State of Wisconsin
Labor and Industry Review Commission
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Fair Employment Decision[1] |
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Complainant |
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Respondent |
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Dated and Mailed: |
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ERD Case No.CR201402452 |
November 14, 2016 |
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EEOC Case No.26G201401205C |
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The decision of the administrative law judge is rewritten and, as rewritten, is affirmed. Accordingly, the complaint of discrimination is dismissed.
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By the Commission: |
/s/_________________________________ Laurie R. McCallum, Chairperson
/s/_________________________________ C. William Jordahl, Commissioner
/s/_________________________________ David B. Falstad, Commissioner |
Procedural History
The complainant, an inmate at the John C. Burke Correctional Center in Waupun, Wisconsin, filed a complaint on September 18, 2014, alleging that the State of Wisconsin Department of Corrections violated the Wisconsin Fair Employment Act by discriminating against him based upon his race and color when it terminated his employment in an off-site work release program.
On September 25, 2014, the respondent filed a motion to dismiss the complaint on the ground that the complainant was required to exhaust his administrative remedies prior to filing a complaint under the Fair Employment Act and had failed to do so. On May 4, 2015, an investigator for the Equal Rights Division of the Department of Workforce Development issued a preliminary determination and order dismissing the complaint for lack of jurisdiction. The complainant filed a timely appeal of the initial determination.
On July 31, 2015, an administrative law judge issued a decision and order affirming the preliminary determination dismissing the complaint for lack of jurisdiction. The administrative law judge found that the complainant was not in an employment relationship with the respondent and, further, that he had not exhausted his administrative remedies. The complainant has filed a timely petition for commission review of the administrative law judge’s decision and, at the request of the commission, both parties have briefed the issues.
Memorandum Opinion
The Wisconsin Fair Employment Act (hereinafter “Act”) provides, in relevant part, as follows:
111.321 Prohibited bases of discrimination. Subject to ss. 111.33 to 111.365, no employer, labor organization, employment agency, licensing agency or other person may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of age, race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, military service, use or nonuse of lawful products off the employer’s premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters.
111.322 Discriminatory actions prohibited. Subject to ss. 111.33 to 111.365, it is an act of employment discrimination to do any of the following:
(1) To refuse to hire, employ, admit or license any individual, to bar or terminate from employment or labor organization membership any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment or labor organization membership because of any basis enumerated in s. 111.321.
111.325 Unlawful to discriminate. It is unlawful for any employer, labor organization, licensing agency or person to discriminate against any employee or any applicant for employment or licensing.
The complainant is an “individual” covered by the Act, and the commission has held that the Department of Corrections (hereinafter “DOC”) is subject to the Act, both as an employer and as a “person.” Monroe v. State of WI DOC, ERD Case No. CR200304303 (LIRC March 31, 2010). However, the commission is unpersuaded that the discriminatory conduct alleged to have occurred in this case qualifies as an “act of employment discrimination” within the meaning of Wis. Stat. §§ 111.321 and 111.322. The complainant has not alleged that the respondent refused to hire, employ, admit or license him, that it barred or terminated him from employment, or that it discriminated against him with respect to promotion, compensation, or the terms and conditions or privileges of employment, the acts of discrimination that are prohibited under the statute. The respondent’s actions in ending his participation in a prison program that would have permitted him to obtain outside employment with a third party employer do not fit within the definition of discrimination provided in the Act.
The complainant’s allegation of discrimination on the part of the DOC has its origins in an employment relationship with a private employer, and is only tangentially connected to his relationship with the respondent by virtue of the fact that it stems from his participation in a work release program. Because the respondent in this case is neither a current nor prospective employer nor a union or licensing agency, it is unable to engage directly in any of the enumerated acts of discrimination laid out in the statute. While the commission recognizes that the Act has been broadly interpreted to cover actions that may affect employment opportunities taken by employers or persons with whom the complainant has no current or potential future employment relationship, decisions taking that approach have involved situations that are distinguishable from the case at hand. For example, the commission has found that the Act covers situations in which a prior employer has retaliated against an individual by engaging in conduct alleged to affect that individual’s future employment opportunities. See, for example, Stillwell v. City of Kenosha (LIRC Sept. 29, 1995)(commencing a legal action against a former employee because of a discrimination complaint would violate the anti-retaliation provisions of the Act), Garner v. University of Wisconsin, ERD Case No. CR200403960 (LIRC Feb. 10, 2006)(complainant’s allegations that her former employer threatened her with a restraining order were covered by the Act). The commission has also found coverage in cases where an employer with whom the complainant has no employment relationship is alleged to have engaged in discrimination by acting indirectly through a third party temporary help agency. See, for example, Collins v. MATC and Kelly Services (LIRC Dec. 19, 1986)(MATC could be found liable for discrimination if it caused a temporary help agency to terminate the employee’s assignment with it for discriminatory reasons, thereby accomplishing indirectly what it would not be permitted to do directly).
In the instant case, the complainant does not currently have, and has never previously had, an employment relationship with the respondent, nor has he alleged that the respondent caused the complainant’s private employer to engage in acts of discrimination against him. The commission has also considered whether the complainant’s circumstances could be analogized to those of an individual working for a temporary help agency who is subject to discrimination by the temporary agency with regard to job assignments, but concludes they cannot. While the DOC may be responsible for permitting or disallowing the complainant an opportunity to work in private employment through his participation in a work release program, the DOC operates a prison and not a temporary help agency. Unlike a temporary help agency, whose primary function is to place individual employees in jobs, the DOC’s efforts to find job opportunities for inmates are only ancillary to its broader goal of fostering public safety. It strains common sense to find that a prison inmate whose only employment-related connection to the respondent is due to the fact of his incarceration would be covered by the Act, and the commission concludes that the complainant’s allegations of discrimination do not fall within the prohibitions of the Act.
Finally, the commission notes that there are strong policy reasons to conclude that this situation is not one which is covered by the Act. Work release programs play a valuable role in the rehabilitation of inmates, and the commission believes that subjecting the respondent to legal action under the Fair Employment Act for its implementation of a work release program could have a chilling effect on the respondent’s willingness and ability to participate in such programs in the future. For this reason, as well as the rationale set forth above, the commission finds that the Equal Rights Division lacks jurisdiction over this matter. The dismissal of the complaint is, therefore, affirmed.
Note: The commission has rewritten the administrative law judge’s decision to reflect its own rationale for finding an absence of jurisdiction in this case. The commission does not find the Personnel Commission decision in Whaley, upon which the administrative law judge relied, to be applicable in this case, particularly given that the Personnel Commission’s jurisdiction was limited by statute to complaints against a state agency acting “as an employer.” Wis. Stat. § 111.375(2) (1999-2000). The commission also disagrees with the administrative law judge’s conclusion that the complainant was required to exhaust administrative remedies under the Wisconsin Prison Litigation Reform Act (hereinafter “WPLRA”). The WPLRA applies to civil actions or special proceedings. Wis. Stat. § 801.02(7)(b). Civil actions and special proceedings under chapter 801 are limited to actions in court. See, Wis. Stat. § 801.01(1) and (2). Thus, the exhaustion requirements contained in the WPLRA are not meant to be applied to administrative proceedings before the Equal Rights Division.
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Attorney Deborah Rychlowski |
[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the following as defendants in the summons and the complaint: the Labor and Industry Review Commission, and all other parties in the caption of this decision or order (the boxed section above).
Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.