Use of genetic testing in employment situations. 111.372(1)(1)
No employer, labor organization, employment agency or licensing agency may directly or indirectly:
Solicit, require or administer a genetic test to any person as a condition of employment, labor organization membership or licensure.
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.
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.
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.
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:
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.
History: 1991 a. 117
The New Genetic World and the Law. Derse. Wis. Law. Apr. 2001.
Department to administer. 111.375(1)(1)
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.
This subchapter applies to each agency of the state.
See also ch. DWD 218
, Wis. adm. code.
Administrative remedies available under the Wisconsin Fair Employment Act, this subchapter, 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).
Investigation and study of discrimination.
Except as provided under s. 111.375 (2)
, the department shall:
Investigate the existence, character, causes and extent of discrimination in this state and the extent to which the same is susceptible of elimination.
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.
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.
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.
Make specific and detailed recommendations to the interested parties as to the methods of eliminating discrimination.
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.
History: 1977 c. 196
; 1981 c. 334
, 25 (2)
; Stats. 1981 s. 111.38.
Powers and duties of department.
Except as provided under s. 111.375 (2)
, the department shall have the following powers and duties in carrying out this subchapter:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
If an order issued under sub. (4)
is unenforceable against any labor organization in which membership is a privilege, an employer with whom the labor organization has an enforceable all-union agreement shall not be held accountable under this chapter if the employer is not responsible for the discrimination, the unfair honesty testing, or the unfair genetic testing.
See also LIRC and ch. DWD 218
, Wis. adm. code.
A Department of Industry, Labor and Human Relations 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
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 sub. (4) (b)] and former 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) the Department of Industry, Labor and Human Relations 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
A court should not use ch. 227 or s. 752.35 to circumvent the policy under s. 111.36 (3m) (c) [now sub. (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 Labor and Industry Review 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
Sub. (1) is a statute of limitations. As such it is an affirmative defense that may be waived. County of Milwaukee v. LIRC, 113 Wis. 2d 199
, 335 N.W.2d 412
(Ct. App. 1983).
Under s. 111.36 (3) (b) [now sub. (4) (c)], the Department of Industry, Labor and Human Relations may award attorney's fees to a prevailing complainant. Watkins v. LIRC, 117 Wis. 2d 753
, 345 N.W.2d 482
Under sub. (1), “filing" does not occur until the complaint is received by the Department of Industry, Labor and Human Relations, and when discrimination “occurred" in termination cases is the date of notice of termination. Hilmes v. DILHR, 147 Wis. 2d 48
, 433 N.W.2d 251
(Ct. App. 1988).
The Wisconsin Personnel Commission may not award costs and attorney's fees for discovery motions filed against the state under the Wisconsin Fair Employment Act. DOT v. Wisconsin Personnel Commission, 176 Wis. 2d 731
, 500 N.W.2d 664
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
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 309
, 557 N.W.2d 419
(Ct. App. 1996), 96-1119
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), 96-2055
, 206 Wis. 2d 309
(1996), clearly held that compensation discrimination is actionable if an employee received payment within the 300-day period before filing the employee's complaint pursuant to a discriminatory compensation decision. It does not matter that the discriminatory compensation decision was made before the 300-day period, nor does it matter when the employee became aware of the discrimination. Rice Lake Harley Davidson v. LIRC, 2014 WI App 104
, 357 Wis. 2d 621
, 855 N.W.2d 882
A prevailing complainant is entitled to reasonable attorney fees under this subchapter. A plaintiff is a prevailing party if the plaintiff succeeds on any significant issue in litigation that achieves some of the benefit the plaintiff sought in bringing suit. That the award of fees must be reasonable did not mean that because the complainant in this case received less than ten percent of the back pay she requested, she was entitled to only ten percent of the attorney fees she requested. Rice Lake Harley Davidson v. LIRC, 2014 WI App 104
, 357 Wis. 2d 621
, 855 N.W.2d 882
Under sub. (5) (b), when a party seeks review of an administrative law judge's (ALJ) findings or order, the Labor and Industry Review Commission (LIRC) is not bound by the ALJ's decision. The reviewing court cannot ignore and jump over the findings of LIRC to reach those of the ALJ that were set aside. The role of the court on appeal is to search the record for evidence supporting LIRC's factual determinations, not to search for evidence against them. Robles v. Thomas Hribar Truck & Equipment, Inc., 2020 WI App 74
, 394 Wis. 2d 761
, 951 N.W.2d 853
In Wisconsin, the general rule is that when an agency acting as an appeal tribunal—here, the Labor and Industry Review Commission (LIRC)—diverges from the hearing examiner—the administrative law judge (ALJ)—as to material findings of facts based on witness credibility, LIRC must hold a credibility conference in order to obtain the ALJ's impressions concerning the witnesses' demeanor and credibility. When credibility of witnesses is at issue, it is a denial of due process if the administrative agency making a fact determination does not have the benefit of the findings, conclusions, and impressions of the testimony of each hearing officer who conducted any part of the hearing. LIRC is required to provide an explanation for its disagreement with the ALJ in its memorandum opinion. Robles v. Thomas Hribar Truck & Equipment, Inc., 2020 WI App 74
, 394 Wis. 2d 761
, 951 N.W.2d 853
A proposed rule that would prohibit departmental employees from making public any information obtained under s. 111.36 [now this section] 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. Discussing the open meetings law [now ss. 19.81 to 19.98]. 60 Atty. Gen. 43.
The department may proceed in a matter despite a settlement between the parties if the agreement does not eliminate the discrimination. The department may approve a settlement between the parties that does not provide full back pay if the agreement will eliminate the unlawful practice or act. 66 Atty. Gen. 28.
Under Title VII of the federal Civil Rights Act, to establish constructive discharge, the plaintiff must show that an abusive working environment became so intolerable that resignation qualified as a fitting response. Unless the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing his or her employment status, an employer may defend against a claim by showing that: 1) it had installed an accessible and effective policy for reporting and resolving sexual harassment complaints; and 2) the plaintiff unreasonably failed to use that preventive or remedial apparatus. Pennsylvania State Police v. Suders, 542 U.S. 129
, 124 S. Ct. 2342
, 159 L. Ed. 2d 204
Sex Discrimination Law: Old Problems, New Scrutiny. Larson & Tutwiler. Wis. Law. Apr. 2020.
Employment Termination: Computing Economic Losses. Baum. Wis. Law. Sept. 2020.
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
and may be enforced as provided in s. 103.005 (11)
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.
History: 1977 c. 29
; 1981 c. 334
; Stats. 1981 s. 111.395; 1995 a. 27
Declaration of policy.
It is hereby declared to be the public policy of this state that it is necessary and essential in the public interest to facilitate the prompt, peaceful and just settlement of labor disputes between public utility employers and their employees which cause or threaten to cause an interruption in the supply of an essential public utility service to the citizens of this state and to that end to encourage the making and maintaining of agreements concerning wages, hours and other conditions of employment through collective bargaining between public utility employers and their employees, and to provide settlement procedures for labor disputes between public utility employers and their employees in cases where the collective bargaining process has reached an impasse and stalemate and as a result thereof the parties are unable to effect such settlement and which labor disputes, if not settled, are likely to cause interruption of the supply of an essential public utility service. The interruption of public utility service results in damage and injury to the public wholly apart from the effect upon the parties immediately concerned and creates an emergency justifying action which adequately protects the general welfare.
The application of the open meetings law to duties of WERC is discussed. 68 Atty. Gen. 171.
When used in this subchapter:
“Arbitrators" refers to the arbitrators provided for in this subchapter.
“Collective bargaining" means collective bargaining of or similar to the kind provided for by subch. I
“Commission" means the employment relations commission.
“Essential service" means furnishing water, light, heat, gas, electric power, public passenger transportation or communication, or any one or more of them, to the public in this state.
“Public utility employer" means any employer, other than the state or any political subdivision thereof, engaged in the business of furnishing water, light, heat, gas, electric power, public passenger transportation or communication, or any one or more of them, to the public in this state; and shall be considered to include a rural electrification cooperative association engaged in the business of furnishing any one or more of such services or utilities to its members in this state.
Nothing in this subsection shall be interpreted or construed to mean that rural electrification cooperative associations are brought under or made subject to ch. 196
or other laws creating, governing or controlling public utilities, it being the intent of the legislature to specifically exclude rural electrification cooperative associations from the provisions of such laws.
This subchapter does not apply to railroads nor railroad employees.
History: 1983 a. 189
; 1995 a. 225
Settlement of labor disputes through collective bargaining and arbitration.
It shall be the duty of public utility employers and their employees in public utility operations to exert every reasonable effort to settle labor disputes by the making of agreements through collective bargaining between the parties, and by maintaining the agreements when made, and to prevent, if possible, the collective bargaining process from reaching a state of impasse and stalemate.
Appointment of conciliators and arbitrators.
Within 30 days after July 25, 1947, the commission shall appoint a panel of persons to serve as conciliators or arbitrators under this subchapter. No person shall serve as a conciliator and arbitrator in the same dispute. Each person appointed to said panels shall be a resident of this state, possessing, in the judgment of the commission, the requisite experience and judgment to qualify such person capably and fairly to deal with labor dispute problems. All such appointments shall be made without a consideration of the political affiliations of the appointee. Each appointee shall take an oath to perform honestly and to the best of the appointee's ability the duties of conciliator or arbitrator, as the case may be. Any appointee may be removed by the commission at any time or may resign his or her position at any time by notice in writing to the commission. Any vacancy in the panels shall be filled by the commission within 30 days after such vacancy occurs. Such conciliators and arbitrators shall be paid reasonable compensation for services and for necessary expenses, in an amount to be fixed by the commission, such compensation and expenses to be paid out of the appropriation made to the commission by s. 20.425
upon such authorizations as the commission may prescribe.
History: 1993 a. 492
If in any case of a labor dispute between a public utility employer and its employees, the collective bargaining process reaches an impasse and stalemate, with the result that the employer and the employees are unable to effect a settlement thereof, then either party to the dispute may petition the commission to appoint a conciliator from the panel, provided for by s. 111.53
. Upon the filing of such petition, the commission shall consider the same, and if in its opinion, the collective bargaining process, notwithstanding good faith efforts on the part of both sides to such dispute, has reached an impasse and stalemate and such dispute, if not settled, will cause or is likely to cause the interruption of an essential service, the commission shall appoint a conciliator from the panel to attempt to effect the settlement of such dispute. The conciliator so named shall expeditiously meet with the disputing parties and shall exert every reasonable effort to effect a prompt settlement of the dispute.
Conciliator unable to effect settlement; appointment of arbitrators.
If a conciliator named under s. 111.54
is unable to effect a settlement of a labor dispute between a public utility employer and its employees within a 15-day period after the conciliator's appointment, the conciliator shall report that fact to the commission. The commission, if it believes that a continuation of the dispute will cause or is likely to cause the interruption of an essential service, shall submit to the parties the names of either 3 or 5 persons from the panel provided for in s. 111.53
. Each party shall alternately strike one name from such list of persons. The person or persons left on the list shall be appointed by the commission as the arbitrator or arbitrators to hear and determine such dispute.
History: 1993 a. 492
; 1995 a. 225
Existing state of affairs to be maintained.
During the pendency of proceedings under this subchapter existing wages, hours, and conditions of employment shall not be changed by action of either party without the consent of the other.
History: 1979 c. 110
s. 60 (9)
Arbitrator to hold hearings. 111.57(1)(1)
The arbitrator shall promptly hold hearings and shall have the power to administer oaths and compel the attendance of witnesses and the furnishing by the parties of such information as may be necessary to a determination of the issue or issues in dispute. Both parties to the dispute shall have the opportunity to be present at the hearing, both personally and by counsel, and to present such oral and documentary evidence as the arbitrator shall deem relevant to the issue or issues in controversy.
It shall be the duty of the arbitrator to make written findings of fact, and to promulgate a written decision and order, upon the issue or issues presented in each case. In making such findings the arbitrator shall consider only the evidence in the record. When a valid contract is in effect defining the rights, duties and liabilities of the parties with respect to any matter in dispute, the arbitrators shall have power only to determine the proper interpretation and application of contract provisions which are involved.