111.36(1)(d)1.1. For any employer, labor organization, licensing agency or employment agency or other person to refuse to hire, employ, admit or license, or to bar or terminate from employment, membership or licensure any individual, or to discriminate against an individual in promotion, compensation or in terms, conditions or privileges of employment because of the individual's sexual orientation; or
111.36(1)(d)2.
2. For any employer, labor organization, licensing agency or employment agency or other person to discharge or otherwise discriminate against any person because he or she has opposed any discriminatory practices under this paragraph or because he or she has made a complaint, testified or assisted in any proceeding under this paragraph.
111.36(2)
(2) For the purposes of this subchapter, sex is a bona fide occupational qualification if all of the members of one sex are physically incapable of performing the essential duties required by a job, or if the essence of the employer's business operation would be undermined if employes were not hired exclusively from one sex.
111.36(3)
(3) For purposes of sexual harassment claims under
sub. (1) (b), an employer, labor organization, employment agency or licensing agency is presumed liable for an act of sexual harassment by that employer, labor organization, employment agency or licensing agency or by any of its employes or members, if the act occurs while the complaining employe is at his or her place of employment or is performing duties relating to his or her employment, if the complaining employe informs the employer, labor organization, employment agency or licensing agency of the act, and if the employer, labor organization, employment agency or licensing agency fails to take appropriate action within a reasonable time.
111.36 Annotation
Federal law may be looked to in interpreting sub. (1) (b) and (br). Under federal law "hostile environment" sexual harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Kanneneberg v. LIRC, 213 W (2d) 373, 571 NW (2d) 165 (Ct. App. 1997).
111.36 Annotation
See note to 302.41, citing 70 Atty. Gen. 202.
111.36 Annotation
See note to 102.03, citing Zabkowicz v. West Bend Co., Div. Dart Industries, 789 F (2d) 540 (1986).
111.36 Annotation
Sexual harassment. Gibson, WBB March, 1981.
111.37
111.37
Use of honesty testing devices in employment situations. 111.37(1)(a)
(a) "Employer", notwithstanding
s. 111.32 (6), means any person acting directly or indirectly in the interest of an employer in relation to an employe or prospective employe. "Employer", notwithstanding
s. 111.32 (6), does not include the federal government.
111.37(1)(b)
(b) "Lie detector" means a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator or other similar device, whether mechanical or electrical, that is used, or the results of which are used, to render a diagnostic opinion about the honesty or dishonesty of an individual.
111.37(1)(c)
(c) "Polygraph" means an instrument that fulfills all of the following requirements:
111.37(1)(c)1.
1. Records continuously, visually, permanently and simultaneously any changes in cardiovascular, respiratory and electrodermal patterns as minimum instrumentation standards.
111.37(1)(c)2.
2. Is used, or the results of which are used, to render a diagnostic opinion about the honesty or dishonesty of an individual.
111.37(2)
(2) Prohibitions on lie detector use. Except as provided in
subs. (5) and
(6), no employer may do any of the following:
111.37(2)(a)
(a) Directly or indirectly require, request, suggest or cause an employe or prospective employe to take or submit to a lie detector test.
111.37(2)(b)
(b) Use, accept, refer to or inquire about the results of a lie detector test of an employe or prospective employe.
111.37(2)(c)
(c) Discharge, discipline, discriminate against or deny employment or promotion to, or threaten to take any such action against, any of the following:
111.37(2)(c)1.
1. An employe or prospective employe who refuses, declines or fails to take or submit to a lie detector test.
111.37(2)(c)2.
2. An employe or prospective employe on the basis of the results of a lie detector test.
111.37(2)(d)
(d) Discharge, discipline, discriminate against or deny employment or promotion to, or threaten to take any such action against, an employe or prospective employe for any of the following reasons:
111.37(2)(d)1.
1. The employe or prospective employe has filed a complaint or instituted or caused to be instituted a proceeding under this section.
111.37(2)(d)2.
2. The employe or prospective employe has testified or is about to testify in a proceeding under this section.
111.37(2)(d)3.
3. The employe or prospective employe, on behalf of that employe, prospective employe or another person, has exercised any right under this section.
111.37(3)
(3) Notice of protection. The department shall prepare and distribute a notice setting forth excerpts from, or summaries of, the pertinent provisions of this section. Each employer that administers lie detector tests, or that has lie detector tests administered, to its employes shall post and maintain that notice in conspicuous places on its premises where notices to employes and applicants for employment are customarily posted.
111.37(4)
(4) Department's duties and powers. 111.37(4)(a)(a) The department shall do all of the following:
111.37(4)(a)1.
1. Promulgate rules that are necessary under this section.
111.37(4)(a)2.
2. Cooperate with regional, local and other agencies and cooperate with, and furnish technical assistance to, employment agencies other than this state, employers and labor organizations to aid in enforcing this section.
111.37(4)(a)3.
3. Make investigations and inspections and require the keeping of records necessary for the administration of this section.
111.37(4)(b)
(b) For the purpose of any hearing or investigation under this section, the department may issue subpoenas.
111.37(5)(a)(a) Except as provided in
sub. (6), this section does not prohibit an employer from requesting an employe to submit to a polygraph test if all of the following conditions apply:
111.37(5)(a)1.
1. The test is administered in connection with an ongoing investigation involving economic loss or injury to the employer's business, including theft, embezzlement, misappropriation and unlawful industrial espionage or sabotage.
111.37(5)(a)2.
2. The employe had access to the property that is the subject of the investigation under
subd. 1.
111.37(5)(a)3.
3. The employer has a reasonable suspicion that the employe was involved in the incident or activity under investigation.
111.37(5)(a)4.
4. The employer executes a statement, provided to the examinee before the test, that sets forth with particularity the specific incident or activity being investigated and the basis for testing particular employes; that is signed by a person, other than a polygraph examiner, authorized legally to bind the employer; that is retained by the employer for at least 3 years; and that identifies the specific economic loss or injury to the business of the employer, indicates that the employe had access to the property that is the subject of the investigation and describes the basis of the employer's reasonable suspicion that the employe was involved in the incident or activity under investigation.
111.37(5)(b)
(b) Except as provided in
sub. (6), this section does not prohibit an employer from administering polygraph tests, or from having polygraph tests administered, on a prospective employe who, if hired, would perform the employer's primary business purpose if the employer's primary business purpose is providing security personnel, armored car personnel or personnel engaged in the design, installation and maintenance of security alarm systems and if the employer protects any of the following:
111.37(5)(b)1.
1. Facilities, materials or operations that have a significant impact on the public health, safety or welfare of this state or the national security of the United States, including facilities engaged in the production, transmission or distribution of electric or nuclear power; public water supply facilities; shipments or storage of radioactive or other toxic waste materials; and public transportation.
111.37(5)(b)2.
2. Currency, negotiable securities, precious commodities or instruments and proprietary information.
111.37(5)(bm)
(bm) Except as provided in
sub. (6), this section does not prohibit a Wisconsin law enforcement agency from administering a polygraph test, or from having a polygraph test administered, on a prospective employe.
111.37(5)(c)
(c) Except as provided in
sub. (6), this section does not prohibit an employer that is authorized to manufacture, distribute or dispense a controlled substance included in schedule I, II, III, IV or V under
ch. 961 from administering a polygraph test, or from having a polygraph test administered, if the test is administered to a prospective employe who would have direct access to the manufacture, storage, distribution or sale of the controlled substance or to a current employe if the test is administered in connection with an ongoing investigation of criminal or other misconduct that involves, or potentially involves, loss or injury to the manufacture, distribution or dispensing of the controlled substance by that employer and the employe had access to the person or property that is the subject of the investigation.
111.37(6)
(6) Restrictions on use of exemptions. 111.37(6)(a)(a) The exemption under
sub. (5) (a) does not apply if an employe is discharged, disciplined, denied employment or promotion or otherwise discriminated against on the basis of an analysis of a polygraph test chart or a refusal to take a polygraph test without additional supporting evidence. The evidence required by
sub. (5) (a) may serve as additional supporting evidence.
111.37(6)(b)
(b) The exemptions under
sub. (5) (b) to
(c) do not apply if an analysis of a polygraph test chart is used, or a refusal to take a polygraph test is used, as the sole basis upon which an adverse employment action described in
par. (a) is taken against an employe or prospective employe.
111.37(6)(c)
(c) The exemptions under
sub. (5) (a) to
(c) do not apply unless all of the following requirements are fulfilled:
111.37(6)(c)1.
1. Throughout all phases of the test the examinee is permitted to end the test at any time; the examinee is not asked questions in a manner that degrades, or needlessly intrudes on, the examinee; the examinee is not asked any question about religious beliefs or affiliations, political beliefs or affiliations, sexual behavior, beliefs or opinions on racial matters, or about beliefs, affiliations, opinions, or lawful activities regarding unions or labor organizations; and the examiner does not conduct the test if there is sufficient written evidence provided by a physician that the examinee is suffering from a medical or psychological condition or undergoing treatment that might cause abnormal responses during the testing.
111.37(6)(c)2.
2. Before the test is administered the prospective examinee is provided with reasonable oral and written notice of the date, time and location of the test, and of the examinee's right to obtain and consult with legal counsel or an employe representative before each phase of the test; is informed orally and in writing of the nature and characteristics of the tests and of the instruments involved; is informed orally and in writing whether or not the testing area contains a 2-way mirror, a camera or any other device through which the test can be observed; is informed orally and in writing whether or not any device other than the polygraph, including any device for recording or monitoring the test, will be used; is informed orally and in writing that the employer or the examinee may, after so informing the examinee, make a recording of the test; is read and signs a written notice informing the examinee that the examinee cannot be required to take the test as a condition of employment, that any statement made during the test may constitute additional supporting evidence for the purposes of an adverse employment action under
par. (a), of the limitations on the use of a polygraph test under this subsection, of the legal rights and remedies available to the examinee under this section and
ss. 905.065 and
942.06, of the legal rights and remedies available to the examinee if the polygraph test is not conducted in accordance with this section and of the legal rights and remedies of the employer under this section; is provided an opportunity to review all questions to be asked during the test; and is informed of the right to end the test at any time.
111.37(6)(c)3.
3. The examiner does not ask the examinee any question during the test that was not presented in writing for review to the examinee before the test.
111.37(6)(c)4.
4. Before any adverse employment action, the employer interviews the examinee on the basis of the results of the test; provides the examinee written copies of any opinion or conclusion rendered as a result of the test, the questions asked during the test and the corresponding charted responses; and offers the examinee the opportunity to explain any questionable responses or to retake the examination or both. If the subsequent responses or the reexamination clarify any questionable response, the results of the initial tests shall not be reported further and shall be removed, corrected or clarified in the employe's personnel records under
s. 103.13 (4).
111.37(6)(c)5.
5. The examiner does not conduct and complete more than 5 polygraph tests on any day and does not conduct any polygraph test that lasts for less than 90 minutes.
111.37(6)(c)6.
6. The test is administered at a reasonable time and location.
111.37(6)(d)
(d) The exemptions under
sub. (5) (a) to
(c) do not apply unless the individual who conducts the polygraph test satisfies all of the following requirements:
111.37(6)(d)1.
1. Maintains at least a $50,000 bond or an equivalent amount of professional liability coverage.
111.37(6)(d)2.
2. Renders no opinion or conclusion about the test unless it is in writing and based solely on an analysis of polygraph test charts, does not contain information other than admissions, information, case facts and interpretation of the charts relevant to the purpose and stated objectives of the test, and does not include any recommendation concerning the employment of the examinee.
111.37(6)(d)3.
3. Maintains all opinions, reports, charts, written questions, lists and other records relating to the test for at least 3 years after administration of the test.
111.37(7)
(7) Disclosure of information. No person other than the examinee may disclose information obtained during a polygraph test, except that a polygraph examiner may disclose information acquired from a polygraph test to the examinee or any other person specifically designated in writing by the examinee.
111.37(8)(a)(a) In addition to the rights, remedies and procedures under
ss. 111.375 and
111.39, any employer who violates this section may be required to forfeit not more than $10,000.
111.37(8)(b)
(b) The rights, remedies and procedures provided by this section may not be waived by contract or otherwise, unless that waiver is part of a written settlement agreed to and signed by the parties to an action or complaint under this section.
111.37 History
History: 1979 c. 319;
1981 c. 334 ss.
12,
24; Stats. 1981 s. 111.37;
1991 a. 289;
1995 a. 314,
448;
1997 a. 35.
111.371
111.371
Local ordinance; collective bargaining agreements. Section 111.37 does not do any of the following:
111.371(1)
(1) Prevent a county, city, village or town from adopting an ordinance that prohibits honesty testing, restricts the use of honesty testing to a greater extent than
s. 111.37 or provides employes with more rights and remedies with respect to honesty testing than are provided under
s. 111.37.
111.371(2)
(2) Supersede, preempt or prohibit provisions of a collective bargaining agreement that prohibit honesty testing, restrict the use of honesty testing to a greater extent than
s. 111.37 or provide employes with more rights and remedies with respect to honesty testing than are provided under
s. 111.37.
111.371 History
History: 1991 a. 289,
315.
111.372
111.372
Use of genetic testing in employment situations. 111.372(1)(1) No employer, labor organization, employment agency or licensing agency may directly or indirectly:
111.372(1)(a)
(a) Solicit, require or administer a genetic test to any person as a condition of employment, labor organization membership or licensure.
111.372(1)(b)
(b) Affect the terms, conditions or privileges of employment, labor organization membership or licensure or terminate the employment, labor organization membership or licensure of any person who obtains a genetic test.
111.372(2)
(2) Except as provided in
sub. (4), no person may sell to or interpret for an employer, labor organization, employment agency or licensing agency a genetic test of an employe, labor organization member or licensee or of a prospective employe, labor organization member or licensee.
111.372(3)
(3) Any agreement between an employer, labor organization, employment agency or licensing agency and another person offering employment, labor organization membership, licensure or any pay or benefit to that person in return for taking a genetic test is prohibited.
111.372(4)
(4) This section does not prohibit the genetic testing of an employe who requests a genetic test and who provides written and informed consent to taking a genetic test for any of the following purposes:
111.372(4)(b)
(b) Determining the employe's susceptibility or level of exposure to potentially toxic chemicals or potentially toxic substances in the workplace, if the employer does not terminate the employe, or take any other action that adversely affects any term, condition or privilege of the employe's employment, as a result of the genetic test.
111.372 History
History: 1991 a. 117.
111.375
111.375
Department to administer. 111.375(1)
(1) Except as provided under
sub. (2), this subchapter shall be administered by the department. The department may make, amend and rescind such rules as are necessary to carry out this subchapter. The department or the commission may, by such agents or agencies as it designates, conduct in any part of this state any proceeding, hearing, investigation or inquiry necessary to the performance of its functions. The department shall preserve the anonymity of any employe who is the aggrieved party in a complaint of discrimination in promotion, compensation or terms and conditions of employment, of unfair honesty testing or of unfair genetic testing against his or her present employer until a determination as to probable cause has been made, unless the department determines that the anonymity will substantially impede the investigation.
111.375(2)
(2) This subchapter applies to each agency of the state except that complaints of discrimination, unfair honesty testing or unfair genetic testing against the agency as an employer shall be filed with and processed by the personnel commission under
s. 230.45 (1) (b). Decisions of the personnel commission are subject to review under
ch. 227.
111.375 History
History: 1975 c. 94;
1977 c. 29,
196;
1979 c. 221,
319,
355;
1981 c. 334 s.
13; Stats. 1981 s. 111.375;
1991 a. 117.
111.375 Annotation
Administrative remedy under Fair Employment Act was exclusive remedy for lost wages. Act does not provide remedy for emotional distress resulting from discriminatory firing. Bachand v. Connecticut Gen. Life Ins. Co. 101 W (2d) 617, 305 NW (2d) 149 (Ct. App. 1981).
111.375 Annotation
Personnel commission may not award costs and attorneys fees for discovery motions filed against the state under the Fair Employment Act. Trans. Dept. v. Personnel Commission, 176 W (2d) 731, 500 NW (2d) 664 (1993).
111.38
111.38
Investigation and study of discrimination. Except as provided under
s. 111.375 (2), the department shall:
111.38(1)
(1) Investigate the existence, character, causes and extent of discrimination in this state and the extent to which the same is susceptible of elimination.
111.38(2)
(2) Study the best and most practicable ways of eliminating any discrimination found to exist, and formulate plans for the elimination thereof by education or other practicable means.
111.38(3)
(3) Publish and disseminate reports embodying its findings and the results of its investigations and studies relating to discrimination and ways and means of reducing or eliminating it.
111.38(4)
(4) Confer, cooperate with and furnish technical assistance to employers, labor unions, educational institutions and other public or private agencies in formulating programs, educational and otherwise, for the elimination of discrimination.
111.38(5)
(5) Make specific and detailed recommendations to the interested parties as to the methods of eliminating discrimination.
