Discrimination in Employment
This document provides a summary of the law in this area and answers questions frequently asked of attorneys in the Office of General Counsel. However, the information presented here is intended for informational purposes only and nothing in this document should be construed or relied upon as legal advice. The Office of General Counsel or your Campus Legal Counsel should be consulted regarding the specific facts and circumstances associated with any legal matter.
Numerous state and federal laws prohibit discrimination in employment based on, among other characteristics, race, sex, creed, national origin, age and religion. To prove illegal discrimination, an employee in one of the covered categories must demonstrate unequal treatment with respect to similarly situated individuals. An allegation of unequal treatment by an employee must be supported or "proved" with evidence that the employment decision was made for discriminatory reasons.
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e, et. seq.) prohibits discrimination based upon race, color, religion, sex, or national origin with respect to hiring; compensation; and terms, conditions or privileges of employment. The statute also prohibits limiting, segregating or classifying an employee or an applicant for employment in a manner that deprives the person of employment opportunities or affects the person's status as an employee. The United States Equal Employment Opportunity Commission (EEOC) enforces the law.
Title VII does not constrain the University from hiring, promoting, rewarding, terminating or otherwise distinguishing among employees on the basis of job-related qualifications, including seniority, merit pay, promotion and tenure policies. Institutions retain the right to hire, promote, reward and terminate employees as long as their decisions are not based upon race, color, religion, sex or national origin. Title VII remedies include reinstatement, back pay, damages and attorney's fees.
Title IX of the Educational Amendments of 1972 prohibits sex discrimination by the University as a recipient of federal funds. The law is administered by the United States Department of Education. Regulations adopted by the Department contain provisions on employment that are very similar to the EEOC's Title VII guidelines. Persons alleging discrimination under Title IX may be awarded both compensatory and punitive damages.
Wisconsin Fair Employment Act
The Wisconsin Fair Employment Act (WFEA), contained in Subchapter II of Chapter 111 of the Wisconsin Statutes, protects the same classes of employees as does Title VII. In addition, the WFEA prohibits employment discrimination against qualified individuals by reason of:
- marital status;
- sexual orientation;
- arrest record;
- conviction record;
- membership in the National Guard, state defense force or any other reserve component of the military forces of the United States or Wisconsin; or
- use or non-use of lawful products outside the employer's premises during nonworking hours.
Furthermore, subject to certain statutory exceptions, it is an act of employment discrimination:
- "[t]o refuse to hire, employ, admit or license any individual,
to bar or terminate from employment or labor organization membership any
individual, or to discriminate against any individual in promotion, compensation
or privileges of employment or labor organization membership . . ."
because of any basis enumerated in the law. Section 111.322 (1), Wis.
- "[t]o print or cause to be printed or circulated any statement,
advertisement or publication, or to use any form of application for employment
or to make any inquiry in connection with prospective employment, which
implies or expresses any limitation, specification or discrimination with
respect to an individual or any intent to make such a limitation, specification
or discrimination . . ." based upon any basis enumerated in the law.
Section 111.322 (2), Wis. Stats.
- to discharge or otherwise discriminate against an individual because
the individual files a complaint under the WFEA or certain other statutes,
attempts to enforce rights under certain statutes, testifies or assists
in any action or proceeding under certain statutes or opposed any discriminatory
practice. Sections 111.322 (3) and (4), Wis. Stats.
- to use honesty testing devices (e.g., polygraph) or genetic testing information to make determinations in employment situations.
The Wisconsin Department of Workforce Development, Equal Rights Division, enforces the law in WFEA cases brought against the University.
Equal Pay Act
The Equal Pay Act prohibits employers from discriminating against both male and female employees on the basis of sex by paying different rates ". . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . ." (29 U.S.C. 206(d)) Exceptions exist where the difference is due to a bona fide seniority system, merit system, a system which measures compensation by quantity or quality of production or a differential based on a factor other than sex. The law is enforced by the EEOC.
Equal Pay Act claims are subject to the "equal pay for equal work" requirement. Title VII of the Civil Rights Act of 1964 also prohibits sex discrimination with respect to compensation, but is more lenient than the Equal Pay Act because it only requires that it be comparable, and does not require strict equality, in jobs. The courts have experienced great difficulty in determining whether legitimate factors, e.g., performance standards and market factors, are truly legitimate or whether they are tainted because the reasons underlying the factors were tainted. The WFEA also permits claims where there are allegations of discrimination with respect to compensation.
Section 1981 (42 U.S.C. § 1981) is a post-Civil War civil rights statute that, like Title VII, guarantees persons of different races equal rights. However, back pay awards under Section 1981 are not limited to two years as they are under Title VII. Furthermore, the statute of limitations for actions under Section 1981 is longer than under Title VII and does not limit compensatory and punitive damages as Title VII does. Title VII requires a complaint initially to be made to the EEOC, while Section 1981 claims are enforced solely through court action. As a result, claims alleging racial discrimination are often filed directly in court under Section 1981.
Section 1983 (42 U.S.C. § 1983) provides additional remedies for individuals who allege that their civil rights were deprived by persons acting as a governmental official, that is, under "color of law." Individuals may receive both compensatory and punitive damages, as well as attorneys' fees.
Americans with Disabilities Act
Both Title I of the Americans with Disabilities Act (ADA) (42 U.S.C. § 12101) and the Wisconsin Fair Employment Act prohibit employment discrimination against "qualified" individuals with disabilities in all conditions of employment: job application procedures, hiring, firing, advancement, tenure, compensation, training, layoff, leave and fringe benefits. Title I of the ADA is enforced by the EEOC although individuals meeting certain requirements are permitted to institute independent legal action.
The United States Seventh Circuit Court of Appeals in Erickson v. Board of Governors of State Colleges and Universities for Northeastern Illinois University, 207 F.3d 945 (7th Cir. 2000), has concluded that ADA claims filed by individuals against the state are barred, but may nonetheless be brought by the United States as plaintiff in federal court. As a result, the requirements of the ADA should continue to be followed. Section 504 of the Rehabilitation Act of 1972 contains similar requirements and clearly applies to the University. 29 U.S.C. § 794.
Section 504 of the Rehabilitation Act of 1973
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.§ 794, imposes substantially the same requirements on the University as Title I of the ADA. However, Section 504 only applies to recipients of federal funds while Title I of the ADA applies to all employers with over 15 employees; thus both laws apply to the University. The United States Department of Education enforces Section 504.
Age Discrimination in Employment Act
The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et.seq. makes illegal refusing or failing to hire, discharging, limiting, segregating or classifying employees in a manner that deprives or tends to limit employment opportunities or status as an employee because of such individual's age beginning at forty. The United States Supreme Court has ruled that state sovereign immunity bars individual ADEA claims against the state; however, the EEOC may file suit against the state on behalf of an individual. Age discrimination is also prohibited by state law, and individuals may file age discrimination claims against the university under the WFEA.
Employees who engage in activities protected by state or federal anti-discrimination laws and suffer an adverse employment action as a result may make a claim of discrimination based on retaliation. Protected activities include opposing an unlawful employment action, making a charge of discrimination and participating in an investigation or hearing regarding a charge of discrimination.
Every campus within the University of Wisconsin System has an internal complaint procedure to address discrimination and retaliation allegations. These policies contain procedures applicable to both informal and formal complaints. The informal procedure provides an expedited procedure designed to enable the disputing parties to reach a mutually agreeable resolution without the necessity for a formal investigation and fact-finding. In general, parties alleging that they were discriminated against or harassed have 300 days from the date of the alleged egregious conduct to file either an informal or a formal complaint under the Wisconsin Fair Employment Act or the applicable federal anti-discrimination statute.
Formal complaints are filed with the appropriate state or federal agency. Campus personnel should inform their employees of their right to invoke the internal complaint procedure and their right to file a complaint with the appropriate state and/or federal office.
The Office of General Counsel, Campus Legal Offices and the Wisconsin Department of Justice represent the interests of the University and therefore do not represent individuals pursuing redress through campus procedures, an administrative agency or the courts. Employees have the right to the legal counsel of their choice in pursuing claims of discrimination but responsible campus personnel are not obligated to assist in locating such representation.