111.32(12g)(12g) “Military service” means service in the U.S. armed forces, the state defense force, the national guard of any state, or any other reserve component of the U.S. armed forces.

111.32(12j)(12j) “Political matters” means political party affiliation, a political campaign, an attempt to influence legislation, or the decision to join or not to join, or to support or not to support, any lawful political group, constituent group, or political or constituent group activity.

111.32(12m)(12m) “Religious association” means an organization, whether or not organized under ch. 187, which operates under a creed.

111.32(12p)(12p) “Religious matters” means religious affiliation or the decision to join or not to join, or to support or not to support, any bona fide religious association.

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 employee’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 AnnotationThe summary discharge, after two weeks of satisfactory employment, of a person with a history of asthma violated the fair employment act in that it constituted a discriminatory practice against the claimant based on handicap. Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. DILHR, 62 Wis. 2d 392, 215 N.W.2d 443 (1974).

111.32 AnnotationSingling out disabilities associated with pregnancy for less favorable treatment in a benefit plan designed to relieve the economic burden of physical incapacity constituted discrimination on the basis of sex, as pregnancy is undisputedly sex-linked. Ray-O-Vac v. DILHR, 70 Wis. 2d 919, 236 N.W.2d 209 (1975).

111.32 Annotation“Creed,” as used in sub. (5) (a) [now sub. (3m)], means a system of religious beliefs, not political beliefs. Augustine v. Anti-Defamation League of B’nai B’rith, 75 Wis. 2d 207, 249 N.W.2d 547 (1977).

111.32 AnnotationWisconsin law forbidding pregnancy benefits discrimination was not preempted when an employer negotiated, under the National Labor Relations Act, a welfare benefit plan, under the Employee Retirement Income Security Act. Goodyear Tire & Rubber Co. v. DILHR, 87 Wis. 2d 56, 273 N.W.2d 786 (Ct. App. 1978).

111.32 AnnotationThe Wisconsin Fair Employment Act (WFEA), this subchapter, was not preempted by federal legislation. Chicago & North Western Railroad v. LIRC, 91 Wis. 2d 462, 283 N.W.2d 603 (Ct. App. 1979).

111.32 AnnotationThe inclusion of pregnancy-related benefits within a disability benefit plan does not violate the federal Equal Pay Act. Kimberly-Clark Corp. v. LIRC, 95 Wis. 2d 558, 291 N.W.2d 584 (Ct. App. 1980).

111.32 AnnotationAn individual may be found to be handicapped under the Wisconsin Fair Employment Act although no actual impairment is found. It is sufficient to find that the employer perceived that the individual is handicapped; discrimination may be found when the perceived handicap is the sole basis of a hiring decision. La Crosse Police Commission v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987).

111.32 AnnotationCommon-law torts recognized before the adoption of the Wisconsin Fair Employment Act (WFEA), if properly pled, are not barred by the WFEA although the complained of act may fit a definition of discriminatory behavior under the WFEA. A battery claim was not precluded by the WFEA, although the sub. (13) definition of “sexual harassment” is broad enough to include battery, when the tort was pled as an unlawful touching, not a discriminatory act. Becker v. Automatic Garage Door Co., 156 Wis. 2d 409, 456 N.W.2d 888 (Ct. App. 1990).

111.32 AnnotationThe standard to determine whether a person is an “employee” under Title VII of the federal Civil Rights Act is applicable to Wisconsin Fair Employment Act (WFEA) cases. A determination of “employee” status in a Title VII action precludes redetermination in a WFEA action. Moore v. LIRC, 175 Wis. 2d 561, 499 N.W.2d 288 (Ct. App. 1993).

111.32 AnnotationBarring spouses who are both public employees from each electing family medical coverage is excepted from the prohibition against discrimination based on marital status under this chapter. Motola v. LIRC, 219 Wis. 2d 588, 580 N.W.2d 297 (1998), 97-0896.

111.32 AnnotationUnwelcome 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.

111.32 AnnotationA person claiming a disability under sub. (8) must demonstrate an actual or perceived impairment that makes, or is perceived as making, achievement unusually difficult or limits the capacity to work. An impairment is a real or perceived lessening or deterioration or damage to a normal bodily function or bodily condition, or the absence of such bodily function or condition. “Achievement” is not as to a particular job, but as to a substantial limitation on life’s normal functions or a major life activity. “Limits the capacity to work” refers to the specific job at issue. Hutchinson Technology, Inc. v. LIRC, 2004 WI 90, 273 Wis. 2d 394, 682 N.W.2d 343, 02-3328.

111.32 AnnotationThe Labor and Industry Review Commission properly interpreted sub. (8) to require a claimant to demonstrate a permanent impairment. To demonstrate that a disability exists, the complainant must present competent evidence of a medical diagnosis regarding the alleged impairment. An employer’s decision to grant requests for light-duty work, rather than terminating employment for refusing to perform regular job duties, is not proof of a perceived disability under sub. (8) (c). Erickson v. LIRC, 2005 WI App 208, 287 Wis. 2d 204, 704 N.W.2d 398, 04-3237.

111.32 AnnotationChicago, Milwaukee, St. Paul & Pacific Railroad Co., 62 Wis. 2d 392 (1974), does not hold that a diagnosis of asthma alone establishes a disability. Doepke-Kline v. LIRC, 2005 WI App 209, 287 Wis. 2d 337, 704 N.W.2d 605, 05-0106.

111.32 AnnotationA deferred prosecution agreement is not a part of a person’s “conviction record” under sub. (3) because it occurs before any finding of guilt or culpability has occurred and because the agreement, in and of itself, is not information indicating that an individual has been convicted of an offense, adjudicated delinquent, less than honorably discharged, or placed on probation, fined, imprisoned, placed on extended supervision, or paroled pursuant to any law enforcement or military authority. Vega v. LIRC, 2022 WI App 21, 402 Wis. 2d 233, 975 N.W.2d 249, 21-0024.

111.32 AnnotationThe first element that an employee must prove in a disability discrimination case is that the employee is an individual with a disability, as that term is defined by sub. (8). At the contested case hearing, the employee is required to prove that the employee had a disability at the time the employee was employed by the employer. However, the unambiguous language of sub. (8) (a) does not require an impairment to be diagnosed at the time the employee was employed in order to satisfy the employee’s burden at the evidentiary hearing. Wingra Redi-Mix Inc. v. LIRC, 2023 WI App 34, 408 Wis. 2d 563, 993 N.W.2d 715, 21-2028.

111.32 AnnotationThe Wisconsin Fair Employment Act provides no protection against terminations based upon information related to a civil, municipal charge. The phrase “or other offense” in sub. (1) is not applicable to civil, municipal offenses; rather, it extends employment-discrimination protection in relation to criminal arrest information from non-Wisconsin jurisdictions that do not use the designations of felony or misdemeanor. Oconomowoc Area School District v. Cota, 2024 WI App 8, 410 Wis. 2d 619, 3 N.W.3d 736, 22-1158.

111.32 AnnotationExpanding Employer Liability for Sexual Harassment Under the Wisconsin Fair Employment Act: Jim Walter Color Separations v. Labor & Industry Review Commission. Edgar. 2000 WLR 885.

111.3205111.3205 Franchisors excluded. For purposes of this subchapter, a franchisor, as defined in 16 CFR 436.1 (k), is not considered to be an employer of a franchisee, as defined in 16 CFR 436.1 (i), or of an employee of a franchisee, unless any of the following applies: