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).
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(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)(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(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(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 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 History
History: 1975 c. 31,
94,
275,
421;
1977 c. 29,
125,
196,
286;
1979 c. 319,
357;
1981 c. 96 s.
67;
1981 c. 112,
334,
391;
1983 a. 36;
1987 a. 149;
1991 a. 117;
1993 a. 107,
427;
1995 a. 27 s.
9130 (4);
1997 a. 3,
112,
283.
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. Sub. (5) (f), which excepts persons who are physically unable to perform a job from protection, includes a "future hazards" exception for employees who because of their physical condition will be a hazard to themselves or others. 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 589,
580 N.W.2d 297 (1998).
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).
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. Hutchinson Technology, Inc. v. LIRC, 2004 WI 90, ___ Wis. 2d ___, ___ N.W.2d ___,
02-3328.
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
111.36, 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 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).
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 381,
565 N.W.2d 253 (Ct. App. 1997).
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).
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.
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.
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
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 Wisdom 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
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.
111.322
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,
109.075 or
146.997 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,
109.075 or
146.997 or
ss. 101.58 to
101.599 or
103.64 to
103.82.
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).
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 381,
565 N.W.2d 253 (Ct. App. 1997).
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).
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 employee 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 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.
