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.
111.34 AnnotationADA and WFEA: Differing Disability Protections. Backer & Mishlove. Wis. Law. Oct. 2004.
111.34 AnnotationOut of Office: Extended Leave Is Not a Required ADA Accommodation. McClurg. Wis. Law. Oct. 2018.
111.345111.345 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. 111.345 HistoryHistory: 1981 c. 334. 111.345 AnnotationA work rule intended to limit extramarital affairs among coemployees was not discrimination because of marital status. Federated Rural Electric Insurance Co. v. Kessler, 131 Wis. 2d 189, 388 N.W.2d 553 (1986). 111.35111.35 Use or nonuse of lawful products; exceptions and special cases. 111.35(1)(a)(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. 111.35(1)(b)(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. 111.35(2)(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: 111.35(2)(a)(a) Impairs the individual’s ability to undertake adequately the job-related responsibilities of that individual’s employment, membership or licensure. 111.35(2)(b)(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. 111.35(2)(c)(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. 111.35(2)(e)(e) Conflicts with any federal or state statute, rule or regulation. 111.35(3)(a)(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: 111.35(3)(a)1.1. 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. 111.35(3)(a)2.2. 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. 111.35(3)(b)(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: 111.35(3)(b)1.1. 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. 111.35(3)(b)2.2. 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. 111.35(4)(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. 111.355111.355 Military service; exceptions and special cases. 111.355(1)(1) Employment discrimination because of military service includes an employer, labor organization, licensing agency, employment agency, or other person refusing to hire, employ, admit, or license an individual, barring or terminating an individual from employment, membership, or licensure, or discriminating against an individual in promotion, in compensation, or in the terms, conditions, or privileges of employment because the individual is or applies to be a member of the U.S. armed forces, the state defense force, the national guard of any state, or any reserve component of the U.S. armed forces or because the individual performs, has performed, applies to perform, or has an obligation to perform military service. 111.355(2)(2) Notwithstanding s. 111.322, it is not employment discrimination because of military service for an employer, licensing agency, employment agency, or other person to refuse to hire, employ, or license an individual or to bar or terminate an individual from employment or licensure because the individual has been discharged from military service under a bad conduct, dishonorable, or other than honorable discharge, or under an entry-level separation, and the circumstances of the discharge or separation substantially relate to the circumstances of the particular job or licensed activity. 111.355 HistoryHistory: 2007 a. 159. 111.36111.36 Sex, sexual orientation; exceptions and special cases. 111.36(1)(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: 111.36(1)(a)(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. 111.36(1)(b)(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. 111.36(1)(br)(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. 111.36(1)(c)(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. 111.36(1)(d)1.1. 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 111.36(1)(d)2.2. 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. 111.36(2)(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. 111.36(3)(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. 111.36 AnnotationFederal 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. Kannenberg v. LIRC, 213 Wis. 2d 373, 571 N.W.2d 165 (Ct. App. 1997), 97-0224. 111.36 AnnotationThe exclusion of contraceptives from an employer or college or university sponsored benefits program that otherwise provides prescription drug coverage violates Wisconsin law prohibiting sex discrimination in employment and in higher education, ss. 111.31 to 111.395, 36.12, and 38.23. OAG 1-04. 111.36 AnnotationEmotional distress injury due to on-the-job sexual harassment was exclusively compensable under s. 102.03. Zabkowicz v. West Bend Co., 789 F.2d 540 (1986). 111.36 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.
111.36 AnnotationSexual Harassment. Gibson. WBB Mar. 1981.
111.36 AnnotationSex Discrimination Law: Old Problems, New Scrutiny. Larson & Tutwiler. Wis. Law. Apr. 2020.
111.36 AnnotationWorkplace Protections for LGBTQ Employees. Covington. Wis. Law. Oct. 2020.
111.365111.365 Communication of opinions; exceptions and special cases. 111.365(1)(1) Employment discrimination because of declining to attend a meeting or to participate in any communication about religious matters or political matters includes all of the following: 111.365(1)(a)(a) Discharging or otherwise discriminating against an employee because the employee declines to attend an employer-sponsored meeting or to participate in any communication with the employer or with an agent, representative, or designee of the employer, the primary purpose of which is to communicate the opinion of the employer about religious matters or political matters. 111.365(1)(b)(b) Threatening to discharge or otherwise discriminate against an employee as a means of requiring the employee to attend a meeting or participate in a communication described in par. (a). 111.365(2)(2) Notwithstanding s. 111.322, it is not employment discrimination because of declining to attend a meeting or to participate in any communication about religious matters or political matters for an employer 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 the individual declines to attend a meeting or to participate in a communication described in sub. (1) (a) if any of the following applies: 111.365(2)(a)(a) The employer is a religious association not organized for private profit or an organization or corporation that is primarily owned or controlled by such a religious association and the primary purpose of the meeting or communication is to communicate the employer’s religious beliefs, tenets, or practices. 111.365(2)(b)(b) The employer is a political organization, including a political party or any other organization that engages, in substantial part, in political activities, and the primary purpose of the meeting or communication is to communicate the employer’s political tenets or purposes. 111.365(2)(c)(c) The primary purpose of the meeting or communication is to communicate information about religious matters or political matters that the employer is required by law to communicate and no information is communicated about those matters beyond what is legally required. 111.365(3)(b)(b) The right of an employer’s executive, managerial, or administrative personnel to discuss issues relating to the operation of the employer’s program, business, or enterprise, including issues arising under this section. 111.365(3)(c)(c) The right of an employer to offer meetings or other communications about religious matters or political matters for which attendance or participation is strictly voluntary. 111.37111.37 Use of honesty testing devices in employment situations. 111.37(1)(a)(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. 111.37(1)(b)(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. 111.37(1)(c)(c) “Polygraph” means an instrument that fulfills all of the following requirements: 111.37(1)(c)1.1. Records continuously, visually, permanently and simultaneously any changes in cardiovascular, respiratory and electrodermal patterns as minimum instrumentation standards. 111.37(1)(c)2.2. Is used, or the results of which are used, to render a diagnostic opinion about the honesty or dishonesty of an individual. 111.37(2)(2) Prohibitions on lie detector use. Except as provided in subs. (5) and (6), no employer may do any of the following:
