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).
111.321 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 Annotation Expanding the Notion of "Equal Coverage": The Wisconsin Fair Employment Act Requires Contraceptive Coverage for All Employer-Sponsored Prescription Drug Plans. Mason. 2005 WLR 913.
111.321 Annotation Race, Crime, and Getting a Job. Pager. 2005 WLR 617.
111.321 Annotation Family Responsibility Discrimination: Making Room at Work for Family Demands. Finerty. Wis. Law. Nov. 2007.
111.322 111.322 Discriminatory actions prohibited. Subject to ss. 111.33 to 111.365, 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, 103.34, 103.455, 103.50, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55, 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, 103.34, 103.455, 103.50, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55, or ss. 101.58 to 101.599 or 103.64 to 103.82.
111.322(2m)(bm) (bm) The individual files a complaint or attempts to enforce a right under s. 49.197 (6) (d) or 49.845 (4) (d) or testifies or assists in any action or proceeding under s. 49.197 (6) (d) or 49.845 (4) (d).
111.322(2m)(c) (c) The individual files a complaint or attempts to enforce a right under s. 66.0903, 103.49, or 229.8275 or testifies or assists in any action or proceeding under s. 66.0903, 103.49, or 229.8275.
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 Annotation Actions under subs. (1) and (2) do not involve wholly different elements of proof. Sub. (1) involves actual discrimination; the violation of sub. (2) is not in adopting a discriminatory policy, but rather the publication of it. The remaining elements are the same for both subsections. Sub. (2) is not limited to advertising for employees, it also applies to the printing of policies that affect existing employees. Racine Unified School District v. LIRC, 164 Wis. 2d 567, 476 N.W.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 that 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 Wis. 2d 603, 522 N.W.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 Wis. 2d 273, 538 N.W.2d 588 (Ct. App. 1995), 93-3042.
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, subch. II, of ch. 111. Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997), 95-2490.
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 Wis. 2d 380, 565 N.W.2d 253 (Ct. App. 1997), 96-1720.
111.322 Annotation A prima facie case for a violation of this section requires that the complainant: 1) was a member of a protected class; 2) was discharged; 3) was qualified for the position; and 4) was either replaced by someone not in the protected class or that others not in the protected class were treated more favorably. Knight v. LIRC, 220 Wis. 2d 137, 582 N.W.2d 448 (Ct. App. 1998), 97-1606.
111.322 Annotation The free exercise clause of the 1st amendment and the freedom of conscience clauses in Article I, Section 18, of the Wisconsin constitution preclude employment discrimination claims under ss. 111.31 to 111.395 for employees whose positions are important and closely linked to the religious mission of a religious organization. Coulee Catholic Schools v. LIRC, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868, 07-0496.
111.322 Annotation Some "Hardship": Defending a Disability Discrimination Suit Under the Wisconsin Fair Employment Act. Hansch. 89 MLR 821 (2005).
111.322 Annotation Discrimination in advertising. Abramson, WBB March, 1985.
111.322 Annotation Employer Liability for Employment References. Mac Kelly. Wis. Law. May 2008.
111.322 Annotation2009 Wisconsin Act 20: Changes to Wisconsin's Fair Employment Law. Karls-Ruplinger. Wis. Law. Sept. 2009.
111.325 111.325 Unlawful to discriminate. It is unlawful for any employer, labor organization, licensing agency or person to discriminate against any employee or any applicant for employment or licensing.
111.327 111.327 Construction contractors. Any employer described in s. 108.18 (2) (c) or engaged in the painting or drywall finishing of buildings or other structures who willfully and with intent to evade any requirement of this subchapter misclassifies or attempts to misclassify an individual who is an employee of the employer as a nonemployee shall be fined $25,000 for each violation. The department shall promulgate rules defining what constitutes a willful misclassification of an employee as a nonemployee for purposes of this section and of ss. 102.07 (8) (d) and 108.24 (2m).
111.327 History History: 2009 a. 28, 288.
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 employee 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 employee'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 employee 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 Wis. 2d 715, 547 N.W.2d 783 (Ct. App. 1996), 95-2346.
111.33 Annotation An employee is physically unable to perform a job under sub. (2) if that employee is performing the job with a physical accommodation. Harrison v. LIRC, 211 Wis. 2d 681, 565 N.W.2d 572 (Ct. App. 1997), 96-1795.
111.33 Annotation A city charged under the federal Age Discrimination in Employment Act had the burden of establishing that a mandatory retirement age of 55 for law enforcement personnel was a bona fide occupational qualification. Equal Employment Opportunity Commission v. City of Janesville, 630 F.2d 1254 (1980).
111.33 Annotation The federal Employment Retirement Income Security Act preempts sub. (2) (b) to the extent that it applies to employee benefit plans covered by it. Waukesha Engine Division v. DILHR, 619 F. Supp. 1310 (1985).
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2011-12 Wisconsin Statutes updated through 2013 Wis. Act 380 and all Supreme Court Orders entered before Dec. 13, 2014. Published and certified under s. 35.18. Changes effective after Dec. 13, 2014 are designated by NOTES. (Published 12-13-14)