JOHN R. FOSS, Complainant

P. A. BERGNER & COMPANY, Respondent

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on October 10, 1990. Complainant filed a timely petition for review by the Commission and both parties submitted written arguments in support of their positions.

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

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

1. In the first sentence of paragraph 2 of the FINDINGS OF FACT, delete "salesmen" and substitute therefor "salesman."

2. In paragraph 4 of the FINDINGS OF FACT, delete "factious" wherever it appears and substitute therefor "fictitious."

3. In the second sentence of paragraph 8 of the FINDINGS OF FACT, delete "where" and substitute therefor "were."

As modified, the decision of the Administrative Law Judge shall stand as the FINAL ORDER herein.

Dated and mailed March 4, 1991

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

In the petition for Commission review, the Complainant addresses himself solely to the issue of discrimination in pay on the basis of sex. He asserts that a comparison of the figures on certain documents which he attaches to his petition support his claim. These documents were not received into the record as exhibits during the hearing, and for this reason they cannot be considered by the Commission as evidence. However, even if those documents were to be considered, they would not change the result. They disclose quite clearly that the rates of pay for bill adjusters such as Complainant were determined in connection with periodic merit reviews and that differences in rates of pay arose because of different merit increases. In evaluating complaints of sex discrimination in pay under the Wisconsin Fair Employment Act, it is appropriate to look to the analysis which is followed under the Federal Equal Pay Act. This analysis involves the question of whether employes of different sexes are paid differently for equal work on jobs the performance of which requires equal skill, effort and responsibility and which are performed under similar working conditions. It recognizes four defenses which will negate liability: that the differential payments are made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or pursuant to "any other factor other than sex." In this case, it is evident that the differential payments were made pursuant to a merit system.

The Commission has affirmed because it agrees that the evidence offered by the Complainant in this case was wholly inadequate, even given the limited probable cause standard, to support a finding in his favor.

110 / A 

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