RANDALL V STANKE, Complainant
HOLMEN SCHOOL DISTRICT, Respondent
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
February 13, 2014
stankra_rsd . doc : 164 : 630 632
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
In his petition for commission review and supporting briefs the complainant makes the argument that the requirement that candidates for the job of principal have five years experience in the public schools has the effect of discriminating against people based upon creed, since most private schools are religious. The complainant is arguing, essentially, that the requirement of five years public school experience has a disparate impact on Catholics and/or people with "religious school experience." (1) The complainant's argument fails.
Under the disparate impact theory, an employment practice which is neutral on its face can be found to be discriminatory if in practice it has a disproportionately adverse impact on a protected group. Bartel v. Greater Madison Convention & Visitors Bureau, ERD Case No. CR201003444 (LIRC Dec. 19, 2013). To make out a prima facie case of disparate impact, a complainant must show that an employment practice or selection device (for example, a passing score on a certain test, or a high school diploma requirement) selects employees or applicants in a pattern which is significantly different from the pattern of a particular minority in the applicant pool. Thoma v. LJ's Bad Penny Bar & Cafe, ERD Case No. CR200600641 (LIRC Aug. 27, 2009), citing Moncrief v. Gardner Baking Company, ERD Case No. 9020321 (LIRC July 1, 1992) and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Disparate impact must be proved by actual statistical evidence, significant (in the statistical sense) to the confidence level required by law, comparing the effect of an employer's selection device or standard on employees in the different groups being compared. Kaczmarek v. City of Stevens Point, ERD Case No. 200200370 (LIRC Aug. 12, 2003). Disproportionality of a distribution of one group of employees is proven in disparate impact cases almost exclusively by some kind of expert statistical analysis. Moncrief v. Gardner Baking Company, ERD Case No. 9020321 (LIRC July 1, 1992).
The complainant's evidence of disparate impact consists solely of a list of the private schools in Wisconsin that were in operation during the year 2012 along with a designation as to which of those schools is religious. The complainant argues that 90% of the private schools in Wisconsin are religious. However, even assuming that is correct, the fact remains that not all religious schools are Catholic, nor can it be presumed that everyone who has worked at a Catholic school subscribes to the creed of Catholicism. The complainant has also failed to present any evidence with respect to the religious creed of the other applicants, and the record contains no statistical evidence, expert or otherwise, to suggest that the requirement of five years of public school experience has the effect of eliminating applicants of any particular creed, including Catholicism, from being selected by the respondent. The complainant's disparate impact claim, therefore, fails.
Although the complainant's petition focuses on his allegations of disparate impact, the commission also notes that the complainant failed to prove that, as an individual applicant, he was subjected to disparate treatment based upon his creed. The complainant did not establish that the respondent was aware of his religion, and there is no reason to believe that he was eliminated from consideration for the job on that basis. To the contrary, the evidence indicates that the complainant was not hired because he did not meet the respondent's neutral requirement of five years experience working in public schools. The evidence suggests that, if the complainant had had public school experience, in addition to or instead of his work at a private school, he would have been considered for the job, without regard to his religious beliefs. Accordingly, the dismissal of his complaint is affirmed.
cc: Attorney Joel L. Aberg
Appealed to Circuit Court. Affirmed, September 24, 2014.
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