State Law > Wisconsin > Wisconsin Employment Discrimination Law

Wisconsin Employment Discrimination Law

 

Discrimination by employers is generally prohibited in the following sections of the Wisconsin Statutes.Wisconsin Fair Employment Practices Act

  • 111.32 Definitions.
  • 111.321 Prohibited bases of discrimination.
  • 111.322 Discriminatory actions prohibited.
  • 111.325 Unlawful to discriminate.
  • 111.33 Age; exceptions and special cases.
  • 111.335 Arrest or conviction record; exceptions and special cases.
  • 111.337 Creed; exceptions and special cases.
  • 111.34 Disability; exceptions and special cases.
  • 111.345 Marital status; exceptions and special cases.
  • 111.35 Use or nonuse of lawful products; exceptions and special cases.
  • 111.36 Sex, sexual orientation; exceptions and special cases.
  • 111.37 Use of honesty testing devices in employment situations.
  • 111.372 Use of genetic testing in employment situations.
Grooming
  • 103.14. Notification of grooming requirements.
  • HIV
    • 103.15. Testing for HIV.
    Discrimination Against Military Service Personnel
    • 321.65 National guard members; Prohibited discrimination.
    • 321.66 Leave for Civil Air Patrol service.

    Wisconsin Fair Employment Practices Act

    111.31 Declaration of policy.

    (1) The legislature finds that the practice of unfair discrimination in employment against properly qualified individuals by reason of their age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, membership in the national guard, state defense force or any other reserve component of the military forces of the United States or this state or use or nonuse of lawful products off the employer's premises during nonworking hours substantially and adversely affects the general welfare of the state. Employers, labor organizations, employment agencies and licensing agencies that deny employment opportunities and discriminate in employment against properly qualified individuals solely because of their age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, membership in the national guard, state defense force or any other reserve component of the military forces of the United States or this state or use or nonuse of lawful products off the employer's premises during nonworking hours deprive those individuals of the earnings that are necessary to maintain a just and decent standard of living.

    (2)
    It is the intent of the legislature to protect by law the rights of all individuals to obtain gainful employment and to enjoy privileges free from employment discrimination because of age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, membership in the national guard, state defense force or any other reserve component of the military forces of the United States or this state or use or nonuse of lawful products off the employer's premises during nonworking hours, and to encourage the full, nondiscriminatory utilization of the productive resources of the state to the benefit of the state, the family and all the people of the state. It is the intent of the legislature in promulgating this subchapter to encourage employers to evaluate an employee or applicant for employment based upon the employee's or applicant's individual qualifications rather than upon a particular class to which the individual may belong.
    (3) In the interpretation and application of this subchapter, and otherwise, it is declared to be the public policy of the state to encourage and foster to the fullest extent practicable the employment of all properly qualified individuals regardless of age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, membership in the national guard, state defense force or any other reserve component of the military forces of the United States or this state or use or nonuse of lawful products off the employer's premises during nonworking hours. Nothing in this subsection requires an affirmative action program to correct an imbalance in the work force. This subchapter shall be liberally construed for the accomplishment of this purpose.

    (4)
    The practice of requiring employees or prospective employees to submit to a test administered by means of a lie detector, as defined in s. 111.37 (1) (b), is unfair, the practice of requesting employees and prospective employees to submit to such a test without providing safeguards for the test subjects is unfair, and the use of improper tests and testing procedures causes injury to the employees and prospective employees.

    (5)
    The legislature finds that the prohibition of discrimination on the basis of creed under s. 111.337 is a matter of statewide concern, requiring uniform enforcement at state, county and municipal levels.

    111.32 Definitions.
    When used in this subchapter:

    (1) "Arrest record" includes, but is not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.
    (2) "Commission" means the labor and industry review commission.
    (2r) "Constituent group" includes a civic association, community group, social club, fraternal society, mutual benefit alliance, or labor organization.
    (3) "Conviction record" includes, but is not limited to, information indicating that an individual has been convicted of any felony, misdemeanor or other offense, has been adjudicated delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority.
    (3m) "Creed" means a system of religious beliefs, including moral or ethical beliefs about right and wrong, that are sincerely held with the strength of traditional religious views.
    (4) "Department" means the department of workforce development.
    (5) "Employee" does not include any individual employed by his or her parents, spouse or child.
    (6) 
    (a) "Employer" means the state and each agency of the state and, except as provided in par. (b), any other person engaging in any activity, enterprise or business employing at least one individual. In this subsection, "agency" means an office, department, independent agency, authority, institution, association, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts.
    (b) "Employer" does not include a social club or fraternal society under ch. 188 with respect to a particular job for which the club or society seeks to employ or employs a member, if the particular job is advertised only within the membership.
    (7) "Employment agency" means any person, including this state, who regularly undertakes to procure employees or opportunities for employment for any other person.
    (7m) "Genetic testing" means a test of a person's genes, gene products or chromosomes, for abnormalities or deficiencies, including carrier status, that are linked to physical or mental disorders or impairments, or that indicate a susceptibility to illness, disease, impairment or other disorders, whether physical or mental, or that demonstrate genetic or chromosomal damage due to environmental factors.
    (8) "Individual with a disability" means an individual who:
    (a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;
    (b) Has a record of such an impairment; or
    (c) Is perceived as having such an impairment.
    (9) "Labor organization" means:
    (a) Any organization, agency or employee representation committee, group, association or plan in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours or other terms or conditions of employment; or
    (b) Any conference, general committee, joint or system board or joint council which is subordinate to a national or international committee, group, association or plan under par. (a).
    (10) "License" means the whole or any part of any permit, certificate, approval, registration, charter or similar form of permission required by a state or local unit of government for the undertaking, practice or continuation of any occupation or profession.
    (11) "Licensing agency" means any board, commission, committee, department, examining board, affiliated credentialing board or officer, except a judicial officer, in the state or any city, village, town, county or local government authorized to grant, deny, renew, revoke, suspend, annul, withdraw or amend any license.
    (12) "Marital status" means the status of being married, single, divorced, separated or widowed.
    (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.
    (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.
    (12m) "Religious association" means an organization, whether or not organized under ch. 187, which operates under a creed.
    (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.
    (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.
    (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.
    (13r) "Unfair genetic testing" means any test or testing procedure that violates s. 111.372.
    (14) "Unfair honesty testing" means any test or testing procedure which violates s. 111.37.


    Annotated
    :

    Wisconsin 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).

    The Fair Employment Act (WFEA), subch. II of ch. 111, was not preempted by federal legislation. Sub. (5) (f), which excepts persons who are physically unable to perform a job from protection, includes a "future hazards" exception for employees who because of their physical condition will be a hazard to themselves or others. Chicago & North Western Railroad v. LIRC, 91 Wis. 2d 462, 283 N.W.2d 603 (Ct. App. 1979).

    The 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).

    An individual may be found to be handicapped under WFEA 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).

    Common-law torts recognized before the adoption of WFEA, if properly pled, are not barred by the act although the complained of act may fit a definition of discriminatory behavior under WFEA. A battery claim was not precluded by 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).

    The standard to determine whether a person is an "employee" under Title VII of the Civil Rights Act is applicable to 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).

    Barring spouses who are both public employees from each electing family medical coverage is excepted from the prohibition against discrimination based on marital status under ch. 111. Motola v. LIRC, 219 Wis. 2d 589, 580 N.W.2d 297 (1998).

    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).

    A licensing agency may request information from an applicant regarding conviction records under sub. (5) (h) [now sub. (3)]. 67 Atty. Gen. 327.

    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 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.
    NOTE: See 111.36 for definition of sex discrimination.

    Annotated
    :

    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).

    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).

    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, subchapter II of ch.111. Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997).

    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 381, 565 N.W.2d 253 (Ct. App. 1997).

    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).

    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.

    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.

    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).
    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.

    111.322 Discriminatory actions prohibited.
    Subject to ss. 111.33 to 111.365, it is an act of employment discrimination to do any of the following:

    (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.
    (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.
    (2m) To discharge or otherwise discriminate against any individual because of any of the following:
    (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.
    (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.
    (bm) The individual files a complaint or attempts to enforce a right under s. 49.197 (6) (d) or 49.845 (4) (d) or testifies or assists in any action or proceeding under s. 49.197 (6) (d) or 49.845 (4) (d).
    (c) The individual files a complaint or attempts to enforce a right under s. 66.0903, 103.49, or 229.8275 or testifies or assists in any action or proceeding under s. 66.0903, 103.49, or 229.8275.
    (d) The individual's employer believes that the individual engaged or may engage in any activity described in pars. (a) to (c).
    (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.

    Annotated:
    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).

    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).

    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).

    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, subchapter II of ch. 111. Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997).

    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 381, 565 N.W.2d 253 (Ct. App. 1997).

    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)..

    Discrimination in advertising. Abramson, WBB March, 1985.

    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.

    111.33 Age; exceptions and special cases.

    (1) The prohibition against employment discrimination on the basis of age applies only to discrimination against an individual who is age 40 or over.

    (2)
    Notwithstanding sub. (1) and s. 111.322, it is not employment discrimination because of age to do any of the following:

    (a) To terminate the employment of any employee physically or otherwise unable to perform his or her duties.

    (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.

    (d) To apply varying insurance coverage according to an employee's age.

    (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.

    (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.

    (g) To exercise an age distinction under s. 343.12 (2) (a) and (3).

    Annotated:
    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).

    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 680, 565 N.W.2d 572 (Ct. App. 1997).

    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).

    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 Arrest or conviction record; exceptions and special cases.

    (1) 
    (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.
    (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.
    (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:
    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
    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.
    (cg)
    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.
    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.
    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.
    (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.
    (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:
    1. Manufacturing, distributing or delivering a controlled substance or controlled substance analog under s. 961.41 (1).
    2. Possessing, with intent to manufacture, distribute or deliver, a controlled substance or controlled substance analog under s. 961.41 (1m).
    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).
    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).
    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.
    (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.
    NOTE: Par. (cv) is amended eff. 7-1-13 by 2011 Wis. Act 32 to read:
    (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.
    (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).
    (d)
    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).
    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.

    Annotated:

    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).

    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)..

    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).


    There is no requirement that an 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).

    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.

    Discrimination in employment on the basis of arrest or conviction record. Mukamel. WBB Sept. 1983.

    111.337 Creed; exceptions and special cases.

    (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.

    (2)
    Notwithstanding s. 111.322, it is not employment discrimination because of creed:

    (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.

    (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.

    (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.

    (3) No county, city, village or town may adopt any provision concerning employment discrimination because of creed that prohibits activity allowed under this section.

    Annotated:

    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).

    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 Wkrs. D.A.L.U. 19806, 643 F. 2d 445 (1981).

    The supreme court redefines employer's role in religious accommodation. Soeka. WBB July 1987.

    111.34 Disability; exceptions and special cases.

    (1) Employment discrimination because of disability includes, but is not limited to:

    (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

    (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.

    (2)

    (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.

    (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.

    (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.

    Annotated:

    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).

    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).


    Small stature is not a handicap. American Motors Corp. v. LIRC, 114 Wis. 2d 288, 338 N.W.2d 518 (Ct. App. 1983); aff'd, 119 Wis. 2d 706, 350 N.W.2d 120 (1984).


    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. Department of Transportation, 134 Wis. 2d 378, 396 N.W.2d 785 (Ct. App. 1986).


    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).


    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).


    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).


    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.


    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).

    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 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.

    Annotated:

    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 Use or nonuse of lawful products; exceptions and special cases.

    (1)

    (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.

    (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.

    (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:

    (a) Impairs the individual's ability to undertake adequately the job-related responsibilities of that individual's employment, membership or licensure. (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.

    (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.

    (d) Constitutes a violation of s. 254.92 (2).

    (e) Conflicts with any federal or state statute, rule or regulation.

    (3)

    (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:

    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.

    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.

    (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:

    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.

    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.

    (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 Sex, sexual orientation; exceptions and special cases.

    (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:

    (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.

    (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.

    (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.

    (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.

    (d)

    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

    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.

    (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.

    (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.

    Annotated
    :

    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).
    E
    motional 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).

    Sexual harassment. Gibson, WBB March, 1981.

    111.37 Use of honesty testing devices in employment situations.

    (1) Definitions. In this section:

    (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.

    (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.

    (c) "Polygraph" means an instrument that fulfills all of the following requirements:

    1. Records continuously, visually, permanently and simultaneously any changes in cardiovascular, respiratory and electrodermal patterns as minimum instrumentation standards.

    2. Is used, or the results of which are used, to render a diagnostic opinion about the honesty or dishonesty of an individual.

    (2) Prohibitions on lie detector use. Except as provided in subs. (5) and (6), no employer may do any of the following:

    (a) Directly or indirectly require, request, suggest or cause an employee or prospective employee to take or submit to a lie detector test.

    (b) Use, accept, refer to or inquire about the results of a lie detector test of an employee or prospective employee.

    (c) Discharge, discipline, discriminate against or deny employment or promotion to, or threaten to take any such action against, any of the following:

    1. An employee or prospective employee who refuses, declines or fails to take or submit to a lie detector test.

    2. An employee or prospective employee on the basis of the results of a lie detector test.

    (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:

    1. The employee or prospective employee has filed a complaint or instituted or caused to be instituted a proceeding under this section.

    2. The employee or prospective employee has testified or is about to testify in a proceeding under this section.

    3. The employee or prospective employee, on behalf of that employee, prospective employee or another person, has exercised any right under this section.

    (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.

    (4)
    Department's duties and powers.

    (a) The department shall do all of the following:

    1. Promulgate rules that are necessary under this section.

    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.

    3. Make investigations and inspections and require the keeping of records necessary for the administration of this section.

    (b) For the purpose of any hearing or investigation under this section, the department may issue subpoenas.

    (5) Exemptions.

    (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:

    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.

    2. The employee had access to the property that is the subject of the investigation under subd. 1.

    3. The employer has a reasonable suspicion that the employee was involved in the incident or activity under investigation.

    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.

    (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:

    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.

    2. Currency, negotiable securities, precious commodities or instruments and proprietary information.
    (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.

    (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.

    (6) Restrictions on use of exemptions.

    (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.

    (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.

    (c) The exemptions under sub. (5) (a) to (c) do not apply unless all of the following requirements are fulfilled:

    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.

    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.

    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

    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).

    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.

    6. The test is administered at a reasonable time and location.

    (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:

    1. Maintains at least a $50,000 bond or an equivalent amount of professional liability coverage.

    2. Renders no opinion or conclusion about the test unless it is in writing and based solely on an analysis of polygraph test charts, does not contain information other than admissions, information, case facts and interpretation of the charts relevant to the purpose and stated objectives of the test, and does not include any recommendation concerning the employment of the examinee.

    3. Maintains all opinions, reports, charts, written questions, lists and other records relating to the test for at least 3 years after administration of the test.

    (7) Disclosure of information. No person other than the examinee may disclose information obtained during a polygraph test, except that a polygraph examiner may disclose information acquired from a polygraph test to the examinee or any other person specifically designated in writing by the examinee.

    (8)
    Enforcement provisions.

    (a) In addition to the rights, remedies and procedures under ss. 111.375 and 111.39, any employer who violates this section may be required to forfeit not more than $10,000.

    (b) The rights, remedies and procedures provided by this section may not be waived by contract or otherwise, unless that waiver is part of a written settlement agreed to and signed by the parties to an action or complaint under this section.

    111.371 Local ordinance; collective bargaining agreements. Section 111.37 does not do any of the following:

    (1) Prevent a county, city, village or town from adopting an ordinance that prohibits honesty testing, restricts the use of honesty testing to a greater extent than s. 111.37 or provides employees with more rights and remedies with respect to honesty testing than are provided under s. 111.37.

    (2)
    Supersede, preempt or prohibit provisions of a collective bargaining agreement that prohibit honesty testing, restrict the use of honesty testing to a greater extent than s. 111.37 or provide employees with more rights and remedies with respect to honesty testing than are provided under s. 111.37.

    111.372 Use of genetic testing in employment situations.

    (1) No employer, labor organization, employment agency or licensing agency may directly or indirectly:

    (a) Solicit, require or administer a genetic test to any person as a condition of employment, labor organization membership or licensure.

    (b) Affect the terms, conditions or privileges of employment, labor organization membership or licensure or terminate the employment, labor organization membership or licensure of any person who obtains a genetic test.

    (2) Except as provided in sub. (4), no person may sell to or interpret for an employer, labor organization, employment agency or licensing agency a genetic test of an employee, labor organization member or licensee or of a prospective employee, labor organization member or licensee.

    (3)
    Any agreement between an employer, labor organization, employment agency or licensing agency and another person offering employment, labor organization membership, licensure or any pay or benefit to that person in return for taking a genetic test is prohibited.

    (4)
    This section does not prohibit the genetic testing of an employee who requests a genetic test and who provides written and informed consent to taking a genetic test for any of the following purposes:

    (a) Investigating a worker's compensation claim under ch. 102.

    (b) Determining the employee's susceptibility or level of exposure to potentially toxic chemicals or potentially toxic substances in the workplace, if the employer does not terminate the employee, or take any other action that adversely affects any term, condition or privilege of the employee's employment, as a result of the genetic test.

    Annotated:

    The New Genetic World and the Law. Derse. Wis. Law. April 2001.

    111.375 Department to administer.

    (1) Except as provided under sub. (2), this subchapter shall be administered by the department. The department may make, amend and rescind such rules as are necessary to carry out this subchapter. The department or the commission may, by such agents or agencies as it designates, conduct in any part of this state any proceeding, hearing, investigation or inquiry necessary to the performance of its functions. The department shall preserve the anonymity of any employee who is the aggrieved party in a complaint of discrimination in promotion, compensation or terms and conditions of employment, of unfair honesty testing or of unfair genetic testing against his or her present employer until a determination as to probable cause has been made, unless the department determines that the anonymity will substantially impede the investigation.

    (2)
    This subchapter applies to each agency of the state except that complaints of discrimination, unfair honesty testing or unfair genetic testing against the agency as an employer shall be filed with and processed by the personnel commission under s. 230.45 (1) (b). Decisions of the personnel commission are subject to review under ch. 227.

    Annotated
    :

    Administrative remedies available under the fair employment act, subch. II of ch. 111, are the exclusive remedies for violations. The act does not provide a remedy for emotional distress resulting from discriminatory firing. Bachand v. Connecticut General Life Insurance Co. 101 Wis. 2d 617, 305 N.W.2d 149 (Ct. App. 1981).

    111.38 Investigation and study of discrimination. Except as provided under s. 111.375 (2), the department shall:

    (1) Investigate the existence, character, causes and extent of discrimination in this state and the extent to which the same is susceptible of elimination.

    (2)
    Study the best and most practicable ways of eliminating any discrimination found to exist, and formulate plans for the elimination thereof by education or other practicable means.

    (3)
    Publish and disseminate reports embodying its findings and the results of its investigations and studies relating to discrimination and ways and means of reducing or eliminating it.

    (4)
    Confer, cooperate with and furnish technical assistance to employers, labor unions, educational institutions and other public or private agencies in formulating programs, educational and otherwise, for the elimination of discrimination.

    (5)
    Make specific and detailed recommendations to the interested parties as to the methods of eliminating discrimination.

    (6)
    Transmit to the legislature from time to time recommendations for any legislation which may be deemed desirable in the light of the department's findings as to the existence, character and causes of any discrimination.


    111.39 Powers and Duties of Department.

    (1) The department may receive and investigate a complaint charging discrimination, discriminatory practices, unfair honesty testing or unfair genetic testing in a particular case if the complaint is filed with the department no more than 300 days after the alleged discrimination, unfair honesty testing or unfair genetic testing occurred. The department may give publicity to its findings in the case.

    (2) In carrying out this subchapter the department and its duly authorized agents are empowered to hold hearings, subpoena witnesses, take testimony and make investigations in the manner provided in s. 103.005. The department or its duly authorized agents may privilege witnesses testifying before them under the provisions of this subchapter against self-incrimination.

    (3) The department shall dismiss a complaint if the person filing the complaint fails to respond within 20 days to any correspondence from the department concerning the complaint and if the correspondence is sent by certified mail to the last-known address of the person.

    (4) 
    (a) The department shall employ such examiners as are necessary to hear and decide complaints of discrimination and to assist in the effective administration of this subchapter. The examiners may make findings and orders under this section.
    (b) If the department finds probable cause to believe that any discrimination has been or is being committed, that unfair honesty testing has occurred or is occurring or that unfair genetic testing has occurred or is occurring, it may endeavor to eliminate the practice by conference, conciliation or persuasion. If the department does not eliminate the discrimination, unfair honesty testing or unfair genetic testing, the department shall issue and serve a written notice of hearing, specifying the nature of the discrimination that appears to have been committed or unfair honesty testing or unfair genetic testing that has occurred, and requiring the person named, in this section called the "respondent", to answer the complaint at a hearing before an examiner. The notice shall specify a time of hearing not less than 30 days after service of the complaint, and a place of hearing within either the county of the respondent's residence or the county in which the discrimination, unfair honesty testing or unfair genetic testing appears to have occurred. The testimony at the hearing shall be recorded or taken down by a reporter appointed by the department.
    (c) If, after hearing, the examiner finds that the respondent has engaged in discrimination, unfair honesty testing or unfair genetic testing, the examiner shall make written findings and order such action by the respondent as will effectuate the purpose of this subchapter, with or without back pay. If the examiner awards any payment to an employee because of a violation of s. 111.321 by an individual employed by the employer, under s. 111.32 (6), the employer of that individual is liable for the payment. If the examiner finds a respondent violated s. 111.322 (2m), the examiner shall award compensation in lieu of reinstatement if requested by all parties and may award compensation in lieu of reinstatement if requested by any party. Compensation in lieu of reinstatement for a violation of s. 111.322 (2m) may not be less than 500 times nor more than 1,000 times the hourly wage of the person discriminated against when the violation occurred. Back pay liability may not accrue from a date more than 2 years prior to the filing of a complaint with the department. Interim earnings or amounts earnable with reasonable diligence by the person discriminated against or subjected to unfair honesty testing or unfair genetic testing shall operate to reduce back pay otherwise allowable. Amounts received by the person discriminated against or subject to the unfair honesty testing or unfair genetic testing as unemployment benefits or welfare payments shall not reduce the back pay otherwise allowable, but shall be withheld from the person discriminated against or subject to unfair honesty testing or unfair genetic testing and immediately paid to the unemployment reserve fund or, in the case of a welfare payment, to the welfare agency making the payment.
    (d) The department shall serve a certified copy of the findings and order on the respondent, the order to have the same force as other orders of the department and be enforced as provided in s. 103.005. Any person aggrieved by noncompliance with the order may have the order enforced specifically by suit in equity. If the examiner finds that the respondent has not engaged in discrimination, unfair honesty testing, or unfair genetic testing as alleged in the complaint, the department shall serve a certified copy of the examiner's findings on the complainant, together with an order dismissing the complaint.

    (5) 
    (a) Any respondent or complainant who is dissatisfied with the findings and order of the examiner may file a written petition with the department for review by the commission of the findings and order.
    (b) If no petition is filed within 21 days from the date that a copy of the findings and order of the examiner is mailed to the last-known address of the respondent the findings and order shall be considered final for purposes of enforcement under sub. (4) (d). If a timely petition is filed, the commission, on review, may either affirm, reverse or modify the findings or order in whole or in part, or set aside the findings and order and remand to the department for further proceedings. Such actions shall be based on a review of the evidence submitted. If the commission is satisfied that a respondent or complainant has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order it may extend the time another 21 days for filing the petition with the department.
    (c) On motion, the commission may set aside, modify or change any decision made by the commission, at any time within 28 days from the date thereof if it discovers any mistake therein, or upon the grounds of newly discovered evidence. The commission may on its own motion, for reasons it deems sufficient, set aside any final decision of the commission within one year from the date thereof upon grounds of mistake or newly discovered evidence, and remand the case to the department for further proceedings.

    (6) If an order issued under sub. (4) is unenforceable against any labor organization in which membership is a privilege, the employer with whom the labor organization has an all-union shop agreement shall not be held accountable under this chapter when the employer is not responsible for the discrimination, the unfair honesty testing or the unfair genetic testing. (Effective 4/12)

    Cross Reference: See also LIRC, Wis. adm. code.

    Annotated
    :

    A department order that was broader in scope than the nature of the discrimination set forth in the notice of hearing was overbroad. Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. DILHR, 62 Wis. 2d 392, 215 N.W.2d 443 (1972).

    An employer found to have discriminated against a female employee with respect to required length of pregnancy leave and applicable employee benefits was denied adequate notice of the leave benefits issue prior to hearing as required by s. 111.36 (3) (a) [now s. 111.39 (4) (b)] and s. 227.09, 1971 stats., because: 1) the notice received by the employer merely charged "an act of discrimination due to sex;" 2) the complaint specified the discriminatory act as the refusal to rehire the employee as soon as she was able to return to work; 3) DILHR characterized the complaint as involving only length of the required leave; and 4) the discriminatory aspects of the required pregnancy leave and applicable benefits constituted separate legal issues. Wisconsin Telephone Co. v. DILHR, 68 Wis. 2d 345, 228 N.W.2d 649 (1975).

    A court should not use ch. 227 or s. 752.35 to circumvent the policy under s. 111.36 (3m) (c) [now s. 111.39 (5) (c)] that proceedings before the commission are not to be reopened more than one year after entry of a final decision. Chicago & North Western Railroad v. LIRC, 91 Wis. 2d 462, 283 N.W.2d 603 (Ct. App. 1979).

    A valid offer of reinstatement terminates the accrual of back pay. The commission erred in finding an employer's offer to be sufficient. Prejudgment interest should be awarded on back pay. Anderson v. LIRC, 111 Wis. 2d 245, 330 N.W.2d 594 (1983).


    Sub. (1) is a statute of limitations. As such it is an affirmative defense that may be waived. Milwaukee Co. v. LIRC, 113 Wis. 2d 199, 335 N.W.2d 412 (Ct. App. 1983).


    Under s. 111.36 (3) (b) [now s. 111.39 (4) (c)] the department may award attorney fees to a prevailing complainant. Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984).


    Under sub. (1), "filing" does not occur until the complaint is received by the department, and when discrimination "occurred" in termination cases is the date of the date of notice of termination. Hilmes v. DILHR, 147 Wis. 2d 48, 433 N.W.2d 251 (Ct. App. 1988).


    The personnel commission may not award costs and attorney fees for discovery motions filed against the state under the fair employment act. DOT v. Personnel Commission, 176 Wis. 2d 731, 500 N.W.2d 664 (1993).


    Victims of discrimination in the work place who voluntarily quit a position must show constructive discharge to recover back pay and reinstatement. Marten Transport, Ltd. v. DILHR, 176 Wis. 2d 1012, 501 N.W.2d 391 (1993).


    Evidence of acts occurring outside of the sub. (1) 300-day statute of limitations period may be admitted as proof of a state of mind for acts during a relevant time. Abbyland Processing v. LIRC, 206 Wis. 2d 308, 557 N.W.2d 419 (Ct. App. 1996).


    What constitutes reasonable diligence under sub. (4) (c) is to be determined from all the facts of a case. U. S. Paper Converters, Inc. v. LIRC, 208 Wis. 2d 523, 561 N.W.2d 756 (Ct. App. 1997).

    A proposed rule that would prohibit departmental employees from making public any information obtained under s. 111.36 [now s. 111.39] prior to the time an adjudicatory hearing takes place, if used as a blanket to prohibit persons from inspecting or copying public papers and records, would be in violation of s. 19.21. The open meetings law [now ss. 19.81 to 19.98] is discussed. 60 Atty. Gen. 43.

    The department may proceed in a matter despite a settlement between the parties. Discrimination can be eliminated without full back pay. 66 Atty. Gen. 28.

    111.395 Judicial review.

    Findings and orders of the commission under this subchapter are subject to review under ch. 227. Orders of the commission shall have the same force as orders of the department under chs. 103 to 106 and may be enforced as provided in s. 103.005 (11) and (12) or specifically by a suit in equity. In any enforcement action the merits of any order of the commission are not subject to judicial review. Upon such review, or in any enforcement action, the department of justice shall represent the commission.

    Grooming

    103.14. Notification of grooming requirements.

    (1) Each employer shall, at the time of hiring, notify each employee about any hairstyle, facial hair or clothing requirement.

    HIV

    103.15. Testing for HIV.

    (1) In this section:

    (a)"Employer" includes the state, its political subdivisions and any office, department, independent agency, authority, institution, association, society or other body in state or local government created or authorized to be created by the constitution or any law, including the legislature and the courts.

    (am) "HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.

    (b) "HIV infection" means the pathological state produced by a human body in response to the presence of HIV.

    (c) "State epidemiologist" means the individual designated by the secretary of health and social services as the individual in charge of communicable disease control for this state.

    (2) Notwithstanding ss. 227.001 (13) and 227.10 (1), unless the state epidemiologist determines and the secretary of health and social services declares under s. 250.04 (1) or (2)(a) that individuals who have HIV infections may, through employment, provide a significant risk of transmitting HIV to other individuals, no employer or agent of an employer may directly or indirectly:

    (a) Solicit or require as a condition of employment of any employee or prospective employee a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.

    (b) Affect the terms, conditions or privileges of employment or terminate the employment of any employee who obtains a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.

    (3) Any agreement by an employer or agent of the employer and an employee or prospective employee offering employment or any pay or benefit to an employee or prospective employee in return for taking a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV is prohibited, except as provided under sub. (2) (intro.).

    National guard members; Prohibited discrimination.

    Sec. 321.65.National guard members; Prohibited discrimination.

    (1) DEFINITIONS. In this section:
    (a)"Active state service" means any of the following:
    1. State active duty or active duty in the national guard under 32 USC 502 (f) uniformed services.

    2.  Active service with the state laboratory of hygiene under s. 36.25 (11) (em) for the purpose of assisting the department of health services under s. 250.042 during a state of emergency relating to public health declared by the governor under s. 166.03 (1) (b) 1. 323.10.

    3. Active duty in the national guard under an order of the governor of that state.
    (b) "Employer" means a person engaging in any activity, enterprise, or business in this stat employing one or more persons on a permanent basis."Employer" includes the state and any office, department, independent agency, authority, institution, association, society, or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts. "Employer" also includes a successor-in-interest of a person employing an individual who has provided notice to that person under sub. (3)(a).
    (c) "Health benefit plan" has the meaning given in s. 632.745 (11).
    (d) "Qualified" means having the ability to perform the essential tasks of an employment position.
    (e) "Reasonable efforts" means, with respect to an action required by an employer under sub. (4) (a) 1., 2., 3., or 4., an action that does not place an undue hardship on the employer.
    (f) "Undue hardship" means, with respect to an action required by an employer under sub. (4) (a) 1., 2., 3., or 4., significant difficulty or expense, when considered in light of all of the following:
    1. The nature and cost of the action.
    2. The overall financial resources of the facility involved in providing the action, the number of persons employed at the facility, the effect of providing the action on the resources and finances of the facility, and any other impact of the action on the operation of the facility.
    3. The overall financial resources of the employer, the number of persons employed by the employer, and the number, type, and location of the employers facilities.
    4. The type of operation of the employer, including the composition, structure, and functions of the employers workforce, the geographic separateness from the employer of the facility involved in providing the action, and the administrative and financial relationship of the facility to the employer.
    (2) MORE GENEROUS RIGHTS PERMITTED. Nothing in this section prohibits an employer from providing employees who are ordered into active service with reemployment rights and benefits that are more generous to the employee than the rights and benefits provided under this section.
    (3) REEMPLOYMENT RIGHTS.
    (a) Prerequisites. Subject to par. (d), any person who is a resident of this state and absent from a position of employment because of active state service is entitled to the reemployment rights and benefits specified in this section if all of the following apply:
    1. Except as provided in par. (b), the person or an appropriate officer in the national guard of this or another state or the state defense force has given advanced notice of the active state service to the persons employer.
    2. Except as provided in par. (c), the cumulative length of the absence from the position of employment and of all previous absences from a position of employment with the employer by reason of active state service or federal active duty does not exceed 5 years.
    3. Except as provided in par. (f), the person reports to the employer or submits an application for reemployment to the employer as required under par. (e).
    4. In the case of active state service in the national guard in this or another state or the state defense force, the active service has not been terminated under other than honorable conditions.
    (b) Notice not required. No notice is required under par. (a) 1. if the giving of that notice is precluded by military necessity or is otherwise impossible or unreasonable. A determination of military necessity for purposes of this paragraph shall be made according to rules and regulations promulgated by the adjutant general or the federal secretary of defense and is not subject to judicial review.
    (c) Length of absence limit. The periods of federal active duty described in 38 USC 4312 (c) (1) to (4) and all of the following periods of active state service are not included in calculating the 5-year period specified in par. (a) 2.:
    1. Any period of active state service, beyond that 5- year period that is required to complete an initial period of obligated active state service.
    2. Any period of active state service, for which the person, through no fault of the persons own, was unable to obtain orders releasing the person from a period of active state service before the expiration of the 5-year period.
    3. Any period of active state service, that was performed to fulfill any additional training requirements determined and certified in writing by the federal secretary of the army, the federal secretary of the air force, or the adjutant general to be necessary for professional development or for completion of skill training or retraining.
    4. Any period of active state service that was performed by a person who was ordered to, or retained in, active state service, other than for training, because of a state emergency declared by the governor, because of a war or national emergency declared by the president of the United States or Congress, because of insurrection, rebellion, riot, invasion, or resistance to the execution of the laws of this state or of the United States, or in support of an operational mission, a critical mission, or any other requirement of the U.S. armed forces.
    (d) Exceptions. An employer is not required to reemploy a person under this section if the employer shows that any of the following applies:
    1. Any period of active state service, beyond that 5- year period that is required to complete an initial period of obligated active state service.
    1. The employers circumstances have so changed as to make reemployment of the person impossible or unreasonable.
    2. The position of employment that the person left to perform active state service was for a brief, nonrecurrent period and there was no reasonable expectation that the position of employment would continue indefinitely or for a significant period of time.
    3. In the case of a person who is entitled to reemployment under sub. (4) (a) 3. or 4., the accommodations, training, or effort required under sub. (4) (a) 3. or 4. would pose an undue hardship on the employer.
    (e) Return procedures.
    1. Subject to subds. 4. and 5., if a person who has been absent from a position of employment because of active state service that lasted for less than 31 days, who has been absent from a position of employment for any period of time for the purpose of an examination to determine the persons fitness to perform active state service, or who has been absent from a position of employment because the person was hospitalized for or was convalescing from an illness or injury that was incurred in or aggravated during the performance of that active state service wishes to receive the reemployment rights and benefits specified in this section, the person must notify the persons employer of the persons intent to return to the position of employment by reporting to the employer by no later than the beginning of the first full regularly-scheduled work period on the first full calendar day following the completion of the active state service, examination, or period of hospitalization or convalescence, a period of time that allows for the safe transportation of the person from the place of active state service, examination, hospitalization, or convalescence to the persons residence, and a rest period of 8 hours following that transportation period or, if through no fault of the persons own reporting to the employer within that time is impossible or unreasonable, by reporting to the employer as soon as possible after that 8-hour rest period.
    2. Subject to subds. 4. and 5., if a person who has been absent from a position of employment because of active state service that lasted for more than 30 days, but less than 181 days, or who has been absent from a position of employment because the person was hospitalized for or was convalescing from an illness or injury that was incurred in or aggravated during the performance of that active state service wishes to receive the reemployment rights and benefits specified in this section, the person must notify the persons employer of the persons intent to return to the position of employment by submitting to the employer an application for reemployment by no later than 14 days after the completion of the active state service, hospitalization, or convalescence or, if through no fault of the persons own submitting the application within that time is impossible or unreasonable, by submitting to the employer an application for reemployment by no later than the first full calendar day on which submission of the application becomes possible.
    3. Subject to subds. 4. and 5., if a person who has been absent from a position of employment because of active state service that lasted for more than 180 days or who has been absent from a position of employment because the person was hospitalized for or was convalescing from an illness or injury that was incurred in or aggravated during the performance of that active state service wishes to receive the reemployment rights and benefits specified in this section, the person must notify the persons employer of the persons intent to return to the position of employment by submitting to the employer an application for reemployment by no later than 90 days after the completion of the active state service, hospitalization, or convalescence or, if through no fault of the persons own submitting the application within that time is impossible or unreasonable, by submitting to the employer an application for reemployment by no later than the first full calendar day on which submission of the application becomes possible.
    4. The period of hospitalization or convalescence specified in subds. 1., 2., and 3. may not exceed 2 years, except that if through no fault of the persons own it is impossible or unreasonable for the person to report to the employer within the time specified in subd. 1. or to apply for reemployment within the time specified in subd. 2. or 3., that 2-year period shall be extended by the minimum period of time required to accommodate the circumstances that made it impossible or unreasonable for the person to report or apply as so required.
    5. A person who fails to report to the persons employer within the time specified in subd. 1. or who fails to apply for reemployment within the time specified in subd. 2. or 3. does not automatically forfeit the reemployment rights and benefits specified in this section. Instead, the person shall be subject to the rules, policies, and practices of the persons employer pertaining to discipline for unexcused absences from work.
    (f) Documentation. 1. A person who submits an application for reemployment under par. (e) 2. or 3. must, on the request of the persons employer, provide to the employer documentation to establish that the application was submitted within the time limits specified in par. (e) 2. or 3., that the persons cumulative length of all absences from employment with the employer because of active state service and federal active duty does not, except as permitted under par. (c), exceed 5 years, and, in the case of active state service in the national guard or the state defense force, that the persons service was not terminated under other than honorable conditions.
    2. An employer may not refuse to reemploy a person who fails to provide any of the documentation specified in subd. 1. because that documentation does not exist or is not readily available at the time the employer requests that documentation. If after the person is reemployed documentation becomes available that establishes that the person does not meet a requirement specified in subd. 1., the employer may terminate the persons employment and the provision of any rights and benefits afforded to the person under this section.
    3. An employer may not delay or attempt to defeat a reemployment right that the employer is obligated to provide under this section by demanding documentation that does not exist or is not readily available at the time of the demand.
    (g) Veterans preferences. The right of a person to reemployment under this subsection does not entitle the person to retention, preference, or displacement rights over any person who has a superior claim under s. 45.03, 62.13 (4) (d), 63.08 (1) (f), 63.37, 63.39 (2m), 66.0509 (1), 230.15 (2m), 230.16 (7) or (7m), 230.21 (1m), 230.25, or 230.275.
    (h) Prohibited bases for denial of reemployment. In determining a persons right to reemployment and other benefits under this section, an employer may not deny reemployment or any other benefits based on the timing, frequency, duration, or nature of the person s active state service or federal active duty so long as the requirements under par. (a) are met.
    (4) REEMPLOYMENT POSITIONS.
    (a) Prompt reemployment required.
    1. Subject to subds. 3. and 4. and par. (b), an employer shall reemploy a person who is entitled to reemployment under sub. (3) and whose period of active state service was for less than 91 days promptly on completion of that period of active state service in the position of employment in which the person would have been employed if the continuous employment of the person with the employer had not been interrupted by that active state service so long as the person is qualified to perform the duties of that position or, if after reasonable efforts by the employer to qualify the person to perform those duties the person is not qualified to perform those duties, in the position of employment in which the person was employed on the date on which the persons period of active state service began.
    2. Subject to subds. 3. and 4. and par. (b), an employer shall reemploy a person who is entitled to reemployment under sub. (3) and whose period of active state service was for more than 90 days promptly on completion of that period of active state service in the position of employment in which the person would have been employed if the continuous employment of the person with the employer had not been interrupted by that active state service or in a position of employment of like seniority, status, and pay so long as the person is qualified to perform the duties of that position or, if after reasonable efforts by the employer to qualify the person to perform those duties the person is not qualified to perform those duties, in the position of employment in which the person was employed on the date on which the persons period of active state service began or in a position of employment of like seniority, status, and pay.
    3. Subject to par. (b), in the case of a person who has a disability that was incurred in or aggravated during a period of active state service and who, after reasonable efforts by the employer to accommodate the disability, is not qualified due to the disability to perform the duties of the position of employment in which the person would have been employed if the continuous employment of the person with the employer had not been interrupted by the active state service, the employer shall reemploy the person promptly on completion of that period of active state service in any other position that is equivalent to that position in seniority, status, and pay, the duties of which the person is qualified to perform or would become qualified to perform with reasonable efforts by the employer, or, if there is no other position of employment available that is equivalent to that position in seniority, status, and pay, in a position that is the nearest approximation to that equivalent position in terms of seniority, status, and pay, consistent with the persons circumstances.
    4. Subject to par. (b), in the case of a person who is not qualified to be employed in the position of employment in which the person would have been employed if the continuous employment of the person with the employer had not been interrupted by the persons active state service or in the position of employment in which the person was employed on the date on which the persons period of active state service began for any reason other than disability incurred in or aggravated during a period of active state service and who cannot become qualified to be so employed with reasonable efforts by the employer, the employer shall reemploy the person promptly on completion of that period of active state service in any other position that the person is qualified to perform and that is the nearest approximation to the position of employment in which the person would have been employed if the continuous employment of the person with the employer had not been interrupted by that active state service, with full seniority, or if no position of employment that is the nearest approximation to that position is available, in a position of employment that the person is qualified to perform and that is the nearest approximation to the position of employment in which the person was employed on the date on which the persons period of active state service began, with full seniority.
    (b) Multiple returning employees.
    1. If 2 or more persons who are entitled to reemployment under sub. (3) in the same position of employment have reported to the employer or applied for reemployment in that position, the person who left employment first shall have the prior right to reemployment in that position.
    2. A person who is entitled to reemployment under sub. (3), but who is not reemployed because of subd. 1., shall be entitled to reemployment as provided in par. (a) 1., 2., 3., or 4., whichever is applicable, in a position of employment that provides for similar status and pay as the position described in subd. 1., consistent with the persons circumstances, with full seniority.
    (5) RIGHTS, BENEFITS, AND OBLIGATIONS.
    (a) Seniority. A person who is reemployed under this section is entitled to the seniority and other rights and benefits determined by seniority that the person had on the last day of employment before the persons active state service began, plus all seniority and other rights and benefits determined by seniority that the person would have had if the continuous employment of the person with the employer had not been interrupted by that active state service.
    (b) Continuation of benefits.
    1. Subject to subds. 2. to 5., a person who is absent from employment because of active state service is considered to be on furlough or leave of absence while performing the active state service and is entitled to receive all rights and benefits not determined by seniority that are generally provided by the employer to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan that is in effect on the day on which the active state service began or that is established while the person is performing the active state service.
    2. If an employer shows that a person who is absent from a position of employment because of active state service has knowingly provided written notice of the persons intent not to return to a position of employment with the employer after that active state service and, in doing so, was aware of the specific rights and benefits under subd. 1. that the person would lose while absent from the position of employment, the person is not entitled to the rights and benefits specified in subd. 1. while absent from employment.
    3. A person who is considered to be on furlough or leave of absence under subd. 1. while performing active state service is not entitled to any benefit to which the person would not otherwise be entitled if the person had remained continuously employed.
    4. An employer may require a person who is considered to be on furlough or leave of absence under subd. 1. while performing active state service to pay the employee cost, if any, of any benefit that is continued under subd. 1. to the same extent that other employees who are on furlough or leave of absence are so required.
    5. A person who is absent from a position of employment because of active state service is entitled to receive coverage under a health benefit plan during the absence and on reemployment as provided in sub. (6).
    (c) Protection from discharge. An employer that reemploys under this section a person whose period of active state service lasted for more than 30 days, but less than 181 days, may not discharge the person within 180 days after the date of reemployment except for cause. An employer that reemploys under this section a person whose period of active state service lasted for more than 180 days may not discharge the person within one year after the date of reemployment except for cause.
    (6) CONTINUATION OF HEALTH CARE COVERAGE.
    (a) Option to continue coverage. Notwithstanding s. 632.897, if a person who has coverage under a health benefit plan in connection with the persons employment is absent from a position of employment because of active state service, the insurer that issued the health benefit plan shall permit the person, and the persons dependents, to continue coverage under the health benefit plan until the first to occur of the following:
    1. Eighteen months have elapsed since the persons absence from the position of employment began.
    2. The day after the date on which the person is required under sub. (3) (e) to report to the employer or apply for reemployment.
    (b) Payment of premiums. A person who elects to continue coverage under par. (a) and who is absent from a position of employment for 30 days or less may not be required to pay more than the employee share, if any, of the cost of the coverage. A person who elects to continue coverage under par. (a) and who is absent from a position of employment for more than 30 days may be required to pay up to 102% of the full premium for that coverage for the period of continued coverage that exceeds 30 days.
    (c) Reinstatement on reemployment. If a persons coverage under a health benefit plan in connection with his or her employment was terminated because of the persons active state service and if after returning from that active state service the person is reemployed under sub. (3), coverage under the health benefit plan shall be reinstated for the person and the persons dependents immediately upon reemployment. With respect to the reinstated coverage, no exclusion or waiting period may be imposed that would not have been imposed had the coverage not been terminated because of the active state service.
    (7) ENFORCEMENT.
    (a) Complaint. Any person who believes that his or her employer has failed or refused, or is about to fail or refuse, to provide to the person any reemployment right or benefit to which the person is entitled under this section may file a complaint with the adjutant general, in such form as the adjutant general may prescribe by rule, summarizing the allegations that form the basis of the complaint. The adjutant general shall investigate the complaint and, if the adjutant general is reasonably satisfied that the person is entitled to the rights or benefits sought, the adjutant general shall endeavor to resolve the complaint by conference, conciliation, or persuasion. If the adjutant general is not reasonably satisfied that the person is entitled to the rights or benefits sought, the adjutant general may refuse to endeavor to resolve the complaint and shall notify the person who filed the complaint that the person may proceed under par. (b) 2. to enforce the persons rights under this section. If the adjutant general is not able to resolve the complaint, the adjutant general shall notify the person who filed the complaint that the person may proceed under par. (b) 1. or 2. to enforce the persons rights under this section.
    (b) Enforcement procedures.
    1. A person who receives notification under par. (a) that the adjutant general was unable to resolve the persons complaint may request the adjutant general to refer the complaint to counsel, which may include the attorney general, appointed by the governor on the recommendation of the adjutant general for the purpose of prosecuting complaints under this subdivision who shall file a complaint for appropriate relief with the department of workforce development.
    2. Subdivision 1. does not preclude a person who has chosen not to file a complaint with the adjutant general under par. (a), whose complaint the adjutant general has refused to endeavor to resolve under par. (a), or who has chosen not to request the adjutant general to refer his or her complaint to counsel under subd. 1. from filing a complaint for appropriate relief with the department of workforce development.
    3. The department of workforce development shall process a complaint filed under subd. 1. or 2. in the same manner that employment discrimination complaints are processed under s. 111.39.
    (c) Retaliation prohibited. An employer may not discharge or otherwise discriminate against any person for filing a complaint or attempting to enforce a right provided under this section or for testifying or assisting in any action or proceeding to enforce a right provided under this section.
    (d) Remedies. If the department of workforce development finds that an employer has failed or refused, or is about to fail or refuse, to provide any reemployment right or benefit to which a person is entitled under this section or has discharged or otherwise discriminated against any person in violation of par. (c), the department of workforce development may order the employer to do any one or more of the following:
    1. Take such action as will fully vindicate the rights and benefits of the person under this section.
    2. Compensate the person for any loss of wages, salary, or other benefits suffered because of the failure or refusal to provide reemployment rights or benefits under this section or the discharge or other discrimination.
    3. Pay the person, as liquidated damages, an amount that is equal to the amount ordered under subd. 2. if the department of workforce development finds that the failure or refusal to provide reemployment rights or benefits under this section or the discharge or other discrimination was willful.
    4. Pay the person costs and reasonable actual attorney fees, if the person is not represented by counsel appointed under par. (b) 1.

    321.66 Leave for Civil Air Patrol service. 

    (1) DEFINITIONS. In this section:

    (a) “Emergency service operation” means any of the following operations of the Civil Air Patrol:

    1. A search and rescue mission designated by the U.S. air force rescue coordination center; the governor; the adjutant general; or the governing body, chief or acting chief executive officer, or head of emergency management services of any county, city, village, town, or federally recognized American Indian tribe or band in this state.

    2. An operation to provide disaster relief or humanitarian services, when requested by the federal emergency management agency; the first air force of the U.S. air force; the Civil Air Patrol national operations center; the governor; the adjutant general; the governing body, chief or acting chief executive officer, or head of emergency management services of any county, city, village, town, or federally recognized American Indian tribe or band in this state; or, in the case of a public health emergency, as defined in s. 166.02 (7), the department of health services, if that department is designated by the governor under s. 166.03 (1) (b) 1., or a local health department act- ing under s. 251.05 (3) (e).

    3. Operations in support of the U.S. air force designated by the first air force of the U.S. air force or the Civil Air Patrol national operations center.

    (b) “Employee” means an individual employed in this state by an employer.

    (c) “Employee’s commander” means the Civil Air Patrol commanding officer of the flight, squadron, group, wing, or region to which the employee is assigned, the Civil Air Patrol national commander, or the Civil Air Patrol incident commander or agency liaison for the emergency service operation for which the employee has taken a leave of absence under sub. (2) (a).

    (d) “Employer” means a person engaging in any activity, enterprise, or business in this state employing at least 11 individuals on a permanent basis. “Employer” includes the state and any office, department, independent agency, authority, institution, association, society, or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts.

    (2) UNPAID LEAVE REQUIRED. (a) Subject to the limitations specified in par. (b), an employer shall grant a leave of absence without pay to an employee to allow the employee to participate in an emergency service operation if all of the following conditions are met:

    1. The employee is a member of the Civil Air Patrol.

    2. Prior to the emergency service operation, the employee notifies the employer in writing that the employee is a member of the Civil Air Patrol.

    3. For an emergency service operation that begins before the employee is required to report for work, the employee provides a written statement under par. (c) if required by the employer.

    4. For an emergency service operation that begins after the employee reports for work, the employee, in addition to providing a written statement under par. (c) if required by the employer, secures authorization from the employer to leave work before leaving to participate in the emergency service operation.

    5. The leave of absence does not unduly disrupt the operations of the employer.

    (b) No employee may take more than 5 consecutive workdays of leave under par. (a) or more than 15 days of leave under par. (a) in any year.

    (c) An employer that grants a leave of absence under par. (a) to an employee may require the employee to pro- vide a written statement from the employee’s commander, or the designated representative of the employee’s commander, certifying that the employee was participating in an emergency service operation at the time of the leave of absence.

    (d) For purposes of determining seniority and pay advancement, and for the receipt of employment benefits that may be affected by a leave of absence, the status of an employee who takes a leave of absence under par. (a) shall be considered to be uninterrupted by the leave of absence.

    (3) DISCRIMINATION BASED ON CIVIL AIR PATROL MEMBERSHIP PROHIBITED.

    No employer or other person may do any of the following:

    (a) Refuse to hire or employ an individual, terminate an individual from employment, or discriminate against an individual in promotion, in compensation, or in theterms, conditions, or privileges of employment because the individual is or applies to be a member of the Civil Air Patrol or because the individual performs, has per- formed, applies to perform, or has an obligation to per- form service in the Civil Air Patrol.

    (b) Print or circulate or cause to be printed or circulated any statement, advertisement, or publication, or use any form or application for employment, or make any inquiry in connection with prospective employment, that implies or expresses any limitation, specification, or discrimination with respect to an individual or any intent to make such a limitation, specification, or discrimination because the individual is or applies to be a member of the Civil Air Patrol or because the individual performs, has performed, applies to perform, or has an obligation to perform service in the Civil Air Patrol.

    (4) PROHIBITED ACTS. (a) No employer or other per- son may interfere with, restrain, or deny the exercise of the right of an employee to take a leave of absence as provided in sub. (2) (a).

    (b) No employer or other person may discharge or discriminate against an employee in promotion, in compensation, or in the terms, conditions, or privileges of employment for taking a leave of absence as provided in sub. (2) (a), opposing a practice prohibited under this section, filing a complaint or attempting to enforce any right under this section, or testifying or assisting in any action or proceeding to enforce any right under this section.

    (5) ENFORCEMENT. An employee whose right to take a leave of absence under sub. (2) (a) is interfered with, restrained, or denied in violation of sub. (4) (a) or who is refused employment, terminated, discharged, or discriminated against in violation of sub. (3) or (4) (b) may file a complaint with the department of workforce development, and that department shall process the complaint in the same manner that employment discrimination com- plaints are processed under s. 111.39. If that department finds that an employer or other person has violated sub. (3) or (4) (a) or (b), it may order the employer or other person to take action to remedy the violation, including granting the leave of absence under sub. (2) (a), reinstating the employee, providing compensation in lieu of rein- statement, providing back pay accrued not more than 2 years before the complaint was filed, and paying reason- able actual costs and attorney fees to the complainant.



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