111.337 Annotation
A union violated Title VII of the federal Civil Rights Act by causing an employer to fire an employee because of the employee's refusal, on religious grounds, to pay union dues. Nottelson v. Smith Steel Workers D.A.L.U. 19806,
643 F. 2d 445 (1981).
111.337 Annotation
The supreme court redefines employer's role in religious accommodation. Soeka. WBB July 1987.
111.34
111.34
Disability; exceptions and special cases. 111.34(1)(1) Employment discrimination because of disability includes, but is not limited to:
111.34(1)(a)
(a) Contributing a lesser amount to the fringe benefits, including life or disability insurance coverage, of any employee because of the employee's disability; or
111.34(1)(b)
(b) Refusing to reasonably accommodate an employee's or prospective employee's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business.
111.34(2)(a)(a) Notwithstanding
s. 111.322, it is not employment discrimination because of disability to refuse to hire, employ, admit or license any individual, to bar or terminate from employment, membership or licensure any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment if the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment, membership or licensure.
111.34(2)(b)
(b) In evaluating whether an individual with a disability can adequately undertake the job-related responsibilities of a particular job, membership or licensed activity, the present and future safety of the individual, of the individual's coworkers and, if applicable, of the general public may be considered. However, this evaluation shall be made on an individual case-by-case basis and may not be made by a general rule which prohibits the employment or licensure of individuals with disabilities in general or a particular class of individuals with disabilities.
111.34(2)(c)
(c) If the employment, membership or licensure involves a special duty of care for the safety of the general public, including but not limited to employment with a common carrier, this special duty of care may be considered in evaluating whether the employee or applicant can adequately undertake the job-related responsibilities of a particular job, membership or licensed activity. However, this evaluation shall be made on an individual case-by-case basis and may not be made by a general rule which prohibits the employment or licensure of individuals with disabilities in general or a particular class of individuals with disabilities.
111.34 History
History: 1981 c. 334;
1997 a. 112.
111.34 Annotation
The utilization of federal regulations as a hiring standard, although not applicable to the employing taxi company, demonstrated a rational relationship to the safety obligations imposed on the employer, and its use was not the result of an arbitrary belief lacking in objective reason or rationale. Boynton Cab Co. v. DILHR,
96 Wis. 2d 396,
291 N.W.2d 850 (1980).
111.34 Annotation
An employee handicapped by alcoholism was properly discharged under s. 111.32 (5) (f), 1973 Stats., (a predecessor to this section) for inability to efficiently perform job duties. Squires v. LIRC,
97 Wis. 2d 648,
294 N.W.2d 48 (Ct. App. 1980).
111.34 Annotation
Physical standards for school bus operators established under s. 343.12 (2) (g) are not exempt from the requirements of sub. (2) (b). Bothum v. Department of Transportation,
134 Wis. 2d 378,
396 N.W.2d 785 (Ct. App. 1986).
111.34 Annotation
The duty to reasonably accommodate under sub. (1) (b) is to be broadly interpreted and may involve the transfer of an individual from one job to another. What is reasonable will depend on the facts of the case. McMullen v. LIRC,
148 Wis. 2d 270,
434 N.W.2d 270 (Ct. App. 1986).
111.34 Annotation
To avail itself of the defense under sub. (2) that an ostensibly safety-based employment restriction is job-related, an employer bears the burden of proving to a reasonable probability that the restriction is necessary to prevent harm to the employee or others. Racine Unified School District v. LIRC,
164 Wis. 2d 567,
476 N.W.2d 707 (Ct. App. 1991).
111.34 Annotation
Temporary forbearance of work rules while determining whether an employee's medical problem is treatable may be a reasonable accommodation under sub. (1) (b). The purpose of reasonable accommodation is to enable employees to adequately undertake job-related responsibilities. Target Stores v. LIRC,
217 Wis. 2d 1,
576 N.W.2d 545 (Ct. App. 1998).
111.34 Annotation
Whether an employee's mental illness caused him to react angrily and commit the act of insubordination that led to the termination of his employment was sufficiently complex and technical that expert testimony was required. Wal-Mart Stores, Inc. v. LIRC, 2000 WI App 272,
240 Wis. 2d 209,
621 N.W.2d 633.
111.34 Annotation
A complainant must show that he or she is handicapped and that the employer took one of the prohibited actions based on that handicap. The employer then has a burden of proving a defense. Sub. (1) (b) does not require an employer to make a reasonable accommodation if the accommodation will impose a hardship on the employer, but if the employer is not able to demonstrate that the accommodation would pose a hardship there is a violation. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106,
264 Wis. 2d 200,
664 N.W.2d 651,
02-0815.
111.34 Annotation
A reasonable accommodation is not limited to that which would allow the employee to perform adequately all of his or her job duties. A change in job duties may be a reasonable accommodation in a given circumstance. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106,
264 Wis. 2d 200,
664 N.W.2d 651,
02-0815.
111.34 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).
111.34 Annotation
Hidden handicaps: Protection of alcoholics, drug addicts, and the mentally ill against employment discrimination under the rehabilitation act of 1973 and the Wisconsin fair employment act. 1983 WLR 725.
111.345
111.345
Marital status; exceptions and special cases. Notwithstanding
s. 111.322, it is not employment discrimination because of marital status to prohibit an individual from directly supervising or being directly supervised by his or her spouse.
111.345 History
History: 1981 c. 334.
111.345 Annotation
A work rule intended to limit extramarital affairs among coemployees was not discrimination because of marital status. Federated Rural Electric Insurance v. Kessler,
131 Wis. 2d 189,
388 N.W.2d 553 (1986).
111.35
111.35
Use or nonuse of lawful products; exceptions and special cases. 111.35(1)(a)(a) Notwithstanding
s. 111.322, it is not employment discrimination because of use of a lawful product off the employer's premises during nonworking hours for a nonprofit corporation that, as one of its primary purposes or objectives, discourages the general public from using a lawful product to refuse to hire or employ an individual, to suspend or terminate the employment of an individual, or to discriminate against an individual in promotion, in compensation or in terms, conditions or privileges of employment, because that individual uses off the employer's premises during nonworking hours a lawful product that the nonprofit corporation discourages the general public from using.
111.35(1)(b)
(b) Notwithstanding
s. 111.322, it is not employment discrimination because of nonuse of a lawful product off the employer's premises during nonworking hours for a nonprofit corporation that, as one of its primary purposes or objectives, encourages the general public to use a lawful product to refuse to hire or employ an individual, to suspend or terminate the employment of an individual, or to discriminate against an individual in promotion, in compensation or in terms, conditions or privileges of employment, because that individual does not use off the employer's premises during nonworking hours a lawful product that the nonprofit corporation encourages the general public to use.
111.35(2)
(2) Notwithstanding
s. 111.322, it is not employment discrimination because of use or nonuse of a lawful product off the employer's premises during nonworking hours for an employer, labor organization, employment agency, licensing agency or other person to refuse to hire, employ, admit, or license an individual, to bar, suspend or terminate an individual from employment, membership or licensure, or to discriminate against an individual in promotion, in compensation or in terms, conditions or privileges of employment or labor organization membership if the individual's use or nonuse of a lawful product off the employer's premises during nonworking hours does any of the following:
111.35(2)(a)
(a) Impairs the individual's ability to undertake adequately the job-related responsibilities of that individual's employment, membership or licensure.
111.35(2)(b)
(b) Creates a conflict of interest, or the appearance of a conflict of interest, with the job-related responsibilities of that individual's employment, membership or licensure.
111.35(2)(c)
(c) Conflicts with a bona fide occupational qualification that is reasonably related to the job-related responsibilities of that individual's employment, membership or licensure.
111.35(2)(e)
(e) Conflicts with any federal or state statute, rule or regulation.
111.35(3)(a)(a) Notwithstanding
s. 111.322, it is not employment discrimination because of use of a lawful product off the employer's premises during nonworking hours for an employer, labor organization, employment agency, licensing agency or other person to offer a policy or plan of life, health or disability insurance coverage under which the type of coverage or the price of coverage for an individual who uses a lawful product off the employer's premises during nonworking hours differs from the type of coverage or the price of coverage provided for an individual who does not use that lawful product, if all of the following conditions apply:
111.35(3)(a)1.
1. The difference between the premium rates charged to an individual who uses that lawful product and the premium rates charged to an individual who does not use that lawful product reflects the cost of providing the coverage to the individual who uses that lawful product.
111.35(3)(a)2.
2. The employer, labor organization, employment agency, licensing agency or other person that offers the coverage provides each individual who is charged a different premium rate based on that individual's use of a lawful product off the employer's premises during nonworking hours with a written statement specifying the premium rate differential used by the insurance carrier.
111.35(3)(b)
(b) Notwithstanding
s. 111.322, it is not employment discrimination because of nonuse of a lawful product off the employer's premises during nonworking hours for an employer, labor organization, employment agency, licensing agency or other person to offer a policy or plan of life, health or disability insurance coverage under which the type of coverage or the price of coverage for an individual who does not use a lawful product off the employer's premises during nonworking hours differs from the type of coverage or the price of coverage provided for an individual who uses that lawful product, if all of the following conditions apply:
111.35(3)(b)1.
1. The difference between the premium rates charged to an individual who does not use that lawful product and the premium rates charged to an individual who uses that lawful product reflects the cost of providing the coverage to the individual who does not use that lawful product.
111.35(3)(b)2.
2. The employer, labor organization, employment agency, licensing agency or other person that offers the coverage provides each individual who is charged a different premium rate based on that individual's nonuse of a lawful product off the employer's premises during nonworking hours with a written statement specifying the premium rate differential used by the insurance carrier.
111.35(4)
(4) Notwithstanding
s. 111.322, it is not employment discrimination because of use of a lawful product off the employer's premises during nonworking hours to refuse to employ an applicant if the applicant's use of a lawful product consists of smoking tobacco and the employment is as a fire fighter covered under
s. 891.45 or
891.455.
111.36
111.36
Sex, sexual orientation; exceptions and special cases. 111.36(1)(1) Employment discrimination because of sex includes, but is not limited to, any of the following actions by any employer, labor organization, employment agency, licensing agency or other person:
111.36(1)(a)
(a) Discriminating against any individual in promotion, compensation paid for equal or substantially similar work, or in terms, conditions or privileges of employment or licensing on the basis of sex where sex is not a bona fide occupational qualification.
111.36(1)(b)
(b) Engaging in sexual harassment; or implicitly or explicitly making or permitting acquiescence in or submission to sexual harassment a term or condition of employment; or making or permitting acquiescence in, submission to or rejection of sexual harassment the basis or any part of the basis for any employment decision affecting an employee, other than an employment decision that is disciplinary action against an employee for engaging in sexual harassment in violation of this paragraph; or permitting sexual harassment to have the purpose or effect of substantially interfering with an employee's work performance or of creating an intimidating, hostile or offensive work environment. Under this paragraph, substantial interference with an employee's work performance or creation of an intimidating, hostile or offensive work environment is established when the conduct is such that a reasonable person under the same circumstances as the employee would consider the conduct sufficiently severe or pervasive to interfere substantially with the person's work performance or to create an intimidating, hostile or offensive work environment.
111.36(1)(br)
(br) Engaging in harassment that consists of unwelcome verbal or physical conduct directed at another individual because of that individual's gender, other than the conduct described in
par. (b), and that has the purpose or effect of creating an intimidating, hostile or offensive work environment or has the purpose or effect of substantially interfering with that individual's work performance. Under this paragraph, substantial interference with an employee's work performance or creation of an intimidating, hostile or offensive work environment is established when the conduct is such that a reasonable person under the same circumstances as the employee would consider the conduct sufficiently severe or pervasive to interfere substantially with the person's work performance or to create an intimidating, hostile or offensive work environment.
111.36(1)(c)
(c) Discriminating against any woman on the basis of pregnancy, childbirth, maternity leave or related medical conditions by engaging in any of the actions prohibited under
s. 111.322, including, but not limited to, actions concerning fringe benefit programs covering illnesses and disability.
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 employees 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 employees or members, if the act occurs while the complaining employee is at his or her place of employment or is performing duties relating to his or her employment, if the complaining employee 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 Wis. 2d 373,
571 N.W.2d 165 (Ct. App. 1997).
111.36 Annotation
Emotional distress injury due to on-the-job sexual harassment was exclusively compensable under s.102.03. Zabkowicz v. West Bend Co., Division of Dart Industries, Inc.
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 employee or prospective employee. "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 employee or prospective employee 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 employee or prospective employee.
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 employee or prospective employee who refuses, declines or fails to take or submit to a lie detector test.
111.37(2)(c)2.
2. An employee or prospective employee 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 employee or prospective employee for any of the following reasons:
111.37(2)(d)1.
1. The employee or prospective employee has filed a complaint or instituted or caused to be instituted a proceeding under this section.
111.37(2)(d)2.
2. The employee or prospective employee has testified or is about to testify in a proceeding under this section.
111.37(2)(d)3.
3. The employee or prospective employee, on behalf of that employee, prospective employee 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 employees shall post and maintain that notice in conspicuous places on its premises where notices to employees 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 employee 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 employee 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 employee was involved in the incident or activity under investigation.
