2023 Wisconsin Statutes & Annotations › Chapter 111 - Employment relations. › 111.321 - Prohibited bases of discrimination.

111.321
Prohibited bases of discrimination.
Subject to ss. 111.33 to 111.365, no employer, labor organization, employment agency, licensing agency, or other person may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of age, race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, military service, use or nonuse of lawful products off the employer's premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters.
History:  1981 c. 334; 1987 a. 63; 1991 a. 310; 1997 a. 112; 2007 a. 159; 2009 a. 290.
The 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).
A bargaining agreement requiring married employees with spouses covered by comparable employer-provided health insurance to elect coverage under one policy or the other violated this section. Braatz v. LIRC, 174 Wis. 2d 286, 496 N.W.2d 597 (1993).
The exclusive remedy provision in s. 102.03 (2) does not bar a complainant whose claim is covered by the Workers Compensation Act from pursuing an employment discrimination claim under the Wisconsin Fair Employment Act, this subchapter. Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997), 95-2490.
A prima facie case of discrimination triggers a burden of production against an employer, but unless the employer remains silent in the face of the prima facie case, the complainant continues to bear the burden of proof on the ultimate issue of discrimination. Currie v. DILHR, 210 Wis. 2d 380, 565 N.W.2d 253 (Ct. App. 1997), 96-1720.
Unwelcome physical contact of a sexual nature and unwelcome verbal conduct or physical conduct of a sexual nature may constitute sexual harassment, even when they do not create a hostile work environment. Jim Walter Color Separations v. LIRC, 226 Wis. 2d 334, 595 N.W.2d 68 (Ct. App. 1999), 98-2360.
It 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.
The 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.
The 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.
A 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.
Affirmed on other grounds. 2007 WI 106, 304 Wis. 2d 258, 736 N.W.2d 111, 04-3033.
Licensing boards do not have authority to enact general regulations that would allow them to suspend, deny, or revoke the license of a person who has a communicable disease. Licensing boards do have authority on a case-by-case basis to suspend, deny, or revoke the license of a person who poses a direct threat to the health and safety of other persons or who is unable to perform duties of the licensed activity. 77 Atty. Gen. 223.
A person suffering from a contagious disease may be handicapped under the federal Rehabilitation Act of 1973. School Board v. Arline, 480 U.S. 273, 107 S. Ct. 1123, 94 L. Ed. 2d 307 (1987).
An 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).
Discrimination 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).
The Unwisdom of the Wisconsin Fair Employment Act's Ban of Employment Discrimination on the Basis of Conviction Records. Hruz. 85 MLR 779 (2002).
Some “Hardship": Defending a Disability Discrimination Suit Under the Wisconsin Fair Employment Act. Hansch. 89 MLR 821 (2006).
Expanding Employer Liability for Sexual Harassment Under the Wisconsin Fair Employment Act: Jim Walter Color Separations v. Labor & Industry Review Commission. Edgar. 2000 WLR 885.
Double Jeapardy: Race, Crime, and Getting a Job. Pager. 2005 WLR 617.
Expanding the Notion of “Equal Coverage": The Wisconsin Fair Employment Act Requires Contraceptive Coverage for All Employer-Sponsored Prescription Drug Plans. Mason. 2005 WLR 913.
Family Responsibility Discrimination: Making Room at Work for Family Demands. Finerty. Wis. Law. Nov. 2007.