VICTOR FERRER, Complainants

d/b/a SAWDUST FACTORY, Respondent

ERD Case Nos. 8731135, 8731136
EEOC Case No. 055842128

On February 15, 1990, an Administrative Law Judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter concluding that the Respondent violated the Wisconsin Fair Employment Act when it refused to give any consideration for employment to anyone who is of Cuban origin. Based on the violation found, the ALJ ordered Respondent to post a copy of his decision at its place of employment and to pay the Complainants'' counsel attorneys fees and costs for services in behalf of the Complainants. The ALJ concluded that the Complainants themselves were not entitled to relief, however, since neither had submitted an application for employment and because there were no longer any assembler positions available when they sought employment at the Respondent.

Counsel for the Respondent filed a timely petition for Commission review, asserting that the ALJ erred in concluding that Respondent had violated the Act, and in awarding attorneys fees and requiring that Respondent post a copy of his decision at its place of employment. Respondent subsequently submitted written arguments to the Commission. No appeal was filed by Complainants' counsel, and no written arguments were submitted in response to the Respondent' s written arguments.

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


The decision of the Administrative Law Judge (copy attached) is modified as follows:

1. Paragraphs 2 and 3 of the CONCLUSIONS OF LAW are deleted. The following shall become paragraph 2 of the CONCLUSIONS OF LAW:

"2. The Respondent did not violate the Wisconsin Fair Employment Act."

2. Paragraphs 1, 2, 3 and 4 of the ORDER are deleted. The following paragraph shall be inserted as the ORDER herein:

"The complaints of Camilo Dominguez and Victor Ferrer are dismissed."

3. Also, based on the above conclusion that the Respondent did not violate the Act the last paragraph of the ALJ' s Memorandum Opinion must be rejected.

Accordingly, insofar as the Administrative Law Judge' s decision held that the Respondent violated the Act and Respondent was ordered to provide certain relief, that decision is reversed. The ALJ's decision is otherwise affirmed.

Dated and mailed January 30, 1991

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


The crucial findings made by the Administrative Law Judge with respect to the Complainants' claim of national origin discrimination are contained in paragraphs 5 and 6 of the decision. Those findings read as follows:

5. On May 25, 1984, Bentley called Lawrence and told him that she wanted to refer two people that were qualified to him. She attempted to describe their experience and also said that references could be provided. Lawrence kept interrupting Bentley and stating, "If they are Cuban, no way." He continued to say that he had had bad experience with Cubans at his work place and was not interested in Cubans.

6. In mid-May of 1984, a Jack Sabotta, an employe of the Sawdust Factory referred two students, David and Craig Angiers, to Lawrence for the assembler positions. Lawrence interviewed David Angiers and hired both prior to the end of their school year, which was about two weeks before they started working. They began their employment on June 4, 1984. As a result, there were no assembler positions available at the Sawdust Factory when Bentley talked to Lawrence about referring Dominguez and Ferrer to him. (1)

On appeal, the Respondent asserts that the ALJ erred in concluding that it violated the Act, and in awarding attorneys fees and requiring Respondent to post a copy of his decision at its place of employment.

Citing A. Tari Way v. Wisconsin Merchants Federation and LIRC (Dane County Circuit Court, January 1980), Respondent argues that there has been no violation of the Act.  In Way, the Complainant, a female, sought employment as a lobbyist. She asserted that she was not hired because the employer told her it did not want a woman for the job. The court stated that discrimination only becomes unlawful when it is a form of discrimination that is statutorily or constitutionally proscribed. The court further noted that the Complainant had the initial burden of proving a prima facie case of discrimination and that this could be established by showing that: (1) she belonged to a protected class; (2) she applied and was qualified for a job for which the employer was seeking applicants; (3) she was rejected despite her qualifications; and (4) that after her rejection, the position remained open and the employer continued to seek applicants from persons with her qualifications. After finding that there was substantial evidence to support the Commission' s decision that the Complainant was not qualified for the lobbyist position, the court stated that the employer may not have wanted to hire a woman for the position and may even have stated so to the Complainant; however, "discriminatory attitudes are not unlawful unless they result in discriminatory treatment. A person who is unqualified for a position has not been unlawfully discriminated against no matter how prejudiced the hiring party might be." Way, supra.

Similarly, application of the principles of the Way decision to the facts in this case reveals that the Respondent is correct; it was error to conclude that Respondent violated the Act. While the Respondent herein was found to be prejudiced against Cubans, it was also found that when Bentley sought to refer the Complainants for the assembler positions they had already been filled and that there were no longer any openings for which the Complainants could apply. (2)   As repugnant as the discriminatory attitude that was expressed by Respondent may be, such discriminatory attitude must result in discriminatory treatment in order to constitute a violation of the Act. Here, the absence of any job vacancies when Bentley sought to refer the Complainants for employment precludes them from showing that the Respondent's discriminatory attitude resulted in discriminatory treatment. Consequently, it has not been established that there was any violation of the Act. Further, the failure to establish that a violation of the Act occurred renders the order issued by the ALJ erroneous.


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(1)( Back ) The Commission finds no basis for disagreement with these findings as they are amply supported by the record.

(2)( Back ) The Commission notes that the ALJ also found that the Complainants never actually applied for a job with the Respondent. In Teamsters v. U.S., 433 U.S. 324 (1977), the Supreme Court recognized that an individual could be deterred from applying for a job by the employer's discriminatory practices and stated that such person could have a claim under Title VII even though he never applied for a position. In the instant case, however, whether or not the Complainants were deterred from applying for the assembler position is really of no consequence unless it is established that there were positions available for Complainants to fill. As noted above, the ALJ found that there were no assembler positions available at the time an attempt was made to refer the Complainants for such employment.


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