125.9 Miscellaneous

When a Complainant has established a prima facie case that race or sex has been taken into account in an employment decision, the employer may meet its burden of articulating a non-discriminatory rationale for its decision by pointing to the existence of an affirmative action plan. That reliance on an affirmative action plan is not to be treated as an affirmative defense requiring the employer to carry the burden of proving the validity of the plan; the burden of proving its invalidity remains on the Complainant. Where the Complainant offered no evidence regarding the percentage of women in the labor market, the Commission concluded that the Complainant could not meet his burden of proving the invalidity of an affirmative action plan favoring women. Gordon v. City of Milwaukee (LIRC, 10/16/87).