111.32 Definitions. When used in this subchapter:

(1) “Arrest record" includes, but is not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.

(2) “Commission" means the labor and industry review commission.

(2r) “Constituent group" includes a civic association, community group, social club, fraternal society, mutual benefit alliance, or labor organization.

(3) “Conviction record" includes, but is not limited to, information indicating that an individual has been convicted of any felony, misdemeanor or other offense, has been adjudicated delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority.

(3m) “Creed" means a system of religious beliefs, including moral or ethical beliefs about right and wrong, that are sincerely held with the strength of traditional religious views.

(4) “Department" means the department of workforce development.

(5) “Employee" does not include any individual employed by his or her parents, spouse, or child or any individual excluded under s. 452.38.

(6)

(a) “Employer" means the state and each agency of the state and, except as provided in par. (b), any other person engaging in any activity, enterprise or business employing at least one individual. In this subsection, “agency" means an office, department, independent agency, authority, institution, association, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts.

(b) “Employer" does not include a social club or fraternal society under ch. 188 with respect to a particular job for which the club or society seeks to employ or employs a member, if the particular job is advertised only within the membership.

(7) “Employment agency" means any person, including this state, who regularly undertakes to procure employees or opportunities for employment for any other person.

(7m) “Genetic testing" means a test of a person's genes, gene products or chromosomes, for abnormalities or deficiencies, including carrier status, that are linked to physical or mental disorders or impairments, or that indicate a susceptibility to illness, disease, impairment or other disorders, whether physical or mental, or that demonstrate genetic or chromosomal damage due to environmental factors.

(8) “Individual with a disability" means an individual who:

(a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;

(b) Has a record of such an impairment; or

(c) Is perceived as having such an impairment.

(9) “Labor organization" means:

(a) Any organization, agency or employee representation committee, group, association or plan in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours or other terms or conditions of employment; or

(b) Any conference, general committee, joint or system board or joint council which is subordinate to a national or international committee, group, association or plan under par. (a).

(10) “License" means the whole or any part of any permit, certificate, approval, registration, charter or similar form of permission required by a state or local unit of government for the undertaking, practice or continuation of any occupation or profession.

(11) “Licensing agency" means any board, commission, committee, department, examining board, affiliated credentialing board or officer, except a judicial officer, in the state or any city, village, town, county or local government authorized to grant, deny, renew, revoke, suspend, annul, withdraw or amend any license.

(12) “Marital status" means the status of being married, single, divorced, separated or widowed.

(12g) “Military service" means service in the U.S. armed forces, the state defense force, the national guard of any state, or any other reserve component of the U.S. armed forces.

(12j) “Political matters" means political party affiliation, a political campaign, an attempt to influence legislation, or the decision to join or not to join, or to support or not to support, any lawful political group, constituent group, or political or constituent group activity.

(12m) “Religious association" means an organization, whether or not organized under ch. 187, which operates under a creed.

(12p) “Religious matters" means religious affiliation or the decision to join or not to join, or to support or not to support, any bona fide religious association.

(13) “Sexual harassment" means unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. “Sexual harassment" includes conduct directed by a person at another person of the same or opposite gender. “Unwelcome verbal or physical conduct of a sexual nature" includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments of a sexual nature; the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes; or deliberate verbal or physical conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employee's work performance or to create an intimidating, hostile or offensive work environment.

(13m) “Sexual orientation" means having a preference for heterosexuality, homosexuality or bisexuality, having a history of such a preference or being identified with such a preference.

(13r) “Unfair genetic testing" means any test or testing procedure that violates s. 111.372.

(14) “Unfair honesty testing" means any test or testing procedure which violates s. 111.37.

History: 1975 c. 31, 94, 275, 421; 1977 c. 29, 125, 196, 286; 1979 c. 319, 357; 1981 c. 96 s. 67; 1981 c. 112, 334, 391; 1983 a. 36; 1987 a. 149; 1991 a. 117; 1993 a. 107, 427; 1995 a. 27 s. 9130 (4); 1997 a. 3, 112, 283; 2007 a. 159; 2009 a. 290; 2015 a. 258.

The summary discharge, after 2 weeks of satisfactory employment, of a person with a history of asthma violated the fair employment act in that it constituted a discriminatory practice against the claimant based on handicap. Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. DILHR, 62 Wis. 2d 392, 215 N.W.2d 443 (1974).

Singling out disabilities associated with pregnancy for less favorable treatment in a benefit plan designed to relieve the economic burden of physical incapacity constituted discrimination on the basis of sex, as pregnancy is undisputedly sex-linked. Ray-O-Vac v. DILHR, 70 Wis. 2d 919, 236 N.W.2d 209 (1975).

“Creed," as used in sub. (5) (a) [now sub. (3m)], means a system of religious beliefs, not political beliefs. Augustine v. Anti-Defamation League of B'nai B'rith, 75 Wis. 2d 207, 249 N.W.2d 547 (1977).

Wisconsin law forbidding pregnancy benefits discrimination was not preempted when an employer negotiated, under the National Labor Relations Act, a welfare benefit plan, under the Employee Retirement Income Security Act. Goodyear Tire & Rubber Co. v. DILHR, 87 Wis. 2d 56, 273 N.W.2d 786 (Ct. App. 1978).

The Fair Employment Act (WFEA), subch. II of ch. 111, was not preempted by federal legislation. Chicago & North Western Railroad v. LIRC, 91 Wis. 2d 462, 283 N.W.2d 603 (Ct. App. 1979).

The inclusion of pregnancy-related benefits within a disability benefit plan does not violate the federal Equal Pay Act. Kimberly-Clark Corp. v. LIRC, 95 Wis. 2d 558, 291 N.W.2d 584 (Ct. App. 1980).

An individual may be found to be handicapped under WFEA although no actual impairment is found. It is sufficient to find that the employer perceived that the individual is handicapped; discrimination may be found when the perceived handicap is the sole basis of a hiring decision. La Crosse Police Commission v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987).

Common-law torts recognized before the adoption of WFEA, if properly pled, are not barred by the act although the complained of act may fit a definition of discriminatory behavior under WFEA. A battery claim was not precluded by WFEA, although the sub. (13) definition of “sexual harassment" is broad enough to include battery, when the tort was pled as an unlawful touching, not a discriminatory act. Becker v. Automatic Garage Door Co. 156 Wis. 2d 409, 456 N.W.2d 888 (Ct. App. 1990).

The standard to determine whether a person is an “employee" under Title VII of the Civil Rights Act is applicable to WFEA cases. A determination of “employee" status in a Title VII action precludes redetermination in a WFEA action. Moore v. LIRC, 175 Wis. 2d 561, 499 N.W.2d 288 (Ct. App. 1993).

Barring spouses who are both public employees from each electing family medical coverage is excepted from the prohibition against discrimination based on marital status under ch. 111. Motola v. LIRC, 219 Wis. 2d 588, 580 N.W.2d 297 (1998), 97-0896.

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.

A person claiming a disability under sub. (8) must demonstrate an actual or perceived impairment that makes, or is perceived as making, achievement unusually difficult or limits the capacity to work. An impairment is a real or perceived lessening or deterioration or damage to a normal bodily function or bodily condition, or the absence of such bodily function or condition. “Achievement" is not as to a particular job, but as to a substantial limitation on life's normal functions or a major life activity. “Limits the capacity to work" refers to the specific job at issue. Hutchinson Technology, Inc. v. LIRC, 2004 WI 90, 273 Wis. 2d 394, 682 N.W.2d 343, 02-3328.

LIRC properly interpreted sub. (8) to require a claimant to demonstrate a permanent impairment. To demonstrate that a disability exists, the complainant must present competent evidence of a medical diagnosis regarding the alleged impairment. An employer's decision to grant requests for light-duty work, rather than terminating employment for refusing to perform regular job duties, is not proof of a perceived disability under sub. (8) (c). Erickson v. Labor and Industry Review Commission, 2005 WI App 208, 287 Wis. 2d 204, 704 N.W.2d 398, 04-3237.

Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. DILHR, 62 Wis. 2d 392, does not hold that a diagnosis of asthma alone establishes a disability. Doepke-Kline v. Labor and Industry Review Commission, 2005 WI App 209, 287 Wis. 2d 337, 704 N.W.2d 605, 05-0106.

A licensing agency may request information from an applicant regarding conviction records under sub. (5) (h) [now sub. (3)]. 67 Atty. Gen. 327.

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.