111.321 Annotation
An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII of the federal Civil Rights Act forbids. Bostock v. Clayton County, 590 U.S. ___,
140 S. Ct. 1731,
207 L. Ed. 2d 218 (2020).
111.321 Annotation
Discrimination may be inferred when an employer treats an employee in a protected class less favorably than the employer treats a similarly-situated employee outside that class. To determine whether employees are similarly situated, courts ask whether the other employees' situations were similar enough to the plaintiff's that it is reasonable to infer, in the absence of some other explanation, that the different treatment was a result of race or some other unlawful basis. De Lima Silva v. DOC,
917 F.3d 546 (2019).
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 (2006).
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
Double Jeapardy: Race, Crime, and Getting a Job. Pager. 2005 WLR 617.
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
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,
103.11,
103.13,
103.28,
103.32,
103.34,
103.455,
104.12,
109.03,
109.07,
109.075,
146.997, or
995.55, 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,
103.11,
103.13,
103.28,
103.32,
103.34,
103.455,
104.12,
109.03,
109.07,
109.075,
146.997, or
995.55, 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
(bm).
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. But see Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission,
565 U.S. 171,
132 S. Ct. 694,
181 L. Ed. 2d 650 (2012); Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___,
140 S. Ct. 2049,
207 L. Ed. 2d 870 (2020).
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 Wisconsin Fair Employment Act, this subchapter. 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. See also Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission,
565 U.S. 171,
132 S. Ct. 694,
181 L. Ed. 2d 650 (2012); Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___,
140 S. Ct. 2049,
207 L. Ed. 2d 870 (2020).
111.322 Annotation
An employer does not engage in intentional discrimination because of disability when the employer bases an adverse employment action on an employee's conduct unless the employee proves the employer knew the employee's disability caused the conduct. The Labor and Industry Review Commission's “inference method" of finding discriminatory intent is inconsistent with sub. (1) because the method excuses the employee from the burden of proving discriminatory intent. Wisconsin Bell, Inc. v. LIRC,
2018 WI 76,
382 Wis. 2d 624,
914 N.W.2d 1,
16-0355.
111.322 Annotation
Certain employment discrimination laws authorize employees who have been wrongfully terminated to sue their employers for reinstatement and damages. However, the establishment and free exercise clauses of the 1st amendment to the U.S. Constitution bar such an action when the employer is a religious group and the employee is one of the group's ministers. Thus, in an employment discrimination suit brought on behalf of a minister challenging her church's decision to fire her, the ministerial exception barred the suit. Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission,
565 U.S. 171,
132 S. Ct. 694,
181 L. Ed. 2d 650 (2012). See also Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___,
140 S. Ct. 2049,
207 L. Ed. 2d 870 (2020).
111.322 Annotation
Title VII of the federal Civil Rights Act prohibits employers from taking certain actions “because of" sex, a test that incorporates the simple and traditional standard of but-for causation. When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff's sex was one but-for cause of that decision, that is enough to trigger the law. Bostock v. Clayton County, 590 U.S. ___,
140 S. Ct. 1731,
207 L. Ed. 2d 218 (2020).