DARSON D. OTT, Complainant


ERD Case No. 7600883

An examiner of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on September 21, 1979. Respondent filed a timely petition for review and both parties filed written arguments.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:


1. Complainant herein, a male, began his employment with Respondent on May 17, 1976. He worked for Respondent from May 17 to May 26, 1976 and from June 7 to June 14, 1976, when he was laid off.

2. Complainant's occupation was a laborer in the construction field. For a period of time before beginning his employment with Respondent, Complainant was not employed. He would go to the union hall each day and sign up for work. According to the provisions in a union contract, a construction company that needed help or new employes, would call the union hall and put in an order for additional help. The union would then assign a person to the job. An exception to this would be that if an employe had been on layoff status for an employer, the employer could contact that person direct and advise that a job was available.

3. On May 17, 1976,. Respondent called the union hall and stated they needed a laborer who could operate a bobcat. Complainant had previous experience operating a bobcat and he was assigned the job with Respondent.

4. Technically bobcat operator is a different work classification than that of general laborer. Complainant generally worked eight hours per day as a bobcat operator when he worked for Respondent from May 17 to June 14, 1976.

5. On June 14, 1976, because the bobcat work was completed, Roger Bovre, the Respondent's equal employment officer, told Complainant there would be no more work for him. Bovre told the Complainant that because of the affirmative action plan the Respondent was probably going to hire a woman.

6. On June 15, 1976, Respondent called a Carla Cross who had previously worked for Respondent on April 13 and April 14, 1976. She had been recruited as part of Respondent's target to meet the Affirmative Action Program. Cross had worked two days as a flag person and was then laid off because of lack of work.

7. Complainant was hired instead of Respondent recalling Cross on May 17, 1976, as Cross had no experience operating a bobcat. Cross began employment with Respondent as a flag person and when she was recalled, she worked as an. apprentice and then did general labor. She did not perform the same duties Complainant had performed from May 17 to June 14, 1976.

8. Complainant was recalled as a general laborer by Respondent for one day on July 6, 1976.

9. In 1976, Respondent was a city of Madison contractor and as such had agreed to an affirmative action plan which required Respondent to make good faith efforts to meet a goal of 4% of all hours worked on city of Madison projects be worked by females in non-traditional jobs. Complainant had to take action to meet this goal only if it hired new employes.

10. The layoff of the Complainant after the bobcat work had been completed, and the recall of a female employe to do general labor in compliance with an affirmative action program was not unlawful sex discrimination under the Fair Employment Law.


1. Respondent is an employer within the meaning of the Act.

2. Complainant has not established by a fair preponderance of the evidence that Respondent discriminated against him on the basis of sex in violation of Sections 111.31 - 111.37, Wis. Stats., by laying him off work and being replaced by a female.


The complaint in this action is hereby dismissed.

Dated and mailed April 16, 1981

/s/ Virginia B. Hart, Chairman

/s/ John R. Hayon, Commissioner



Where the Complainant was hired to work as a bobcat operator and all of the bobcat work had been completed, it was not unlawful sex discrimination for the Respondent to lay off the Complainant and recall a female employe in order to fulfill. the Respondent's affirmative action goals, rather than transfer, the Complainant to laborer's duties.

Steelworkers v. Weber, 20 FEP Cases 1, (1)  held that voluntary private affirmative action is permissible under Title VII even where race conscious decisions are made in an effort to remedy the effects of past discrimination. In that case a white worker challenged an affirmative action plan which reserved 50% of the openings in an in-the-plant training program for black workers until the percentage of black craft workers approximated the percentage of blacks in the work force. The plan resulted in some white employes being excluded from the training program in favor of black employes with less seniority. In upholding the plan, the court noted the legislative history and the historical context of sec. 703(a) and of the Civil Rights Act of 1964 in finding that Title VII does not bar all private voluntary, race conscious affirmative action plans, even though these sections make it unlawful to discriminate because of race in hiring, since literal interpretation of these sections would bring about a result completely at odds with the purpose of the statute.

Clearly, Weber does not apply directly to the interpretation of the Wisconsin Fair Employment Law but a similar analysis is applicable. The Fair Employment Law has generally been interpreted along the lines of Title VII. The law was originally enacted for purposes analogous to those of Title VII, that is, to bring minorities and women into the mainstream of the Wisconsin work force. In interpreting Title VII, the Supreme Court, in Weber, recognized that in order to meet the purposes of the act, employers must be able to deal with the effects of past discrimination. The Court found that prohibiting race conscious affirmative action would bring about ends contrary to the purposes of the act.

It is unlikely that in seeking similar ends for women and minorities in the Fair Employment Law, the Wisconsin Legislature intended to prohibit the very type of affirmative action that the U S. Supreme Court held Congress allowed under Title VII.

Clearly, the Weber analysis fits the Wisconsin Fair Employment Law, but does this case fall under the Weber analysis? Weber held that a plan is permissible if.: 1) it was voluntary;  2) it was designed to break down old patterns of discrimination;  3) it did not unnecessarily trammel the interests of male workers;  4) it did not require the discharge of males and their replacement by females;  and 5) it is temporary.

McLaughlin v. Great Lakes Dredge and Dock, 23 FEP Cases 1295, held an affirmative action plan an employer adopted to comply with Executive Order 11246 was voluntary, because the employer voluntarily bid on a federal contract. Here, Respondent voluntarily bid on a city contract, so the affirmative action, although required of all city contractors, was voluntary.

Clearly, the plan was designed to break down old patterns of discrimination. It specifically required women to be hired into "non-traditional" jobs.

It did not unnecessarily trammel the rights of male workers. Only 4% of all hours worked on city projects were to be worked by women.. That was a much smaller commitment than the one made by the employer in Weber. Further, Complainant was rehired by the Respondent in July, 1976, so he was not barred from employment by the affirmative action plan.

The plan did not require that males be discharged and be replaced by females; Bovre testified that Respondent had to comply with the affirmative action goals only if it hired new people. In this case, the Complainant was hired for a specific task. When that task was completed he was laid off. The Respondent, then, recalled a female employe who had previously been laid off. She did not replace the Complainant at his old job. She performed different tasks.

Finally, an affirmative action plan meets the requirement that it be temporary, where because the plan was adopted as part of the employer's contract with the city, it can be assumed that once any sexual imbalance is eliminated the plan will be dropped. McLaughlin, supra.

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(1)( Back ) 443 U.S. 193 (1979).


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