111.335(4)(b)(b) It is employment discrimination because of conviction record for a licensing agency to refuse to license any individual under sub. (3) (a) 1. or to bar or terminate an individual from licensing under sub. (3) (a) 1. because the individual was adjudicated delinquent under ch. 938 for an offense other than an exempt offense. 111.335(4)(c)1.1. If a licensing agency refuses to license an individual under sub. (3) (a) 1. or bars or terminates an individual from licensing under sub. (3) (a) 1., the licensing agency shall, subject to subd. 2., do all of the following: 111.335(4)(c)1.a.a. State in writing its reasons for doing so, including a statement of how the circumstances of the offense relate to the particular licensed activity. 111.335(4)(c)1.b.b. Allow the individual to show evidence of rehabilitation and fitness to engage in the licensed activity under par. (d). If the individual shows competent evidence of sufficient rehabilitation and fitness to perform the licensed activity under par. (d), the licensing agency may not refuse to license the individual or bar or terminate the individual from licensing based on that conviction. 111.335(4)(c)2.2. The requirements under subd. 1. a. and b. do not apply if a conviction is for an exempt offense. 111.335(4)(d)1.1. Competent evidence of sufficient rehabilitation and fitness to perform the licensed activity under par. (c) 1. b. may be established by the production of any of the following: 111.335(4)(d)1.a.a. The individual’s most recent certified copy of a federal department of defense form DD-214 showing the person’s honorable discharge, or separation under honorable conditions, from the U.S. armed forces for military service rendered following conviction for any offense that would otherwise disqualify the individual from the license sought, except that the discharge form is not competent evidence of sufficient rehabilitation and fitness to perform the licensed activity if the individual was convicted of any misdemeanor or felony subsequent to the date of the honorable discharge or separation from military service. 111.335(4)(d)1.b.b. A copy of the local, state, or federal release document; and either a copy of the relevant department of corrections document showing completion of probation, extended supervision, or parole; or other evidence that at least one year has elapsed since release from any local, state, or federal correctional institution without subsequent conviction of a crime along with evidence showing compliance with all terms and conditions of probation, extended supervision, or parole. 111.335(4)(d)2.2. In addition to the documentary evidence that may be provided under subd. 1. to show sufficient rehabilitation and fitness to perform the licensed activity under par. (c) 1. b., the licensing agency shall consider any of the following evidence presented by the individual: 111.335(4)(d)2.a.a. Evidence of the nature and seriousness of any offense of which he or she was convicted. 111.335(4)(d)2.b.b. Evidence of all circumstances relative to the offense, including mitigating circumstances or social conditions surrounding the commission of the offense. 111.335(4)(d)2.d.d. The length of time that has elapsed since the offense was committed. 111.335(4)(d)2.e.e. Letters of reference by persons who have been in contact with the individual since the applicant’s release from any local, state, or federal correctional institution. 111.335(4)(d)2.f.f. All other relevant evidence of rehabilitation and present fitness presented. 111.335(4)(e)(e) A state licensing agency that may refuse to license individuals under sub. (3) (a) 1. or that may bar or terminate an individual from licensure under sub. (3) (a) 1. shall publish on the agency’s Internet site a document indicating the offenses or kinds of offenses that may result in such a refusal, bar, or termination. 111.335(4)(f)1.1. A state licensing agency that may refuse to license individuals under sub. (3) (a) 1. or that may bar or terminate individuals from licensing under sub. (3) (a) 1. shall allow an individual who does not possess a license to, without submitting a full application and without paying the fees applicable to applicants, apply to the agency for a determination of whether the individual would be disqualified from obtaining the license due to his or her conviction record. 111.335(4)(f)2.2. A state licensing agency shall make a determination under subd. 1. in writing and send the determination to the applicant no later than 30 days after receiving the application for a determination. 111.335(4)(f)3.3. A determination made under subd. 1., with respect to convictions reviewed by the state licensing agency as part of the determination, shall be binding upon the agency if the individual subsequently applies for the applicable license, unless there is information relevant to the determination that was not available to the agency at the time of the determination. 111.335(4)(f)4.4. A state licensing agency may require a fee to be paid to the agency for a determination issued under subd. 1. of an amount necessary to cover the cost of making the determination. 111.335(4)(f)5.5. A state licensing agency described in subd. 1. shall create a form on which an individual applying for a determination under subd. 1. may do all of the following: 111.335(4)(f)5.b.b. Identify the date of conviction for any crime described under subd. 5. a. and describe the nature and circumstances of the crime. 111.335(4)(f)5.c.c. Sign his or her name to attest to the accuracy and truthfulness of the information under subd. 5. a. and b. and, if applicable, to acknowledge the agency’s authority to conduct an investigation of the individual. 111.335(4)(f)6.6. A state licensing agency described in subd. 1. shall promulgate rules to implement this paragraph, except that the department of safety and professional services may promulgate rules defining uniform procedures for making such determinations to be used by the department of safety and professional services, the real estate appraisers board, and all examining boards and affiliated credentialing boards attached to the department of safety and professional services or an examining board. 111.335(4)(h)(h) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to revoke, suspend or refuse to renew a license or permit under ch. 125 if the person holding or applying for the license or permit has been convicted of one or more of the following: 111.335(4)(h)1.1. Manufacturing, distributing or delivering a controlled substance or controlled substance analog under s. 961.41 (1). 111.335(4)(h)2.2. Possessing, with intent to manufacture, distribute or deliver, a controlled substance or controlled substance analog under s. 961.41 (1m). 111.335(4)(h)3.3. Possessing, with intent to manufacture, distribute or deliver, or manufacturing, distributing or delivering a controlled substance or controlled substance analog under a federal law that is substantially similar to s. 961.41 (1) or (1m). 111.335(4)(h)4.4. Possessing, with intent to manufacture, distribute or deliver, or manufacturing, distributing or delivering a controlled substance or controlled substance analog under the law of another state that is substantially similar to s. 961.41 (1) or (1m). 111.335(4)(h)5.5. Possessing any of the materials listed in s. 961.65 with intent to manufacture methamphetamine under that section or under a federal law or a law of another state that is substantially similar to s. 961.65. 111.335(4)(i)1.1. Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to deny or refuse to renew a license or permit under s. 440.26 to a person who has been convicted of a felony and has not been pardoned for that felony. 111.335(4)(i)2.2. Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to revoke a license or permit under s. 440.26 (6) (b) if the person holding the license or permit has been convicted of a felony and has not been pardoned for that felony. 111.335(4)(j)(j) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record for the board of nursing to refuse to license an individual in accordance with s. 441.51 (3) (c) 7. and 8. 111.335(4)(jm)(jm) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record for the physician assistant affiliated credentialing board to refuse to grant to an individual a compact privilege, as defined in s. 448.988 (2) (b), in accordance with s. 448.988 (4) (a) 3. 111.335 AnnotationA rule adopted under s. 165.85 properly barred a nonpardoned felon from holding a police job. Law Enforcement Standards Board v. Village of Lyndon Station, 101 Wis. 2d 472, 305 N.W.2d 89 (1981). 111.335 AnnotationA conviction for armed robbery in and of itself constituted circumstances substantially related to a school bus driver’s licensure. Gibson v. Transportation Commission, 106 Wis. 2d 22, 315 N.W.2d 346 (1982). 111.335 AnnotationAn employer’s inquiry is limited to general facts in determining whether the “circumstances of the offense” relate to the job. It is not the details of the criminal activity that are important, but rather the circumstances that foster criminal activity, such as opportunity for criminal behavior, reaction to responsibility, and character traits of the person. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987). 111.335 AnnotationThere is no requirement that an employer take affirmative steps to accommodate individuals convicted of felonies. Knight v. LIRC, 220 Wis. 2d 137, 582 N.W.2d 448 (Ct. App. 1998), 97-1606. 111.335 AnnotationCourts must apply the substantial relationship test under sub. (3) (a) 1. to a domestic violence conviction the same way as to any other conviction. Courts must look beyond any immaterial identity between circumstances—such as the domestic context of the offense or an intimate relationship with the victim—and instead examine the circumstances material to fostering criminal activity. The material circumstances are those that exist in the workplace that present opportunities for recidivism given the character traits revealed by the circumstances of a domestic violence conviction. In addition to character traits, courts must consider other relevant and readily ascertainable circumstances of the offense such as the seriousness and number of offenses, how recent the conviction is, and whether there is a pattern of behavior. Cree, Inc. v. LIRC, 2022 WI 15, 400 Wis. 2d 827, 970 N.W.2d 837, 19-1671. 111.335 AnnotationWhen 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 Wisconsin Fair Employment Act. 79 Atty. Gen. 89. 111.335 AnnotationDouble Jeopardy: Race, Crime, and Getting a Job. Pager. 2005 WLR 617.
111.335 AnnotationDiscrimination in employment on the basis of arrest or conviction record. Mukamal. WBB Sept. 1983.
111.337111.337 Creed; exceptions and special cases. 111.337(1)(1) Employment discrimination because of creed includes, but is not limited to, refusing to reasonably accommodate an employee’s or prospective employee’s religious observance or practice unless the employer can demonstrate that the accommodation would pose an undue hardship on the employer’s program, enterprise or business. 111.337(2)(2) Notwithstanding s. 111.322, it is not employment discrimination because of creed: 111.337(2)(a)(a) For a religious association not organized for private profit or an organization or corporation which is primarily owned or controlled by such a religious association to give preference to an applicant or employee who is a member of the same or a similar religious denomination. 111.337(2)(am)(am) For a religious association not organized for private profit or an organization or corporation which is primarily owned or controlled by such a religious association to give preference to an applicant or employee who adheres to the religious association’s creed, if the job description demonstrates that the position is clearly related to the religious teachings and beliefs of the religious association. 111.337(2)(b)(b) For a fraternal as defined in s. 614.01 (1) (a) to give preference to an employee or applicant who is a member or is eligible for membership in the fraternal, with respect to hiring to or promotion to the position of officer, administrator or salesperson. 111.337(3)(3) No county, city, village or town may adopt any provision concerning employment discrimination because of creed that prohibits activity allowed under this section. 111.337 AnnotationSub. (2) does not allow religious organizations to engage in prohibited forms of discrimination. Sacred Heart School Board v. LIRC, 157 Wis. 2d 638, 460 N.W.2d 430 (Ct. App. 1990). 111.337 AnnotationShowing more than a de minimis cost, as that phrase is used in common parlance, does not suffice to establish undue hardship under Title VII of the federal Civil Rights Act. Undue hardship is shown when a burden is substantial in the overall context of an employer’s business. An employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. Courts must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of an employer. Groff v. DeJoy, 600 U.S. ___, 143 S. Ct. 2279, 216 L. Ed. 2d 1041 (2023). 111.337 AnnotationA union violated Title VII of the federal Civil Rights Act by causing an employer to fire an employee because of the employee’s refusal, on religious grounds, to pay union dues. Nottelson v. Smith Steel Workers D.A.L.U. 19806, 643 F. 2d 445 (1981). 111.337 AnnotationThe supreme court redefines employer’s role in religious accommodation. Soeka. WBB July 1987.
111.34111.34 Disability; exceptions and special cases. 111.34(1)(1) Employment discrimination because of disability includes, but is not limited to: 111.34(1)(a)(a) Contributing a lesser amount to the fringe benefits, including life or disability insurance coverage, of any employee because of the employee’s disability; or 111.34(1)(b)(b) Refusing to reasonably accommodate an employee’s or prospective employee’s disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer’s program, enterprise or business. 111.34(2)(a)(a) Notwithstanding s. 111.322, it is not employment discrimination because of disability to refuse to hire, employ, admit or license any individual, to bar or terminate from employment, membership or licensure any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment if the disability is reasonably related to the individual’s ability to adequately undertake the job-related responsibilities of that individual’s employment, membership or licensure. 111.34(2)(b)(b) In evaluating whether an individual with a disability can adequately undertake the job-related responsibilities of a particular job, membership or licensed activity, the present and future safety of the individual, of the individual’s coworkers and, if applicable, of the general public may be considered. However, this evaluation shall be made on an individual case-by-case basis and may not be made by a general rule which prohibits the employment or licensure of individuals with disabilities in general or a particular class of individuals with disabilities. 111.34(2)(c)(c) If the employment, membership or licensure involves a special duty of care for the safety of the general public, including but not limited to employment with a common carrier, this special duty of care may be considered in evaluating whether the employee or applicant can adequately undertake the job-related responsibilities of a particular job, membership or licensed activity. However, this evaluation shall be made on an individual case-by-case basis and may not be made by a general rule which prohibits the employment or licensure of individuals with disabilities in general or a particular class of individuals with disabilities. 111.34 HistoryHistory: 1981 c. 334; 1997 a. 112. 111.34 AnnotationThe utilization of federal regulations as a hiring standard, although not applicable to the employing taxi company, demonstrated a rational relationship to the safety obligations imposed on the employer, and its use was not the result of an arbitrary belief lacking in objective reason or rationale. Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980). 111.34 AnnotationAn employee handicapped by alcoholism was properly discharged under former s. 111.32 (5) (f), 1973 stats., (a predecessor to this section) for inability to efficiently perform job duties. Squires v. LIRC, 97 Wis. 2d 648, 294 N.W.2d 48 (Ct. App. 1980). 111.34 AnnotationPhysical standards for school bus operators established under s. 343.12 (2) (g) are not exempt from the requirements of sub. (2) (b). Bothum v. DOT, 134 Wis. 2d 378, 396 N.W.2d 785 (Ct. App. 1986). 111.34 AnnotationThe duty to reasonably accommodate under sub. (1) (b) is to be broadly interpreted and may involve the transfer of an individual from one job to another. What is reasonable will depend on the facts of the case. McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d 270 (Ct. App. 1986). 111.34 AnnotationTo avail itself of the defense under sub. (2) that an ostensibly safety-based employment restriction is job-related, an employer bears the burden of proving to a reasonable probability that the restriction is necessary to prevent harm to the employee or others. Racine Unified School District v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991). 111.34 AnnotationTemporary forbearance of work rules while determining whether an employee’s medical problem is treatable may be a reasonable accommodation under sub. (1) (b). The purpose of reasonable accommodation is to enable employees to adequately undertake job-related responsibilities. Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998), 97-1253. See also Stoughton Trailers, Inc. v. LIRC, 2007 WI 105, 303 Wis. 2d 514, 735 N.W.2d 477, 04-1550. 111.34 AnnotationWhether an employee’s mental illness caused him to react angrily and commit the act of insubordination that led to the termination of his employment was sufficiently complex and technical that expert testimony was required. Wal-Mart Stores, Inc. v. LIRC, 2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633, 99-2632. 111.34 AnnotationA complainant must show that the complainant is handicapped and that the employer took one of the prohibited actions based on that handicap. The employer then has a burden of proving a defense. Sub. (1) (b) does not require an employer to make a reasonable accommodation if the accommodation will impose a hardship on the employer, but if the employer is not able to demonstrate that the accommodation would pose a hardship there is a violation. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis. 2d 200, 664 N.W.2d 651, 02-0815. 111.34 AnnotationA reasonable accommodation is not limited to that which would allow the employee to perform adequately all of the employee’s job duties. A change in job duties may be a reasonable accommodation in a given circumstance. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis. 2d 200, 664 N.W.2d 651, 02-0815. 111.34 AnnotationAn interstate commercial driver need not seek a determination of medical qualification from the federal Department of Transportation (DOT) prior to filing a disability discrimination claim under this chapter. When medical and physical qualifications to be an interstate driver are material to a claim, and a dispute arises concerning those qualifications that cannot be resolved by facial application of DOT regulations, the dispute should be resolved by DOT under its dispute resolution procedure. The employer must seek a determination of medical and physical qualification from DOT if the employer intends to offer a defense that the driver was not qualified for medical reasons. Szleszinski v. LIRC, 2007 WI 106, 304 Wis. 2d 258, 736 N.W.2d 111, 04-3033. 111.34 AnnotationThere are two separate statutory sections, this section and s. 111.322, that identify different prohibited acts of employment discrimination on the basis of disability, and those sections include two distinct theories of disability-based employment discrimination: 1) disparate treatment under s. 111.322 (1); and 2) refusal to accommodate under sub. (1) (b). Under a disparate-treatment-based theory, the crux of the claim is that the employer treated the employee less favorably than others because the employee has a disability. By contrast, under an accommodation-based theory, the crux of the claim is that the employer could have reasonably accommodated the employee’s disability but refused to do so. Proof of discriminatory motive is not required in refusal-to-accommodate cases under sub. (1) (b). Wingra Redi-Mix Inc. v. LIRC, 2023 WI App 34, 408 Wis. 2d 563, 993 N.W.2d 715, 21-2028. 111.34 AnnotationUnder sub. (1) (b), an employee need not provide medical evidence of a disability alongside an accommodation request in order to put the employer on notice that it has a duty of reasonable accommodation under the Wisconsin Fair Employment Act. It is sufficient if the factual information known by the employer would reasonably lead the employer to recognize that the employee likely has a disability, as that term is defined by s. 111.32 (8) and case law. Wingra Redi-Mix Inc. v. LIRC, 2023 WI App 34, 408 Wis. 2d 563, 993 N.W.2d 715, 21-2028. 111.34 AnnotationHidden 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. Nold. 1983 WLR 725.
111.34 AnnotationCrystal Lake Cheese Factory v. Labor and Industry Review Commission: A Reasonable Turn Under the Wisconsin Fair Employment Act? Haas. 2004 WLR 1535.
111.34 AnnotationDisability Law in Wisconsin Workplaces. Vergeront & Cochrane. Wis. Law. Oct. 2004.
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