111.31 Annotation
Summary discharge after 2 weeks of satisfactory employment of persons with history of asthma violated the fair employment act in that it constituted a discriminatory practice against the claimant based on handicap. Chicago, M., St. P. & P. RR. Co. v. ILHR Dept. 62 W (2d) 392, 215 NW (2d) 443.
111.31 Annotation
The department is not limited to finding sex discrimination only where a 14th amendment equal protection violation could also be found. Wisconsin Telephone Co. v. ILHR Dept. 68 W (2d) 345, 228 NW (2d) 649.
111.31 Annotation
The Wisconsin Fair Employment Act is more direct and positive in prohibiting sex discrimination in employment than is the basic constitutional guarantee of equal protection of the laws, and enforcement of the law is not limited by the "rational basis" or "reasonableness" test employed in 14th amendment cases. Ray-O-Vac v. ILHR Dept. 70 W (2d) 919, 236 NW (2d) 209.
111.31 Annotation
Section 118.20 is not exclusive remedy of wronged teacher; it is supplementary to remedy under fair employment act. General provisions of 893.80 are superseded by specific authority of act. Kurtz v. City of Waukesha, 91 W (2d) 103, 280 NW (2d) 757 (1979).
111.31 Annotation
Where employe was not handicapped but employer perceived employe to be handicapped, employe was entitled to protection under this subchapter. Dairy Equipment Co. v. DILHR, 95 W (2d) 319, 290 NW (2d) 330 (1980).
111.31 Annotation
WFEA provides exclusive remedy for retaliatory discrimination. Bourque v. Wausau Hospital Center, 145 W (2d) 589, 427 NW (2d) 433 (Ct. App. 1988).
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 the fair employment act, subchapter II of ch.111. Byers v. LIRC, 208 W (2d) 388, 561 NW (2d) 678 (1997).
111.31 Annotation
WFEA does not apply to national guard personnel decisions; federal law prevents the state from regulating personnel criteria of the national guard. Hazelton v. Personnel Commission, 178 W (2d) 776, 505 NW (2d) 793 (Ct. App. 1993).
111.31 Annotation
This act protects all employes, including prospective and de facto employes. 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 US 820, 108 LEd 2d 834 (1990).
111.31 Annotation
Employee Retirement Income Security Act 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) "Employe" 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 employes 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 employe representation committee, group, association or plan in which employes 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 employe'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
The differing treatment of pregnancy disability is not based upon a difference in type of disability, as contended by the employer, rather than upon the sex of the employe, since pregnancy is undisputedly sex-linked, and to isolate disabilities associated with pregnancy for less favorable treatment in a benefit plan designed to relieve the economic burden of physical incapacity constitutes discrimination by sex. Ray-O-Vac v. ILHR Dept. 70 W (2d) 919, 236 NW (2d) 209.
111.32 Annotation
Term "creed", as used in sub. (5) (a), 1979 stats., [now sub. (3m)], means a system of religious beliefs, not political beliefs. Augustine v. Anti-Defamation Lg. B'nai B'rith, 75 W (2d) 207, 249 NW (2d) 547.
111.32 Annotation
Where employer negotiated, under National Labor Relations Act, a welfare benefit plan, under Employee Retirement Income Security Act, neither federal act preempted Wisconsin's sex discrimination law forbidding pregnancy benefits discrimination. Goodyear Tire & Rubber Co. v. DILHR, 87 W (2d) 56, 273 NW (2d) 786 (Ct. App. 1978).
111.32 Annotation
Fair Employment Act was not preempted by federal legislation. "Future hazards" exception discussed. Chicago & N.W.R.R. v. Labor & Ind. Rev. Comm. 91 W (2d) 462, 283 NW (2d) 603 (Ct. App. 1979).
111.32 Annotation
Inclusion of pregnancy-related benefits within disability benefit plan does not violate Equal Pay Act. Kimberly-Clark Corp. v. Labor & Ind. Rev. Comm. 95 W (2d) 558, 291 NW (2d) 584 (Ct. App. 1980).
111.32 Annotation
Perceived handicap discussed. La Crosse Police Comm. v. LIRC, 139 W (2d) 740, 407 NW (2d) 510 (1987).
111.32 Annotation
Individual asserting battery, not as form of employment discrimination, but as "independent and unlawful touching of the person" is not precluded by WFEA from bringing battery claim although (13) broadly defines "sexual harassment." Becker v. Automatic Garage Door Co., 156 W (2d) 409, 456 NW (2d) 888 (Ct. App. 1990).
111.32 Annotation
The standard to determine whether a person is an "employe" under Title VII of the Civil Rights Act is applicable to WEFA cases. A determination of "employe" status in a Title VII action precludes redetermination in a WEFA action. Moore v. LIRC, 175 W (2d) 561, 499 NW (2d) 288 (Ct. App. 1993), 107.
111.32 Annotation
Barring spouses who are both public employes from each electing family medical coverage is excepted from the prohibition against discrimination based on marital status under ch. 111. Motola v. LIRC, 219 W (2d) 589, 580 NW (2d) 297 (1998).
111.32 Annotation
A licensing agency may request information from an applicant regarding conviction records under sub. (5) (h), 1979 stats. [now sub. (3)]. 67 Atty. Gen. 327.
111.32 Annotation
See note to s. 66.054, citing 68 Atty. Gen. 202.
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
Denial of homosexual employe's request for family coverage for herself and her companion did not violate equal protection or prohibition under 111.321 of discrimination on basis of marital status, sexual orientation or gender. Phillips v. Wisconsin Personnel Commission, 167 W (2d) 205, 482 NW 121 (2d) (Ct. App. 1992).
111.321 Annotation
Bargaining agreement requiring married employes with spouses covered by employer provided comparable health insurance to elect coverage under one policy or the other violated this section. Braatz v. LIRC, 174 W (2d) 286, 496 NW (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, subchapter II of ch.111. Byers v. LIRC, 208 W (2d) 388, 561 NW (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 W (2d) 381, 565 NW (2d) 253 (Ct. App. 1997).
111.321 Annotation
Licensing boards do not have authority to enact general regulations which would allow them to suspend, deny or revoke license of person who has communicable disease. Licensing boards do have authority on case-by-case basis to suspend, deny or revoke license of person who poses direct threat to health and safety of other persons or who is unable to perform duties of licensed activity.
77 Atty. Gen. 223.
111.321 Annotation
Person suffering from contagious disease may be handicapped pursuant to federal rehabilitation act. School Board of Nassau County v. Arline, 480 US 273 (1987).
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 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
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, subchapter II of ch.111. Byers v. LIRC, 208 W (2d) 388, 561 NW (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 W (2d) 381, 565 NW (2d) 253 (Ct. App. 1997).
111.322 Annotation
A prima facie case of a violation of this section requires that the complainant was a member of a protected class, was discharged, was qualified for the position and was replaced by someone not in the protected class or or that others not in the protected class were treated more favorably. Knight v. LIRC, 220 W (2d) 137, 582 NW (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 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.
