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)(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 History
History: 1981 c. 334;
1989 a. 228,
359.
111.322 Annotation
Discussion of meaning of (2). Racine Unified School Dist. v. LIRC, 164 W (2d) 567, 476 NW (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 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 W (2d) 603, 522 NW (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 W (2d) 273, 538 NW (2d) 588 (Ct. App. 1995).
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 employe 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 employe 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 employe'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 employe is exposed to physical danger or hazard, including, without limitation because of enumeration, certain employment in law enforcement or fire fighting.
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 gasis of age to be exempt under sub. (2) (f). Johnson v. LIRC, 200 W (2d) 715, 547 NW (2d) 783 (Ct. App. 1996).
111.33 Annotation
City charged under federal age discrimination act had burden of establishing that age 55 mandatory retirement was BFOQ for law enforcement personnel. Equal Emp. Opp. Comm. v. City of Janesville, 630 F (2d) 1254 (1980).
111.33 Annotation
ERISA preempts (2) (b) to extent it applies to employe benefit plans covered by ERISA. Waukesha Engine Div. v. Dept. of Industry, 619 F Supp. 1310 (1985).
111.335
111.335
Arrest or conviction record; exceptions and special cases. 111.335(1)(a)(a) Employment discrimination because of arrest record includes, but is not limited to, requesting an applicant, employe, member, licensee or any other individual, on an application form or otherwise, to supply information regarding any arrest record of the individual except a record of a pending charge, except that it is not employment discrimination to request such information when employment depends on the bondability of the individual under a standard fidelity bond or when an equivalent bond is required by state or federal law, administrative regulation or established business practice of the employer and the individual may not be bondable due to an arrest record.
111.335(1)(b)
(b) Notwithstanding
s. 111.322, it is not employment discrimination because of arrest record to refuse to employ or license, or to suspend from employment or licensing, any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job or licensed activity.
111.335(1)(c)
(c) Notwithstanding
s. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license, or to bar or terminate from employment or licensing, any individual who:
111.335(1)(c)1.
1. Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity; or
111.335(1)(c)2.
2. Is not bondable under a standard fidelity bond or an equivalent bond where such bondability is required by state or federal law, administrative regulation or established business practice of the employer.
111.335(1)(cg)1.1. Notwithstanding
s. 111.322, it is not employment discrimination because of conviction record to deny or refuse to renew a license or permit under
s. 440.26 to a person who has been convicted of a felony and has not been pardoned for that felony.
111.335(1)(cg)2.
2. Notwithstanding
s. 111.322, it is not employment discrimination because of conviction record to revoke a license or permit under
s. 440.26 (6) (b) if the person holding the license or permit has been convicted of a felony and has not been pardoned for that felony.
111.335(1)(cg)3.
3. Notwithstanding
s. 111.322, it is not employment discrimination because of conviction record to refuse to employ a person in a business licensed under
s. 440.26 or as an employe specified in
s. 440.26 (5) (b) if the person has been convicted of a felony and has not been pardoned for that felony.
111.335(1)(cm)
(cm) Notwithstanding
s. 111.322, it is not employment discrimination because of conviction record to refuse to employ as an installer of burglar alarms a person who has been convicted of a felony and has not been pardoned.
111.335(1)(cs)
(cs) Notwithstanding
s. 111.322, it is not employment discrimination because of conviction record to revoke, suspend or refuse to renew a license or permit under
ch. 125 if the person holding or applying for the license or permit has been convicted of one or more of the following:
111.335(1)(cs)1.
1. Manufacturing, distributing or delivering a controlled substance or controlled substance analog under
s. 961.41 (1).
111.335(1)(cs)2.
2. Possessing, with intent to manufacture, distribute or deliver, a controlled substance or controlled substance analog under
s. 961.41 (1m).
111.335(1)(cs)3.
3. Possessing, with intent to manufacture, distribute or deliver, or manufacturing, distributing or delivering a controlled substance or controlled substance analog under a federal law that is substantially similar to
s. 961.41 (1) or
(1m).
111.335(1)(cs)4.
4. Possessing, with intent to manufacture, distribute or deliver, or manufacturing, distributing or delivering a controlled substance or controlled substance analog under the law of another state that is substantially similar to
s. 961.41 (1) or
(1m).
111.335(1)(d)
(d) In this subsection, "equivalent bond" includes, but is not limited to, a bond issued for an ex-offender under
29 USC 871 (c) in effect on August 4, 1981.
111.335 Annotation
See note to 165.85, citing Law Enforce. Stds. Bd. v. Lyndon Station, 101 W (2d) 472, 305 NW (2d) 89 (1981).
111.335 Annotation
See note to 108.04, citing Miller Brewing Co. v. DILHR, 103 W (2d) 496, 308 NW (2d) 922 (Ct. App. 1981).
111.335 Annotation
Conviction for armed robbery in and of itself constituted circumstances substantially related to school bus driver's licensure. Gibson v. Transp. Comm. 106 W (2d) 22, 315 NW (2d) 346 (1982).
111.335 Annotation
"Circumstances of the offense" test adopted. County of Milwaukee v. LIRC, 139 W (2d) 805, 407 NW (2d) 908 (1987).
111.335 Annotation
When evaluating individual for position of reserve officer, sheriff's department may consider information in its possession concerning individual's juvenile record, subject to prohibitions against arrest record and conviction record discrimination contained in WFEA.
79 Atty. Gen. 89.
111.335 Annotation
Discrimination in employment on the basis of arrest or conviction record. Mukamel. WBB Sept. 1983.
111.337
111.337
Creed; exceptions and special cases. 111.337(1)(1) Employment discrimination because of creed includes, but is not limited to, refusing to reasonably accommodate an employe's or prospective employe's religious observance or practice unless the employer can demonstrate that the accommodation would pose an undue hardship on the employer's program, enterprise or business.
111.337(2)
(2) Notwithstanding
s. 111.322, it is not employment discrimination because of creed:
111.337(2)(a)
(a) For a religious association not organized for private profit or an organization or corporation which is primarily owned or controlled by such a religious association to give preference to an applicant or employe who is a member of the same or a similar religious denomination.
111.337(2)(am)
(am) For a religious association not organized for private profit or an organization or corporation which is primarily owned or controlled by such a religious association to give preference to an applicant or employe who adheres to the religious association's creed, if the job description demonstrates that the position is clearly related to the religious teachings and beliefs of the religious association.
111.337(2)(b)
(b) For a fraternal as defined in
s. 614.01 (1) (a) to give preference to an employe or applicant who is a member or is eligible for membership in the fraternal, with respect to hiring to or promotion to the position of officer, administrator or salesperson.
111.337(3)
(3) No county, city, village or town may adopt any provision concerning employment discrimination because of creed that prohibits activity allowed under this section.
111.337 Annotation
Sub. (2) does not allow religious organizations to engage in prohibited forms of discrimination. Sacred Heart School Board v. LIRC, 157 W (2d) 638, 460 NW (2d) 430 (Ct. App. 1990).
111.337 Annotation
Union violated title VII of civil rights act by causing employer to fire employe because of employe's refusal on religious grounds to pay union dues. Nottelson v. Smith Steel Wkrs. 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
Handicap; exceptions and special cases. 111.34(1)(1) Employment discrimination because of handicap 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 employe because of the employe's handicap; or
111.34(1)(b)
(b) Refusing to reasonably accommodate an employe's or prospective employe's handicap 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 handicap 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 handicap 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 a handicapped individual 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 handicapped individuals in general or a particular class of handicapped individuals.
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 employe 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 handicapped individuals in general or a particular class of handicapped individuals.
111.34 History
History: 1981 c. 334.
111.34 Annotation
Cab company met burden of proof under 111.32 (5) (f), 1973 Stats., to establish that refusal to hire one-armed cab driver on basis of federal regulations was not discrimination. Boynton Cab Co. v. DILHR, 96 W (2d) 396, 291 NW (2d) 850 (1980).
111.34 Annotation
Employe handicapped by alcoholism was properly discharged under 111.32 (5) (f), 1973 Stats., for inability to efficiently perform job duties on 3 occasions. Squires v. Labor & Industry Review Comm. 97 W (2d) 648, 294 NW (2d) 48 (Ct. App. 1980).
111.34 Annotation
Exception to handicap discrimination under s. 111.32 (5) (f), 1973 stats., discussed. Samens v. LIRC, 117 W (2d) 646, 345 NW (2d) 432 (1984).
111.34 Annotation
Small stature was not handicap. American Motors Corp. v. LIRC, 114 W (2d) 288, 338 NW (2d) 518 (Ct. App. 1983); aff'd, 119 W (2d) 706, 350 NW (2d) 120 (1984).
111.34 Annotation
Standards under 343.12 (2) (g) are not exempt from requirements under 111.34 (2) (b). Bothum v. Department of Transp., 134 W (2d) 378, 396 NW (2d) 785 (Ct. App. 1986).
111.34 Annotation
See note to 111.321, citing School Board of Nassau County v. Arline, 480 US 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
Work rule intended to limit extramarital affairs among coemployes was not discrimination because of marital status. Federated Elec. v. Kessler, 131 W (2d) 189, 388 NW (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:
