Employment Discrimination

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WI Supreme Court

Case Name: Wisconsin Bell, Inc., et al. v. Labor and Industry Review Commission, et al.

Case No.: 2018 WI 76

Focus: Employment Discrimination

Charles E. Carlson says Wisconsin Bell, Inc. intentionally discriminated against him when it terminated his employment because of his disability. Using the “inference method” of finding discriminatory intent, LIRC agreed and concluded that Wisconsin Bell violated the Wisconsin Fair Employment Act (“WFEA”). See Wis. Stat. ch. 111, subchapter II (2015-16).

We granted Wisconsin Bell’s petition for review to determine whether LIRC’s version of the “inference method” impermissibly allows imposition of WFEA liability without proof of discriminatory intent, and if so, whether that is consistent with the requirements of Wis. Stat. § 111.322(1). Because resolving that issue implicates the authoritativeness of an administrative agency’s interpretation and application of a statute, we asked the parties to also address this issue: “Does the practice of deferring to agency interpretations of statutes comport with Article VII, Section 2 of the Wisconsin Constitution, which vests the judicial power in the unified court system?”

We conclude that LIRC’s version of the “inference method” is inconsistent with Wis. Stat. § 111.322(1) because it excuses the employee from his burden of proving discriminatory intent. We also conclude that the record lacks any substantial evidence that Wisconsin Bell terminated Mr. Carlson’s employment because of his disability.

We heard arguments in this case on the same day we heard Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ___ Wis. 2d ___, ___ N.W.2d ___. There, we decided to end our practice of deferring to administrative agencies’ conclusions of law. Id., However, we also said that, pursuant to Wis. Stat. § 227.57(10), we will give “due weight” to an administrative agency’s experience, technical competence, and specialized knowledge as we consider its arguments. Tetra Tech EC, Inc., ___ Wis. 2d ___, ¶3. Our Tetra Tech EC, Inc. opinion contains our analysis of the issue, which we incorporate and apply here.

Reversed

Concur:

Dissent: A.W. BRADLEY, J., dissents, joined by ABRAHAMSON, J. (opinion filed).

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.