Patrick Marley

Milwaukee Journal Sentinel

MADISON – Some victims of job discrimination would not be able to recover their legal costs from their bosses under the state budget proposed by Gov. Scott Walker.

Under another budget provision, those who failed to prove they faced workplace discrimination could be forced to pay their employer’s attorney fees.

And in some cases, those who proved they were victims of discrimination would have to pay the legal fees of their bosses if they had rejected a settlement offer that would have been more favorable than the ruling they ultimately received.

Similar rules would be in place for claims brought under the state’s family medical leave law.

Supporters of the budget proposals say they would cut down on frivolous claims, while detractors say it would make people less likely to file worthy complaints because of the costs they might have to bear.

“It takes away the teeth of litigation,” said Astar Herndon, state director of 9to5, a group that represents working women. “I’m confused by legislation that has punitive measures against employees.”

A spokesman for Walker and the heads of the Legislature’s budget committee did not respond to requests for comment for this story.

Workers who say they are victims of job discrimination can file complaints with the state Equal Rights Division. Workers can win their jobs back or get back pay if they persuade administrative law judges that they were wronged.

Workers who win often get rulings that require employers to pay their legal fees.

Walker’s proposal would change that in some cases.

For instance, workers could not recover attorney fees if they did not win back pay or some other tangible benefit. That could result in situations in which people can't get their legal fees covered even though they won a finding that they were victims of age discrimination or sexual harassment.

In another change, workers would have to pay their employer’s legal fees in some situations.

If someone filed a complaint against an employer, the employer would have a chance to offer a settlement. If the worker rejected the settlement and the ultimate ruling was not as favorable as the settlement would have been, the person filing the complaint would have to pick up the attorney fees of the employer.

Employers would also face penalties if they rejected offers made by workers if the ultimate ruling didn’t go their way. In those situations, they would have to pay interest on any money they owe to workers.

The provisions in Walker’s budget would likely lead to more settlements if the Legislature goes along with them, said employment lawyer Robert Driscoll. It would also reduce the filing of claims that are frivolous or involve minor violations, he said.

The proposals would put “the balance a little more on the employer side,” but could also help those with serious claims because their cases would be heard more quickly, Driscoll said.

“It opens up the system for claims that actually should be litigated,” he said, adding that he was not taking a position for or against Walker’s plan.

Employment lawyer Barbara Quindel, an opponent of the plan, said Walker’s budget would force workers to take settlements even when they have strong cases. Workers and lawyers would be unlikely to pursue cases because of the risk they might have to pay tens of thousands of dollars in fees for employers if they lose, she said.

“It’s almost unbelievable,” she said. “We can’t in good conscience say (to workers), ‘Go forward with your complaint.’ ”

Lawmakers can modify or eliminate the proposal as they consider the budget over the coming months. Walker’s fellow Republicans control the Legislature.