STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

HAROLD A. JONES, Complainant

CENTRAL REGIONAL DENTAL TESTING SERVICE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9552697, EEOC Case No. 26G951761

In a complaint filed on June 30, 1995 which identified "Central Regional Dental Testing Service" of Topeka, Kansas as respondent, complainant Harold A. Jones ("Jones") alleged that

"The subjective methods used to evaluate the clinical competence of the dentist test candidate is not equally administered. There exists a disproportionate failure rate of African-American and other minority dental candidates. These policies of the Central Regional Dental Testing Service inhibits these impacted groups from obtaining licensure in the State of Wisconsin. In May, 1993 after the administration of the Central Regional Dental Testing Service clinical practical examination during the grading procedures [and i]n May, 1991 after the administration of the Central Regional Dental Testing Service clinical practical examination during the grading procedures".

An Equal Rights Officer for the Equal Rights Division issued a Preliminary Determination and Order on September 6, 1995 which dismissed the complaint on the theory that it had not been filed within the Wisconsin Fair Employment Act's 300-day statute of limitations. The complainant filed a timely appeal of this Preliminary Determination and Order. On October 20, 1995, an Administrative Law Judge issued a Decision and Order which affirmed the dismissal of the complaint, but which did so on an alternate ground, that being that the complaint did not state a claim under the Act because under sec. 111.322, Stats. the only prohibited act of employment discrimination related to licensing is refusal to license, and the complainant had not alleged that the named respondent had refused to license him because of race.

The complainant filed a timely petition for commission review of the Administrative Law Judge's Order.

The commission has considered the petition and the positions of the parties, and it has reviewed the record. Based on its review, and for the reasons stated in the Memorandum Opinion which is attached hereto, the commission now makes the following:

ORDER

The complaint in this matter is dismissed.

Dated and mailed: February 29, 1996
jonesha2.rpr : 110 :

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The complaint addressed in this case is one of six related complaints which were brought to the Equal Rights Division by complainant Harold A. Jones and another person, Margie N. Johnson, in an effort to challenge what Jones and Johnson believe to be racial discrimination in the process by which dentists are licensed in Wisconsin. The commission has this day issued decisions in all six matters.

Because no hearings have been held, there is no evidentiary record on the basis of which to make factual findings. As a general matter, any determination as to the legal adequacy of a charge of discrimination which is made prior to a hearing should be made by reference to the complaint, and not by reference to assertions made in subsequent affidavits or other collateral sources submitted by the party seeking dismissal. However, the particular circumstances of a case may justify looking beyond the narrow confines of the complaint. Olson v. Lilly Research Laboratories (LIRC, 06/25/92). Thus, for example, the commission has indicated that assertions made by a complainant to the Equal Rights investigator, sworn testimony of a complainant given in a discovery deposition, assertions made by or on behalf of a complainant by way of affidavit submitted in response to a motion to dismiss, and assertions made by counsel for a complainant in written argument submitted in response to a motion to dismiss, could be considered. Tucker v. Rock County (LIRC, 07/02/92). In this case, the commission's decision rests on consideration of the factual allegations made by the complaint and on analysis of the legal structure of the State of Wisconsin and its agencies which are involved herein. The commission has also considered other sources of information in the file which appear (from consideration of the entire record, including argument submitted by complainant) to be uncontested by complainant at this point.

Discussion --

The sole rationale of the Administrative Law Judge in dismissing the complaint in this matter was that it did not state a claim under the Wisconsin Fair Employment Act ("FEA") because "under sec. 111.322, Stats., the only prohibited act of employment discrimination related to licensing is to refuse to license". The commission does not agree with this construction of the FEA.

The FEA provides, in relevant part, as follows:

111.321 Prohibited bases of discrimination. Subject to ss. 111.33 to 111.36, no employer, labor organization, employment agency , licensing agency or other person may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of age, race, creed, color, handicap, marital status, sex, national origin, ancestry, arrest record, conviction  record or membership in the national guard, state defense force or any reserve component of the military forces of the United States or this state.

111.322 Discriminatory actions prohibited. Subject to ss. 111.33 to 111.36, it is an act of employment discrimination to do any of the following:

(1) To 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 in terms, conditions or privileges of employment or labor organization membership because of any basis enumerated in s. 111.321.
. . .

111.325 Unlawful to discriminate. It is unlawful for any employer, labor organization, licensing agency or person to discriminate against any employe or any applicant for employment or licensing .

Although the ALJ did not describe the basis for his construction of the FEA, the commission speculates that it may have been based on the language in sec. 111.322(1), Stats. which mentions licensure only in the first ("refuse") clause, but not in the subsequent ("bar or terminate", "discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment or labor organization membership") clauses. However, while sec. 111.321, Stats. states that no employer, etc. may engage in any act of "employment discrimination as specified in s. 111.322", and so can be construed as incorporating any limitations which are found in sec. 111.322, sec. 111.325 separately declares it to be unlawful for any employer, etc. "to discriminate against any employe or applicant for employment or licensing", without reference to the definitions found in sec. 111.322, Stats. This is a broader formulation, which can easily be construed to encompass actions, such as different standards and procedures, even if in any particular case they do not happen to result in denial of licensure to a particular person. The commission thus concludes that the legislature did intend to broadly address discriminatory practices in the area of licensing.

Another indication of the legislative intent with respect to the reach of the licensing discrimination provision in the WFEA can be found specifically in the Dentistry Examining Board statutes (and, for that matter, in the statutory sections relating to other licensing boards). They provide, in relevant part, as follows:

447.07 (3) Subject to the rules promulgated under s. 440.03 (1), the examining board may make investigations and conduct hearings in regard to any alleged action of any dentist or dental hygienist, or of any other person it has reason to believe is engaged in or has engaged in the practice of dentistry or dental hygiene in this state, and may, on its own motion, or upon complaint in writing, reprimand any dentist or dental hygienist who is licensed under this chapter or deny, limit, suspend or revoke his or her license if it finds that the dentist or dental hygienist has done any of the following:
. . .

(e) Subject to ss. 111.321, 111.322 and 111.335, been convicted of a crime, the circumstances of which substantially relate to the practice of dentistry or dental hygiene.
(g) Subject to ss. 111.321, 111.322 and 111.34, practiced dentistry or dental hygiene while his or her ability was impaired by alcohol or other drugs. (emphasis added)

The choice of language here suggests that the legislature recognized that it could constitute a violation of the FEA to reprimand a licensed person, or to deny, limit, suspend or revoke his or her license. None of these actions are expressly mentioned in the FEA's prohibition of discrimination in licensing. Clearly, though, the legislature thought that those things were implicitly covered.

In a recent case also involving the Department of Regulation and Licensing, Hentges v. State of Wisconsin Department Of Regulation And Licensing And Medical Examining Board (LIRC, January 12, 1996), that Department raised (but then did not pursue) an argument that the FEA only prohibited discriminatory refusal to license and that therefore it would not be violative of the Act to engage in any other form of discrimination in the licensing process. While the commission declined to address this argument at any length on the grounds that it had not in fact been argued in the Department's Brief, it did comment that it did not see any potential merit in the argument, stating that it is "implicit that the prohibition on discrimination in licensing applies to process as well as outcome". The commission continues to subscribe to this view. It is simply inconceivable that the legislature intended that licensing agencies could, for example, hold separate licensing examinations for persons of different races.

Although the commission does not agree with the rationale of the ALJ, it agrees with the result he arrived at. The complaint in this matter must be dismissed, for two reasons.

First, the commission has decided this day, for the reasons described in its decision in the companion Johnson case (ERD No. 9352414), that CRDTS is not a proper respondent in this matter. This is not merely because CRDTS is not alleged to have (and indeed could not have) directly refused to license the complainant. Rather, it is because CRDTS is not the type of entity that can be made a respondent in any claim of licensing discrimination, be it refusal to license or any other form of discrimination in the licensing process.

Second, this is simply not a new complaint. It contains exactly the same allegations as those in the complaint (ERD No. 9352630) filed and amended by Jones on June 16, 1993. The text of the complaint is almost a verbatim repetition of the text of the earlier complaint. No new acts are alleged. Furthermore, it appears to be uncontested that no new acts have even occurred since the 1993 complaint was filed. Specifically, Jones has not taken the CRDTS examination again. This complaint is thus entirely duplicative of one already pending.

cc: Mary Pat Ninneman, Attorney for Central Regional Dental Testing Service

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]