Murphy v. Industrial Commission

• Decision Date: 30 January 1968
• Citation: 155 N.W.2d 545,37 Wis.2d 704
• Parties: , 1 Fair Empl.Prac.Cas. (BNA) 280, 1 Empl. Prac. Dec. P 9851, 57 Lab.Cas. P 9109 Virginia MURPHY et al., Appellants, v. INDUSTRIAL COMMISSION of Wisconsin, Respondent. MILLER BREWING COMPANY, Respondent, v. INDUSTRIAL COMMISSION of Wisconsin, Appellant.
• Court: Wisconsin Supreme Court

Page 545

155 N.W.2d 545

37 Wis.2d 704, 1 Fair Empl.Prac.Cas. (BNA) 280,

1 Empl. Prac. Dec. P 9851, 57 Lab.Cas. P 9109

Virginia MURPHY et al., Appellants, v. INDUSTRIAL COMMISSION of Wisconsin, Respondent.

MILLER BREWING COMPANY, Respondent, v. INDUSTRIAL COMMISSION of Wisconsin, Appellant.

Supreme Court of Wisconsin.

Jan. 30, 1968.

Charne & Tehan, Milwaukee, for Virginia Murphy and others.

T. L. Tolan, Jr., and Samuel J. Recht, Milwaukee, for Miller Brewing Co.; Brady, Tyrrell, Cotter & Cutler, Milwaukee, of counsel.

Bronson C. LaFollette, Atty. Gen., E. Gordon Young, Asst. Atty. Gen., Madison, for Industrial Commission of Wisconsin.

HANLEY, Justice.

The principal issue on this appeal is whether the Industrial Commission has authority under the Wisconsin Fair Employment Practices Act, Chapter 111, Subchapter II, of the Wisconsin statutes, secs. 111.31 to 111.37, to award back pay to parties discriminated against on account of their sex in the wages paid them.

Sec. 111.32(5)(a), Stats., defines discrimination as follows:

"Discrimination' means discrimination because of age, race, color, handicap, sex, creed, national origin or ancestry, by an employer individually or in concert with others against any employe or any applicant for employment, in regard to his hire, tenure or term, condition or privilege of employment and by any labor organization against any member or applicant for membership, and also includes discrimination on any of said grounds in the fields of housing, recreation, education, health and social welfare as related to a condition or privilege of employment.'

Sec. 111.36(4) makes it unlawful for labor organizations, employees, employers, and employment agencies to engage in discrimination as defined by the subchapter. Sec. 111.36(3) gives certain powers of enforcement to the Industrial Commission as follows:

'If the commission finds probable cause to believe that any discrimination as defined in this subchapter has been or is being committed, it shall immediately endeavor to eliminate the practice by conference, conciliation or persuasion. In case of failure so to eliminate the discrimination, the commission shall issue and serve a written notice of hearing, specifying the nature of the discrimination which appears to have been committed, and requiring the person named, hereinafter called the 'respondent' to answer the complaint at a hearing before the commission. The notice shall specify a time of hearing not less than 10 days after service of the complaint, and a place of hearing within either the county of the respondent's residence or the county in which the discrimination appears to have occurred. The testimony at the hearing shall be taken down by a reporter appointed by the commission. If, after hearing, the commission finds that the respondent has engaged in discrimination, the commission shall make written findings and recommend such action by the respondent as will effectuate the purpose of this subchapter and shall serve a certified copy of the findings and recommendations on the respondent together with an order requiring the respondent to comply with the recommendations, the order to have the same force as other orders of the commission and be enforced as provided in ch. 101. Any person aggrieved by non-compliance with the order shall be entitled to have the same enforced specifically by suit in equity. If the commission finds that the respondent has not engaged in discrimination as alleged in the complaint, it shall serve a certified copy of its findings on the complainant together with an order dismissing the complaint.'

Secs. 111.36(3) and (4), Stats., were a legislative response to the decision of the Wisconsin Supreme Court in Ross v. Ebert (1957), 275 Wis. 523, 82 N.W.2d 315, in which the court sustained a demurrer interposed by a labor union to a complaint alleging that the union had denied membership to the plaintiffs on account of their race. The court stated that racial discrimination was not then declared illegal but was merely pronounced undesirable; and the state announced a public policy to encourage and foster employment on a nondiscriminatory basis. The court reached this conclusion because the exclusive 'remedy' provided by the statutes was investigation, publicity, and a commission recommendation and because compulsory features were specifically rejected by the legislature on three different occasions: in 1945, when the Fair Employment Practices Act first became law; and subsequently in 1951 and 1955. The court stated in Ross v. Ebert, supra, at page 530, 82 N.W.2d at page 319:

'* * * The statute's history up to the last legislative session emphasizes that there is more to contend with here than an inadvertent omission. The principle of compelling compliance with the purpose of the legislation has been three times intentionally rejected. A clearer declaration of a non-compulsory public policy is hard to imagine. * * *'

The Industrial Commission argues that the 1957 amendments to the act invalidated prior legislative history and created a legal right in individuals not to be discriminated against, and that since the Constitution of this state in Art. I, Sec. 9, provides that every person is entitled to a remedy in law for all injuries or wrongs to his person when the law recognizes the injury, the law has implied a remedy.

The commission further argues that administrative agencies have considerable latitude to fashion remedies within the scope of their statutory authority and that this is especially true when the agency is expressly authorized by statute to take such action as will effectuate the purpose of the statute. See 2 Am.Jur.2d, Administrative Law, p. 277, sec. 464. The failure of the statute to include any specific remedy, the argument runs, was the result of a decision by the legislature not to bind the commission to such...