General Counsel
Overview of Discrimination in Employment
This document provides a summary of the law in this area and answers questions frequently asked of attorneys in the Office of General Counsel. However, the information presented here is intended for informational purposes only and nothing in this document should be construed or relied upon as legal advice. The Office of General Counsel or your Campus Legal Counsel should be consulted regarding the specific facts and circumstances associated with any legal matter.
This document provides a summary of the law in this area and answers questions frequently asked of attorneys in the Office of General Counsel. However, the information presented here is intended for informational purposes only and nothing in this document should be construed or relied upon as legal advice. The Office of General Counsel or Campus Legal Counsel should be consulted regarding the specific facts and circumstances associated with any legal matter.
Numerous state and federal laws prohibit discrimination in employment based on, among other characteristics, race, sex, creed, national origin, age and religion.
To prove illegal discrimination, an employee in one of the covered categories must demonstrate unequal treatment with respect to similarly situated individuals. An allegation of unequal treatment by an employee must be supported or "proved" with evidence that the employment decision was made for discriminatory reasons.
The party claiming discrimination must present sufficient information of discriminatory conduct to raise an inference of discrimination. In response, the accused party must present a legitimate, non-pretextual, non-discriminatory reason for the action taken.
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e, et. seq.) prohibits discrimination based upon race, color, religion, sex, or national origin with respect to hiring, compensation and terms, conditions or privileges of employment. The statute also prohibits limiting, segregating or classifying an employee or an applicant for employment in a manner that deprives the person of employment opportunities or affects the person's status as an employee. The United States Equal Employment Opportunity Commission (EEOC) enforces the law.
Title VII does not constrain the University from hiring, promoting, rewarding, terminating or otherwise distinguishing among employees on the basis of job-related qualifications, including seniority, merit pay, promotion and tenure policies. Institutions retain the right to hire, promote, reward and terminate employees as long as their decisions are not based upon race, color, religion, sex or national origin. Title VII remedies include reinstatement, back pay, damages and attorney's fees.
Title IX of the Educational Amendments of 1972 prohibits sex discrimination by the University as a recipient of federal funds. The law is administered by the United States Department of Education. Regulations adopted by the Department contain provisions on employment that are very similar to the EEOC's Title VII guidelines. Persons alleging discrimination under Title IX may be awarded both compensatory and punitive damages.
Wisconsin's Fair Employment Act
The Wisconsin Fair Employment Act (WFEA), contained in Subchapter II of Chapter 111 of the Wisconsin Statutes, protects the same classes of employees as does Title VII. In addition, the WFEA prohibits employment discrimination against qualified individuals by reason of:
- marital status;
- sexual orientation;
- arrest record;
- conviction record;
- membership in the National Guard, state defense force or any other reserve component of the military forces of the United States or Wisconsin; or
- use or non-use of lawful products outside the employer's premises during nonworking hours.
Furthermore, subject to certain statutory exceptions, it is an act of employment discrimination:
- "[t]o 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 privileges of employment or labor organization membership . . ." because of any basis enumerated in the law. Section 111.322 (1), Wis. Stats.
- "[t]o print or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which implies or expresses any limitation, specification or discrimination with respect to an individual or any intent to make such a limitation, specification or discrimination . . ." based upon any basis enumerated in the law. Section 111.322 (2), Wis. Stats.
- to discharge or otherwise discriminate against an individual because the individual files a complaint under the WFEA or certain other statutes, attempts to enforce rights under certain statutes, testifies or assists in any action or proceeding under certain statutes or opposed any discriminatory practice. Sections 111.322(3) and (4), Wis. Stats.
- to use honesty testing devices (e.g., polygraph) or genetic testing information to make determinations in employment situations.
The Wisconsin Personnel Commission enforces the law in WFEA cases brought against the University.
Equal Pay Act
The Equal Pay Act prohibits employers from discriminating against both male and female employees on the basis of sex by paying different rates ". . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . ." (29 U.S.C. 206(d)) Exceptions exist where the difference is due to a bona fide seniority system, merit system, a system which measures compensation by quantity or quality of production or a differential based on a factor other than sex. The law is enforced by the EEOC.
Equal Pay Act claims are subject to the "equal pay for equal work" requirement. Title VII of the Civil Rights Act of 1964 also prohibits sex discrimination with respect to compensation, but is more lenient than the Equal Pay Act because it only requires that it be comparable, and does not require strict equality, in jobs. The courts have experienced great difficulty in determining whether legitimate factors, e.g., performance standards and market factors, are truly legitimate or whether they are tainted because the reasons underlying the factors were tainted. The WFEA also permits claims where there are allegations of discrimination with respect to compensation.
Section 1981
Section 1981 (42 U.S.C. § 1981) is a post-Civil War civil rights statute that, like Title VII, guarantees persons of different races equal rights. However, back pay awards under Section 1981 are not limited to two years as they are under Title VII. Furthermore, the statute of limitations for actions under Section 1981 is longer than under Title VII and does not limit compensatory and punitive damages as Title VII does. Title VII requires a complaint initially to be made to the EEOC, while Section 1981 claims are enforced solely through court action. As a result, claims alleging racial discrimination are often filed directly in court under Section 1981.
Section 1983
Section 1983 (42 U.S.C. §1983) provides additional remedies for individuals who allege that their civil rights were deprived by persons acting as a governmental official, that is, under "color of law." Individuals may receive both compensatory and punitive damages, as well as attorneys' fees.
The Americans with Disabilities Act
Both Title I of the Americans with Disabilities Act (ADA) (42 U.S.C. §12101) and the Wisconsin Fair Employment Act prohibit employment discrimination against "qualified" individuals with disabilities in all conditions of employment: job application procedures, hiring, firing, advancement, tenure, compensation, training, layoff, leave and fringe benefits. Title I of the ADA is enforced by the EEOC although individuals meeting certain requirements are permitted to institute independent legal action.
The United States Seventh Circuit Court of Appeals in Erickson v. Board of Governors of State Colleges and Universities for Northeastern Illinois University, 207 F.3d 945 (7th Cir. 2000), has concluded that ADA claims filed by individuals against the state are barred, but may nonetheless be brought by the United States as plaintiff in federal court. As a result, the requirements of the ADA should continue to be followed. Section 504 of the Rehabilitation Act of 1972 contains similar requirements and clearly applies to the University. 29 U.S.C. § 794.
Section 504 of the Rehabilitation Act of 1973
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.§ 794, imposes substantially the same requirements on the University as Title I of the ADA. However, Section 504 only applies to recipients of federal funds while Title I of the ADA applies to all employers with over 15 employees; thus both laws apply to the University. The United States Department of Education enforces Section 504.
Age Discrimination in Employment Act
The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et.seq. makes illegal refusing or failing to hire, discharging, limiting, segregating or classifying employees in a manner that deprives or tends to limit employment opportunities or status as an employee because of such individual's age beginning at forty. The United States Supreme Court has ruled that state sovereign immunity bars individual ADEA claims against the state; however, the EEOC may file suit against the state on behalf of an individual. Age discrimination is also prohibited by state law, and individuals may file age discrimination claims against the university under the WFEA.
Nature of Discriminatory Conduct
Discrimination takes many different forms: membership in the National Guard or defense forces, sexual harassment, age, race, sex or disability. Examples follow below.
Sexual Harassment
Sexual harassment is unlawful under both Title VII and the WFEA. Sexual harassment is sex discrimination characterized by unwelcome sexual advances, requests for sexual favors, and any other verbal or physical conduct of a sexual nature when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates a hostile or intimidating environment. See the sexual harassment piece for a more detailed discussion.
Race/Color Discrimination
Both Title VII and the WFEA prohibit discrimination based upon race/color, including employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of protected individuals. Race/color discrimination can be intentional or result because a facially neutral policy, which is not necessary for the job, disproportionately excludes minorities. Marriage to or association with a person of a different race or membership or association with ethnic based organizations is also a prohibited basis for an employment decision.
Harassment on the basis of race and/or color is prohibited. It can take the form of ethnic slurs, racial jokes, and offensive or derogatory conduct if the conduct creates an intimidating, hostile or offensive working environment, or interferes with an employee's work performance.
It is also illegal to segregate or isolate minorities from other employees or customers, exclude them from certain positions or to require that only certain jobs are held by minorities.
National Origin
Title VII and the WFEA protect individuals from discrimination based upon place of birth, ancestry, culture, or other characteristics common to a specific ethnic or racial group. Equal opportunity may not be denied because of marriage or association with persons of a certain national origin group, membership in an organization with specific ethnic affiliation, attendance at places of worship or schools generally associated with a specific ethnic group, or because the person has an ethnic surname.
Harassment on the basis of national origin is also prohibited. Physical or verbal conduct based upon a person's nationality can be harassment if the conduct creates an intimidating, hostile or offensive work environment, unreasonably interferes with work performance or negatively affects an individual's employment opportunities. An employer has an obligation to maintain a workplace that is free from harassment based upon national origin.
Pregnancy Discrimination
Title VII and the WFEA protect employees from discrimination based on pregnancy, and if a condition develops relating to a pregnancy so long as the major job functions can be performed. An employer may not create special procedures to determine a pregnant employee's ability to work and all policies relating to an individual's ability to work must be equally applied. Temporary inability to perform major job functions should be treated just as any other temporary disability.
Religious Discrimination
Employers are prohibited from discriminating against their employees because of their religion. Generally, an employer cannot schedule activities in conflict with a current employee's or applicant's religious needs, maintain a restrictive dress code in conflict with religious needs or refuse to allow observance of a holiday or Sabbath, unless the employer can prove that not doing so would cause an undue hardship.
Equal Pay
The Equal Pay Act requires equal pay for equal work. Jobs need not be identical, but they must be substantially equal, determined by analyzing the skill (experience, ability, education and training required), effort (the amount of physical or mental exertion needed), responsibility (the degree of accountability), and working conditions (physical surroundings, e.g., temperature, fumes, ventilation, and hazards). In addition, Title VII, the Age Discrimination in Employment Act and the Americans with Disabilities Act prohibit discrimination in compensation based upon race, color, religion, sex, national origin, age or disability.
Retaliation
Employees who engage in activities protected by state or federal anti-discrimination laws and suffer an adverse employment action as a result may make a claim of discrimination based on retaliation. Protected activities include opposing an unlawful employment action, making a charge of discrimination and participating in an investigation or hearing regarding a charge of discrimination.
Discrimination and Harassment Complaints
Every campus within the University of Wisconsin System has an internal complaint procedure to address discrimination allegations. These policies contain procedures applicable to both informal and formal complaints. The informal procedure provides an expedited procedure designed to enable the disputing parties to reach a mutually agreeable resolution without the necessity for a formal investigation and fact-finding. In general, parties alleging that they were discriminated against or harassed have 300 days from the date of the alleged egregious conduct to file either an informal or formal complaint under the Wisconsin Fair Employment Act, Title VII or the Americans with Disabilities Act.
Formal complaints are filed with the appropriate state or federal agency, but processing may be deferred pending completion of the internal process. Campus personnel should inform their employees of their right to invoke the internal complaint procedure and their right to file a complaint with the appropriate state and/or federal office.
The Office of General Counsel, Campus Legal Offices and the Wisconsin Department of Justice represent the interests of the University and therefore do not represent individuals pursuing redress through campus procedures, an administrative agency or the courts. Employees have the right to the legal counsel of their choice in pursuing claims of discrimination but responsible campus personnel are not obligated to assist in locating such representation.