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.
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 employees; 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 employee had access to the property that is the subject of the investigation and describes the basis of the employer's reasonable suspicion that the employee 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 employee 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 employee.
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 employee who would have direct access to the manufacture, storage, distribution or sale of the controlled substance or to a current employee 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 employee 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 employee 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 employee or prospective employee.
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 employee 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 employee'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:
