ROY F BROWN, et al., Complainants
An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
1. The following paragraph is inserted before paragraph 37 of the administrative law judge's FINDINGS OF FACT, and the remaining paragraph is renumbered accordingly:
"The entire course of conduct engaged in by the respondent-elimination of the complainants' jobs, creation of new jobs for which the complainants were ostensibly not qualified, and discouragement of the complainants from applying for those new jobs-was undertaken based upon the ages of the complainants."
2. The first full paragraph on page 13 of the administrative law judge's decision (the last page of the MEMORANDUM OPINION) is deleted.
The decision of the administrative law judge (copy attached), as modified, is affirmed. This matter is remanded to the Equal Rights Division for a hearing and determination of the appropriate remedial relief due the complainants.
Dated and mailed
November 28, 2014
brownro_rmd . doc : 164 : 831.1 794
BY THE COMMISSION:
Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
Procedural Background
This case involves a consolidated hearing and decision pertaining to four individuals who contended that they were discriminated against based upon their ages when the respondent eliminated their jobs and created new positions for which the complainants were strongly discouraged from applying. Based upon the evidence adduced at the hearing, the administrative law judge (1) found that the complainants were discriminated against in the terms and conditions of their employment because of their ages. The administrative law judge issued a cease and desist order and ordered the respondent to pay the complainants' reasonable attorney fees. However, the administrative law judge did not order that the complainants be reinstated into their previous jobs or similar jobs at the respondent, and did not order back pay. The complainants have filed a petition for commission review on the remedies issue. The respondent has not appealed the liability question. (2)
Discussion
As stated above, the administrative law judge found that the complainants were discriminated against in the terms and conditions of their employment based upon their ages. In his memorandum opinion the administrative law judge provided the following reasoning for that conclusion:
"Where four individuals, the Complainants, over the age of 40 - one who was age 45, two who were age 52 and one who was age 57 - were effectively moved out of the Information Technology area via elimination of their positions and four individuals under the age of 40 were selected to occupy four of the five newly created positions, where a Bachelors degree requirement was imposed for the newly-created positions but one of the positions was filled by someone under the age of 40 who did not have a Bachelors degree, and where there is evidence that the Complainants were discouraged from applying for any of the newly-created positions, there is enough evidence to warrant a finding that age was a motivating factor in the Respondent's treatment of all four Complainants in relation to their terms and/or conditions of employment."
Having reached the conclusion noted above, the administrative law judge went on to state:
"However, while the Complainants were discouraged from applying for the newly-created positions, they were not prohibited from doing so. Since none of the Complainants did in fact apply for any of the positions, the award has been limited to reasonable attorney fees and costs but no award of (re-)instatement or back pay is being made."
The complainants disagree with the administrative law judge's rationale that, because they did not apply for the jobs, they are not entitled to a remedy. The complainants point to a recent commission decision in which the commission expressed disagreement with that analysis, Ezell v. Northwestern Mutual Life Insurance Company, ERD Case No. 200702572 (LIRC March 23, 2010). In Ezell the commission stated:
"...Under the circumstances present here, when the hiring authority tells a potential candidate why she would not be a good fit for the position, the individual should not be required to go through the sham of applying for the position in order for an adverse action to be established."
Further, in the context of a case involving discrimination with respect to the granting of seniority, the United States Supreme Court has stated emphatically that failure to apply for a job should not preclude relief:
"...the company's assertion that a person who has not actually applied for a job can never be awarded ... relief cannot prevail. The effects of and the injuries suffered from discriminatory employment practices are not always confined to those who were expressly denied a requested employment opportunity. A consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection.
"...When a person's desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application...
International Brotherhood of Teamsters v. United States Inc. v. United States, 431 U.S. 324, 365-366, 97 S.Ct. 1843, 52 L.Ed. 2d 396 (1977).
The commission agrees with the complainants that their failures to apply for the newly posted jobs should not preclude a remedy. In a recent decision reaffirming the frequently stated principle that a prevailing complainant is presumed to be entitled to make whole relief, the commission stated:
"The presumed remedy in a failure to hire case is instatement into the job and back pay, and it is the discriminating employer who bears the burden of establishing through clear and convincing evidence that such remedy should not be awarded. Olson v. Whatever Bar, ERD Case No. CR201003939 (LIRC March 12, 2013); Moore v. Milwaukee Board of School Directors, ERD Case No. 199604335 (LIRC July 23, 1999). Once the complainant proves discrimination, back pay should be awarded unless the respondent establishes by clear and convincing evidence that, even in the absence of discrimination, the rejected applicant would not have been selected for the open position. Silvers v. LIRC (Madison Metro. School Dist.)(Dane Co. Cir. Ct., Jan. 13, 1984). Uncertainties about remedy are resolved against the discriminating employer. Nunn v. Dollar Genera, ERD Case No. CR200402731 (LIRC March 14, 2008); Fields v. Cardinal TG Co., ERD Case No. 199702574 (LIRC Feb. 16 2001)."
Zunker v. RTS Distributors, ERD Case No. CR201004089 (LIRC June 16, 2014).
Where a complainant is discouraged from applying for a job based upon discriminatory factors, he or she should be eligible for instatement and back pay unless the respondent can establish by clear and convincing evidence that, due to a neutral, non-discriminatory reason, the complainant would not have been hired for the position.
That said, it must be noted that the complainants in this case did not merely allege that they were denied new jobs based upon age; they also contended that they were laid off from their original jobs because of age. Although the administrative law judge's findings of fact included only an ultimate finding that the complainants were discriminated against in the terms and conditions of their employment, his memorandum opinion clearly indicates that the administrative law judge regarded the entire course of conduct in which the respondent engaged -- elimination of jobs, creation of new jobs for which the complainants were ostensibly not qualified, and discouragement of complainants from applying, while hiring individuals under the age of 40, including at least one who did not meet the stated job qualifications -- to have been undertaken based upon the ages of the complainants. (3) Where it is found that a complainant was laid off from a job based upon age, he or she is entitled to a back pay remedy. See, Anchor v. Wisconsin Dept. of Workforce Development, ERD Case No. CR200501702 (LIRC Jan. 4, 2012) and Stern v. RF Technologies Inc., ERD Case No. 200200780 (LIRC Feb. 6, 2004)(in which the commission affirmed administrative law judges' decisions finding that the complainants were laid off from employment based upon age and issuing an order for reinstatement and back pay). Given that the complainants here established that they were laid off from their jobs based upon their ages, a showing by the respondent that they would not have been hired for the new jobs should not preclude the award of a back pay remedy.
For the reasons set forth above, the commission believes that the administrative law judge erred in refusing to order a make-whole remedy for the complainants in this matter. The commission notes that the administrative law judge who conducted the hearing bifurcated the hearing and advised the parties that, in the event the complainants prevailed on the liability aspect of the case, a separate hearing on damages would be ordered. The commission therefore considers it inappropriate to order any specific remedy without giving the complainants an opportunity to present evidence as to their damages and without giving the respondent an opportunity to raise mitigation or other relevant arguments. The commission is, therefore, remanding this matter for a hearing to determine what remedies are appropriate for each complainant.
cc:
Attorney Carol S. Dittmar
Attorney Victoria L. Seltun
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