AB894, s. 6 10Section 6. 103.08 of the statutes is created to read:
AB894,5,11 11103.08 Abusive work environments. (1) Definitions. In this section:
AB894,5,2012 (a) "Abusive conduct" means conduct, including acts or omissions, by an
13employer or employee, with malice, that a reasonable person would find to be hostile
14based on the severity, nature, and frequency of the conduct. "Abusive conduct"
15includes repeated infliction of verbal abuse such as derogatory remarks, insults, and
16epithets; verbal or physical conduct that is threatening, intimidating, or
17humiliating; sabotage or undermining of an employee's work performance; or
18exploitation of an employee's known psychological or physical vulnerability.
19"Abusive conduct" does not include a single act unless that act is especially severe
20or egregious.
AB894,5,2321 (b) "Abusive work environment" means a work environment in which an
22employee is subjected to abusive conduct that is so severe that it causes tangible
23harm to the employee.
AB894,6,424 (c) "Adverse employment action" means an action taken by an employer with
25respect to an employee that has the effect, in whole or in part, of a penalty, including

1dismissal or suspension from employment, demotion, denial of a promotion,
2unfavorable transfer or reassignment, reduction in compensation, or denial of
3increased compensation. "Adverse employment action" also includes a constructive
4discharge.
AB894,6,65 (d) "Aggrieved employee" means an employee who brings an action under sub.
6(3) alleging that he or she has been injured by an unlawful employment practice.
AB894,6,117 (e) "Constructive discharge" means a situation in which an employee resigns
8from employment because the employee reasonably believes that he or she was
9subjected to abusive conduct and, prior to resigning, the employee notified the
10employer of the abusive conduct and the employer failed to take reasonable steps to
11eliminate the abusive conduct.
AB894,6,1212 (f) "Employee" means an individual employed by an employer.
AB894,6,1813 (g) "Employer" means a person engaging in any activity, enterprise, or business
14in this state employing one or more persons on a permanent basis. "Employer"
15includes the state and any office, department, independent agency, authority,
16institution, association, society, or other body in state government created or
17authorized to be created by the constitution or any law, including the legislature and
18the courts.
AB894,6,2019 (h) "Malice" means the intent to cause pain, injury, or distress to another
20person, without legitimate cause or justification.
AB894,6,2221 (i) "Retaliate" means to take an action that negatively affects the terms,
22conditions, and privileges of an employee's employment.
AB894,6,2423 (j) "Tangible harm" means any material impairment of a person's physical or
24mental health or bodily integrity.
AB894,7,2
1(k) "Unlawful employment practice" means an an unlawful employment
2practice prohibited under sub. (2).
AB894,7,5 3(2) Abusive work environment prohibited. (a) It is an unlawful employment
4practice for an employer or employee to subject an employee to an abusive work
5environment.
AB894,7,86 (b) It is an unlawful employment practice for an employer or employee to
7retaliate or threaten to retaliate in any manner against an employee for any of the
8following reasons:
AB894,7,99 1. Because the employee opposed an unlawful employment practice.
AB894,7,1310 2. Because the employee initiated, testified in, assisted in, or in any other
11manner participated in an investigation, action, or proceeding to enforce a right
12under this section, including any internal investigation or proceeding, any mediation
13or arbitration proceeding, or any court action.
AB894,7,1514 3. Because the employer believes that the employee engaged in the conduct
15described in subd. 1. or 2.
AB894,7,1716 (c) The prohibitions under pars. (a) and (b) may be enforced only by a civil cause
17of action brought under sub. (3).
AB894,7,24 18(3) Civil cause of action. In addition to obtaining any other remedy provided
19by law, an employee who alleges that he or she has been injured by an unlawful
20employment practice may bring an action in circuit court against the employer or
21employee who allegedly engaged in the unlawful employment practice for such relief
22under sub. (5) as the court may consider appropriate. An action under this
23subsection shall be commenced within one year after the last act constituting the
24unlawful employment practice occurred or be barred.
AB894,8,3
1(4) Affirmative defenses. (a) If the alleged unlawful employment practice did
2not result in an adverse employment action against the aggrieved employee, the
3employer may plead as an affirmative defense that all of the following are true:
AB894,8,54 1. The employer exercised reasonable care to prevent and promptly correct the
5abusive conduct that was the basis for the aggrieved employee's cause of action.
AB894,8,86 2. The aggrieved employee unreasonably failed to take advantage of
7appropriate opportunities provided by the employer to prevent or correct that
8abusive conduct.
AB894,8,129 (b) If the alleged unlawful employment practice resulted in an adverse
10employment action against the aggrieved employee, the employer may plead as an
11affirmative defense that the aggrieved employee's complaint is based on any of the
12following:
AB894,8,1413 1. An adverse employment action that was reasonably taken for poor
14performance, misconduct, or economic necessity.
AB894,8,1615 2. An adverse employment action that was taken in response to a reasonable
16performance evaluation.
AB894,8,1717 3. A reasonable investigation of a potentially illegal or unethical activity.
AB894,8,2118 (c) An employee who is alleged to have engaged in an unlawful employment
19practice may plead as an affirmative defense that the employee engaged in that
20practice at the direction of the employer under threat of an adverse employment
21action against the employee for not engaging in that practice.
AB894,9,7 22(5) Relief. (a) Subject to par. (b) and sub. (6) (a) 1., if the circuit court finds
23that an employer or employee has engaged in an unlawful employment practice, the
24court may enjoin the employer or employee from engaging in that practice and may
25grant such other relief as the court may consider appropriate, including

1reinstatement of the aggrieved employee, removal of the person who engaged in the
2abusive conduct giving rise to the unlawful employment practice from the aggrieved
3employee's work area, medical expenses, back pay, front pay, compensation for
4emotional distress, punitive damages under s. 895.043, and reasonable costs and
5attorney fees. If the circuit court orders any payment under this paragraph because
6of an unlawful employment practice engaged in by an employee, the employer of the
7employee is liable for that payment.
AB894,9,118 (b) If an employer is found to have engaged in an unlawful employment practice
9that did not result in an adverse employment action against the aggrieved employee,
10the employer's liability for compensation for emotional distress may not exceed
11$25,000 and the employer is not liable for punitive damages.
AB894,9,13 12(6) Effect on other laws. (a) This section does not relieve any person from
13any duty, liability, or penalty provided by any other law except as follows:
AB894,9,2514 1. If the worker's compensation insurer of an employer that is ordered to pay
15medical expenses under sub. (5) (a), the employer, if self-insured, or the department,
16if the employer is uninsured, has paid or is obligated to pay medical expenses under
17ch. 102 for an injury arising out of the same underlying behavior as the behavior
18giving rise to the unlawful employment practice for which the employer is liable, or
19if the worker's compensation insurer of an employer that is ordered to pay back pay
20or front pay under sub. (5) (a), the employer, if self-insured, or the department, if the
21employer is uninsured, has paid or is obligated to pay disability benefits under ch.
22102 for such an injury for the same period as back or front pay is awarded under sub.
23(5) (a), the court shall reduce the amount awarded under sub. (5) (a) for medical
24expenses, back pay, or front pay by the amount of those medical expenses or disability
25benefits that the insurer, employer, or department has paid or is obligated to pay

1under ch. 102. If the insurer or department has paid or is obligated to pay those
2medical expenses or disability benefits under ch. 102, the court shall order the
3employer to reimburse the insurer or department for the amount of those expenses
4or benefits paid or for the amount awarded under sub. (5) (a) for medical expenses,
5back pay, or front pay, whichever is less.
AB894,10,136 2. If the aggrieved employee recovers medical expenses under sub. (5) (a) for
7an unlawful employment practice arising out of the same underlying behavior as the
8behavior giving rise to an injury that is compensable under ch. 102 or recovers back
9pay or front pay under sub. (5) (a) for such an unlawful employment practice for the
10same period as disability benefits are payable under ch. 102, the amount payable for
11medical expenses or disability benefits under ch. 102 for that injury shall be reduced
12by the amount recovered for medical expenses, back pay, or front pay under sub. (5)
13(a).
AB894,10,2114 (b) An aggrieved employee who has claimed worker's compensation or
15payments under s. 102.81 (1) for an injury arising out of the same underlying
16behavior as the behavior giving rise to the unlawful employment practice for which
17the aggrieved employee brings an action under sub. (3) shall provide notice of the
18action and copies of all papers filed by a party to the action to the employer's worker's
19compensation insurer or, if the employer is uninsured, to the department and notice
20of the worker's compensation proceeding and copies of all papers filed by a party to
21the proceeding to the court and to all parties to the action.
AB894, s. 7 22Section 7. 814.04 (intro.) of the statutes, as affected by 2009 Wisconsin Act 20,
23is amended to read:
AB894,11,3 24814.04 Items of costs. (intro.) Except as provided in ss. 93.20, 100.195 (5m)
25(b), 100.30 (5m), 103.08 (5) (a), 106.50 (6) (i) and (6m) (a), 111.397 (2) (a), 115.80 (9),

1281.36 (2) (b) 1., 767.553 (4) (d), 769.313, 802.05, 814.245, 895.035 (4), 895.443 (3),
2895.444 (2), 895.445 (3), 895.446 (3), 895.506, 943.212 (2) (b), 943.245 (2) (d), 943.51
3(2) (b), and 995.10 (3), when allowed costs shall be as follows:
AB894, s. 8 4Section 8. 893.997 of the statutes is created to read:
AB894,11,6 5893.997 Abusive work environment. Any civil action arising under s.
6103.08 is subject to the limitations of s. 103.08 (3).
AB894, s. 9 7Section 9. Initial applicability.
AB894,11,108 (1) Abusive work environment. This act first applies to an unlawful
9employment practice, as defined in section 103.08 (1) (k) of the statues, as created
10by this act, committed on the effective date of this subsection.
AB894,11,1111 (End)
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