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subch. II of ch. 111 SUBCHAPTER II
FAIR EMPLOYMENT
Subch. II of ch. 111 Cross-reference Cross-reference: See also ch. DWD 218, Wis. adm. code.
111.31 111.31 Declaration of policy.
111.31(1) (1) The legislature finds that the practice of unfair discrimination in employment against properly qualified individuals by reason of their age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, military service, use or nonuse of lawful products off the employer's premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters, substantially and adversely affects the general welfare of the state. Employers, labor organizations, employment agencies, and licensing agencies that deny employment opportunities and discriminate in employment against properly qualified individuals solely because of their age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, military service, use or nonuse of lawful products off the employer's premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters, deprive those individuals of the earnings that are necessary to maintain a just and decent standard of living.
111.31(2) (2) It is the intent of the legislature to protect by law the rights of all individuals to obtain gainful employment and to enjoy privileges free from employment discrimination because of age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, military service, use or nonuse of lawful products off the employer's premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters, and to encourage the full, nondiscriminatory utilization of the productive resources of the state to the benefit of the state, the family, and all the people of the state. It is the intent of the legislature in promulgating this subchapter to encourage employers to evaluate an employee or applicant for employment based upon the individual qualifications of the employee or applicant rather than upon a particular class to which the individual may belong.
111.31(3) (3) In the interpretation and application of this subchapter, and otherwise, it is declared to be the public policy of the state to encourage and foster to the fullest extent practicable the employment of all properly qualified individuals regardless of age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, military service, use or nonuse of lawful products off the employer's premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters. Nothing in this subsection requires an affirmative action program to correct an imbalance in the work force. This subchapter shall be liberally construed for the accomplishment of this purpose.
111.31(4) (4) The practice of requiring employees or prospective employees to submit to a test administered by means of a lie detector, as defined in s. 111.37 (1) (b), is unfair, the practice of requesting employees and prospective employees to submit to such a test without providing safeguards for the test subjects is unfair, and the use of improper tests and testing procedures causes injury to the employees and prospective employees.
111.31(5) (5) The legislature finds that the prohibition of discrimination on the basis of creed under s. 111.337 is a matter of statewide concern, requiring uniform enforcement at state, county and municipal levels.
111.31 Annotation The department is not limited to finding sex discrimination only when a 14th amendment equal protection violation can also be found. Wisconsin Telephone Co. v. DILHR, 68 Wis. 2d 345, 228 N.W.2d 649 (1975).
111.31 Annotation The Wisconsin fair employment act (WEFA), subch. II, ch.111, is more direct and positive in prohibiting sex discrimination in employment than is the basic constitutional guarantee of equal protection of the laws; enforcement of the law is not limited by the "rational basis" or "reasonableness" tests employed in 14th amendment cases. Ray-O-Vac v. DILHR, 70 Wis. 2d 919, 236 N.W.2d 209 (1975).
111.31 Annotation Section 118.20 is not the exclusive remedy of a wronged teacher; it is supplementary to the remedy under WFEA. The general provisions of s. 893.80 are superseded by the specific authority of the act. Kurtz v. City of Waukesha, 91 Wis. 2d 103, 280 N.W.2d 757 (1979).
111.31 Annotation An employee who was not handicapped, but perceived by the employer to be so, was entitled to protection under WEFA. Dairy Equipment Co. v. DILHR, 95 Wis. 2d 319, 290 N.W.2d 330 (1980).
111.31 Annotation WFEA provides the exclusive remedy for retaliatory discrimination. Bourque v. Wausau Hospital Center, 145 Wis. 2d 589, 427 N.W.2d 433 (Ct. App. 1988).
111.31 Annotation WFEA does not apply to national guard personnel decisions; federal law prevents the state from regulating personnel criteria of the national guard. Hazelton v. Personnel Commission, 178 Wis. 2d 776, 505 N.W.2d 793 (Ct. App. 1993).
111.31 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 WFEA. Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997), 95-2490.
111.31 Annotation This act protects all employees, including prospective and de facto employees. 67 Atty. Gen. 169.
111.31 Annotation State courts have concurrent jurisdiction over federal Title VII civil rights actions. Yellow Freight System v. Donnelly, 494 U.S. 820, 108 L. Ed. 2d 834 (1990).
111.31 Annotation The federal Employee Retirement Income Security Act (ERISA) does not preempt state fair employment laws prohibiting discriminatory exclusion of pregnancy benefits in disability plans. Bucyrus-Erie Company v. DILHR, 599 F.2d 205 (1979).
111.31 Annotation No private right of action exists under this subchapter. Busse v. Gelco Exp. Corp., 678 F. Supp. 1398 (E. D. Wis. 1988).
111.31 Annotation The Wisconsin fair employment act and the 1982 amendments. Rice. WBB Aug. 1982.
111.31 Annotation Wisconsin's fair employment act: coverage, procedures, substance, remedies. 1975 WLR 696.
111.31 Annotation Perceived handicap under WFEA. 1988 WLR 639 (1988).
111.32 111.32 Definitions. When used in this subchapter:
111.32(1) (1) "Arrest record" includes, but is not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.
111.32(2) (2) "Commission" means the labor and industry review commission.
111.32(2r) (2r) "Constituent group" includes a civic association, community group, social club, fraternal society, mutual benefit alliance, or labor organization.
111.32(3) (3) "Conviction record" includes, but is not limited to, information indicating that an individual has been convicted of any felony, misdemeanor or other offense, has been adjudicated delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority.
111.32(3m) (3m) "Creed" means a system of religious beliefs, including moral or ethical beliefs about right and wrong, that are sincerely held with the strength of traditional religious views.
111.32(4) (4) "Department" means the department of workforce development.
111.32(5) (5) "Employee" does not include any individual employed by his or her parents, spouse or child.
111.32(6) (6)
111.32(6)(a)(a) "Employer" means the state and each agency of the state and, except as provided in par. (b), any other person engaging in any activity, enterprise or business employing at least one individual. In this subsection, "agency" means an office, department, independent agency, authority, institution, association, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts.
111.32(6)(b) (b) "Employer" does not include a social club or fraternal society under ch. 188 with respect to a particular job for which the club or society seeks to employ or employs a member, if the particular job is advertised only within the membership.
111.32(7) (7) "Employment agency" means any person, including this state, who regularly undertakes to procure employees or opportunities for employment for any other person.
111.32(7m) (7m) "Genetic testing" means a test of a person's genes, gene products or chromosomes, for abnormalities or deficiencies, including carrier status, that are linked to physical or mental disorders or impairments, or that indicate a susceptibility to illness, disease, impairment or other disorders, whether physical or mental, or that demonstrate genetic or chromosomal damage due to environmental factors.
111.32(8) (8) "Individual with a disability" means an individual who:
111.32(8)(a) (a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;
111.32(8)(b) (b) Has a record of such an impairment; or
111.32(8)(c) (c) Is perceived as having such an impairment.
111.32(9) (9) "Labor organization" means:
111.32(9)(a) (a) Any organization, agency or employee representation committee, group, association or plan in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours or other terms or conditions of employment; or
111.32(9)(b) (b) Any conference, general committee, joint or system board or joint council which is subordinate to a national or international committee, group, association or plan under par. (a).
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(12g) (12g) "Military service" means service in the U.S. armed forces, the state defense force, the national guard of any state, or any other reserve component of the U.S. armed forces.
111.32(12j) (12j) "Political matters" means political party affiliation, a political campaign, an attempt to influence legislation, or the decision to join or not to join, or to support or not to support, any lawful political group, constituent group, or political or constituent group activity.
111.32(12m) (12m) "Religious association" means an organization, whether or not organized under ch. 187, which operates under a creed.
111.32(12p) (12p) "Religious matters" means religious affiliation or the decision to join or not to join, or to support or not to support, any bona fide religious association.
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 employee'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 summary discharge, after 2 weeks of satisfactory employment, of a person with a history of asthma violated the fair employment act in that it constituted a discriminatory practice against the claimant based on handicap. Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. DILHR, 62 Wis. 2d 392, 215 N.W.2d 443 (1974).
111.32 Annotation Singling out disabilities associated with pregnancy for less favorable treatment in a benefit plan designed to relieve the economic burden of physical incapacity constituted discrimination on the basis of sex, as pregnancy is undisputedly sex-linked. Ray-O-Vac v. DILHR, 70 Wis. 2d 919, 236 N.W.2d 209 (1975).
111.32 Annotation "Creed," as used in sub. (5) (a) [now sub. (3m)], means a system of religious beliefs, not political beliefs. Augustine v. Anti-Defamation League of B'nai B'rith, 75 Wis. 2d 207, 249 N.W.2d 547 (1977).
111.32 Annotation Wisconsin law forbidding pregnancy benefits discrimination was not preempted when an employer negotiated, under the National Labor Relations Act, a welfare benefit plan, under the Employee Retirement Income Security Act. Goodyear Tire & Rubber Co. v. DILHR, 87 Wis. 2d 56, 273 N.W.2d 786 (Ct. App. 1978).
111.32 Annotation The Fair Employment Act (WFEA), subch. II of ch. 111, was not preempted by federal legislation. Chicago & North Western Railroad v. LIRC, 91 Wis. 2d 462, 283 N.W.2d 603 (Ct. App. 1979).
111.32 Annotation The inclusion of pregnancy-related benefits within a disability benefit plan does not violate the federal Equal Pay Act. Kimberly-Clark Corp. v. LIRC, 95 Wis. 2d 558, 291 N.W.2d 584 (Ct. App. 1980).
111.32 Annotation An individual may be found to be handicapped under WFEA although no actual impairment is found. It is sufficient to find that the employer perceived that the individual is handicapped; discrimination may be found when the perceived handicap is the sole basis of a hiring decision. La Crosse Police Commission v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987).
111.32 Annotation Common-law torts recognized before the adoption of WFEA, if properly pled, are not barred by the act although the complained of act may fit a definition of discriminatory behavior under WFEA. A battery claim was not precluded by WFEA, although the sub. (13) definition of "sexual harassment" is broad enough to include battery, when the tort was pled as an unlawful touching, not a discriminatory act. Becker v. Automatic Garage Door Co. 156 Wis. 2d 409, 456 N.W.2d 888 (Ct. App. 1990).
111.32 Annotation The standard to determine whether a person is an "employee" under Title VII of the Civil Rights Act is applicable to WFEA cases. A determination of "employee" status in a Title VII action precludes redetermination in a WFEA action. Moore v. LIRC, 175 Wis. 2d 561, 499 N.W.2d 288 (Ct. App. 1993).
111.32 Annotation Barring spouses who are both public employees from each electing family medical coverage is excepted from the prohibition against discrimination based on marital status under ch. 111. Motola v. LIRC, 219 Wis. 2d 588, 580 N.W.2d 297 (1998), 97-0896.
111.32 Annotation Unwelcome physical contact of a sexual nature and unwelcome verbal conduct or physical conduct of a sexual nature may constitute sexual harassment, even when they do not create a hostile work environment. Jim Walter Color Separations v. LIRC, 226 Wis. 2d 334, 595 N.W.2d 68 (Ct. App. 1999), 98-2360.
111.32 Annotation A person claiming a disability under sub. (8) must demonstrate an actual or perceived impairment that makes, or is perceived as making, achievement unusually difficult or limits the capacity to work. An impairment is a real or perceived lessening or deterioration or damage to a normal bodily function or bodily condition, or the absence of such bodily function or condition. "Achievement" is not as to a particular job, but as to a substantial limitation on life's normal functions or a major life activity. "Limits the capacity to work" refers to the specific job at issue. Hutchinson Technology, Inc. v. LIRC, 2004 WI 90, 273 Wis. 2d 394, 682 N.W.2d 343, 02-3328.
111.32 Annotation LIRC properly interpreted sub. (8) to require a claimant to demonstrate a permanent impairment. To demonstrate that a disability exists, the complainant must present competent evidence of a medical diagnosis regarding the alleged impairment. An employer's decision to grant requests for light-duty work, rather than terminating employment for refusing to perform regular job duties, is not proof of a perceived disability under sub. (8) (c). Erickson v. Labor and Industry Review Commission, 2005 WI App 208, 287 Wis. 2d 204, 704 N.W.2d 398, 04-3237.
111.32 Annotation Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. DILHR, 62 Wis. 2d 392, does not hold that a diagnosis of asthma alone establishes a disability. Doepke-Kline v. Labor and Industry Review Commission, 2005 WI App 209, 287 Wis. 2d 337, 704 N.W.2d 605, 05-0106.
111.32 Annotation A licensing agency may request information from an applicant regarding conviction records under sub. (5) (h) [now sub. (3)]. 67 Atty. Gen. 327.
111.32 Annotation Expanding Employer Liability for Sexual Harassment Under the Wisconsin Fair Employment Act: Jim Walter Color Separations v. Labor & Industry Review Commission. Edgar. 2000 WLR 885.
111.321 111.321 Prohibited bases of discrimination. Subject to ss. 111.33 to 111.365, 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, military service, use or nonuse of lawful products off the employer's premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters.
111.321 Note NOTE: See 111.36 for definition of sex discrimination.
111.321 Annotation The denial of a homosexual employee's request for family coverage for herself and her companion did not violate equal protection or the s. 111.321 prohibition of discrimination on the basis of marital status, sexual orientation, or gender. Phillips v. Wisconsin Personnel Commission, 167 Wis. 2d 205, 482 N.W.2d 121 (Ct. App. 1992).
111.321 Annotation A bargaining agreement requiring married employees with spouses covered by comparable employer-provided health insurance to elect coverage under one policy or the other violated this section. Braatz v. LIRC, 174 Wis. 2d 286, 496 N.W.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, subch. II, ch.111. Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997), 95-2490.
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 Wis. 2d 380, 565 N.W.2d 253 (Ct. App. 1997), 96-1720.
111.321 Annotation Unwelcome physical contact of a sexual nature and unwelcome verbal conduct or physical conduct of a sexual nature may constitute sexual harassment, even when they do not create a hostile work environment. Jim Walter Color Separations v. LIRC, 226 Wis. 2d 334, 595 N.W.2d 68 (Ct. App. 1999), 98-2360.
111.321 Annotation It was reasonable for LIRC to interpret the prohibition against marital status discrimination as protecting the status of being married in general rather than the status of being married to a particular person. Bammert v. LIRC, 2000 WI App 28, 232 Wis. 2d 365, 606 N.W.2d 620, 99-1271.
111.321 Annotation The department of workforce development has statutory authority to receive and investigate a firefighter's employment discrimination claim that is tied directly to the charges sustained and disciplinary sanctions imposed by a police and fire commission under s. 62.13 (5), to which claim preclusion is no bar. City of Madison v. DWD, 2002 WI App 199, 257 Wis. 2d 348, 651 N.W.2d 292, 01-1910.
111.321 Annotation The police and fire commission has exclusive statutory authority under s. 62.13 (5) to review disciplinary actions against firefighters. Any claim that a disciplinary termination is discriminatory under ch.111 must be raised before the PFC. DWD may not take jurisdiction over a ch. 111 complaint arising out of a decision of a PFC to terminate a firefighter. City of Madison v. DWD, 2003 WI 76, 262 Wis. 2d 652, 664 N.W.2d 584, 01-1910.
111.321 Annotation A person other than an employer, labor organization, or licensing agency can violate subch. II of ch. 111, if it engages in discriminatory conduct that has a sufficient nexus with the denial or restriction of some individual's employment opportunity. A trucking company who leased its trucks and drivers from another company that hired the drivers and had the power to reject drivers approved by the leasing company, was an "other person" subject to this section. Szleszinski v. Labor & Industry Review Commission, 2005 WI App 229, 287 Wis. 2d 775, 706 N.W.2d 345, 04-3033.
111.321 AnnotationAffirmed on other grounds. 2007 WI 106, 304 Wis. 2d 258, 736 N.W.2d 111, 04-3033.
111.321 Annotation Licensing boards do not have authority to enact general regulations that would allow them to suspend, deny, or revoke the license of a person who has a communicable disease. Licensing boards do have authority on a case-by-case basis to suspend, deny, or revoke the license of a person who poses a direct threat to the health and safety of other persons or who is unable to perform duties of the licensed activity. 77 Atty. Gen. 223.
111.321 Annotation A person suffering from a contagious disease may be handicapped under the federal Rehabilitation Act of 1973. School Board of Nassau County v. Arline, 480 U.S. 273 (1987).
111.321 Annotation The Unwisdom of the Wisconsin Fair Employment Act's Ban of Employment Discrimination on the Basis of Conviction Records. Hruz. 85 MLR 779 (2002).
111.321 Annotation Some "Hardship": Defending a Disability Discrimination Suit Under the Wisconsin Fair Employment Act. Hansch. 89 MLR 821 (2005).
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 380 and all Supreme Court Orders entered before June 30, 2014. Published and certified under s. 35.18. Changes effective after July 1, 2014 are designated by NOTES. (Published 7-1-14)