitive damages in employment discrimination suits under the Wisconsin Fair Employment Act.
The bill was opposed by special interests groups advocating for women’s rights who painted the bill as a “political battle over women’s rights” in the war against gender pay discrimination. The reality is that this new law does not prevent an employee from filing a discrimination claim, it simply limits the remedies an employee can receive in state court. Specifically, under the new law, an employee’s remedies are limited to back-pay, out-of-pocket expenses, reinstatement, and attorney’s fees.
However, the enactment of the WI law does not provide a complete bar to the recovery of compensatory and punitive damages. Title VII of the Civil Rights Act (42 U.S.C. §2000e et seq.) explicitly provides employees the right to recover compensatory and punitive damage. Therefore, an employee who succeeded on a discrimination claim in federal court could receive compensatory and punitive damages.
In actuality, however, this new law does create an obstacle for employees. Before an employee can go to federal court, he or she must file a claim with the Equal Employment Opportunity Commission (EEOC). The EEOC may take up to six months to investigate a claim before issuing a “right to sue” letter which permits the employee to have his or her case tried in court. Adding to the delay is the considerable backlog of cases that exists within federal courts due in part to increased filings as well as numerous judicial vacancies throughout the country. As a result of this backlog, it can take up to two years for a civil litigant to have his or her day in court. Tack on the six months for an EEOC investigation and you are now at two and a half years and the employee still has not had his or her day in court.
The cost of trying a case in federal court is another concern for employees since some attorneys do not take employment discrimination cases on a contingency basis. While the delays in the federal court system add to the cost of litigation, the Federal Rules of Civil Procedure can be more stringent than state rules which also increases litigation costs.
While the new WI law does not strip employees of the right to recover compensatory and punitive damages, it certainly lengthens the path to justice and delays the delivery of applicable relief.