111.3205111.3205 Franchisors excluded. For purposes of this subchapter, a franchisor, as defined in 16 CFR 436.1 (k), is not considered to be an employer of a franchisee, as defined in 16 CFR 436.1 (i), or of an employee of a franchisee, unless any of the following applies: 111.3205(1)(1) The franchisor has agreed in writing to assume that role. 111.3205(2)(2) The franchisor has been found by the department to have exercised a type or degree of control over the franchisee or the franchisee’s employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand. 111.3205 HistoryHistory: 2015 a. 203. 111.321111.321 Prohibited bases of discrimination. Subject to ss. 111.33 to 111.365, no employer, labor organization, employment agency, licensing agency, or other person may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of age, race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, military service, use or nonuse of lawful products off the employer’s premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters. 111.321 AnnotationThe denial of a homosexual employee’s request for family coverage for herself and her companion did not violate equal protection or the prohibition under this section of discrimination on the basis of marital status, sexual orientation, or gender. Phillips v. Wisconsin Personnel Commission, 167 Wis. 2d 205, 482 N.W.2d 121 (Ct. App. 1992). 111.321 AnnotationA bargaining agreement requiring married employees with spouses covered by comparable employer-provided health insurance to elect coverage under one policy or the other violated this section. Braatz v. LIRC, 174 Wis. 2d 286, 496 N.W.2d 597 (1993). 111.321 AnnotationThe exclusive remedy provision in s. 102.03 (2) does not bar a complainant whose claim is covered by the Workers Compensation Act from pursuing an employment discrimination claim under the Wisconsin Fair Employment Act, this subchapter. Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997), 95-2490. 111.321 AnnotationA prima facie case of discrimination triggers a burden of production against an employer, but unless the employer remains silent in the face of the prima facie case, the complainant continues to bear the burden of proof on the ultimate issue of discrimination. Currie v. DILHR, 210 Wis. 2d 380, 565 N.W.2d 253 (Ct. App. 1997), 96-1720. 111.321 AnnotationUnwelcome physical contact of a sexual nature and unwelcome verbal conduct or physical conduct of a sexual nature may constitute sexual harassment, even when they do not create a hostile work environment. Jim Walter Color Separations v. LIRC, 226 Wis. 2d 334, 595 N.W.2d 68 (Ct. App. 1999), 98-2360. 111.321 AnnotationIt was reasonable for the Labor and Industry Review Commission to interpret the prohibition against marital status discrimination as protecting the status of being married in general rather than the status of being married to a particular person. Bammert v. LIRC, 2000 WI App 28, 232 Wis. 2d 365, 606 N.W.2d 620, 99-1271. 111.321 AnnotationThe Department of Workforce Development has statutory authority to receive and investigate a firefighter’s employment discrimination claim that is tied directly to the charges sustained and disciplinary sanctions imposed by a police and fire commission under s. 62.13 (5), to which claim preclusion is no bar. City of Madison v. DWD, 2002 WI App 199, 257 Wis. 2d 348, 651 N.W.2d 292, 01-1910. 111.321 AnnotationThe police and fire commission has exclusive statutory authority under s. 62.13 (5) to review disciplinary actions against firefighters. Any claim that a disciplinary termination is discriminatory under this chapter must be raised before the commission. The Department of Workforce Development may not take jurisdiction over a complaint under this chapter arising out of a decision of the commission to terminate a firefighter. City of Madison v. DWD, 2003 WI 76, 262 Wis. 2d 652, 664 N.W.2d 584, 01-1910. 111.321 AnnotationA person other than an employer, labor organization, or licensing agency can violate this subchapter if it engages in discriminatory conduct that has a sufficient nexus with the denial or restriction of some individual’s employment opportunity. A trucking company who leased its trucks and drivers from another company that hired the drivers and had the power to reject drivers approved by the leasing company was an “other person” subject to this section. Szleszinski v. LIRC, 2005 WI App 229, 287 Wis. 2d 775, 706 N.W.2d 345, 04-3033. 111.321 AnnotationLicensing boards do not have authority to enact general regulations that would allow them to suspend, deny, or revoke the license of a person who has a communicable disease. Licensing boards do have authority on a case-by-case basis to suspend, deny, or revoke the license of a person who poses a direct threat to the health and safety of other persons or who is unable to perform duties of the licensed activity. 77 Atty. Gen. 223. 111.321 AnnotationAn employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII of the federal Civil Rights Act forbids. Bostock v. Clayton County, 590 U.S. ___, 140 S. Ct. 1731, 207 L. Ed. 2d 218 (2020). 111.321 AnnotationDiscrimination may be inferred when an employer treats an employee in a protected class less favorably than the employer treats a similarly-situated employee outside that class. To determine whether employees are similarly situated, courts ask whether the other employees’ situations were similar enough to the plaintiff’s that it is reasonable to infer, in the absence of some other explanation, that the different treatment was a result of race or some other unlawful basis. De Lima Silva v. DOC, 917 F.3d 546 (2019). 111.321 AnnotationThe Unwisdom of the Wisconsin Fair Employment Act’s Ban of Employment Discrimination on the Basis of Conviction Records. Hruz. 85 MLR 779 (2002).
111.321 AnnotationSome “Hardship”: Defending a Disability Discrimination Suit Under the Wisconsin Fair Employment Act. Hansch. 89 MLR 821 (2006).
111.321 AnnotationExpanding Employer Liability for Sexual Harassment Under the Wisconsin Fair Employment Act: Jim Walter Color Separations v. Labor & Industry Review Commission. Edgar. 2000 WLR 885.
111.321 AnnotationDouble Jeapardy: Race, Crime, and Getting a Job. Pager. 2005 WLR 617.
111.321 AnnotationExpanding the Notion of “Equal Coverage”: The Wisconsin Fair Employment Act Requires Contraceptive Coverage for All Employer-Sponsored Prescription Drug Plans. Mason. 2005 WLR 913.
111.321 AnnotationFamily Responsibility Discrimination: Making Room at Work for Family Demands. Finerty. Wis. Law. Nov. 2007.
111.322111.322 Discriminatory actions prohibited. Subject to ss. 111.33 to 111.365, it is an act of employment discrimination to do any of the following: 111.322(1)(1) To refuse to hire, employ, admit or license any individual, to bar or terminate from employment or labor organization membership any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment or labor organization membership because of any basis enumerated in s. 111.321. 111.322(2)(2) To print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which implies or expresses any limitation, specification or discrimination with respect to an individual or any intent to make such limitation, specification or discrimination because of any basis enumerated in s. 111.321. 111.322(2m)(2m) To discharge or otherwise discriminate against any individual because of any of the following: 111.322(2m)(a)(a) The individual files a complaint or attempts to enforce any right under s. 103.02, 103.10, 103.11, 103.13, 103.28, 103.32, 103.34, 103.455, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55, or ss. 101.58 to 101.599 or 103.64 to 103.82. 111.322(2m)(b)(b) The individual testifies or assists in any action or proceeding held under or to enforce any right under s. 103.02, 103.10, 103.11, 103.13, 103.28, 103.32, 103.34, 103.455, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55, or ss. 101.58 to 101.599 or 103.64 to 103.82. 111.322(2m)(d)(d) The individual’s employer believes that the individual engaged or may engage in any activity described in pars. (a) to (bm). 111.322(3)(3) To discharge or otherwise discriminate against any individual because he or she has opposed any discriminatory practice under this subchapter or because he or she has made a complaint, testified or assisted in any proceeding under this subchapter. 111.322 AnnotationActions under subs. (1) and (2) do not involve wholly different elements of proof. Sub. (1) involves actual discrimination; the violation of sub. (2) is not in adopting a discriminatory policy, but rather the publication of it. The remaining elements are the same for both subsections. Sub. (2) is not limited to advertising for employees, it also applies to the printing of policies that affect existing employees. Racine Unified School District v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991). 111.322 AnnotationAn unlawful practice occurs when an impermissible motivating factor enters into an employment decision, but if the employer can demonstrate that it would have taken the same action in the absence of the impermissible factor, the complainant may not be awarded monetary damages or reinstatement. Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App. 1994). 111.322 AnnotationThe state is prevented from enforcing discrimination laws against religious associations when the employment at issue serves a ministerial or ecclesiastical function. While it must be given considerable weight, a religious association’s designation of a position as ministerial or ecclesiastical does not control its status. Jocz v. LIRC, 196 Wis. 2d 273, 538 N.W.2d 588 (Ct. App. 1995), 93-3042. But see Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 565 U.S. 171, 132 S. Ct. 694, 181 L. Ed. 2d 650 (2012); Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___, 140 S. Ct. 2049, 207 L. Ed. 2d 870 (2020). 111.322 AnnotationThe exclusive remedy provision in s. 102.03 (2) does not bar a complainant whose claim is covered by the Workers Compensation Act from pursuing an employment discrimination claim under the Wisconsin Fair Employment Act, this subchapter. Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997), 95-2490. 111.322 AnnotationA prima facie case of discrimination triggers a burden of production against an employer, but unless the employer remains silent in the face of the prima facie case, the complainant continues to bear the burden of proof on the ultimate issue of discrimination. Currie v. DILHR, 210 Wis. 2d 380, 565 N.W.2d 253 (Ct. App. 1997), 96-1720. 111.322 AnnotationA prima facie case for a violation of this section requires that the complainant: 1) was a member of a protected class; 2) was discharged; 3) was qualified for the position; and 4) was either replaced by someone not in the protected class or that others not in the protected class were treated more favorably. Knight v. LIRC, 220 Wis. 2d 137, 582 N.W.2d 448 (Ct. App. 1998), 97-1606. 111.322 AnnotationThe free exercise clause of the 1st amendment and the freedom of conscience clauses in article I, section 18, of the Wisconsin Constitution preclude employment discrimination claims under ss. 111.31 to 111.395 for employees whose positions are important and closely linked to the religious mission of a religious organization. Coulee Catholic Schools v. LIRC, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868, 07-0496. See also Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 565 U.S. 171, 132 S. Ct. 694, 181 L. Ed. 2d 650 (2012); Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___, 140 S. Ct. 2049, 207 L. Ed. 2d 870 (2020). 111.322 AnnotationAn employer does not engage in intentional discrimination because of disability when the employer bases an adverse employment action on an employee’s conduct unless the employee proves the employer knew the employee’s disability caused the conduct. The Labor and Industry Review Commission’s “inference method” of finding discriminatory intent is inconsistent with sub. (1) because the method excuses the employee from the burden of proving discriminatory intent. Wisconsin Bell, Inc. v. LIRC, 2018 WI 76, 382 Wis. 2d 624, 914 N.W.2d 1, 16-0355. 111.322 AnnotationCertain employment discrimination laws authorize employees who have been wrongfully terminated to sue their employers for reinstatement and damages. However, the establishment and free exercise clauses of the 1st amendment to the U.S. Constitution bar such an action when the employer is a religious group and the employee is one of the group’s ministers. Thus, in an employment discrimination suit brought on behalf of a minister challenging her church’s decision to fire her, the ministerial exception barred the suit. Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 565 U.S. 171, 132 S. Ct. 694, 181 L. Ed. 2d 650 (2012). See also Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___, 140 S. Ct. 2049, 207 L. Ed. 2d 870 (2020). 111.322 AnnotationTitle VII of the federal Civil Rights Act prohibits employers from taking certain actions “because of” sex, a test that incorporates the simple and traditional standard of but-for causation. When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law. Bostock v. Clayton County, 590 U.S. ___, 140 S. Ct. 1731, 207 L. Ed. 2d 218 (2020). 111.322 AnnotationSome “Hardship”: Defending a Disability Discrimination Suit Under the Wisconsin Fair Employment Act. Hansch. 89 MLR 821 (2006).
111.322 AnnotationDiscrimination in advertising. Abramson. WBB Mar. 1985.
111.322 AnnotationEmployer Liability for Employment References. Mac Kelly. Wis. Law. Apr. 2008.
111.322 Annotation2009 Wisconsin Act 20: Changes to Wisconsin’s Fair Employment Law. Karls-Ruplinger. Wis. Law. Sept. 2009. 111.322 AnnotationWorkplace Protections for LGBTQ Employees. Covington. Wis. Law. Oct. 2020.
111.325111.325 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. 111.33111.33 Age; exceptions and special cases. 111.33(1)(1) The prohibition against employment discrimination on the basis of age applies only to discrimination against an individual who is age 40 or over. 111.33(2)(2) Notwithstanding sub. (1) and s. 111.322, it is not employment discrimination because of age to do any of the following: 111.33(2)(a)(a) To terminate the employment of any employee physically or otherwise unable to perform his or her duties. 111.33(2)(b)(b) To implement the provisions of any retirement plan or system of any employer if the retirement plan or system is not a subterfuge to evade the purposes of this subchapter. No plan or system may excuse the failure to hire, or require or permit the involuntary retirement of, any individual under sub. (1) because of that individual’s age. 111.33(2)(d)(d) To apply varying insurance coverage according to an employee’s age. 111.33(2)(e)(e) To exercise an age distinction with respect to hiring an individual to a position in which the knowledge and experience to be gained is required for future advancement to a managerial or executive position. 111.33(2)(f)(f) To exercise an age distinction with respect to employment in which the employee is exposed to physical danger or hazard, including, without limitation because of enumeration, certain employment in law enforcement or fire fighting. 111.33 HistoryHistory: 1981 c. 334; 1983 a. 391, 538. 111.33 AnnotationSub. (2) (f) exempts the hiring of fire fighters from being the subject of age discrimination suits. A fire department need not show that it openly and consistently discriminated on the basis of age to be exempt under sub. (2) (f). Johnson v. LIRC, 200 Wis. 2d 715, 547 N.W.2d 783 (Ct. App. 1996), 95-2346. 111.33 AnnotationAn employee is physically unable to perform a job under sub. (2) if that employee is performing the job with a physical accommodation. Harrison v. LIRC, 211 Wis. 2d 681, 565 N.W.2d 572 (Ct. App. 1997), 96-1795. 111.33 AnnotationA city charged under the federal Age Discrimination in Employment Act had the burden of establishing that a mandatory retirement age of 55 for law enforcement personnel was a bona fide occupational qualification. Equal Employment Opportunity Commission v. City of Janesville, 630 F.2d 1254 (1980). 111.33 AnnotationThe 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). 111.335111.335 Arrest or conviction record; exceptions and special cases. 111.335(1m)(a)(a) “Educational agency” means a school district, a cooperative educational service agency, a county children with disabilities education board, a state prison under s. 302.01, a juvenile correctional facility, as defined in s. 938.02 (10p), a secured residential care center for children and youth, as defined in s. 938.02 (15g), the Wisconsin Center for the Blind and Visually Impaired, the Wisconsin Educational Services Program for the Deaf and Hard of Hearing, the Mendota Mental Health Institute, the Winnebago Mental Health Institute, a state center for the developmentally disabled, a private school, a charter school, a private, nonprofit, nonsectarian agency under contract with a school board under s. 118.153 (3) (c), or a nonsectarian private school or agency under contract with the board of school directors in a 1st class city under s. 119.235 (1). 111.335(1m)(b)1.1. A violation specified in ch. 940 or s. 948.02, 948.025, 948.03, 948.05, 948.051, 948.055, 948.06, 948.07, 948.075, 948.08, 948.085, or 948.095. 111.335(1m)(b)2.2. A violation of the law of another jurisdiction that would be a violation described in subd. 1. if committed in this state. 111.335(1m)(d)(d) “Violent crime against a child” means any of the following: 111.335(1m)(d)1.1. A violation of s. 948.02 (1) or (2), 948.025, 948.03 (2) (a) or (c) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051, 948.055, 948.07, 948.08, 948.085, 948.095, or 948.30 (2). 111.335(1m)(d)3.3. A violation of the law of another jurisdiction that would be a violation described in subd. 1. or 2. if committed in this state. 111.335(2)(2) Discrimination because of arrest record; exceptions. 111.335(2)(a)(a) Employment discrimination because of arrest record includes, but is not limited to, requesting an applicant, employee, member, licensee or any other individual, on an application form or otherwise, to supply information regarding any arrest record of the individual except a record of a pending charge, except that it is not employment discrimination to request such information when employment depends on the bondability of the individual under a standard fidelity bond or when an equivalent bond is required by state or federal law, administrative regulation or established business practice of the employer and the individual may not be bondable due to an arrest record. 111.335(2)(b)(b) Notwithstanding s. 111.322, it is not employment discrimination because of arrest record to refuse to employ or license, or to suspend from employment or licensing, any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job or licensed activity, except as provided in sub. (4) (a). 111.335(3)(3) Discrimination because of conviction record; exceptions. 111.335(3)(a)(a) 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 if any of the following applies to the individual: 111.335(3)(a)1.1. Subject to sub. (4) (b) to (d), the individual 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. 111.335(3)(a)2.2. The individual is not bondable under a standard fidelity bond or an equivalent bond where such bondability is required by state or federal law, administrative regulation, or established business practice of the employer. 111.335(3)(b)(b) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ a person in a business licensed under s. 440.26 or as an employee specified in s. 440.26 (5) (b) if the person has been convicted of a felony and has not been pardoned for that felony. 111.335(3)(c)(c) 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 for that felony. 111.335(3)(d)(d) 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 3811 for refusing to register with the selective service system and who has not been pardoned. 111.335(3)(e)(e) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record for an educational agency to refuse to employ or to terminate from employment an individual who has been convicted of a felony and who has not been pardoned for that felony. 111.335(3)(f)(f) 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. 440.52 (13) (c).
