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111.32(10) (10) "License" means the whole or any part of any permit, certificate, approval, registration, charter or similar form of permission required by a state or local unit of government for the undertaking, practice or continuation of any occupation or profession.
111.32(11) (11) "Licensing agency" means any board, commission, committee, department, examining board, affiliated credentialing board or officer, except a judicial officer, in the state or any city, village, town, county or local government authorized to grant, deny, renew, revoke, suspend, annul, withdraw or amend any license.
111.32(12) (12) "Marital status" means the status of being married, single, divorced, separated or widowed.
111.32(12m) (12m) "Religious association" means an organization, whether or not organized under ch. 187, which operates under a creed.
111.32(13) (13) "Sexual harassment" means unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. "Sexual harassment" includes conduct directed by a person at another person of the same or opposite gender. "Unwelcome verbal or physical conduct of a sexual nature" includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments of a sexual nature; the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes; or deliberate verbal or physical conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employe's work performance or to create an intimidating, hostile or offensive work environment.
111.32(13m) (13m) "Sexual orientation" means having a preference for heterosexuality, homosexuality or bisexuality, having a history of such a preference or being identified with such a preference.
111.32(13r) (13r) "Unfair genetic testing" means any test or testing procedure that violates s. 111.372.
111.32(14) (14) "Unfair honesty testing" means any test or testing procedure which violates s. 111.37.
111.32 Annotation The differing treatment of pregnancy disability is not based upon a difference in type of disability, as contended by the employer, rather than upon the sex of the employe, since pregnancy is undisputedly sex-linked, and to isolate disabilities associated with pregnancy for less favorable treatment in a benefit plan designed to relieve the economic burden of physical incapacity constitutes discrimination by sex. Ray-O-Vac v. ILHR Dept. 70 W (2d) 919, 236 NW (2d) 209.
111.32 Annotation Term "creed", as used in sub. (5) (a), 1979 stats., [now sub. (3m)], means a system of religious beliefs, not political beliefs. Augustine v. Anti-Defamation Lg. B'nai B'rith, 75 W (2d) 207, 249 NW (2d) 547.
111.32 Annotation Where employer negotiated, under National Labor Relations Act, a welfare benefit plan, under Employee Retirement Income Security Act, neither federal act preempted Wisconsin's sex discrimination law forbidding pregnancy benefits discrimination. Goodyear Tire & Rubber Co. v. DILHR, 87 W (2d) 56, 273 NW (2d) 786 (Ct. App. 1978).
111.32 Annotation Fair Employment Act was not preempted by federal legislation. "Future hazards" exception discussed. Chicago & N.W.R.R. v. Labor & Ind. Rev. Comm. 91 W (2d) 462, 283 NW (2d) 603 (Ct. App. 1979).
111.32 Annotation Inclusion of pregnancy-related benefits within disability benefit plan does not violate Equal Pay Act. Kimberly-Clark Corp. v. Labor & Ind. Rev. Comm. 95 W (2d) 558, 291 NW (2d) 584 (Ct. App. 1980).
111.32 Annotation Perceived handicap discussed. La Crosse Police Comm. v. LIRC, 139 W (2d) 740, 407 NW (2d) 510 (1987).
111.32 Annotation Individual asserting battery, not as form of employment discrimination, but as "independent and unlawful touching of the person" is not precluded by WFEA from bringing battery claim although (13) broadly defines "sexual harassment." Becker v. Automatic Garage Door Co., 156 W (2d) 409, 456 NW (2d) 888 (Ct. App. 1990).
111.32 Annotation The standard to determine whether a person is an "employe" under Title VII of the Civil Rights Act is applicable to WEFA cases. A determination of "employe" status in a Title VII action precludes redetermination in a WEFA action. Moore v. LIRC, 175 W (2d) 561, 499 NW (2d) 288 (Ct. App. 1993), 107.
111.32 Annotation Barring spouses who are both public employes from each electing family medical coverage is excepted from the prohibition against discrimination based on marital status under ch. 111. Motola v. LIRC, 219 W (2d) 589, 580 NW (2d) 297 (1998).
111.32 Annotation A licensing agency may request information from an applicant regarding conviction records under sub. (5) (h), 1979 stats. [now sub. (3)]. 67 Atty. Gen. 327.
111.32 Annotation See note to s. 66.054, citing 68 Atty. Gen. 202.
111.321 111.321 Prohibited bases of discrimination. Subject to ss. 111.33 to 111.36, no employer, labor organization, employment agency, licensing agency or other person may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of age, race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, membership in the national guard, state defense force or any reserve component of the military forces of the United States or this state or use or nonuse of lawful products off the employer's premises during nonworking hours.
111.321 History History: 1981 c. 334; 1987 a. 63; 1991 a. 310; 1997 a. 112.
111.321 Note NOTE: See 111.36 for definition of sex discrimination.
111.321 Annotation Denial of homosexual employe's request for family coverage for herself and her companion did not violate equal protection or prohibition under 111.321 of discrimination on basis of marital status, sexual orientation or gender. Phillips v. Wisconsin Personnel Commission, 167 W (2d) 205, 482 NW 121 (2d) (Ct. App. 1992).
111.321 Annotation Bargaining agreement requiring married employes with spouses covered by employer provided comparable health insurance to elect coverage under one policy or the other violated this section. Braatz v. LIRC, 174 W (2d) 286, 496 NW (2d) 597 (1993).
111.321 Annotation The exclusive remedy provision in s. 102.03 (2) does not bar a complainant whose claim is covered by the workers compensation act from pursuing an employment discrimination claim under the fair employment act, subchapter II of ch.111. Byers v. LIRC, 208 W (2d) 388, 561 NW (2d) 678 (1997).
111.321 Annotation A prima facie case of discrimination triggers a burden of production against an employer, but unless the employer remains silent in the face of the prima facie case, the complainant continues to bear the burden of proof on the ultimate issue of discrimination. Currie v. DILHR, 210 W (2d) 381, 565 NW (2d) 253 (Ct. App. 1997).
111.321 Annotation Licensing boards do not have authority to enact general regulations which would allow them to suspend, deny or revoke license of person who has communicable disease. Licensing boards do have authority on case-by-case basis to suspend, deny or revoke license of person who poses direct threat to health and safety of other persons or who is unable to perform duties of licensed activity. 77 Atty. Gen. 223.
111.321 Annotation Person suffering from contagious disease may be handicapped pursuant to federal rehabilitation act. School Board of Nassau County v. Arline, 480 US 273 (1987).
111.322 111.322 Discriminatory actions prohibited. Subject to ss. 111.33 to 111.36, it is an act of employment discrimination to do any of the following:
111.322(1) (1) To refuse to hire, employ, admit or license any individual, to bar or terminate from employment or labor organization membership any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment or labor organization membership because of any basis enumerated in s. 111.321.
111.322(2) (2) To print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which implies or expresses any limitation, specification or discrimination with respect to an individual or any intent to make such limitation, specification or discrimination because of any basis enumerated in s. 111.321.
111.322(2m) (2m) To discharge or otherwise discriminate against any individual because of any of the following:
111.322(2m)(a) (a) The individual files a complaint or attempts to enforce any right under s. 103.02, 103.10, 103.13, 103.28, 103.32, 103.455, 103.50, 104.12, 109.03, 109.07 or 109.075 or ss. 101.58 to 101.599 or 103.64 to 103.82.
111.322(2m)(b) (b) The individual testifies or assists in any action or proceeding held under or to enforce any right under s. 103.02, 103.10, 103.13, 103.28, 103.32, 103.455, 103.50, 104.12, 109.03, 109.07 or 109.075 or ss. 101.58 to 101.599 or 103.64 to 103.82.
111.322(2m)(c) (c) The individual files a complaint or attempts to enforce a right under s. 66.293 or 103.49 or testifies or assists in any action or proceeding under s. 66.293 or 103.49.
111.322(2m)(d) (d) The individual's employer believes that the individual engaged or may engage in any activity described in pars. (a) to (c).
111.322(3) (3) To discharge or otherwise discriminate against any individual because he or she has opposed any discriminatory practice under this subchapter or because he or she has made a complaint, testified or assisted in any proceeding under this subchapter.
111.322 History History: 1981 c. 334; 1989 a. 228, 359; 1997 a. 237.
111.322 Annotation Discussion of meaning of (2). Racine Unified School Dist. v. LIRC, 164 W (2d) 567, 476 NW (2d) 707 (Ct. App. 1991).
111.322 Annotation An unlawful practice occurs when an impermissible motivating factor enters into an employment decision, but if the employer can demonstrate it would have taken the same action in the absence of the impermissible factor the complainant may not be awarded monetary damages or reinstatement. Hoell v. LIRC, 186 W (2d) 603, 522 NW (2d) 234 (Ct. App. 1994).
111.322 Annotation The state is prevented from enforcing discrimination laws against religious associations when the employment at issue serves a ministerial or ecclesiastical function. While it must be given considerable weight, a religious association's designation of a position as ministerial or ecclesiastical does not control its status. Jocz v. LIRC, 196 W (2d) 273, 538 NW (2d) 588 (Ct. App. 1995).
111.322 Annotation The exclusive remedy provision in s. 102.03 (2) does not bar a complainant whose claim is covered by the workers compensation act from pursuing an employment discrimination claim under the fair employment act, subchapter II of ch.111. Byers v. LIRC, 208 W (2d) 388, 561 NW (2d) 678 (1997).
111.322 Annotation A prima facie case of discrimination triggers a burden of production against an employer, but unless the employer remains silent in the face of the prima facie case, the complainant continues to bear the burden of proof on the ultimate issue of discrimination. Currie v. DILHR, 210 W (2d) 381, 565 NW (2d) 253 (Ct. App. 1997).
111.322 Annotation A prima facie case of a violation of this section requires that the complainant was a member of a protected class, was discharged, was qualified for the position and was replaced by someone not in the protected class or or that others not in the protected class were treated more favorably. Knight v. LIRC, 220 W (2d) 137, 582 NW (2d) 448 (Ct. App. 1998).
111.322 Annotation Discrimination in advertising. Abramson, WBB March, 1985.
111.325 111.325 Unlawful to discriminate. It is unlawful for any employer, labor organization, licensing agency or person to discriminate against any employe or any applicant for employment or licensing.
111.33 111.33 Age; exceptions and special cases.
111.33(1) (1) The prohibition against employment discrimination on the basis of age applies only to discrimination against an individual who is age 40 or over.
111.33(2) (2) Notwithstanding sub. (1) and s. 111.322, it is not employment discrimination because of age to do any of the following:
111.33(2)(a) (a) To terminate the employment of any employe physically or otherwise unable to perform his or her duties.
111.33(2)(b) (b) To implement the provisions of any retirement plan or system of any employer if the retirement plan or system is not a subterfuge to evade the purposes of this subchapter. No plan or system may excuse the failure to hire, or require or permit the involuntary retirement of, any individual under sub. (1) because of that individual's age.
111.33(2)(d) (d) To apply varying insurance coverage according to an employe's age.
111.33(2)(e) (e) To exercise an age distinction with respect to hiring an individual to a position in which the knowledge and experience to be gained is required for future advancement to a managerial or executive position.
111.33(2)(f) (f) To exercise an age distinction with respect to employment in which the employe is exposed to physical danger or hazard, including, without limitation because of enumeration, certain employment in law enforcement or fire fighting.
111.33(2)(g) (g) To exercise an age distinction under s. 343.12 (2) (a) and (3).
111.33 History History: 1981 c. 334; 1983 a. 391, 538.
111.33 Annotation Sub. (2) (f) exempts the hiring of fire fighters from being the subject of age discrimination suits. A fire department need not show that it openly and consistently discriminated on the basis of age to be exempt under sub. (2) (f). Johnson v. LIRC, 200 W (2d) 715, 547 NW (2d) 783 (Ct. App. 1996).
111.33 Annotation An employe is physically unable to perform a job under sub. (2) if that employe is performing the job with a physical accommodation. Harrison v. LIRC, 211 W (2d) 680, 565 NW (2d) 572 (Ct. App. 1997).
111.33 Annotation City charged under federal age discrimination act had burden of establishing that age 55 mandatory retirement was BFOQ for law enforcement personnel. Equal Emp. Opp. Comm. v. City of Janesville, 630 F (2d) 1254 (1980).
111.33 Annotation ERISA preempts (2) (b) to extent it applies to employe benefit plans covered by ERISA. Waukesha Engine Div. v. Dept. of Industry, 619 F Supp. 1310 (1985).
111.335 111.335 Arrest or conviction record; exceptions and special cases.
111.335(1)(1)
111.335(1)(a)(a) Employment discrimination because of arrest record includes, but is not limited to, requesting an applicant, employe, member, licensee or any other individual, on an application form or otherwise, to supply information regarding any arrest record of the individual except a record of a pending charge, except that it is not employment discrimination to request such information when employment depends on the bondability of the individual under a standard fidelity bond or when an equivalent bond is required by state or federal law, administrative regulation or established business practice of the employer and the individual may not be bondable due to an arrest record.
111.335(1)(b) (b) Notwithstanding s. 111.322, it is not employment discrimination because of arrest record to refuse to employ or license, or to suspend from employment or licensing, any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job or licensed activity.
111.335(1)(c) (c) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license, or to bar or terminate from employment or licensing, any individual who:
111.335(1)(c)1. 1. Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity; or
111.335(1)(c)2. 2. Is not bondable under a standard fidelity bond or an equivalent bond where such bondability is required by state or federal law, administrative regulation or established business practice of the employer.
111.335(1)(cg)1.1. Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to deny or refuse to renew a license or permit under s. 440.26 to a person who has been convicted of a felony and has not been pardoned for that felony.
111.335(1)(cg)2. 2. Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to revoke a license or permit under s. 440.26 (6) (b) if the person holding the license or permit has been convicted of a felony and has not been pardoned for that felony.
111.335(1)(cg)3. 3. Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ a person in a business licensed under s. 440.26 or as an employe specified in s. 440.26 (5) (b) if the person has been convicted of a felony and has not been pardoned for that felony.
111.335(1)(cm) (cm) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ as an installer of burglar alarms a person who has been convicted of a felony and has not been pardoned.
111.335(1)(cs) (cs) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to revoke, suspend or refuse to renew a license or permit under ch. 125 if the person holding or applying for the license or permit has been convicted of one or more of the following:
111.335(1)(cs)1. 1. Manufacturing, distributing or delivering a controlled substance or controlled substance analog under s. 961.41 (1).
111.335(1)(cs)2. 2. Possessing, with intent to manufacture, distribute or deliver, a controlled substance or controlled substance analog under s. 961.41 (1m).
111.335(1)(cs)3. 3. Possessing, with intent to manufacture, distribute or deliver, or manufacturing, distributing or delivering a controlled substance or controlled substance analog under a federal law that is substantially similar to s. 961.41 (1) or (1m).
111.335(1)(cs)4. 4. Possessing, with intent to manufacture, distribute or deliver, or manufacturing, distributing or delivering a controlled substance or controlled substance analog under the law of another state that is substantially similar to s. 961.41 (1) or (1m).
111.335 Annotation See note to 165.85, citing Law Enforce. Stds. Bd. v. Lyndon Station, 101 W (2d) 472, 305 NW (2d) 89 (1981).
111.335 Annotation See note to 108.04, citing Miller Brewing Co. v. DILHR, 103 W (2d) 496, 308 NW (2d) 922 (Ct. App. 1981).
111.335 Annotation Conviction for armed robbery in and of itself constituted circumstances substantially related to school bus driver's licensure. Gibson v. Transp. Comm. 106 W (2d) 22, 315 NW (2d) 346 (1982).
111.335 Annotation "Circumstances of the offense" test adopted. County of Milwaukee v. LIRC, 139 W (2d) 805, 407 NW (2d) 908 (1987).
111.335 Annotation There is no requirement that an that an employer take affirmative steps to accommodate individuals convicted of felonies. Knight v. LIRC, 220 W (2d) 137, 582 NW (2d) 448 (Ct. App. 1998).
111.335 Annotation When evaluating individual for position of reserve officer, sheriff's department may consider information in its possession concerning individual's juvenile record, subject to prohibitions against arrest record and conviction record discrimination contained in WFEA. 79 Atty. Gen. 89.
111.335 Annotation Discrimination in employment on the basis of arrest or conviction record. Mukamel. WBB Sept. 1983.
111.337 111.337 Creed; exceptions and special cases.
111.337(1)(1) Employment discrimination because of creed includes, but is not limited to, refusing to reasonably accommodate an employe's or prospective employe's religious observance or practice unless the employer can demonstrate that the accommodation would pose an undue hardship on the employer's program, enterprise or business.
111.337(2) (2) Notwithstanding s. 111.322, it is not employment discrimination because of creed:
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