Another Reason Minnesota Is Better Than Wisconsin

I can think of a number of reasons why Minnesota is better than Wisconsin.  Professional hockey, a more vibrant cultural scene, a lower unemployment rate, not being referred to as a “cheesehead” or other similar state-based derogatory nickname, and according to this report, Wisconsin has the highest rate of binge drinking and heavy drinking in the country.  (See p. 51 of the report)  Some may place that last statistic in the plus column for Wisconsin, but I digress.

The Wisconsin Assembly has given those of us in Minnesota another reason to cheer, while at the same time providing me an additional reason to trash on Wisconsin.  Specifically, the Wisconsin legislature has passed two pieces of legislation that severely restrict the rights of employees to sue and receive compensation for workplace discrimination.

First, the Wisconsin Assemby passed a bill that repeals an employee’s right to recover compensatory and punitive damages when they have proven in court that they were the victims of workplace discrimination or harassment.  While the bill has not been signed by Governor Scott Walker, I have no doubt he intends to sign it. 

But what does that mean to everyday employees in Wisconsin?  In these cases, compensatory damages often take the form of monetary compensation for the emotional distress they experienced when they were illegally discriminated against / terminated by their employer.  And let’s not forget, they recover these damages AFTER they have proven in court that they were the victims of discrimination.  So these damages are only available to those employees who have proven that their boss was a biggot, sexist, etc. 

The fact that someone may experience emotional distress when they are fired for their race, age, disability, gender, etc. is not a tough concept for folks to grasp.  As one article states, the emotional toll the loss of a job creates is compounded when the job loss occurred for a discriminatory reason.  Moreover, most of us intuitively understand how being sexually harassed in the workplace may cause, in some instances, severe emotional distress. 

Punitive damages are those damages that are awarded against employer only when an employee makes an additional showing that the employer knowingly violated the anti-discrimination law at issue.  In other words, these damages are only available when an employee can prove that the employer knew discriminating against the employee was illegal but consciously decides to do it anyway.  I can tell you that obtaining punitive damages in discrimination cases can be, as a practical matter, difficult.   

Wisconsin has passed this law presumably as part of some “pro-jobs” political agenda.  However, one has to question how denying victims of discrimination full compensation for the workplace discrimination they experienced creates jobs.  I guess the employer could use that extra cash to hire a younger, male, non-disabled person, but I doubt that argument is one anyone is willing to legitimately make.  Moreover, the victims of discrimination are often terminated, resulting in less jobs, not more.  Removing some of the teeth from these anti-discrimination laws could lead to an increase in discriminatory terminations because employers know the cost of engaging in discrimination is significantly less.  Conversely, the realization that it may be liable for compensatory and punitive damages may deter an employer from engaging in a discriminatory termination, thus keeping a job.  But I’m not a statistician, I’m a lawyer.

The other bill that passed the Wisconsin Assembly and is presumably sitting on Governor Walker’s desk is even more bizarre.   The Assembly has voted to repeal the state’s Equal Pay Act (EPA), which guarantees women the same pay as men for doing the same work.  I never would have guessed that there are people who would have the guts to publicly admit they have no problem paying women less than men, but I’ve been proven wrong again.  And the irony of course, according to this representative, is that pay disparity between men and women has significantly dropped in Wisconsin since the passage of Wisconsin’s EPA in 2009, which most of us would assume to be a good thing. 

Assuming the argument for repealing the EPA is again some “pro-jobs” agenda, one may try to challenge the premise that engaging in overt sexism leads to job creation.  Reasonable minds (and most women) may not see the nexus between the two.  So I’m here to explain it.  See, if you pay women half of what men make, you can hire two women for the price of one.  We just created a job!  Get it?  And you wonder why those Wisconsinites have a such a problem with alcohol….

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