P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

SANDRA NELSON, Complainant


ERD Case No. CR200303141, EEOC Case No. 26HA00057

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.


The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed March 31, 2005
nelsosa . rsd : 110

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


Background -- This case concerns a decision about filling a position at the State Historical Society of Wisconsin ("SHS"). The complainant, Sandra Nelson, who began working for SHS in 1989, was one of the applicants. Nelson, who is Caucasian, alleged race discrimination in regard to the hiring for the position.

SHS adopted an affirmative action plan in 1997. This plan uses statistical analyses to determine whether representation of members of racial minorities and women in a particular job group is comparable to representation of members of that group in state agencies as a whole or at SHS. The affirmative action plan establishes both short-term and long-term affirmative action goals for vacancies in job groups in which there is an "underutilization." The affirmative action plan provides that while having a short-term affirmative action goal for a job group does not mean specific positions are reserved for racial or ethnic minorities or females, "affirmative action group membership should be considered as one factor among many in making a selection decision" for a position which is underutilized.

The position at issue in this case, Human Resources Manager, had been determined to be one for which there was an underutilization of minorities and for which there was therefore a short-term affirmative action goal.

After a first round of interviews for the Human Resources Manager position, the initial applicant field of nearly 20 was narrowed down to a group of five, which included the complainant. Of those five, two were African-American and three were Caucasian. One of the African-American candidates then withdrew. After a second round of interviews, the interview panel decided that Alice Jackson (who is African-American) was the top candidate, and that Jo Winston (who is Caucasian) was second. The other two candidates, including Nelson, were not specifically ranked. The position was eventually offered to Jackson, who accepted it.

Jackson's race was mentioned by all of the members of the interview panel during their deliberations, and one of the three interviewers considered Jackson's status as an African-American in ranking her as the top candidate. This member of the interview panel prepared a document on which he listed factors relating to the qualifications of the candidates and on which he noted that one factor related to Jackson was "African-American." This member of the interview panel then met with the Director and Assistant Director of SHS to present the interview panel's recommendations, and in this meeting he referenced the points mentioned in his written summary, including the matter of Jackson's race.

Notwithstanding the foregoing, however, all three members of the interview panel considered a variety of different and relevant reasons other than Jackson's race when they ranked her as the top candidate. Even if race had not been considered as a factor as described above, the complainant would still have been considered a less-qualified candidate than Jackson based on the selection factors considered that were unrelated to race.

The hearing officer found that the employer had a valid affirmative action plan and that the employer was entitled to take race into consideration in making the challenged decision here because the position in question was underutilized under that plan. The hearing officer concluded that there was no probable cause to believe that unlawful race discrimination had occurred. The complainant petitioned for review.

Although a number of issues were raised at various points below, the complainant's petition for review is expressly limited to the claim that "the decision is based upon an erroneous interpretation of Wisconsin Law, particularly in regard to the right of an employing entity to utilize race as a factor in making a hiring decision." The issue presented is whether or to what extent, under the Wisconsin Fair Employment Act, race can be considered as a factor in an employment decision in connection with the operation of an affirmative action plan. 

Relevant decisions -- There have been a number of commission and circuit court decisions bearing on the issue presented by the complainant's petition.

In Patzer v. Wis. Dept. of Administration and UW-Madison (DILHR, October 31, 1974), the DILHR Commission held that a Wisconsin Department of Administration rule providing for absolute preferences based on sex or race in certain hiring situations for state employment, violated the WFEA. (1)   Soon after this, in Kostroski v. American Can (DILHR, April 27, 1977), the commission found a violation of the WFEA where the employer "readily admitted" hiring a woman for the disputed position specifically because of her sex pursuant to an affirmative action program, citing its decision in Patzer for the proposition that "absolute preferences absent a showing of past discrimination are unlawful", and reasoning that no evidence had been presented at hearing that the respondent had in the past discriminated against women.

In Grenier v. Scott Paper Co. (LIRC, January 15, 1981), the Labor and Industry Review Commission found no discrimination in a case in which an employer, based on an affirmative action plan developed in response to underutilization of females in its operatives and craftsmen job categories, created a "females only" position in its maintenance department in addition to the other positions there. The commission reasoned that the employer "created [the] position solely to comply with its affirmative action obligations under Federal Executive Order 11246," that male employees continued to be eligible for the regular positions as they became available, and that the male complainant could not be said to have been unlawfully deprived of any promotional opportunities because the position in question would not have existed but for respondent's affirmative action obligations. The commission distinguished Patzer by noting that the facts did not present a showing of absolute "reverse discrimination."

In Ott v. Lunder Construction Co. (LIRC, April 16, 1981), the commission found no violation of the WFEA where a construction employer gave some available general laborer work to a woman rather than a male whose other assignment had just ended, in order to meet the goals of its affirmative action plan. The commission looked to Steelworkers v. Weber, 443 U.S. 193, 61 L. Ed. 2d 480, 99 S. Ct. 2721, 20 FEP Cases 1 (1979), to decide that the situation presented in the case did not constitute unlawful discrimination under the WFEA, because it satisfied the elements of Weber that an affirmative action plan 1) was voluntary; 2) was designed to break down old patterns of discrimination; 3) did not unnecessarily trammel the interests of male workers; 4) did not require the discharge of males and their replacement by females; and 5) was temporary. While acknowledging that Weber's interpretation of Title VII did not apply directly to the interpretation of the WFEA, the commission held that nevertheless a similar analysis was applicable under the WFEA, noting that "[i]t 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."

In Piotrowski and Weinshel v. Milw. Bd. of School Directors (LIRC, May 2, 1985), the commission affirmed an examiner's decision, again based on the principles of Steelworkers v. Weber, that the WFEA was not violated where the Milwaukee Public Schools implemented the provisions of an affirmative action plan that called for departure from strict seniority in lay-off to allow African-American employees who would otherwise be laid off due to their seniority to be retained while more senior, Caucasian, employees in that classification were laid off.

Two years after Piotrowski, in Gordon v. City of Milwaukee (LIRC, October 16, 1987), the commission looked to a then-recent U.S. Supreme Court decision, Johnson v. Transportation Agency, Santa Clara, California, 480 U.S. 616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987), to support the proposition that an employer could make a sex-conscious hiring decision as part of an affirmative action plan supported by evidence of a conspicuous imbalance in traditionally segregated job categories. The commission looked to language in Johnson stating that an affirmative action plan could constitute a non-discriminatory rationale for taking sex into account in a hiring decision. The burden of proving the invalidity of the affirmative action plan rested on the complainant, the commission concluded, and that burden was not met where the complainant failed to introduce evidence regarding the percentage of women in the relevant labor market (from which a judgment could be made as to whether there was a "conspicuous imbalance" in the employer's workforce) and where the complainant failed to show that the employer's affirmative action plan "unnecessarily trammel[ed] any legitimate interests of males." (2)

Samolinski v. Milwaukee County (LIRC, Jan. 5, 1990), was consistent with this approach. That case involved the federal court consent decree entered in the Johnnie Jones case, which called upon Milwaukee County to adjust seniority dates for certain minority employees. Samolinski, who was Caucasian, filed a complaint alleging that he had been discriminated against because of race as a result of the racially-conscious adjustments to seniority date made by Milwaukee County, in respect to various matters (including overtime and shift assignments, vacation selection) as to which seniority governed. The commission decided that the actions taken by Milwaukee County pursuant to the Jones decree were justified by the existence of a manifest imbalance that reflected under-representation of minorities in traditionally segregated jobs and that the actions did not unnecessarily trammel the rights of the complainant.

The Milwaukee County Circuit Court subsequently set aside LIRC's decision. Samolinski v. LIRC and County of Milwaukee (Milw. Co. Cir. Ct., June 27, 1991). However, the court did so not because of any disagreement with the general principles concerning affirmative action which LIRC had relied on, but because the record did not provide an adequate factual basis for invoking those principles in that case. The court appears to have accepted the principles articulated in Wygant v. Jackson Board of Ed., 476 U.S. 267 (1986) and Johnson v. Transportation Agency, 480 U.S. 616 (1987), as applicable and controlling, when the necessary evidentiary predicate was present.

The issue presented in this case has also been presented in a number of cases decided by the Wisconsin Personnel Commission.

In Paul v. DHSS (Wis. Personnel Comm., 82-PC-ER-69, 06/19/86), Kesterson v. DILHR (Wis. Personnel Comm., 12/29/86), and Holmes v. DILHR (Wis. Personnel Comm., 04/15/87), the Personnel Commission dealt with a State of Wisconsin affirmative action plan which had used general state population figures for minorities and women to determine whether those groups were underutilized in certain state employment job classifications. (3)   The principal significance of these decisions is that they held it was improper to use general population figures for this purpose, and that to be acceptable an affirmative action plan should instead look at statistics measuring the percentage of minorities in the qualified labor market for the position in question. Apart from this particular issue, though, it appeared that the Personnel Commission also took the view that a protected status could be considered as one factor in a decision on hiring, in the context of application of an affirmative action plan. In Kesterson, for example, the Personnel Commission found that race was a determinative factor in a hiring decision, but it found a violation of the WFEA only because the state had relied on general population statistics instead of qualified labor market statistics in deciding to use selective certification. It appeared that, with respect solely to the matter of the final choice among those on the certification list which went to the African-American candidate because of his race, the Personnel Commission would not have found a violation.

The Personnel Commission continued this approach in two other decisions issued in the mid 1990's.

In Byrne v. Dept. of Transportation (Wis. Personnel Comm., 92-0152-PC-ER, 09/08/93), the Personnel Commission decided that an employer's affirmative action efforts were a legitimate basis for the decision complained of, stating that "in differentiating among well-qualified candidates for a position, it is not evidence of discrimination to consider the goals of a proper affirmative action plan as a selection criterion."

The Personnel Commission's decision in Byrne was affirmed by the Dane County Circuit Court in 1994, sub nom. Byrne v. State Personnel Commission (Dane Co. Cir. Ct, No. 93-CV-3874), Aug. 15, 1994. In that decision, the court stated,

[A]lthough absolute racial preferences may be unlawful [citing Patzer], race may be considered as one factor among others in making employment decision, at least where a bona fide affirmative action plan is involved. [citing University of California Regents v. Bakke and Steelworkers v. Weber].

In Gygax v. Dept. of Revenue (Wis. Personnel Comm., 90-0113-PC-ER, 12/14/94), the Personnel Commission rejected a male's claim of unlawful sex discrimination in a hire in which expanded certification was used to add women to the certification list. The Personnel Commission cited its 1986 Paul decision for the proposition that expanded certification was permissible in civil service hiring if used in conjunction with an approved affirmative action plan. Turning to the question of whether there was unlawful discrimination when sex was considered as a factor in the final selections made from among those on the certification list, the Personnel Commission concluded that there was not, stating:

The Commission has rejected the argument that discrimination occurs in every case where a member of an underutilized group identified in an approved AA plan is hired even though she/he had a post-interview rank lower than other candidates who are not a member of the underutilized group. [citing to the Byrne decisions of the Personnel Commission and the circuit court].

After quoting the portion of the circuit court's Byrne decision which is reproduced above, the Personnel Commission continued:

It is generally true . . . that the FEA prohibits consideration of a candidate's sex as a reason for making a hiring decision. The narrow exception noted in Byrne applies here. No violation of the FEA occurred when Ms. Miller was a member of a group identified in an approved AA Plan as an underutilized group for the PAT Job Category, where DOR clearly showed she was qualified for the job and where the interview process otherwise was free of discrimination. [citing Paul, Kesterson

Discussion -- The commission majority is satisfied that the hearing officer's decision was consistent with Wisconsin law regarding affirmative action and consideration of race (or other protected characteristics) in decisionmaking pursuant to an affirmative action plan, as represented by the decisions discussed above.

In Byrne, the circuit court upheld the Personnel Commission's view that "in differentiating among well-qualified candidates for a position, it is not evidence of discrimination to consider the goals of a proper affirmative action plan as a selection criterion." The court expressly held, that race may be considered as one factor among others in making employment decision, at least where a bona fide affirmative action plan is involved.

The situation here was comparable to that in Byrne, in which, according to circuit court's decision, the African-American candidate "was hired due to his superior experience qualifications, including higher rank, and education, as well as in consideration of DOT's affirmative action plan and the fact that ethnic and racial minorities were underutilized at the level of state patrol captain classification". Here, as in Byrne, the record supports the finding that while race was considered as one factor among others, the candidate eventually hired was in any event better qualified than the complaining candidate in respect to those other factors.

In addition to the fact that the administrative and circuit court decisions discussed above support the hearing officer's analysis, the commission majority concludes that reported appellate decisions do as well. In Wisconsin, the courts have adopted the "determining factor" standard under which, to prove discrimination in the first place, a complainant must prove that a protected characteristic was a "determining factor" in the decision. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 172-73, 376 N.W.2d 372 (Ct. App. 1985), Kovalic v. DEC International, Inc., 161 Wis. 2d 863, 874, 469 N.W.2d 224 (Ct. App. 1991). A "determining factor" is more than "a factor." Puetz, 126 Wis. 2d at 172. In this case, in which the interview panel considered a variety of different and relevant reasons other than race and the complainant would still have been considered a less-qualified candidate based on these other neutral factors, race can be considered to have been merely "a factor", and not a "determining factor", in the decision.

The commission majority recognizes that in Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App. 1994), the Court of Appeals applied an "in part" analysis to questions arising under the WFEA. However, Hoell did not overrule or question the court's earlier decisions in Puetz and Kovalic. The commission majority therefore concludes that the "a factor" vs. "determining factor" analysis of those decisions is still viable.

For the foregoing reasons, the commission majority agrees with the conclusion of the hearing officer, that there is no probable cause to believe that race discrimination in violation of the Wisconsin Fair Employment Act occurred here.




JAMES T. FLYNN, Chairman, dissenting:

I respectfully dissent from the decision of the commission majority to affirm the findings and conclusions of the hearing officer.

The Fair Employment Act provides, in Wis. Stat. § 111.322, that it is an act of employment discrimination to, among other things, "refuse to hire [or] employ . . . any individual . . . or to discriminate against any individual in promotion . . . because of any basis enumerated in s. 111.321." The WFEA contains no exceptions allowing decisions which are in part because of protected bases and in part because of neutral factors. On the contrary, Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App. 1994) indicates that it is a violation of the WFEA to make an employment decision which is even in part because of a protected basis. It is true, that Hoell recognizes different consequences depending on whether a decision (1) was based solely on a protected basis, (2) was based in part on a protected basis and would not have been made if based only on neutral factors, or (3) was based in part on a protected basis but would still have been made even if based only on neutral factors. 186 Wis. 2d at 610-11. However, these consequences relate to the appropriate remedy in each kind of case. In all three kinds of cases, the employer's decision is an act of unlawful discrimination in violation of the WFEA.

Given the findings of the hearing officer, I believe that this is a case of the third type recognized in Hoell; that is, a case in which a decision was based in part on a protected characteristic (race) but the decision would have been the same even if it had been based only on neutral factors. Although the potential for a remedy might be limited, this situation nonetheless involves a violation of the WFEA and should therefore result in a finding of probable cause here.

Hoell did not acknowledge any exception to its holding for situations in which race or sex is considered pursuant to an affirmative action plan. No other reported Wisconsin decision has ever done so.

The administrative and circuit court decisions noted in the majority opinion, also do not persuade me that such an exception can be recognized. While it is true, that the legislature can be presumed to have acquiesced in a long-standing administrative construction of a statute where it fails to amend the statute to alter the premise for that construction, see, Layton School of Arts and Design v. WERC, 82 Wis. 2d 324, 340, 262 N.W.2d 218 (1978), the administrative and circuit court decisions noted by the commission majority above are not sufficiently consistent or long-standing to warrant the conclusion that they have been implicitly accepted or acquiesced in by the legislature.

I do not agree with the commission majority's interpretation of the meaning and effect of Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985), and Kovalic v. DEC International, Inc., 161 Wis. 2d 863, 469 N.W.2d 224 (Ct. App. 1991). For one thing, the reference to the "determining factor" test in those decisions was in the nature of dicta. In Puetz, an age discrimination case, the court found that age was the only factor in the decision challenged. Puetz, 126 Wis. 2d at 177. In the subsequent Kovalic decision, while the court referred to the "determining factor" standard of Puetz, it found that the complainant there had in fact failed to produce any evidence that the employer considered age at all in its decision. Kovalic, 161 Wis. 2d at 885. Thus, neither Puetz nor Kovalic actually presented the issue of how to evaluate situations in which a challenged decision was in part because of a permissible reason and in part because of an impermissible reason. Hoell did present that issue. In addition, Hoell was decided after Puetz and Kovalic.

For those reasons, I believe that the "in part" analysis of Hoell, rather than the "determining factor" analysis of Puetz and Kovalic, should be followed in evaluating the legality of employment decisions made pursuant to an affirmative action plan in which a protected status is considered as part of the decision-making process. Hoell teaches that if an employment decision is based in part on a protected characteristic, there is a violation of the WFEA, even if the same outcome would still have been arrived at if the decision had been based only on neutral factors.

For the foregoing reasons, I would conclude that the findings made by the hearing officer warrant a conclusion that there is probable cause to believe that race discrimination occurred.

/s/ James T. Flynn, Chairman




George B. Strother, Attorney for Complainant
Richard Briles Moriarty, Attorney for Respondent

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(1)( Back ) The commission's decision in Patzer was affirmed by the Dane County Circuit Court, State of Wisconsin v. DILHR (Dane Co. Cir. Ct., May 17, 1976) 12 FEP Cases 1447. The Wisconsin Supreme Court affirmed the circuit court's decision. State Dept. of Administration v. DILHR, 77 Wis. 2d 126, 252 N.W.2d 353 (1977). The supreme court, like the circuit court, decided the case based on the conclusion that the Department of Administration rule providing for the use of absolute preferences based on race and sex in hire, was not authorized by the statutes and was therefore void. In view of that ruling, the supreme court expressly declined to reach the issue of whether the preference policy violated the WFEA. 77 Wis. 2d at 133, 140-41.

(2)( Back ) The commission's discussion of this issue in Gordon was in the nature of dicta, as the decision had been principally based on the finding that the affirmative action plan in that case did not involve more than selective certification and that sex had not been a factor in the ultimate decision between the applicants.

(3)( Back ) The purpose of determining whether there was such underutilization was to decide whether to apply "expanded certification", which would result in more minorities being included in the pools of applicants eligible for hire for particular openings.


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