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
111.365, 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, military service, use or nonuse of lawful products off the employer's premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters.
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),
95-2490.
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 380,
565 N.W.2d 253 (Ct. App. 1997),
96-1720.
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),
98-2360.
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,
99-1271.
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,
01-1910.
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
A person other than an employer, labor organization, or licensing agency can violate subch. II of ch. 111, if it engages in discriminatory conduct that has a sufficient nexus with the denial or restriction of some individual's employment opportunity. A trucking company who leased its trucks and drivers from another company that hired the drivers and had the power to reject drivers approved by the leasing company, was an "other person" subject to this section. Szleszinski v. Labor & Industry Review Commission,
2005 WI App 229,
287 Wis. 2d 775,
706 N.W.2d 345,
04-3033. Affirmed on other grounds.
2007 WI 106,
304 Wis. 2d 258,
736 N.W.2d 111,
04-3033.
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 Unwisdom 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
Some "Hardship": Defending a Disability Discrimination Suit Under the Wisconsin Fair Employment Act. Hansch. 89 MLR 821 (2005).
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.
111.321 Annotation
Expanding the Notion of "Equal Coverage": The Wisconsin Fair Employment Act Requires Contraceptive Coverage for All Employer-Sponsored Prescription Drug Plans. Mason. 2005 WLR 913.
111.321 Annotation
Race, Crime, and Getting a Job. Pager. 2005 WLR 617.
111.321 Annotation
Family Responsibility Discrimination: Making Room at Work for Family Demands. Finerty. Wis. Law. Nov. 2007.
111.322
111.322
Discriminatory actions prohibited. Subject to
ss. 111.33 to
111.365, 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,
103.34,
103.455,
103.50,
104.12,
106.04,
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,
103.34,
103.455,
103.50,
104.12,
106.04,
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),
95-2490.
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 380,
565 N.W.2d 253 (Ct. App. 1997),
96-1720.
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),
97-1606.
111.322 Annotation
The free exercise clause of the 1st Amendment and the freedom of conscience clauses in Article I, Section 18, of the Wisconsin constitution preclude employment discrimination claims under ss. 111.31 to 111.395 for employees whose positions are important and closely linked to the religious mission of a religious organization. Coulee Catholic Schools v. LIRC,
2009 WI 88,
320 Wis. 2d 275,
768 N.W.2d 868,
07-0496.
111.322 Annotation
Some "Hardship": Defending a Disability Discrimination Suit Under the Wisconsin Fair Employment Act. Hansch. 89 MLR 821 (2005).
111.322 Annotation
Discrimination in advertising. Abramson, WBB March, 1985.
111.322 Annotation
Employer Liability for Employment References. Mac Kelly. Wis. Law. May 2008.
111.322 Annotation2009 Wisconsin Act 20: Changes to Wisconsin's Fair Employment Law. Karls-Ruplinger. Wis. Law. Sept. 2009.
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.
111.327
111.327
Construction contractors. Any employer described in
s. 108.18 (2) (c) or engaged in the painting or drywall finishing of buildings or other structures who willfully and with intent to evade any requirement of this subchapter misclassifies or attempts to misclassify an individual who is an employee of the employer as a nonemployee shall be fined $25,000 for each violation. The department shall promulgate rules defining what constitutes a willful misclassification of an employee as a nonemployee for purposes of this section and of
ss. 102.07 (8) (d) and
108.24 (2m).
111.327 History
History: 2009 a. 28,
288.
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.
111.33(2)(f)
(f) To exercise an age distinction with respect to employment in which the employee 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 basis of age to be exempt under sub. (2) (f). Johnson v. LIRC,
200 Wis. 2d 715,
547 N.W.2d 783 (Ct. App. 1996),
95-2346.
111.33 Annotation
An employee is physically unable to perform a job under sub. (2) if that employee is performing the job with a physical accommodation. Harrison v. LIRC,
211 Wis. 2d 681,
565 N.W.2d 572 (Ct. App. 1997),
96-1795.
111.33 Annotation
A city charged under the federal Age Discrimination in Employment Act had the burden of establishing that a mandatory retirement age of 55 for law enforcement personnel was a bona fide occupational qualification. Equal Employment Opportunity Commission v. City of Janesville,
630 F.2d 1254 (1980).
111.33 Annotation
The federal Employment Retirement Income Security Act preempts sub. (2) (b) to the extent that it applies to employee benefit plans covered by it. Waukesha Engine Division v. DILHR,
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, employee, 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 employee 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)(cs)5.
5. Possessing any of the materials listed in
s. 961.65 with intent to manufacture methamphetamine under that section or under a federal law or a law of another state that is substantially similar to
s. 961.65.
111.335(1)(cv)
(cv) Notwithstanding
s. 111.322, it is not employment discrimination because of conviction record to refuse to employ in a position in the classified service or in a position described in
s. 230.08 (2) (k) a person who has been convicted under 50 USC, Appendix, section 462 for refusing to register with the selective service system and who has not been pardoned.
Effective date note
NOTE: Par. (cv) is amended eff. 7-1-13 by
2011 Wis. Act 32 to read:
Effective date text
(cv) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ in a position in the classified service a person who has been convicted under 50 USC, Appendix, section 462 for refusing to register with the selective service system and who has not been pardoned.
111.335(1)(cx)
(cx) 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 licensure, any individual who has been convicted of any offense under
s. 38.50 (13) (c).
111.335(1)(d)1.1. In this paragraph, "educational agency" means a school district, a cooperative educational service agency, a county children with disabilities education board, a state prison under
s. 302.01, a juvenile correctional facility, as defined in
s. 938.02 (10p), a secured residential care center for children and youth, as defined in
s. 938.02 (15g), the Wisconsin Center for the Blind and Visually Impaired, the Wisconsin Educational Services Program for the Deaf and Hard of Hearing, the Mendota Mental Health Institute, the Winnebago Mental Health Institute, a state center for the developmentally disabled, a private school, a charter school, a private, nonprofit, nonsectarian agency under contract with a school board under
s. 118.153 (3) (c), or a nonsectarian private school or agency under contract with the board of school directors in a 1st class city under
s. 119.235 (1).
111.335(1)(d)2.
2. Notwithstanding
s. 111.322, it is not employment discrimination because of conviction record for an educational agency to refuse to employ or to terminate from employment an individual who has been convicted of a felony and who has not been pardoned for that felony.
111.335 Annotation
A rule adopted under s. 165.85 properly barred a nonpardoned felon from holding a police job. Law Enforcement Standards Board v. Lyndon Station,
101 Wis. 2d 472,
305 N.W.2d 89 (1981).
111.335 Annotation
A conviction for armed robbery in and of itself constituted circumstances substantially related to a school bus driver's licensure. Gibson v. Transportation Commission,
106 Wis. 2d 22,
315 N.W.2d 346 (1982).
111.335 Annotation
An employer's inquiry is limited to general facts in determining whether the "circumstances of the offense" relate to the job. It is not the details of the criminal activity that are important, but rather the circumstances that foster criminal activity, such as opportunity for criminal behavior, reaction to responsibility, and character traits of the person. County of Milwaukee v. LIRC,
139 Wis. 2d 805,
407 N.W.2d 908 (1987).
