Vol. 71, No. 3, March 1998
No Longer Protects Against
Employment Discrimination Claims
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Until recently, an employee who sustained an emotional injury from harassment on the job was barred from pursuing a claim for the harassment under the Wisconsin Fair Employment Act (WFEA). The Labor Industry Review Commission (LIRC) dismissed such claims on grounds that the Worker's Compensation Act (WCA) contains an exclusive remedy provision barring all claims against an employer when liability exists under the WCA. LIRC's position has been upheld by the Wisconsin Court of Appeals in often-cited decisions such as Schachtner v. DILHR 1 and Norris v. DILHR.. 2
All that has been changed by the 1997 Wisconsin Supreme Court decision in Byers v. LIRC.3 In Byers a female employee terminated a sexual relationship with a male coworker. Due to problems Byers had terminating the relationship, she obtained a restraining order against the coworker. After showing the restraining order to her employer and explaining its meaning, Byers continued to be harassed by the coworker. Byers reported the problem to her employer on numerous occasions. The employer talked to the coworker, but the harassment continued. Despite the fact that the coworker was jailed several times for violating the restraining order, he was not suspended, terminated, or otherwise reprimanded by the employer. After this had continued for more than a year, Byers notified her employer that she could not return to work while the coworker continued to work there.
Procedural history of Byers
Byers' sexual discrimination claim under the Wisconsin Fair Employment Act 4 was dismissed by the Equal Rights Division. The dismissal was affirmed by LIRC, because the discrimination resulted in emotional injury, which is covered by the Worker's Compensation Act; thus Byers' exclusive remedy against the employer was under the WCA. On review of LIRC's decision, the circuit court decided that Byers could pursue both a claim under the WCA and the WFEA. The circuit court's decision was reversed by the District III Court of Appeals, which held that the exclusive remedy provisions of the WCA barred Byers' sexual discrimination claim.5 That holding was reversed by the Wisconsin Supreme Court, which unanimously decided that discrimination claims are not barred by the WCA.
WCA's exclusive remedy
The exclusive remedy provision of the Worker's Compensation Act, section 102.03(2), provides that when the conditions for an employer's liability under the WCA exist, the employee's right to recover under the WCA shall be the employee's exclusive remedy against an employer. This provision was enacted to insulate employers from common law tort claims arising out of workplace injuries, in exchange for smaller but more certain recoveries under the WCA, regardless of fault. 6 However, the use of this exclusive remedy provision in the last several years has expanded to include any claims arising out of or relating to a workplace injury. Notably, employees bringing discrimination claims under the WFEA have been turned away by decisions barring their claims under the exclusive remedy provision of the WCA.
The status of the law before Byers
In 1988 the court of appeals decided Schachtner v. DILHR, holding that the exclusive remedy provision of the WCA barred an employee who was refused rehire after a work-related injury from pursuing a handicap discrimination claim under the WFEA. Two years later a similar result was reached for part of an employee's discrimination claim in Norris v. DILHR. In Norris a mentally retarded employee, who was refused rehire after a work-related injury, was barred from bringing a disability discrimination claim based on the work-related injury, but was permitted to bring the same claim based on his mental retardation.
The LIRC, relying on Schachtner and Norris, has routinely barred employees' disability discrimination claims where the discrimination is based on a work-related injury. 7 Using the same reasoning, it also has barred sexual discrimination claims.8 Later court of appeals decisions, Marson v. LIRC (1993)9 and Finnell v. DILHR (1994),10upheld the notion that the right of an employee to recover compensation provided by worker's compensation is exclusive of all remedies against the employer. Unlike Byers, neither Marson nor Finnell dealt specifically with the issue of whether a discrimination claim was barred by the WCA's exclusivity provision. However, both the Marson and Finnell courts, relying on Schachtner and Norris, stated that such claims were barred by that provision.
In 1994 the supreme court in County of La Crosse v. WERC 11 held that an employer's refusal to rehire an employee because of a work-related injury is not controlled by the WCA's exclusive remedy provision when the refusal to rehire is "distinct in time and place from the injury." The plaintiff employee claimed that her termination was based upon her work-related disability, and violated the collective bargaining agreement between her employer and union. The court stated that the WCA exclusive remedy provision barred common law tort claims, not contract claims, as that case involved. It therefore distinguished, but did not overrule Schachtner and Norris, which involved statutory, rather than contract claims.
The Byers decision
Byers, however, presented the supreme court squarely with the issue of whether the WCA's exclusivity provision barred other statutory claims against the employer, that is, discrimination claims under the WFEA. Byers' position was that the WCA and the WFEA serve entirely different purposes. The WCA focuses on remedying an employee's physical or mental workplace injury. The purpose of the WFEA is to eradicate discrimination in the workplace, focusing on employer conduct that violates employees' civil rights. The employer argued that where a claim is cognizable under both the WCA and the WFEA, the WCA is the only remedy. The court disagreed, recognizing the different purposes of the two Acts, and pointing out the irony in the employer's position:
"If we were to interpret the WCA exclusive remedy provision as the employer proposes, only employees whose claims were not covered under the WCA would be afforded relief under the WFEA. Those employees whose claims for physical or mental injuries were covered by the WCA, those perhaps most harmed by discriminatory conduct violating the WFEA, would be limited to worker's compensation." 12
Principles of statutory construction cited by the Byers court include the court's duty to harmonize two statutes that appear to conflict in a way that will give effect to the Legislature's intent in enacting both statutes. The court reasoned that because the WCA does not identify, fully remedy or adequately deter an employer's discriminatory conduct, it cannot adequately address discrimination in the workplace. To allow the WCA to bar WFEA claims, would make enactment of the WFEA "a hollow legislative gesture." 13
Concluding that it could best preserve the purposes of both the WCA and the WFEA by "steering a different course than did the court of appeals in Schachtner and Norris," the Byers court overruled Schachtner and disavowed the reasoning of Norris, on the premise that those decisions did not give effect to the Legislature's intent in enacting the WFEA. The court went on to overrule Marson and Finnell, "to the extent they stand for the proposition that 'the right of the employee to recover compensation provided for by worker's compensation is exclusive of all remedies against the employer.'" 14 Byers was remanded for hearing.
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