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The Wisconsin Equal Rights (ER) Decision Digest -- Sections 110-115      

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100 The Wisconsin Fair Employment Act (WFEA)  

110 Coverage and application of the WFEA

111 Purpose of the WFEA

Any application or interpretation of a provision of the Wisconsin Fair Employment Act requires consideration of the Act’s purpose. Sec. 111.31, Stats., states as follows in this regard: "The Legislature finds that the practice of unfair discrimination in employment. . . substantially and adversely affects the general welfare of the state. . . .In the interpretation and application of this subchapter, . . .it is declared to be the public policy of the state to encourage and foster to the fullest extent practicable the employment of all properly qualified individuals. . . .This subchapter shall be liberally construed for the accomplishment of this purpose." Palmer v. Wis. Public Serv. Corp. (LIRC, 07/30/03).

The broad purpose of the Wisconsin Fair Employment Act is to eliminate practices that have a discriminatory impact, as well as practices which on their face amount to invidious discrimination. Wisconsin Telephone Co. v. DILHR, 68 Wis. 2d 345, 228 N.W.2d 649 (1975).The Wisconsin Fair Employment Act does not provide a remedy for poor management practices, unless they are specifically shown to constitute a violation of the Act. Lampinen v. City of Shawano (LIRC, 12/14/99).

The Wisconsin Fair Employment Act is concerned with deterring and remedying intangible injuries which rob a person of dignity and self-esteem, and with eliminating a discriminatory environment in the workplace that affects not only the victim of discrimination but the entire workforce and the public welfare. Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997).

It is not a function of the Wisconsin Fair Employment Act to dictate to employers, as a general matter, that hiring and other employment decisions must be made on the basis of particular, job-related considerations. Bates v. Thomson Newspapers (LIRC, 12/04/96)

The overall purpose of the Wisconsin Fair Employment Act is to forbid discriminatory employment practices against properly qualified individuals. The legislature has madated that the Act must be liberally construed to accomplish its purpose. The two purposes of the Act are: (1) to make the individual victims of discrimination "whole", and (2) to discourage discriminatory practices in the employment area. A Complainant who files a complaint under the Wisconsin Fair Employment Act is acting as a "private attorney general" to enforce the rights of the public and to implement a public policy that the legislature considered to be of major importance. The aggregate effect of such individual actions enforces the public's right to be free from discriminatory practices in employment, which in turn effectuates the legislative purpose of outlawing such practices. Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984).

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112 Coverage and application of the WFEA; Who may file a complaint

112.1 Coverage and application; Who may file a complaint; Covered individuals

The rationale that the Supreme Court relied upon in City of Madison v. DWD, 262 Wis. 2d 652, 664 N.W.2d 584 (2003), to find that the Madison Police and Fire Commission has exclusive jurisdiction to hear complaints of discriminatory discharge or discipline under sec. 62.13(5), Stats., applies equally to the treatment of WFEA claims arising out of actions by the Milwaukee Police and Fire Commission under sec. 62.50(11), Stats. The Department of Workforce Development does not have jurisdiction over a WFEA complaint regarding discriminatory discipline or discharge by members of the Milwaukee Police and Fire Departments. Koch v. City of Milwaukee (LIRC, 06/09/11).

An Administrative Law Judge appropriately determined that the Complainant was not an employee under the Wisconsin Fair Employment Act where the Complainant had been found to be a “sexually violent person” who was committed to the Wisconsin Resource Center (WRC), which is operated by the State of Wisconsin Department of Health and Family Services (DHFS).  The Complainant was part of the WRC’s Patient Work Program, which affords patients the opportunity to work while residing at the institution.  He filed a complaint alleging that DHFS had discriminated against him with respect to compensation on the basis of disability, arrest record and conviction record.  The ALJ utilized the “economic realities” test and determined that the context for the working relationship between the Complainant and WRC was entirely different from that of a voluntary employment relationship between parties.  The working relationship was uniquely defined by the circumstances of the Complainant’s commitment to WRC.  DHFS exercised control and direction over not only the Complainant’s work performance, but also over the Complainant himself.  The conditions under which he performed his job were functions of his confinement to WRC, not those of an employee who voluntarily enters into an employment relationship with an employer.  Desimone, et al v. State of Wisconsin (LIRC, 02/22/08).

A complaint was dismissed where the Complainant was a former nursing student of the Respondent and her complaint centered around the Respondent’s refusal to allow her to return to complete her studies.  The Complainant was not involved in an employment relationship with the Respondent, and her complaint did not allege discrimination in employment.  Further, to the extent that the Complainant was alleging that she was denied an opportunity to obtain her nursing license, the Respondent could not be considered a licensing agency for purposes of the Act.  Bledsoe v. Mount Mary College (LIRC, 04/25/08).

A firefighter who was terminated from city service after a "just cause" hearing before a police and fire commission pursuant to sec. 62.13(5), Stats., may not pursue a discrimination complaint regarding the termination before the Department of Workforce Development under the Wisconsin Fair Employment Act. City of Madison v. DWD, 2003 WI 76, 262 Wis. 2d 652, 664 N.W.2d 584.

Application for service as a volunteer, or even actual service as a volunteer, does not meet the definition of "employee" in the Wisconsin Fair Employment Act, which is a prerequisite for coverage under the Act. Compensation is an essential condition in the employee/employer relationship. Ficken v. Harmon Solutions Group (LIRC, 02/07/03).

The Complainant, who had no employment relationship with the Respondent, alleged that the Respondent denied him the use of a trademark. Even assuming that the Respondent could be considered a licensing agency, the Complainant has not contended that he was denied a license. A trademark does not constitute a form of permission required by a state or local government for undertaking an occupation or profession. While a business person’s inability to make use of a trademark might arguably have some effect on his ability to earn an income, that is not a matter that is covered under the Wisconsin Fair Employment Act. Wendt v. Marathon County (LIRC, 07/31/02).

The Complainant was a member of a board of zoning appeals. Members of the board are appointed by the mayor and serve without compensation. The Complainant filed a complaint of discrimination against the city and against the mayor when the mayor denied her reappointment to the board. The complaint was properly dismissed because there was no employment relationship between the Complainant and either of the two named Respondents. Moreover, the Complainant did not allege that the Respondents engaged in any actions that affected her future opportunities for employment with them or for any other employer. The Complainant was, therefore, not protected by the Wisconsin Fair Employment Act. Langer v. City of Mequon (LIRC, 03/19/01).

Probationary employees are entitled to the same protections against unlawful discrimination under the Wisconsin Fair Employment Act as are regular employees. Hickman v. Milwaukee Immediate Care Center (LIRC, 02/16/00), aff’d sub nom. Milwaukee Immediate Care Center v. LIRC (Milw. Co. Cir. Ct., 11/02/00).

The Complainant, a prisoner at the Green Bay Correctional Institution who earned minimum wage and was required to pay taxes while working for the Badger State Industries Private Sector/Prison Industries Enhancement Program, was not an employee as defined by statute. The Complainant alleged that his decision to voluntarily terminate his employment with Badger Industries was due to racial discrimination in the workplace. The relationship of the Complainant with Badger Industries arose out of his status as an inmate, and not an employee. Whaley v. Wis. Personnel Comm. (Brown Co. Cir. Ct., 05/13/97).

Inmates performing work in a correctional institution are not considered employees within the meaning of the Wisconsin Fair Employment Act unless the inmate is employed in an off-site work release program in which their employment has the same attributes as that of non-inmates performing similar work duties. Whaley v. Wis. Personnel Comm. (Brown Co. Cir. Ct., 05/13/97); Pinkins v. DOC (Wis. Personnel Comm., 03/12/97).

A stockholder of a corporation is not automatically precluded from filing a discrimination complaint against the corporation where she was also an employe. Schaefer v. New Berlin Realty (LIRC, 06/10/93).

The complaint was dismissed for lack of subject matter jurisdiction when the complaint offered no information which suggested that the Complainant was in an employment relationship with the Respondent. The Complainant's allegations related to her status as a student at the University of Wisconsin-School of Veterinary Medicine.  Fischer-Guex v. UW-Madison (Wis. Personnel Comm., 12/17/92).

A union has the right to bring a complaint of discrimination and to do so by its duly authorized representative. The Wisconsin Fair Employment Act itself does not preclude the possibility of an organization filing a complaint alleging discrimination against individual members of that organization or persons whose interests are shared or represented by that organization. The Act contains no limitation on who may file a complaint. While the Act does refer in sec. 111.39(3), Stats., to "the person filing the complaint," the word "person" includes all partnerships, associations and bodies politic or corporate. Helton v. Wesbar Corp. (LIRC, 03/19/92).

If a claim of sex discrimination is otherwise valid, it should not be rendered invalid because the discrimination does not run against the sex of the Complainant. In this case, the Complainant has stated a viable claim upon which relief could be granted when he alleged that his position was eliminated along with the position of a female friend when that female friend failed to "respond positively to sexual harassment" by the Respondent. The Complainant is alleging that his position was eliminated as a direct result of an illegal act of sexual harassment against his female friend. Christensen v. UW-Stevens Point (Wis. Personnel Comm., 01/24/92).

Members of the Wisconsin National Guard are state employees under the Wisconsin Fair Employment Act. Aries v. DMA (Wis. Personnel Comm., 11/06/91).

A military member of the Wisconsin National Guard is an employee of the state. A decision to separate someone from guard service falls within the jurisdiction of the Personnel Commission. (Note: The Commission did not address any question of federal supremacy). Hazelton v. DMA (Wis. Personnel Comm., 03/14/89).

The Complainant, an inmate in a pre-release work training program, was not in an employment relationship. As part of the program, the Complainant was paid less than the prevailing wage to perform work at a county mental health center. He received on-site supervision and worker’s compensation coverage, but he did not have access to an employee grievance procedure, and he was not provided any other benefits. The program agreement covering the Complainant specifically provided that the inmates that were not to be considered permanent employees. Dalton v. DHSS (Wis. Personnel Comm., 09/26/88).

Unions may file complaints on behalf of their members under the Wisconsin Fair Employment Act. Racine Unified School Dist. v. Racine Educ. Ass'n., 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991); see also, General Tel. Co. of Wisconsin v. LIRC and Communications Workers of America (No. 78-CV-1228, Dane Co. Cir. Ct., 9/12/80);  aff'd,  General Tel. Co. of Wisconsin v. LIRC and Communications Workers of America (No. 80-2039, Ct. App. Dist. IV, unpublished per curiam decision, October 26, 1981); Hartford Educ. Ass'n. v. Hartford School Dist. (LIRC, 05/14/79); Sosnowski v. Uniroyal (LIRC, 05/14/79).

While professors involved in a faculty exchange technically remain on the faculties of their respective universities, numerous incidents of the employment relationship are present. To deny status as an employee under the Wisconsin Fair Employment Act would be inconsistent with the liberal construction policy of the Act. McFarland and Joubert v. UW (Whitewater) (Wis. Personnel Comm., 09/08/88).

The Personnel Commission lacks subject matter jurisdiction over a complaint filed by an inmate who alleged discrimination based on conviction record with respect to actions taken by the prison’s education director. Richards v. DHSS (Wis. Personnel Comm., 09/04/86).

The Wisconsin Fair Employment Act does not cover the right to purchase a proprietary interest in a business. The Complainant was not an employe or a potential employe of Montgomery Ward and Company in connection with his attempts to purchase a catalog sales outlet. Keys v. LIRC (Polk Co. Cir. Ct., 07/01/85).

The Personnel Commission has jurisdiction over a complaint charging that the Complainant’s status as a military member of the National Guard was terminated because of handicap. Military members of the Guard are employees of the states. However, the Complainant had dual status as a federal civil service technician and as a Guard member, and those aspects of the complaint relating to his technician status are outside of the Personnel Commission’s jurisdiction. Schaeffer v. DMA (Wis. Personnel Comm., 11/07/84).

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112.2 Coverage and application; Who may file a complaint; Covered employment relationships, independent contractors

 

The Complainant performed services for the Respondent, for which he was paid. The fact that the Complainant was not licensed as an apprentice funeral director does not necessarily mean that he was not an employee of the Respondent, a mortuary. While the record does not contain sufficient evidence to permit an analysis of all the factors used to determine whether an individual is an employee or an independent contractor, the evidence presented indicated that the Respondent had the right to control the means and manner of the Complainant's job performance, that he was paid by the week and not by the job, that the services he performed for the Respondent were integral to its business, and that it was the intention of the parties that the Complainant work for the Respondent as an apprentice funeral director (a job which is usually done under the direction of a supervisor). This was sufficient to warrant a conclusion that the Complainant was an employee of the Respondent, without regard to whether he had a license. Jackson v. New Pitts Mortuary (LIRC, 10/31/12).

In cases decided under Title VII, the Seventh Circuit Court of Appeals has determined that a plaintiff must prove the existence of an employment relationship in order to maintain a Title VII action against a defendant.  In these cases, the court recognized that the employer's right to control is the most important factor when determining whether an individual is an employee or an independent contractor. The court focused on the following five factors: (1) the extent of the employer's control and supervision over the worker, including directions on scheduling and performance of work; (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace; (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations; (4) method and form of payment and benefits; and (5) length of job commitment and/or expectations. Using this test, the Complainant in this case failed to prove the existence of an employment relationship. Ingram v. Bridgeman Mach. Tooling and Packaging (LIRC, 06/27/05).

There can be instances in which the Department will have jurisdiction over a claim of discrimination even in the absence of an actual or potential employment relationship between the parties. However, in this case the Complainant did not allege that the Respondent engaged in actions which were directly related to her employment opportunities such as would fall within the purview of the Wisconsin Fair Employment Act. The Complainant's allegations were that she was subjected to harassing conduct on the part of her fellow students, which led her to drop a class, and that the Respondent further harassed her by giving her a failing mark in a class she dropped rather than indicating that she had withdrawn. The Complainant's allegations do not fall within the types of discriminatory conduct prohibited by the Wisconsin Fair Employment Act under sec. 111.322(1), Stats. Hinkforth v. Milwaukee Area Tech. College (LIRC, 02/23/04).

Determination of whether an individual is an employee or an independent contractor for purposes of the Fair Employment Law involve analysis of the "economic realities" of the work relationship. All of the circumstances surrounding the work relationship should be considered. The most important factor is the employer's right to control the "means and manner" of the workers' performance. Additional matters of fact that may be considered include the following: (1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor, (2) the skill required in the particular occupation, (3) whether the "employer" furnishes the equipment used and the place of work, (4) the length of time during which the individual has worked, (5) the method of payment (whether by time or by the job), (6) the manner in which the work relationship is terminated, (7) whether annual leave is afforded, (8) whether the work is an integral part of the business of the "employer," (9) whether the worker accumulates retirement benefits, (10) whether the "employer" pays social security taxes, and (11) the intention of the parties. Sneed v. Milwaukee Bd. of School Directors (LIRC, 06/17/03).

The test for determining whether an individual is an employee under the Wisconsin Fair Employment Act is the test set forth in Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979), which was adopted by the Wisconsin Court of Appeals in Moore v. LIRC, 175 Wis.2d 561, 499 N.W.2d 287 (Ct. App. 1993).  The test in  Revenue Ruling 87-41, 1987-1 CB 296, in which the Internal Revenue Service sets forth several factors it uses to determine whether a worker is an independent contractor, is not applicable. The factors utilized by the IRS focus on the common law concept of right to control the services of the worker for purposes of determining taxpayer status. However, Wisconsin has adopted the Spirides test for determining whether an individual is an employee under the WFEA. Sneed v. Milwaukee Bd. of School Directors (LIRC, 06/17/03).

The Complainant, who delivered newspapers for the Respondent, had an "Independent Carrier Contract" with the company. There were some facets of the relationship between the Complainant and the Respondent that might tend to suggest that the relationship was one of employee-employer. However, on balance, considering the total circumstances surrounding the working relationship, it appears that the relationship must be considered that of an independent contractor relationship and, therefore, not covered under the Wisconsin Fair Employment Act. Berglund v. Post Crescent (LIRC, 01/31/01).

Where the Complainant was the owner of a general contracting business who performed work at the direction of the Respondent school district, he was not an employe of the school district since the school district did not control the means and manner of his work. Omegbu v. Mequon-Thiensville School District. (LIRC, 12/21/95) .

The Wisconsin Fair Employment Act prohibits acts of unlawful employment discrimination; however it does not define the term "employment" for purposes of determining employe status, and thus entitlement to the protections afforded under the Act. The Labor and Industry Review Commission has adopted the "hybrid" standard which combines the common law "right to control" and "economic realities" tests cited in Moore v. LIRC, 175 Wis. 2d 561, 499 N.W.2d 289 (Ct. App. 1993). In this case, the Complainant failed to establish that the owner of a real estate company exercised the type of control over her in the performance of her work as a real estate broker that would support a finding of employe status. A real estate broker is a specialist and a professional working without supervision by the very nature of the work. Schaefer v. New Berlin Realty (LIRC, 11/17/95) .

A hospital was an "employer" for purposes of the Wisconsin Fair Employment Act where it allowed physicians to practice there, where it granted staff privileges, and where it provided terms and conditions and privileges of employment through contracts either directly or indirectly with physicians through a separate Medical Center. Bourque v. LIRC (Marathon Co. Cir. Ct., 11/16/95) .

The determination of whether an individual is an employee or an independent contractor involves an analysis of the "economic realities" of the work relationship. Consideration of all of the circumstances surrounding the work relationship is essential, and no one factor is determinative. Nevertheless, the extent of the employer's right to control the "means and manner" of the worker's performance is the most important factor. Other factors which may be considered include: (1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor, (2) the skill required in the particular occupation, (3) whether the "employer" of the individual in question furnishes the equipment used and the place of work, (4) the length of time during which the individual has worked, (5) the method of payment, i.e. whether by time or by the job, (6) the manner in which the work relationship is terminated, (7) whether annual leave is given, (8) whether the work is an integral part of the business of the "employer," (9) whether the "employer" pays social security taxes, and (10) the intention of the parties. Moore v. LIRC, 175 Wis. 2d 561, 499 N.W.2d 287 (Ct. App. 1993).

A stockholder of a corporation is not automatically precluded from filing a discrimination complaint against the corporation where she was also an employe. Schaefer v. New Berlin Realty (LIRC, 06/10/93).

A real estate broker whose work activities are significantly controlled by the principal party whom a real estate broker represents may be considered an "employe" of the principal under the Wisconsin Fair Employment Act despite the general body of law which designates a real estate broker as an independent contractor. Schaefer v. New Berlin Realty (LIRC, 06/10/93).

The language in Eklund v. Tomah-Mauston Broadcasting Co. (LIRC, 09/19/86) which states that independent contractors are covered under the Wisconsin Fair Employment Act is dicta and has been effectively overturned by the Wisconsin Court of Appeals decision in Moore v. LIRC, 175 Wis. 2d 561, 499 N.W.2d 289 (Ct. App. 1993). Schaefer v. New Berlin Realty (LIRC, 06/10/93).

LIRC found no merit in the Respondent's contention that the Complainant, who worked under a contract to provide services to the Respondent, was not an employe of the Respondent for purposes of the Wisconsin Fair Employment Act. Jackson v. City of Milwaukee (LIRC, 12/14/90).

The Wisconsin Fair Employment Act covered an allegation that a cooperative organization of taxicab owners, which used membership fees to operate a central office which provided dispatching and clerical services, discriminated against the Complainant, who drove a cab for a member-owner of the co-op on a lease basis. The Act is at least as inclusive in its coverage of relationships as is Title VII. Russ v. City Veterans Cab Co. (LIRC, 12/04/87).

Where the employer continued to have the right to control the means and manner of the Complainant's work performance and retained the right to unilaterally terminate the relationship, and where the Complainant continued to be covered under group insurance paid in part by the Respondent and was given a health insurance conversion notice upon termination, the Complainant was an employe of the Respondent and not an independent contractor. Eklund v. Tomah-Mauston Broadcasting Co. (LIRC, 09/19/86).

Even if a Complainant is considered to have been an independent contractor, as opposed to an employe, the Complainant was still covered by the Wisconsin Fair Employment Act. Eklund v. Tomah- Mauston Broadcasting Co. (LIRC, 09/19/86).

The Wisconsin Fair Employment Act does not cover the right to purchase a proprietary interest in a business. Keys v. LIRC (Polk Co. Cir. Ct., 07/01/85).

Whether a Respondent is an employer within the meaning of the Act must be determined on an individualized basis looking at the totality of the circumstances which bear upon the degree of direction and control exercised over the Complainant. Where a person had almost no control over the details of his employment and was subject to the rules, regulations, procedures, authority and evaluation of the Respondent, an employer/employe relationship has been shown. Lohse v. Western Express (LIRC, 10/19/84).

The relationship between a hospital and a staff physician is not an employe/ employer relationship where a doctor seeking staff privileges is not hired by the hospital and is not on its payroll and the hospital does not dictate his treatment or admission of patients. Sergeant v. Holy Family Hospital (LIRC, 02/17/81).

A long-haul freight company which leases tractors and trailers from owner-operators of such equipment is an employer and the truck drivers are employes within the meaning of the Act. The Act does not provide an exemption for independent contractors, but even if it did, such an exemption would not be applied in this case because the company controlled not only the result of the truck driver's services, but also the manner in which they were to be performed. Lyon v. Pirkle Refrigerated Freight (DILHR, 11/02/73); also, Kollath v. Madison Public Schools (LIRC, 07/25/77).

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112.3 Coverage and application; Who may file a complaint; Standing

A union had standing to file a charge of discrimination. However, by filing an action pursuant to sec. 111.322(1), Stats., the union had the burden of establishing that at least one of its members had been injured. That statute provides a cause of action for acts of discrimination which have already occurred. In this case, at least one individual must have been denied the type of medication which the Respondent declined to cover under its health insurance plan (i.e., Viagra or other erectile dysfunction drugs). The failure by the union to identify any individual who had been denied coverage was fatal to its claim under the Wisconsin Fair Employment Act. The union's reliance on cases filed under sec. 111.322(2), Stats. (which creates a cause of action for statements printed or circulated by the employer which proclaim its present or future intent to discriminate) was misplaced. That section applies to prospective harm. It does not require that an individual has actually been harmed. Milwaukee Teachers Educ. Assn. v. Milwaukee Bd. of School Directors (LIRC, 06/30/10).

A union is an entity which may file a complaint of discrimination under the Wisconsin Fair Employment Act. This is true even if the record did not establish that the membership of the union had given the union the authority to file the charge. Milwaukee Teachers Educ. Assn. v. Milwaukee Bd. of School Directors (LIRC, 06/30/10).

Standing is not an issue of any significance when commencing complaints of public accommodations discrimination, because there is no statutory provision which imposes a standing limitation on who may bring complaints. Malecki v. Vic Tanny Int'l. of Wis. (LIRC, 08/07/92).

The concept of standing has no place in determining who may file complaints of discrimination with an administrative agency. Standing is, in federal law, a matter of subject matter jurisdiction arising from the case or controversy restriction contained in Article III of the U.S. Constitution. There is no similar case or controversy limitation in the Wisconsin Constitution. Helton v. Wesbar Corp. (LIRC, 03/19/92).

The president of a local union, a male, was a duly authorized representative and had authority to file a complaint and was acting for the Local which was asserting that female employes of the Respondent had been discriminated against by the Respondent because of their sex. The president was not filing the complaint "on behalf of any specific female employe of Respondent." He was filing the complaint on behalf of the Local. The Local had the right to bring a complaint of discrimination and to do so by its duly authorized representative, its president. Helton v. Wesbar Corp. (LIRC, 03/19/92).

The rules governing standing before an administrative agency are not necessarily the same as the rules governing standing to seek judicial review. The question of standing to initiate and pursue a matter before an administrative agency is entirely dependent on the statutes and rules establishing the scope of that agency's jurisdiction.  Metropolitan Milwaukee Fair Housing Council v. Goetsch (LIRC, 12/06/91).

Where the Complainant did not score high enough on a competitive examination to be certified for employment, and where the State refused to include the Complainant in the certification under its expanded handicap certification program because it concluded that the Complainant's vision problems were not severe enough to constitute a handicap, the Complainant lacked standing to attack the vision standards used in the expanded handicap certification program. Wood v. Department of Natural Resources (Wis. Personnel Comm., 04/15/87).

A union does not have standing with respect to an individual member's claim for back pay. Wisconsin Fed'n. of Teachers v. Department of Personnel (Wis. Personnel Comm., 04/02/82).

A union has a right to proceed before DILHR to enforce its members' rights under a collective bargaining agreement when those rights conform to rights under the Act. General Telephone of Wis. v. LIRC (Communication Workers of America) (Ct. App., Dist. IV, unpublished decision, 10/26/81).

A union has standing to bring a complaint under the Act on behalf of one of its members. Hartford Elementary Educ. Ass'n. v. Hartford School Dist. (LIRC, 05/14/79).

A union local is a proper party and a person aggrieved within the meaning of Chapter 227, and it has standing to represent the class of all female employes who were denied pregnancy-related disability benefits pursuant to an employer's sickness and accident plan. Sosnowski v. Uniroyal (LIRC, 05/14/79).

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112.9 Coverage and application; Who may file a complaint; Miscellaneous

An Administrative Law Judge’s order that the Respondent should cease and desist from discriminating against the Complainant or any of its employees was modified to apply only to the Complainant.  Neither the Equal Rights Division nor the Labor and Industry Review Commission have the authority to entertain a class action under the Wisconsin Fair Employment Act.  Metzger v. UGD Automotive (LIRC, 2/28/08).

The Complainant alleged that she had been discriminated against by the Respondent on the basis of age and sex when it failed to hire her for a position as a librarian. By offering evidence relating to the unsuccessful applications for promotion of other females over the age of forty within the Respondent's library system, the Complainant appeared to be attempting to prosecute her charge as a class action. Neither the Equal Rights Division nor the Labor and Industry Review Commission have the authority under the Wisconsin Fair Employment Act to entertain a class action. Rosneck v. UW-Madison (LIRC 08/10/06).

The Equal Rights Division does not have the authority to entertain a class action under the Wisconsin Fair Employment Act. Rowser v. Upper Lakes Foods (LIRC, 10/29/04).

The class action procedure is not available in the administrative processes provided for in the Wisconsin Fair Employment Act. Jones v. Central Regional Dental Testing Serv. (LIRC, 02/29/96)

In a licensing discrimination case, the Complainant must initially show that he applied for the license in question. Where the Complainant never applied for a license (to practice dentistry, in this case), he cannot proceed on a complaint alleging that he would have been denied a license had he applied. Jones v. Central Regional Dental Testing Serv. (LIRC, 02/29/96)

A case may be brought under sec. 111.322(2), Wis. Stats., even though no individual has suffered actual injury as a result of a printed statement which implies an intent to discriminate. This statute addresses the evil of employment discrimination on the two fronts where it obviously is practiced -- against existing employes and against prospective employes. The violation is complete when the policy is in place and then printed or circulated. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

A cause of action under the Wisconsin Fair Employment Act survives the death of the Complainant. The Estate of Kaluza v. Gross Common Carrier, Inc. (LIRC, 03/05/86).

A cause of action under the Wisconsin Fair Employment Act survives death and may be pursued by a decedent's estate. Szamocki v. Gilbert Shoe Co. (LIRC, 07/31/78).

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113 Coverage and application of the WFEA; Against whom a complaint may be filed

113.1 Coverage and application; Against whom a complaint may be filed; Employers

The State Department of Corrections did not act as an employment agency within the meaning of the Wisconsin Fair Employment Act when it assigned the Complainant, an inmate, work under its work-release program. It is not part of the mission of the Department of Corrections to provide workers for business enterprises. Instead, the DOC develops associations with businesses willing to accept inmate workers, and places eligible inmates with these businesses for rehabilitation and other correctional purposes. (The DOC was subject to the Act as a “person,” however.) Monroe v. Birds Eye Foods (LIRC, 03/31/10).

Complainant, a truck driver, had Wilson's disease, a progressive neurological disease. He worked for a company (Transhield) which leased its trucks and drivers to a common carrier (Midwest).  After reports that he had been driving erratically, Midwest required him to undergo medical re-evaluation.  A neurologist concluded after examining him that Complainant had a very mild neurological deficit and could drive.  Midwest then had another physician review Complainant's records;  that physician then recommended that Complainant be barred from driving, based primarily on a U.S. Department of Transportation medical conference report concluding that a diagnosis of Wilson’s disease should “unequivocally indicate disqualification”.  Complainant was denied medical certification as a truck driver, leading to his termination.   Held,  Midwest was an "employer" under § 111.321 against whom Complainant could file a complaint, either directly or as an "other person".   Szleszinski v. LIRC, Midwest Coast and Transhield, 2005 WI App 229, 287 Wis. 2d 775, 706 N.W.2d 345;  aff'd, Szleszinski v. LIRC, Midwest Coast & Transhield, 2007 WI 106, 304 Wis. 2d 258, 736 N.W.2d 111.

The Department of Workforce Development does not have jurisdiction over a WFEA claim arising out of an action by a police and fire commission under sec. 62.13(5), Stats. However, while it is appropriate to dismiss the Complainant's WFEA-based discrimination claims, the order of dismissal does not apply to a Complainant's discrimination claims under federal law. Engel v. Town of Brookfield (LIRC, 05/25/04).

The Department of Workforce Development may not take jurisdiction over a WFEA complaint arising out of a decision of a police and fire commission. City of Madison v. DWD, 2003 WI 76, 262 Wis. 2d 652, 664 N.W.2d 584.

The State of Wisconsin is not considered a single employing entity. Wongkit v. UW-Madison (Wis. Personnel Comm., 10/21/98).

The Personnel Commission’s jurisdiction under the Wisconsin Fair Employment Act is over employment actions by a state agency acting in the capacity of an employer. The state agency that was a defendant in previous litigation in which a garnishment order was obtained and an agency which defended various other agencies in lawsuits filed by the Complainant did not act in the capacity of an employer within the meaning of the WFEA. Balele v. DOA (Wis. Personnel Comm., 06/04/97); aff’d sub nom. Balele v. Wis. Personnel Comm (Dane Co. Cir. Ct., 02/13/98).

The discharge of an employee because of disability after a potential business partner of the employer demanded it as a condition of entering into partnership with the employer was discriminatory. Swanson v. State Street Stylists (LIRC, 11/26/97).

The decision by the Department of Workforce Development to deny the Complainant unemployment compensation benefits after her discharge from employment with the University of Wisconsin Hospital Clinics Board related to the regulatory authority of the Respondent, rather than to its authority as an employer. The Personnel Commission lacked jurisdiction to review the Complainant’s Wisconsin Fair Employment Act claim arising from the denial of benefits. Mosley v. DWD (Wis. Personnel Comm., 09/24/97).

The Complainant prevailed on her complaint that she had been sexually harassed by the Respondent (a company) and that the Respondent had terminated her employment because of her sex and because she had opposed a discriminatory practice under the Act. However, the Complainant's supervisor and the owner of the Respondent were appropriately dismissed as Respondents. The Complainant argued that her supervisor should be held liable because he was acting as an agent of the company. However, sec. 111.39(4)(c), Stats., expressly provides that, "If the examiner awards any payment to an employe because of a violation of s.111.321 by an individual (i.e., agent) employed by the employer, under s.111.32(6), the employer of that individual is liable for the payment." The Complainant argued that the owner of the company should be held liable since he exercised complete authority over all decisionmaking related to the corporation, including the decision to terminate her employment. One of the underlying purposes of the corporate structure is the advancement of limited liability of corporate investors. Exceptions to the general rule of limited shareholder liability exist where "applying the corporate fiction would accomplish some fraudulent purpose . . . or defeat some strong equitable claim." However, in this case there was no evidence which supported piercing the corporate veil and imposing personal liability on the owner of the Respondent. Burton v. Marketing Technologies (LIRC, 05/10/96)

The Complainant argued that while the Respondent was not directly his employer, it controlled his access to employment with a third party. However, the Respondent in this case did not have significant control over the Complainant's employment opportunities and did not interfere with his employment opportunities with third parties. The Complainant was able to and did freely contract to perform work with other employers without any interference by the Respondent. Omegbu v. Mequon-Thiensville School Dist (LIRC, 12/21/95) .

While it is unlawful for a "person" to discriminate, the Personnel Commission’s jurisdiction under the Wisconsin Fair Employment Act runs only to the state agency as the employer, and not to individual agents of the agency in their individual capacities. Goetz v. DOA (Wis. Personnel Comm., 11/13/95).

The Lesbian, Gay and Bisexual Campus Center, a registered student organization, is not sufficiently outside the control and governance of the University of Wisconsin-Madison to be considered in legal effect an independent agency such that it would have a capacity as an employer independent of the University of Wisconsin-Madison. While the center can independently make decisions regarding its own operation (including the employment of students), such decisions are subject ultimately to the authority of the Chancellor and the Board of Regents. Haselow v. UW-Madison (Wis. Personnel Comm., 06/09/95).

A manager who discharged a Complainant for an unlawful reason should probably not be named as a separate Respondent where there was no allegation in the complaint that the manager was acting outside of the scope of her apparent authority and the evidence in fact showed that she had the authority to discharge employes. The appropriate Respondent in such cases is the employer, and the employer is liable for the violation of the Act. Koll v. Hair Design (LIRC, 04/27/95) .

A complaint arising from the action of the Respondent finding that the Complainant did not possess the requisite qualifications for status as a mental health professional related to the regulatory authority exercised by the State, rather than its authority as an employer. Mehler v. DHSS (Wis. Personnel Comm., 12/22/94).

The Personnel Commission lacks jurisdiction to hear a claim of discrimination brought by a student who alleged that the Respondent failed him for a doctoral qualifying exam. The Complainant’s allegations did not relate to the Respondent’s role as an employer. Hassan v. UW-Madison (Wis. Personnel Comm., 03/29/94).

An unincorporated proprietorship has no legal identity distinct from that of its owners. Therefore, an amended complaint purporting to add the owners as Respondents, in addition to the business itself, would make no real legal change in the parties, or in the allegations of the complaint. If a Respondent is a corporation, rather than an unincorporated proprietorship, there is no basis for separately naming owners (i.e., owners of the corporation's stock) as Respondents in their individual capacities based simply on their stock ownership. The corporation is a separate legal entity. Liability for actions taken by the corporation (acting through its agents) is liability of the corporation. The liability of stockholders for actions taken by the corporation is limited. While there may be cases in which the law will "pierce the corporate veil" to impose liability of a corporation directly on its owners on a personal basis, whether this is appropriate or necessary must be determined on a case-by-case basis, and it cannot be automatically achieved merely by naming the owners as Respondents. Sinclair v. Mike's Towne & Country (LIRC, 10/15/93).

If the constitution or a law creates both an agency and one or more subdivisions within that agency, each such subdivision is not considered a separate, exclusive employer under the Wisconsin Fair Employment Act. Schilling v. UW-Madison (Wis. Personnel Comm., 11/06/91).

The Respondent was an employer of the Complainant for purposes of the Wisconsin Fair Employment Act where: (1) the Complainant was at least nominally a county employee, but worked in a program that was a cooperative venture of the county, and (2) the Respondent and the Complainant’s supervisor, on behalf of the Respondent, exercised the authority to exert significant control over the incidents of the Complainant’s employment. The fact that the supervisor did not have final authority to discipline the Complainant was not critical. Betz v. UW-Extension (Wis. Personnel Comm., 02/08/91).

There is little authority construing the definition of "employer" in the Wisconsin Fair Employment Act. The definition of employer in Title VII is quite similar to the definition in the Wisconsin Fair Employment Act. Case law under Title VII has given the definition of "employer" a broad construction that focuses on control over conditions of employment. Entities which exercise significant control over an employment situation may be proper defendants in a Title VII action even though they are not the immediate employer. Betz v. UW-Extension (Wis. Personnel Comm., 02/08/91).

The Supreme Court was not an employer with respect to certain positions filled by the Wisconsin Equal Justice Task Force. The fact that the WEJTF was in effect created by the court was an insufficient basis for finding that the court held employer status in the absence of both a traditional employment relationship and any alleged input into or control over the hiring process by the court. Novak v. Supreme Court (Wis. Personnel Comm., 02/07/91).

The Wisconsin Fair Employment Act and Title VII address the type of entity that is considered an employer, but they do not address the functional nature of the employment role. Title VII case law establishes that status as an employer can be based on control over the opportunity for and conditions of employment, and does not require a traditional or common law employment relationship. Novak v. Wisconsin Supreme Court (Wis. Personnel Comm., 02/07/91).

The following factors may be considered in determining whether technically separate corporate entities may be consolidated in an employment discrimination matter: (1) the interrelationship of operations, (2) common management, (3) centralized control of labor relationships, and (4) common ownership or financial control. Novak v. Wisconsin Supreme Court (Wis. Personnel Comm., 02/07/91).

The court granted an Absolute Writ of Prohibition prohibiting the Equal Rights Division from taking any further proceedings against the Wisconsin Winnebago Business Committee, the duly authorized governing body of the Wisconsin Winnebago Indian Tribe, because that entity possessed sovereign immunity from suit. State ex rel. Wisconsin Winnebago Business Committee v. DILHR (Dane Co. Cir. Court, 04/16/90).

The Department of Justice was not acting as an employer, but merely acted as a conduit for federal funding which ultimately found its way to the organization which had employed the Complainant. Therefore, the complaint was dismissed. Murchison v. DOJ (Wis. Personnel Comm., 10/04/89).

Three business entities were a joint employer where their operations were interrelated, they had common management, and one person had the final decision on employment matters for each of the three corporations. Gustafson v. C.J.W., Inc. (LIRC, 03/21/89).

Where the Complainant worked as an employe of Kelly Services at Madison Area Technical College, MATC could be found to be an employer of the Complainant under the Wisconsin Fair Employment Act when, because of the Complainant's arrest record, MATC caused the person's work assignment at its work place to be terminated. Collins v. Madison Area Technical College (LIRC, 12/19/86).

A public employer can be found liable for discrimination if it caused a temporary employment agency to terminate the assignment of an employe of that agency who worked at the public employer's workplace. Collins v. Madison Area Technical College (LIRC, 12/19/86).

The Personnel Commission lacked jurisdiction to consider the Complainant’s allegation that the Commission discriminated against him by delaying the investigation of a charge of discrimination, since there was no employment relationship between the Complainant and the Personnel Commission. Poole v. DILHR (Wis. Personnel Comm., 12/06/85).

The Department of Military Affairs is not exempt from the Wisconsin Fair Employment Act when making decisions to terminate the employment of military members of the National Guard. Schaeffer v. DMA (Wis. Personnel Comm., 11/07/84).

In assigning a classification to a salary range, the administrator is acting as an employer as the term is used in the Wisconsin Fair Employment Act, as he is controlling an aspect of the employees’ compensation and is involved in the total employment process, even though the Complainants were employed in agencies other than the Division of Personnel. WFT v. Div. of Personnel (Wis. Personnel Comm., 04/02/82).

A nonprofit corporation exempt from federal and state income taxes and organized for the purpose of promoting social activities among the club's members is not an employer within the meaning of the Act. Victoreen v. Milwaukee Athletic Club (LIRC, 10/13/81).

The UW Press was not an employer of the Complainant with respect to a complaint of discrimination regarding its refusal to publish a manuscript.  Acharya v. UW (Wis. Personnel Comm., 10/01/79)

A complaint against the Director of the Bureau of Grain Regulation was dismissed because he is not an employer within the meaning of the Act. Wisconsin Dept. of Agriculture v. LIRC (Anderson) (Dane Co. Cir. Ct., 05/25/78).

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113.2 Coverage and application; Against whom a complaint may be filed; Labor organizations

A union representative was not a necessary party where the collective bargaining agreement excluded pregnancy disability from the employer's disability plan because the employer was solely responsible for paying disability benefits and there was no evidence that the union induced the employer's action. General Tel. Co. of Wisconsin v. LIRC and Carol Kraczek (No. 81-641, Ct. App.Dist. IV, unpublished per curiam decision, 12/09/81).

Although a no probable cause finding had been made regarding a Co-Respondent union, its motion to be dismissed from the action was denied on the basis that it was a representative of its members' interests regarding the retroactive seniority claim of the complaining party. Milwaukee County v. DILHR (Lade) (Dane Co. Cir. Ct., 09/07/78).

An employer's motion to compel joiner of a union was denied, even though the union was a party to a collective bargaining agreement providing for less disability coverage for pregnancy, because the union was not needed to aid in the interpretation of the agreement. Sorgel Electric v. LIRC (Dobson) (Milwaukee Co. Cir. Ct., 08/10/79); also, Hall v. Ripon Foods (LIRC, 08/09/78); Appleton Papers v. DILHR (Schmitz) (Dane Co. Cir. Ct., 06/26/75).

A black employe failed to show that he was denied proper union representation after his discharge where his union demonstrated that he and other black employes were given representation that was similar to that given white employes. Beamon v. Kiekhaefer Mercury (DILHR, 02/21/75).

The denial by a trade union local of full membership to a black tradesman from an out-of-state sister local was discriminatory, as was the local's subsequent grant to him of limited membership while his skills were investigated. Blue v. Schaffer (Milwaukee Co. Cir. Ct., 02/13/54).

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113.3 Coverage and application; Against whom a complaint may be filed; Licensing and employment agencies

A police department which suspended a Complainant's taxicab permit fits the definition of a licensing agency under sec. 111.32(11), Stats. (which specifically includes a department within a political subdivision such as a city). However the police department and the city of which it is a subdivision are the same legal entity for purposes of the employment discrimination laws, and only the city should be named as a Respondent. Rathbun v. City of Madison (LIRC, 12/19/96)

A third party organization (the Central Regional Dental Testing Service) that made determinations concerning what it believed to be the fitness of certain persons to engage in certain remunerative activities, but which did not make those determinations under the control of or as an agent for the licensing agency, was properly dismissed as a Respondent. The licensing agency used the determinations of the third party organization in making licensing decisions. But the third party organization did not actually control the legal right of individuals to engage in the remunerative activity in question (in this case licensure as a dentist). Thus, the proper Respondent was the licensing agency itself. Johnson v. Central Regional Dental Testing Serv. (LIRC, 02/29/96)

Refusing to license an individual is not the only prohibited act of employment discrimination related to licensing. The Wisconsin Fair Employment Act also prohibits discrimination by licensing agencies with respect to other actions, such as applying different standards and procedures, even if in a particular case they do not happen to result in the denial of licensure to a particular person. Johnson v. Central Regional Dental Testing Serv. (LIRC, 02/29/96)

In a licensing discrimination case, the Complainant must initially show that he applied for the license in question. Where the Complainant never applied for a license (to practice dentistry, in this case), he cannot proceed on a complaint alleging that he would have been denied a license had he applied. Jones v. Central Regional Dental Testing Serv. (LIRC, 02/29/96)

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113.4 Coverage and application; Against whom a complaint may be filed; Other persons

The Department of Corrections was subject to the Wisconsin Fair Employment Act as a “person” within the meaning of the Act with respect to its work-release program for inmates. The concept of “person” is a very broad one. Monroe v. Birds Eye Foods (LIRC, 03/31/10).

A “person” other than an employer, labor organization or licensing agency can violate the Wisconsin Fair Employment Act if it engages in discriminatory conduct which has a sufficient nexus with the denial or restriction of an individual’s employment opportunity.  In this case, the Respondent did not directly employ the Complainant.  The Complainant worked as a commercial truck driver for another company which leased its trucks and drivers exclusively to the Respondent.  The Respondent had the authority to approve or reject drivers.  It also oversaw driver safety, including drivers’ federally required Department of Transportation certifications.  The Respondent’s actions had a sufficient nexus with the denial or restriction of the Complainant’s employment opportunities.  Even if it was not an employer, it was, at the very least, an “other person” under the Wisconsin Fair Employment Act.  Szleszinski v. LIRC, Midwest Coast & Transhield, 2005 WI App 229, 287 Wis. 2d 775, 706 N.W.2d 345;  aff'd, Szleszinski v. LIRC, Midwest Coast & Transhield, 2007 WI 106, 304 Wis. 2d 258, 736 N.W.2d 111.

While secs. 111.321 and 111.325 of the Wisconsin Fair Employment Act provide that no "person" may engage in an act of employment discrimination, the Act also expressly provides for employer liability for any financial remedies ordered as a result of a violation of the law "by an individual employed by the employer." Sec. 111.39(4)(c), Stats. Thus, individual supervisors acting as agents of the employer should not be named as separate respondents in discrimination complaints. Yaekel v. DRS Limited (LIRC, 11/22/96)

Notwithstanding the general suggestion in some decisions by the Labor and Industry Review Commission that the "person" language in sec. 111.325, Stats., might reach non-employer entities that affect employment opportunities, this possibility does not exist in the case of non-governmental organizations which make determinations affecting decisions of governmental licensing organizations. Johnson v. Central Regional Dental Testing Serv. (LIRC, 02/29/96)

The Wisconsin Fair Employment Act is not limited to discrimination by "employers" against their own "employes." While sec. 111.325, Stats., provides that it is unlawful for "any employer . . . or person to discriminate against any employe or any applicant for employment," the disjunctive use of the term "person" clearly implies that the "person" doing the discriminating can be someone or something other than an "employer" and therefore can be something or someone other than the employer of the person being discriminated against. In this case, the City of Milwaukee is a person within the meaning of sec. 990.01(26), Stats. The Complainant is clearly an "individual," and he is also an "employe," in that he was an employe of an agency which contracted to provide security guard services for the City. Therefore, the Wisconsin Fair Employment Act is applicable to the Complainant's claim of discrimination against the City. Jackson v. City of Milwaukee (LIRC, 10/28/93).

A "person" other than an employer, labor organization or licensing agency can violate the Wisconsin Fair Employment Act if it engages in discriminatory conduct which has a sufficient nexus with the denial or restriction of an individual's employment opportunities. Olivares v. UW-Oshkosh and UW-Madison (DILHR, 10/23/73).

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113.5 Coverage and application; Against whom a complaint may be filed; Respondent's responsibility for acts of agent

In determining whether an employee's co-workers are supervisors for purposes of imputing liability for alleged discriminatory acts, the courts will look to the test for supervisory status set forth in City Firefighters Union Local No. 311 v. City of Madison, 48 Wis. 2d 262, 270-71, 179 N.W.2d 800 (1970), which considers authority to effectively recommend hiring, promotion, transfer, discipline or discharge;  authority to direct and assign the work force; number of employees supervised and the number of other persons exercising greater, similar or lesser authority over the same employees; level of pay, including an evaluation of whether the supervisor is paid for his skill or for his supervision of employees; whether the supervisor is primarily supervising an activity or is primarily supervising employees; whether the supervisor is a working supervisor or whether he spends a substantial majority of his time supervising employees; and the amount of independent judgment and discretion exercised in the supervision of employees. The factors are not to be considered in the disjunctive such that any one factor is determinative. Rather, the totality of the criteria must be considered. Sanderson v. Handi Gadgets Corp. (LIRC, 3/21/2005)

An employer cannot be found responsible for discriminatory conduct unless it is carried out by the employer or, if carried out by the Complainant’s co-employees, the employer knows or should reasonably know of it and fails to take reasonable action to prevent or address it. Wagner v. Superior Serv. (LIRC, 12/16/03).

Where a supervisor has acted under color of his or her authority as an agent of an employer, the employer is properly held liable for their conduct. The essential question is not whether the act in question was authorized by the employer, but whether it took place in the scope of the agent’s employment. Thus, for example, where an agent of an employer discharges an employee for an unlawful reason, it is not relevant that the owner of the business is unaware of the factors leading to the discharge; the manager is an agent of the employer and the employer is, therefore, liable for the manager’s conduct. However, if the individual who engaged in the discrimination was a coworker, rather than a supervisor, of the Complainant, the employer would not be responsible unless it knew or should reasonably have known of the discriminatory conduct and failed to take reasonable action to prevent it. Ferguson v. Buechel Stone Corp. (LIRC, 04/24/01).

In determining whether an employee’s coworkers are supervisors for purposes of imputing liability for alleged discriminatory acts, LIRC looks to the test for supervisory status as set forth in City Firefighters Union v. Madison, 48 Wis. 2d 262, 179 N.W.2d 800 (1970). The criteria for deciding whether supervisory capacity exists include: (1) the authority to effectively recommend the hiring, promotion, transfer, discipline or discharge of employees; (2) the authority to direct and assign the workforce; (3) the number of employees supervised and the number of other persons exercising greater, similar or lesser authority over the same employees; (4) the level of pay, including an evaluation of whether the supervisor is paid for his skill or for his supervision of employees; (5) whether the supervisor is primarily supervising an activity or is primarily supervising employees; (6) whether the supervisor is a working supervisor or whether he spends a substantial majority of his time supervising employees, and (7) the amount of independent judgment and discretion exercised in the supervision of employees. Ferguson v. Buechel Stone Corp. (LIRC, 04/24/01).

While it might be satisfying to hold the individual who committed the sexual harassment of the Complainant financially responsible for his actions, the law does not sanction such a result. In this case, that individual was the manager of the business; he acted as an agent, and was not an employer in his own right. Therefore, there was no legal basis for making him financially liable. The employer is liable for any financial remedies ordered as a result of a violation of the law by an individual employed by that employer. (sec. 111.39(4)(c), Stats.). Powell v. Salter (LIRC, 07/11/97).

Where an individual person has acted under color of his or her authority as an agent of an employer, the employer rather than the individual person is properly held liable as the Respondent. Hoey v. County of Fond du Lac (LIRC, 07/09/97).

Where an individual person has acted under color of his authority as an agent of an employer, the employer (rather than the individual person) is properly held liable as the Respondent. The same reasoning applies to cases involving licensing agencies. In this case, where there was no evidence which would show that two individuals named as Respondents had acted outside of their authority as agents of the City of Madison's Police Department, they could not be held liable to the Complainant even if unlawful discrimination were found. Liability would rest with the City. Rathbun v. City of Madison (LIRC, 12/19/96)

Individual supervisors should not be named separately as Respondents where the alleged violation arose out of actions taken by them as agents of the employer. The essential question in applying agency principles to cases where, for example, the Complainant has alleged sexual harassment by her supervisor, is not whether the act in question was authorized by the employer, but whether it took place in the scope of the agent's employment. In this case, given that the alleged sexual harassment occurred at the work place, during work hours, and was perpetrated by a supervisor against a subordinate employe, there was no basis for finding that it was outside of the scope of the supervisor's employment. Yaekel v. DRS Limited (LIRC, 11/22/96)

While secs. 111.321 and 111.325 of the Wisconsin Fair Employment Act provide that no "person" may engage in an act of employment discrimination, the Act also expressly provides for employer liability for any financial remedies ordered as a result of a violation of the law "by an individual employed by the employer." Sec. 111.39(4)(c), Stats. Thus, individual supervisors acting as agents of the employer should not be named as separate respondents in discrimination complaints. Yaekel v. DRS Limited (LIRC, 11/22/96)

The Complainant prevailed on her complaint that she had been sexually harassed by the Respondent (a company) and that the Respondent had terminated her employment because of her sex and because she had opposed a discriminatory practice under the Act. However, the Complainant's supervisor and the owner of the Respondent were appropriately dismissed as Respondents. The Complainant argued that her supervisor should be held liable because he was acting as an agent of the company. However, sec. 111.39(4)(c), Stats., expressly provides that, "If the examiner awards any payment to an employe because of a violation of s.111.321 by an individual (i.e., agent) employed by the employer, under s.111.32(6), the employer of that individual is liable for the payment." The Complainant argued that the owner of the company should be held liable; however, in this case there was no evidence which supported piercing the corporate veil and imposing personal liability on the owner of the Respondent. Burton v. Marketing Technologies (LIRC, 05/10/96)

The Labor and Industry Review Commission's decision in Sinclair v. Mike's Towne and Country (LIRC, 10/15/93), should be understood as having been concerned with the narrow question of whether individual persons who were employed by an employer should be separately named as Respondents in a discrimination complaint against that employer. Because the statute provides expressly for liability on the part of the principal (the employer) in such cases, having an individual employe-agent named as a party unnecessary complicates the proceeding (not to mention the case caption). Johnson v. Central Regional Dental Testing Serv. (LIRC, 02/29/96)

A supervisor who was found to have sexually harassed a Complainant is not liable for payment of the Complainant's attorney's fees and costs. Section 111.39(4)(c), Stats., provides that "If the examiner awards any payment to an employe 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" (emphasis added). Olson v. Servpro of Beloit (LIRC, 08/04/95) .

Where an agent of the employer discharged the Complainant for an unlawful reason, it was not relevant that the owner of the business establishment was unaware of the factors leading to the discharge. The manager was an agent of the employer and the employer is, therefore, liable for the manager's conduct. Koll v. Hair Design (LIRC, 04/27/95) .

It is not clear whether individuals who acted as agents of an employer can or should be made additional Respondents in a proceeding against the employer under the Wisconsin Fair Employment Act. Where the alleged violation by the agent was within the scope of their agency, they should not be separately named as a Respondent since sec. 111.39(4)(c), Stats., provides for employer liability for remedies ordered as the result of a violation of the Act by an employe (i.e., an agent) of the employer. It is not clear whether the Wisconsin Fair Employment Act would allow imposition of liability directly on an employer's agent rather than on the employer where the employer's agent had acted outside the scope of their agency. Sinclair v. Mike's Towne & Country (LIRC, 10/15/93).

Where a person has acted under color of their authority as an agent of an employer, it is the employer rather than the individual that is properly viewed as the Respondent. Nelson v. Waybridge Manor (LIRC, 04/06/90).

 In determining whether an employe's co-workers were supervisors, the court looks to the more restrictive definition of that term as set forth in City Firefighter's Union v. Madison, 48 Wis. 2d 262, 179 N.W.2d 800 (1970). The social workers who allegedly discriminated against the Complainant were not her supervisors.  Because the  social workers did not supervise the Complainant, the Respondent, which neither knew of nor should have known of any discrimination by them, was not liable for racial discrimination against the Complainant.  Crear v. LIRC, 114 Wis. 2d 537, 339 N.W.2d 350 (Ct. App. 1983).

A county is responsible for the discriminatory conduct of a county judge by virtue of the theory of respondeat superior, and the judge waived his right to judicial immunity by failing to raise it earlier in the litigation. Drecktrah v. LIRC (Donaldson) (Jackson Co. Cir. Ct., 04/06/82).

A complaint charging an employer with retaliation was dismissed because the author of the alleged retaliatory job reference was not acting as an agent of the employer. Pedersen v. Cepek Constr. (LIRC, 01/17/80).

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113.9 Coverage and application; Against whom a complaint may be filed; Miscellaneous

The rationale that the Supreme Court relied upon in City of Madison v. DWD, 262 Wis. 2d 652, 664 N.W.2d 584 (2003), to find that the Madison Police and Fire Commission has exclusive jurisdiction to hear complaints of discriminatory discharge or discipline under sec. 62.13(5), Stats., applies equally to the treatment of WFEA claims arising out of actions by the Milwaukee Police and Fire Commission under sec. 62.50(11), Stats. The Department of Workforce Development does not have jurisdiction over a WFEA complaint regarding discriminatory discipline or discharge by members of the Milwaukee Police and Fire Departments. Koch v. City of Milwaukee (LIRC, 06/09/11).

The mere fact that two companies share a relationship with a parent company does not make them a joint employer for employment discrimination complaint purposes.  In this case, each company under the umbrella of the parent company had its own officers and board, and operated on a stand-alone basis.  The Complainant failed to present sufficient evidence to show that the two companies essentially made joint employment decisions such that they should be subject to joint employment discrimination liability.  Jackson v. LIRC (Ct. App., Dist. IV, 06/13/08, summary decision).

The Respondent’s claim that its common council decisions are immune from scrutiny is refuted by the Wisconsin Fair Employment Act, which defines the entities included and excluded from its coverage as follows:

(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, a 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. (Emphasis added).

It is doubtful that the legislature would specifically include itself as a body covered by the Act’s anti-discrimination provisions yet exclude municipal common councils from the Act’s coverage. Gunty v. City of Waukesha (LIRC, 03/29/07).

The Department of Workforce Development does not have jurisdiction over a WFEA claim arising out of an action by a police and fire commission under sec. 62.13(5), Stats. However, while it is appropriate to dismiss the Complainant's WFEA-based discrimination claims, the order of dismissal does not apply to a Complainant's discrimination claims under federal law. Engel v. Town of Brookfield (LIRC, 05/25/04).

The Department of Workforce Development may not take jurisdiction over a WFEA complaint arising out of a decision of a police and fire commission. City of Madison v. DWD, 2003 WI 76, 262 Wis. 2d 652, 664 N.W.2d 584.

The Complainant's claim of discrimination involving alleged discriminatory action by the Ho-Chunk Casino that took place entirely on tribal lands was properly dismissed for lack of jurisdiction. State courts (and, consequently, state administrative forums) have no jurisdiction over Indian entities. The Supreme Court of the United States has determined that state court jurisdiction over tribal activities that took place within Indian country would undermine the Congressional aim of encouraging self-government and self-determination by the dependent tribes and "infringe on the rights of the Indians to govern themselves." (Citing Williams v. Lee, 358 US 217, 223 (1959).) Kocian v. Ho-Chunk Casino (LIRC, 03/26/04).

A complaint filed against a hotel and convention center which is owned by the Ho-Chunk Nation was properly dismissed for the following reasons: (1) Indian Tribes are immune from suit under the Wisconsin Fair Employment Act because of their sovereign status; (2) business entities owned and operated by Indian Tribes enjoy the same immunity the Indian Tribe itself does; (3) where a claim arises entirely on tribal land, this gives the Indian Tribe another defense (lack of subject matter jurisdiction); (4) the Complainant had a claim pending in the tribal courts and the U.S. courts have long held that for the sake of comity matters should not be prosecuted in U.S. courts while jurisdiction lies in tribal courts and should not be relitigated if resolved in those courts. Cichowski v. Ho-Chunk Hotel and Convention Center (LIRC, 08/17/01).

The determination of eligibility for unemployment benefits and the calculation of the amount of those benefits does not affect employment or employment opportunities in the manner contemplated in sec. 111.322, Stats. Therefore, a complaint alleging that the Unemployment Insurance Division had discriminated against the Complainant on the basis of age was properly dismissed for lack of jurisdiction. Moreover, even if the determination of benefit eligibility could be said to fall within the purview of the Wisconsin Fair Employment Act, complaints of discrimination against state agencies are to be filed with the Personnel Commission, and are not within the jurisdiction of the Equal Rights Division. Sholtes v. Unemployment Ins. (LIRC, 01/19/01).

The Equal Rights Division did not have jurisdiction over a case which involved an action by a person acting as an agent of a state agency with respect to employment with a State agency. Such issues are under the jurisdiction of the Personnel Commission. Greffin v. Wisconsin Power and Light (LIRC, 12/18/96)

The State of Wisconsin should not be separately designated as a Respondent in the caption of Equal Rights Division proceedings in which an agency of the State of Wisconsin is already a Respondent. Johnson v. Central Regional Dental Testing Serv. (LIRC, 02/29/96)

The concept of mandatory joinder is not recognized in proceedings before the Equal Rights Division. Johnson v. Central Regional Dental Testing Serv. (LIRC, 02/29/96)

Where liability rests with the predecessor or the successor in the case of a transfer of ownership of the Respondent depends on a number of factors, including (1) whether the successor had prior notice of the claim against the predecessor; (2) whether the predecessor is able, or was able prior to the purchase, to provide the relief requested; and (3) whether there has been a sufficient continuity in the business operations of the predecessor and the successor. The tests presented by successorship cases are fact specific and must be evaluated in light of the facts of each case and the particular legal obligations at issue. Sinclair v. Mike's Towne & Country (LIRC, 10/15/93).

The complaint was properly dismissed where it named "the Sampson Jewish Community Center," a building at which the Complainant worked, as the Respondent. The named Respondent is neither an employer nor an individual covered under the Wisconsin Fair Employment Act. Reed v. Sampson Jewish Community Center (LIRC, 05/21/93).

The Wisconsin Fair Employment Act does not provide any right to file a discrimination complaint against staff members of the Equal Rights Division. Thompson v. Milwaukee Bd. of School Directors (LIRC, 03/26/93).

The state may exercise jurisdiction over an Indian tribe under the Wisconsin Fair Employment Act only if the tribe or the state legislature expressly waived tribal sovereign immunity from such suits. Public Law 280 does not abolish tribal immunity from state jurisdiction. Although tribal officials do not have the same immunity as the tribe itself, tribal immunity does extend to tribal officials when acting in their official capacity and within the scope of their authority. In addition, where the relief sought would operate directly against the tribe, unless the suit would in substance be against the tribe rather than against the tribal official, tribal immunity applies. Ninham v. Oneida Tribe of Indians of Wis. (LIRC, 06/25/91).

The Wisconsin Winnebago Business Committee, the duly authorized governing body of the Wisconsin Winnebago Indian Tribe, possesses sovereign immunity from suit. State ex rel. Wisconsin Winnebago Business Committee v. DILHR (Dane Co. Cir. Court, 04/16/90).

The Personnel Commission lacked subject matter jurisdiction over a complaint against the Personnel Commission and the Equal Rights Division of the Department of Industry, Labor and Human Relations which alleged that those agencies discriminated against Complainant by failing to expeditiously process complaints against third parties concerning discrimination. Ozanne v. Personnel Commission (Wis. Personnel Comm., 12/18/87).

A Police and Fire Commission is a statutorily-created body which is totally independent from the police department. The Police and Fire Commission has been granted the express statutory authority to remove police officers. The Equal Rights Division inappropriately concluded that a police officer’s discharge was retaliation for having filed a previous discrimination complaint because the chief of police and a management labor relations consultant acted with a retaliatory motive. Neither the chief of police nor the management labor relations consultant has the authority to discharge a police officer. It is the exclusive role of the Police and Fire Commission to determine whether a police officer should be discharged. City of River Falls Police Dept. v. LIRC (Pierce Co. Cir. Ct., 01/30/86).

The Personnel Commission has no jurisdiction to consider a Complainant's allegation that the Personnel Commission itself had discriminated against the Complainant in violation of the law by delaying the investigation of a charge of discrimination. Poole v. DILHR (Wis. Personnel Comm., 12/06/85).

A joint management-labor apprenticeship and training committee was neither an employer, a labor organization, a licensing agency, nor a person within the meaning of the Wisconsin Fair Employment Act. Flowers v. South Central Wis. Joint Apprenticeship and Training Committee (LIRC, 06/21/85).

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114 Coverage and application; Geographical coverage of WFEA

There is "geographical jurisdiction" where the Respondent (a business engaged in conducting inventories for other retail businesses) is organized into districts which cover a number of states and where the Complainant performed services in a district that conducted inventories in several states. The extent of the Complainant’s employment occurring within the state of Wisconsin was clearly not de minimis. Therefore, the Complainant was engaged in employment occurring in part within the state of Wisconsin, and the Respondent’s decision to discharge her affected that employment because it put an end to it. It is therefore appropriate for the State of Wisconsin to assert its jurisdiction to determine whether that discharge decision was contrary to the Wisconsin Fair Employment Act. Peterson v. RGIS Inventory Specialists (LIRC, 10/19/01).

While the controlling factor in determining whether the WFEA applies is where the discrimination occurred, the question of where discrimination "occurs" is significant. If discrimination were considered to "occur" where a challenged decision was made, or where an affected employee was informed of that decision, or where the employee had their residence, the results could be anomalous in many situations. The commission construes the Buyatt-Gray-Birk line of cases to view discrimination as "occurring" where the employment which is affected by the discrimination takes place. This result which is also consistent with the statutory indication that "[i]t is the intent of the legislature [in enacting the Wisconsin Fair Employment Act] to encourage the full, nondiscriminatory utilization of the productive resources of the state."   Hatfield v. Aurora Bldg. Maintenance (LIRC, 11/17/95).

The Equal Rights Division does not have jurisdiction over a complaint alleging discrimination in employment which occurs on the grounds of Fort McCoy, because Fort McCoy is a "federal reservation" within which the federal government has exclusive jurisdiction. A federal military reservation is, in legal contemplation, not actually a part of the state in which it is located, and thus such a complaint involves employment which does not occur in the State of Wisconsin. Hatfield v. Aurora Bldg. Maintenance (LIRC, 11/17/95).

Discrimination must be deemed to occur in the place where the employment which is affected by it occurs. The location of the employment is the most important factor. Jurisdiction will be found where the activities of the employee which constituted his employment appear to have taken place to some significant degree within the state of Wisconsin. Hatfield v. Aurora Bldg. Maintenance (LIRC, 11/17/95).

The controlling factor in determining whether the Wisconsin Fair Employment Act applies to a particular employment action is where the action took place. Here, the Complainant was an employe in Wisconsin who was told at the time he accepted a transfer to Georgia that his wife would have to join him in Georgia by a certain date. The Complainant was discharged after working four days in Georgia because his wife failed to join him. The Complainant's W-2 forms for that year showed that his entire salary was taxable in Wisconsin. It is reasonable to conclude that the employment action occurred both in Wisconsin and Georgia. Therefore, the Wisconsin Fair Employment Act does apply. Birk v. Georgia-Pacific (LIRC, 08/03/90), aff'd. sub nom. Birk v. LIRC, (Milw. Co. Cir. Ct. 01/04/91).

The Equal Rights Division has jurisdiction over a complaint where the Complainant (1) was a truck driver who was a resident of Wisconsin, who worked for a division of the Respondent which was located in Wisconsin, (2) had his "home base" at the employer’s Chicago terminal, and (3) was terminated by a representative of the employer who was in Chicago when he notified the Complainant (who was in Wisconsin) of the discharge over the telephone. The Complainant apparently drove in a number of states, including Wisconsin. The controlling factor in determining whether there is jurisdiction under the Wisconsin Fair Employment Act is where the discrimination took place. Buyatt v. C.W. Transport (LIRC, 07/25/77).

The controlling factor in determining whether the Act applies is the place where the discrimination took place. Gray v. Walker Mfg. (LIRC, 07/21/82).

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115 Coverage and application; Express exceptions from coverage

An employer's health insurance program is not exempt from the Act's prohibition against pregnancy discrimination merely because its insurer is a fraternal society. Wisconsin Elec. Power v. LIRC (Dane Co. Cir. Ct., 10/01/79).

Whether support can be found for the conclusion that a practice is covered under the Act is not pertinent. What is pertinent is whether support exists to except something from coverage. It is not the function of the Department to carve out additional exceptions to coverage of the Act. Milwaukee Web Pressmen v. Journal Co. (DILHR, 06/12/75).

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