Earlier this week, the Wisconsin Court of Appeals issued an interesting decision involving remedies for the discharge of in-house counsel in violation of the Equal Pay, Act, Title VII of the Civil Rights Act of 1964, and the Wisconsin Fair Employment Act. Sands v. Menard, Inc., involved a claim by a lawyer terminated from her position as vice president and executive general counsel of the Wisconsin-based building supplies company. The lawyer had claimed that she was the victim of gender-based pay discrimination. The matter was submitted to arbitration, and Menard was determined to have violated the lawyer’s rights in underpaying her and retaliating for her complaint.
The arbitration panel awarded the lawyer compensatory and punitive damages and also ordered reinstatement, a remedy that neither party sought. In upholding the reinstatement order, the court provided the following analysis:
Menard does not dispute that reinstatement is a remedy under the Equal Pay Act and Title VII and that neither of those acts provide[s] an exception for in-house attorneys. Further, Menard points to no governing case law stating reinstatement is unavailable as a remedy for wrongfully terminated in-house attorneys under the Equal Pay Act or Title VII. Simply put, the Equal Pay Act and Title VII provide substantial authority for the arbitrators’ award.
Menard essentially asks that we create law stating reinstatement is not a remedy for in-house attorneys under the Equal Pay Act and Title VII when the employer contests reinstatement or when the attorney might be violating the rules of professional conduct after reinstatement. This is inconsistent with the standard of review. We cannot conclude the arbitrators manifestly disregarded law that was nonexistent at the time of the arbitrators’ decision. Additionally, we note that Menard fails to explain how Wisconsin law regarding clients’ rights to choose their attorneys, or the rules of professional conduct, could negate the remedies of wrongfully terminated employees under federal law. (Footnotes omitted.)
It should be noted that lawyers are expected to withdraw from representation when discharged by their clients, at least in circumstances in which permission of a tribunal is not required. SCR 20:1.16(a)(3). This does not necessarily deprive the lawyer of contract and tort claims arising from the discharge, but it does make reinstatement a peculiar remedy. The court’s footnote 4 may tell us something about the court’s thinking:
We further note that the rules of professional conduct apply to attorneys, not employers. See SCR 20:Preamble (2008). Therefore, while the rules may limit the utility of a reinstatement award for an attorney who may have to decline or withdraw from representation, they do not prohibit an employer from reinstating an attorney.
My first reaction is to ask, what is the sound of one hand clapping? My second reaction is to understand the court to be saying that the employer must tender the position to the lawyer and the lawyer must then decline it. Makes for an interesting ritual.
One final note: My search of the lawyer directory on the State Bar of Wisconsin website did not find any Wisconsin lawyer named Dawn M. Sands, who was the plaintiff in the case. Is Wisconsin lawyer law even applicable? (Probably.)