Harrison petitioned the circuit court, which reversed LIRC's ruling. The court found that Harrison was not estopped from asserting that he was physically qualified. Next, the circuit court turned to the merits and applied Puetz Motor Sales, Inc. v. LIRC, 126 Wis.2d 168, 173, 376 N.W.2d 372, 375 (Ct. App. 1985), to measure if Harrison stated a claim. The circuit court found that Harrison had established a prima facie case of age discrimination.
In order to establish a prima facie case of employment discrimination under WFEA, a complainant must prove that: (1) he or she was a member of a protected class under the statute, (2) he or she was discharged, (3) the person was qualified for the position, and (4) either he or she was replaced by someone not within the protected class or that others not in the protected class were treated more favorably. See Puetz MotorSales, Inc. v. LIRC, 126 Wis.2d 168, 173, 376 N.W.2d 372, 374-75 (Ct.App. 1985). The establishment of a prima facie case "`creates a presumption that the employer unlawfully discriminated against the employee.'"
Furthermore, although the agency's overt interpretation of § 903.01 as it pertains to WFEA may not be one of long standing, deferring to its legal conclusion that, not withstanding § 903.01, the complainant maintains the burden of proving discrimination in state WFEA cases, has the benefit of providing uniformity and consistency with long standing precedent to that effect. See Puetz Motor Sales, Inc. v. LIRC, 126 Wis.2d 168, 376 N.W.2d 372 (Ct.App. 1985); Kovalic v. DEC Int'l, Inc., 161 Wis.2d 863, 875, 469 N.W.2d 224 229 (Ct.App. 1991). Burden of Persuasion.
We have held that discriminatory intent can be inferred using the burden-shifting approach set out by the U.S. Supreme Court in McDonnell-Douglas v. Green, 411 U.S. 792 (1973). SeePuetz MotorSales, Inc. v. LIRC, 126 Wis.2d 168, 172, 376 N.W.2d 372, 374 (Ct.App. 1985). Under this burden-shifting approach, the complainant has the initial burden of proving beyond a preponderance of the evidence a prima facie case of discrimination. To establish a prima facie case of employment discrimination under the WFEA, Eleby must prove that: (1) he was a member of a protected class under the statute, (2) he was discharged, (3) he was qualified for the position, and (4) either he was replaced by someone not within the protected class or that someone not within the protected class was treated more favorably.
A burden shifting approach is utilized to determine discriminatory intent. Puetz Motor Sales v. LIRC, 126 Wis.2d 168, 172-73, 376 N.W.2d 372 (Ct.App. 1985). First, the employee must prove a prima facie case of discrimination.
¶ 8 Once probable cause has been shown that some type of discrimination has been or is being committed, a claimant must establish a prima facie case regarding the elements of the claimant's specific theory of discrimination in order to raise a presumption of discrimination. See generally Puetz Motor Sales, Inc. v. LIRC, 126 Wis.2d 168, 172, 376 N.W.2d 372 (Ct.App.1985) (adopting the analytic framework for discrimination claims set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ); see also Racine Unified Sch. Dist. v. LIRC, 164 Wis.2d 567, 594–95, 476 N.W.2d 707 (Ct.App.1991) (discussing disparate treatment and disparate impact theories of discrimination). An employer may attempt to rebut a prima facie showing of intentionally disparate treatment by articulating a legitimate, nondiscriminatory reason for its action.
Absent direct proof of that intent, a complainant must establish a prima facie case for discrimination that includes proof that he or she is qualified for the job in question. PuetzMotor Sales, Inc. v. LIRC, 126 Wis.2d 168, 172-73, 376 N.W.2d 372 (Ct.App. 1985). Disparate impact discrimination depends on the impact a policy has on a protected group, regardless of the intent behind it. Racine, 164 Wis.2d at 595.
The Wisconsin Fair Employment Act (WFEA), secs. 111.31- 111.37, "does not establish a specific procedure by which a complainant must prove a claim of discrimination . . . ." Puetz Motor Sales, Inc. v. LIRC, 126 Wis.2d 168, 172, 376 N.W.2d 372, 374 (Ct.App. 1985). While Wisconsin courts considering claims of sex discrimination under the [WFEA] are not bound by decisions of the federal courts under Title VII [Civil Rights Act of 1964, 42 U.S.C. § 2000e], "[t]his court has looked to such federal decisions before for guidelines in applying the state fair employment law."
Plaintiffs who bring claims under the Wisconsin Fair Employment Act may utilize this Title VII framework. See Puetz Motor Sales, Inc. v. Labor and Indus. Review Comm'n., 376 N.W.2d 372 (Wis.Ct.App. 1985). It is difficult to imagine a course of action that would run more contrary to Waid I than instructing the jury that Waid had proved intent.
....” Puetz Motor Sales, Inc. v. Labor & Indus. Review Com., 126 Wis.2d 168, 172 (Wis. 1985).