111.335(4)(c)1.1. If a licensing agency refuses to license an individual under sub.
(3) (a) 1. or bars or terminates an individual from licensing under sub.
(3) (a) 1., the licensing agency shall, subject to subd.
2., do all of the following:
111.335(4)(c)1.a.
a. State in writing its reasons for doing so, including a statement of how the circumstances of the offense relate to the particular licensed activity.
111.335(4)(c)1.b.
b. Allow the individual to show evidence of rehabilitation and fitness to engage in the licensed activity under par.
(d). If the individual shows competent evidence of sufficient rehabilitation and fitness to perform the licensed activity under par.
(d), the licensing agency may not refuse to license the individual or bar or terminate the individual from licensing based on that conviction.
111.335(4)(c)2.
2. The requirements under subd.
1. a. and
b. do not apply if a conviction is for an exempt offense.
111.335(4)(d)1.1. Competent evidence of sufficient rehabilitation and fitness to perform the licensed activity under par.
(c) 1. b. may be established by the production of any of the following:
111.335(4)(d)1.a.
a. The individual's most recent certified copy of a federal department of defense form DD-214 showing the person's honorable discharge, or separation under honorable conditions, from the U.S. armed forces for military service rendered following conviction for any offense that would otherwise disqualify the individual from the license sought, except that the discharge form is not competent evidence of sufficient rehabilitation and fitness to perform the licensed activity if the individual was convicted of any misdemeanor or felony subsequent to the date of the honorable discharge or separation from military service.
111.335(4)(d)1.b.
b. A copy of the local, state, or federal release document; and either a copy of the relevant department of corrections document showing completion of probation, extended supervision, or parole; or other evidence that at least one year has elapsed since release from any local, state, or federal correctional institution without subsequent conviction of a crime along with evidence showing compliance with all terms and conditions of probation, extended supervision, or parole.
111.335(4)(d)2.
2. In addition to the documentary evidence that may be provided under subd.
1. to show sufficient rehabilitation and fitness to perform the licensed activity under par.
(c) 1. b., the licensing agency shall consider any of the following evidence presented by the individual:
111.335(4)(d)2.a.
a. Evidence of the nature and seriousness of any offense of which he or she was convicted.
111.335(4)(d)2.b.
b. Evidence of all circumstances relative to the offense, including mitigating circumstances or social conditions surrounding the commission of the offense.
111.335(4)(d)2.c.
c. The age of the individual at the time the offense was committed.
111.335(4)(d)2.d.
d. The length of time that has elapsed since the offense was committed.
111.335(4)(d)2.e.
e. Letters of reference by persons who have been in contact with the individual since the applicant's release from any local, state, or federal correctional institution.
111.335(4)(d)2.f.
f. All other relevant evidence of rehabilitation and present fitness presented.
111.335(4)(e)
(e) A state licensing agency that may refuse to license individuals under sub.
(3) (a) 1. or that may bar or terminate an individual from licensure under sub.
(3) (a) 1. shall publish on the agency's Internet site a document indicating the offenses or kinds of offenses that may result in such a refusal, bar, or termination.
111.335(4)(f)1.1. A state licensing agency that may refuse to license individuals under sub.
(3) (a) 1. or that may bar or terminate individuals from licensing under sub.
(3) (a) 1. shall allow an individual who does not possess a license to, without submitting a full application and without paying the fees applicable to applicants, apply to the agency for a determination of whether the individual would be disqualified from obtaining the license due to his or her conviction record.
111.335(4)(f)2.
2. A state licensing agency shall make a determination under subd.
1. in writing and send the determination to the applicant no later than 30 days after receiving the application for a determination.
111.335(4)(f)3.
3. A determination made under subd.
1., with respect to convictions reviewed by the state licensing agency as part of the determination, shall be binding upon the agency if the individual subsequently applies for the applicable license, unless there is information relevant to the determination that was not available to the agency at the time of the determination.
111.335(4)(f)4.
4. A state licensing agency may require a fee to be paid to the agency for a determination issued under subd.
1. of an amount necessary to cover the cost of making the determination.
111.335(4)(f)5.
5. A state licensing agency described in subd.
1. shall create a form on which an individual applying for a determination under subd.
1. may do all of the following:
111.335(4)(f)5.b.
b. Identify the date of conviction for any crime described under subd.
5. a. and describe the nature and circumstances of the crime.
111.335(4)(f)5.c.
c. Sign his or her name to attest to the accuracy and truthfulness of the information under subd.
5. a. and
b. and, if applicable, to acknowledge the agency's authority to conduct an investigation of the individual.
111.335(4)(f)6.
6. A state licensing agency described in subd.
1. shall promulgate rules to implement this paragraph, except that the department of safety and professional services may promulgate rules defining uniform procedures for making such determinations to be used by the department, the real estate appraisers board, and all examining boards and affiliated credentialing boards attached to the department or an examining board.
111.335(4)(h)
(h) 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(4)(h)1.
1. Manufacturing, distributing or delivering a controlled substance or controlled substance analog under s.
961.41 (1).
111.335(4)(h)2.
2. Possessing, with intent to manufacture, distribute or deliver, a controlled substance or controlled substance analog under s.
961.41 (1m).
111.335(4)(h)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(4)(h)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(4)(h)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(4)(i)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(4)(i)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(4)(j)
(j) Notwithstanding s.
111.322, it is not employment discrimination because of conviction record for the board of nursing to refuse to license an individual in accordance with s.
441.51 (3) (c) 7. and
8. 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).
111.335 Annotation
There is no requirement that an employer take affirmative steps to accommodate individuals convicted of felonies. Knight v. LIRC,
220 Wis. 2d 137,
582 N.W.2d 448 (Ct. App. 1998),
97-1606.
111.335 Annotation
When evaluating an individual for the position of reserve officer, a sheriff's department may consider information in its possession concerning the individual's juvenile record, subject to prohibitions against arrest record and conviction record discrimination contained in the WFEA.
79 Atty. Gen. 89.
111.335 Annotation
Race, Crime, and Getting a Job. Pager. 2005 WLR 617.
111.335 Annotation
Discrimination in employment on the basis of arrest or conviction record. Mukamal. 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 employee's or prospective employee'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 employee 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 employee 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 employee 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 Wis. 2d 638,
460 N.W.2d 430 (Ct. App. 1990).
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. DOT,
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),
97-1253. See also Stoughton Trailers, Inc. v. LIRC,
2007 WI 105,
303 Wis. 2d 514,
735 N.W.2d 477,
04-1550.
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,
99-2632.
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
An interstate commercial driver need not seek a determination of medical qualification from the federal Department of Transportation (DOT) prior to filing a disability discrimination claim under this chapter. When medical and physical qualifications to be an interstate driver are material to a claim, and a dispute arises concerning those qualifications that cannot be resolved by facial application of DOT regulations, the dispute should be resolved by the DOT under its dispute resolution procedure. The employer must seek a determination of medical and physical qualification from the DOT if the employer intends to offer a defense that the driver was not qualified for medical reasons. Szleszinski v. LIRC,
2007 WI 106,
304 Wis. 2d 258,
736 N.W.2d 111,
04-3033.
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.
111.34 Annotation
Crystal Lake Cheese Factory v. Labor and Industry Review Commission: A reasonable Turn Under the Wisconsin Fair Employment Act. Haas. 2004 WLR 1535.
111.34 Annotation
Disability Law in Wisconsin Workplaces. Vergeront & Cochrane. Wis. Law. Oct. 2004.
111.34 Annotation
ADA and WFEA: Differing Disability Protections. Backer & Mishlove. Wis. Law. Oct. 2004.
111.34 Annotation
Out of Office: Extended Leave Is Not a Required ADA Accommodation. McClurg. Wis. Law. Oct. 2018.
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.
