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The Wisconsin Equal Rights (ER) Decision Digest -- Sections 116-118      

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116 Coverage and application; Exclusivity of WFEA remedy 

Common law torts recognized before the adoption of the Wisconsin Fair Employment Act, if properly pled independently of an employment discrimination claim, are not barred by the Act and such actions may be brought in Circuit Court. However, a claim of sexual harassment was properly dismissed by the Circuit Court because claims for sexual harassment did not exist at common law. Becker v. Automatic Garage Door Co., 156 Wis. 2d 409, 456 N.W.2d 888 (Ct. App. 1990).

Filing an administrative complaint with DILHR is the exclusive remedy to enforce the anti-discrimination provisions of the Act, and neither state nor federal courts have jurisdiction to consider the merits of such complaints unless by appeal from a final DILHR or LIRC order. Bachand v. Connecticut Gen. Life Ins., 101 Wis. 2d 617, 305 N.W.2d 149 (Ct. App. 1981).

A Complainant could not seek tort damages in court for mental anguish arising out of her Wisconsin Fair Employment Act claim for employment discrimination based on sex. Yanta v. Montgomery Ward Co., 66 Wis. 2d 53, 224 N.W.2d 389 (1974).

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117 Coverage and application of the WFEA; Effect of other laws

117.1 Coverage and application; Effect of other laws; Title VII

Because Title VII does not contain any language similar to sec. 111.36(1)(b), Stats., federal cases addressing the question of hostile work environment sexual harassment are not helpful to an analysis of whether the Respondent has violated the Wisconsin Fair Employment Act. Anderson v. MRM Elgin (LIRC, 01/28/04).

It is particularly appropriate to look to federal case law for guidance in applying the religious accommodation provision in the Wisconsin Fair Employment Act. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

Considering that the Wisconsin Fair Employment Act and Title VII serve identical purposes, it is appropriate to consider federal decisions discussing the constructive discharge doctrine, although such decisions are not binding and must be disregarded if they conflict with our legislature's intent in enacting the Wisconsin Fair Employment Act. Marten Transport v. DILHR, 176 Wis. 2d 1012, 501 N.W.2d 391 (1993).

As a general principle, Wisconsin courts look to federal decisions interpreting Title VII for guidance in applying the state employment law. However, the state court must construe Wisconsin statutes as it is believed the Wisconsin legislature intended, regardless of how Congress may have intended that comparable statutes be interpreted. Moore v. LIRC, 175 Wis. 2d 561, 499 N.W.2d 289 (Ct. App. 1993).

Wisconsin courts have at times looked to federal employment law for guidance in considering discrimination claims under the Wisconsin Fair Employment Act. However, the courts are not bound to do so. The court will refuse to interpret provisions of the Wisconsin Fair Employment Act in accordance with analogous federal laws where the statutory language differs from that of the federal legislation. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

State and federal legislation differ, sometimes significantly, in their provisions concerning discrimination because of handicap and reasonable accommodation of handicap. The Wisconsin legislature has established its own scheme for dealing with employment discrimination based on handicap and has articulated the specific policy considerations underlying that scheme. Therefore, the courts will construe the WFEA's provisions in accordance with our legislature's intention rather than with the intention of other jurisdictions.  McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d 830 (Ct. App. 1988).

Remedies under Title VII and the Wisconsin Fair Employment Act are to be pursued separately and, in applying the WFEA, the provisions of Title VII should not be automatically incorporated. There is no ipso facto incorporation of Title VII in the Fair Employment Act of the State of Wisconsin. AMC v. DILHR (Bartell), 101 Wis. 2d 337, 305 N.W.2d 62 (1981).

While Wisconsin courts considering claims of sex discrimination under the WFEA are not bound by decisions of the federal courts under Title VII,  the courts have looked to such federal decisions before for guidelines in applying the state fair employment law.  Hamilton v. DILHR, 94 Wis. 2d 611, 288 N.W.2d 857 (1980).  

The U. S. Supreme Court's decision  in General Electric v. Gilbert, 429 U.S. 125 (1976), concerning pregnancy discrimination under Title VII, reached a different conclusion from the decision of Wisconsin Supreme Court in Ray-O-Vac v. ILHR Department, 70 Wis.2d 919, 236 N.W.2d 209  (1975), involving pregnancy discrimination under the WFEA.  The approaches of the courts in those decisions on the pregnancy discrimination questioned presented are so fundamentally different that the Court of Appeals of Wisconsin should not adopt the holding of Gilbert.  Wisconsin courts must construe Wisconsin statutes as it believes the Wisconsin Legislature intended, regardless of how comparable federal statutes are interpreted. Goodyear Tire and Rubber v. DILHR, 87 Wis. 2d 56, 273 N.W.2d 786 (Ct. App. 1978).

Wisconsin courts have looked to federal decisions for guidelines in applying the WFEA.  Bucyrus-Erie v. DILHR, 90 Wis. 2d 408, 280 N.W.2d 142 (1979).

 

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117.2 Coverage and application; Effect of other laws; Equal Pay Act (EPA)

The payment of pregnancy-related disability benefits to women does not violate the federal Equal Pay Act. Kimberly-Clark v. LIRC, 95 Wis. 2d 395, 291 N.W.2d 584 (Ct. App. 1980).

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117.3 Coverage and application; Effect of other laws; Age Discrimination in Employment Act (ADEA)

Filing of a federal lawsuit under the ADEA requires that state proceedings for judicial review of a LIRC decision be stayed. The provision of the ADEA mandating that commencement of an action thereunder "shall supersede any State action" must be construed to reach judicial review proceedings as well as original proceedings before the agency. Maynard v. LIRC, Cummins Great Lakes, Inc., et al. (Brown Co. Cir. Ct., July 13, 2004).

LIRC declined to review a non-final order by an Administrative Law Judge which denied the Respondent's motion to strike the Initial Determination of probable cause. The Respondent had argued that the Initial Determination was improperly issued because the Complainant had commenced a court action against the Respondent under the ADEA prior to the issue of the Initial Determination, and the ADEA provides that once an action is commenced under the Act, it supersedes any state proceeding on the same matter. Mattson v. Green Bay Broadcasting (LIRC, 08/28/90).

After the hearing, but before a decision was issued, an action was commenced in Federal Court by the employe under the Age Discrimination in Employment Act. The Age Discrimination in Employment Act required the Commission to stay its proceedings with respect to the employe's age discrimination claim even though it had already held a hearing on that claim, although the Commission could proceed to issue a decision on the aspects of the employe's complaint which alleged handicap discrimination and retaliation. Harris v. Department of Health and Social Services (Wis. Personnel Comm., 08/18/87).

An age discrimination complaint commenced in federal court supersedes the identical complaint filed at the state agency level, and the state proceedings should be stayed pending the disposition of the federal action. Rynski v. Price-Waterhouse (LIRC, 12/02/78); also Schwartz v. University of Wis. (Wis. Personnel Comm., 10/02/79).

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117.4 Coverage and application; Effect of other laws; ERISA, Labor relations laws (NLRA, LMRA)

The Complainant alleged that the Respondent discriminated her when it assigned (or "mapped") her position to an office assistant classification rather than the account analyst classification. The Respondent contended that the Complainant's claim under the Wisconsin Fair Employment Act was preempted by operation of sec. 301 of the federal Labor Management Relations Act (LMRA). Although the process for mapping positions was a creation of the collective bargaining process, the individual mapping decisions depended not on an interpretation of a union contract term, but instead on an expert analysis of the classification strength of the duties and responsibilities of each position. Therefore, the Complainant's claim was not preempted. Estes v. Wisconsin Gas (LIRC, 05/25/04).

The Equal Rights Division appropriately dismissed a complaint in which the Complainant alleged that he had been retaliated against by the Respondent for having filed previous complaints when the Respondent denied him disability retirement benefits. The Complainant’s claim was pre-empted by ERISA. ERISA pre-empts a state law claim if the claim requires a court to interpret or apply the terms of an employee benefit plan. Because the Complainant’s claim in this case was that, according to the terms of the ERISA plan, he was entitled to the company’s disability benefits, his claim was pre-empted by ERISA. Reich v. Ladish Co. (LIRC, 06/30/99).

Sec. 301 of the Federal Labor Management Relations Act preempts questions relating to interpretations of labor agreements as well as legal consequences that were intended to flow from breaches stemming from such agreements. However, an employe has a substantive right to file a complaint under the Wisconsin Fair Employment Act, notwithstanding a collective bargaining agreement. In this case, the Complainant's equal rights claim did not require an interpretation of the collective bargaining agreement. Although the contract was applicable to the equal rights controversy, the Administrative Law Judge did not have to interpret the contract, but rather had to determine the parties' application of the contract. Therefore, the Complainant's equal rights claim was not federally preempted. Seeman v. Universal Foods (LIRC, 03/30/92).

Section 111.33(2)(b), Stats., insofar as it prohibits age discrimination against persons over 70, is pre-empted by the Employee Retirement Income Security Act of 1974 (ERISA) to the extent that it applies to employe benefit plans covered by ERISA. Dresser Industries v. DILHR, 619 F. Supp. 1310 (W.D. Wis. 1985).

The prohibition against sex discrimination contained in the Wisconsin Fair Employment Act is not preempted by the Employee Retirement Income Security Act (ERISA) or the National Labor Relations Act. Goodyear Tire and Rubber v. DILHR, 87 Wis. 2d 56, 273 N.W.2d 786 (1978); also, Bucyrus-Erie v. DILHR, 599 F.2d 205 (7th Cir. 1979), cert. denied, 444 U.S. 1031 (1980); Brown v. DILHR, 476 F. Supp. 209 (W.D. Wis. 1979); 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); Sorgel Electric v. LIRC (Dobson) (Milwaukee Co. Cir. Ct., 08/10/79).

The Industrial Commission was not preempted by the Labor Management Relations Act from hearing a complaint that a pension agreement violated the age discrimination prohibition of the Act. Walker Mfg. v. Industrial Commission, 27 Wis. 2d 669, 135 N.W.2d 307 (1964).

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117.5 Coverage and application; Effect of other laws; Secs. 118.195-118.20, Stats. (Teachers)

The state superintendent of schools does not have exclusive jurisdiction over civil rights issues in schools, including teacher complaints of employment discrimination. Waukesha Joint Schools v. DILHR (Kurtz) Waukesha Co. Cir. Ct., 06/25/78), aff'd., sub nom. Kurtz v. City of Waukesha, 91 Wis. 2d 103, 280 N.W.2d 757 (1979).

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117.6 Coverage and application; Effect of other laws; Worker's Compensation Act (Ch. 102, Stats.)

The fact that redress might be available to the Complainant under either the Workers’ Compensation Act or the Wisconsin Open Personnel Records Law would not prohibit the Complainant from stating a claim under the Wisconsin Fair Employment Act, provided the conduct alleged was otherwise covered under the Act. Ferguson v. Buechel Stone Corp. (LIRC, 10/31/01).

The exclusive remedy provision in the Wisconsin Worker’s Compensation Act does not bar a claimant whose claim is covered under that Act from pursuing a claim under the Wisconsin Fair Employment Act for discrimination in employment. Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997).

Where an employe enters into a compromise settlement under sec. 102.16(1), Stats., of the Worker's Compensation Act, the employe is barred by the exclusivity provisions of the Worker's Compensation Act from seeking additional relief under the Wisconsin Fair Employment Act for handicap discrimination. Marson v. LIRC, 178 Wis. 2d 118, 503 N.W.2d 582 (Ct. App. 1993). [Ed. note: In Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997), the Supreme Court overruled this case "to the extent that it stands for the proposition that ‘(t)he right of the employee to recover compensation provided for by worker’s compensation is exclusive of all remedies against the employer.’" (emphasis included)].

The Complainant alleged that the Respondent refused to rehire him because of mental retardation and because of a back injury suffered at work. The Worker's Compensation Act provides the exclusive remedy for the Respondent's refusal to rehire the Complainant because of his back injury, but the claim that the Respondent refused to rehire the Complainant because of his mental retardation should not have been dismissed. The mental retardation handicap claim was not related to his work-related back injury. Norris v. DILHR, 155 Wis. 2d 337, 455 N.W.2d 665 (Ct. App. 1990). [Ed. note: The Supreme Court disavowed the reasoning of Norris in Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997)].

Because sec. 102.35(3), Stats. provides a remedy under the Worker's Compensation Act for a refusal to rehire after a work related injury, and because sec. 102.03(2), Stats. provides that remedies under the Worker's Compensation Act are the exclusive remedy for the employe, the Equal Rights Division has no jurisdiction in cases arising out of a refusal to rehire after a work related injury. Schachtner v. DILHR, 144 Wis. 2d 1, 422 N.W.2d 906 (Ct. App. 1988). [Ed. note: This decision was overruled by Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997)].

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117.7 Coverage and application; Effect of other laws; Federal Family and Medical Leave Act

One difficulty with an interpretation with the WFEA which holds that an employer who discharges an employee because of absences caused by a disability may satisfy their duty to "reasonably accommodate" the employee by merely allowing the employee to seek to have his absences qualified as covered under the federal FMLA, is that it ties the substantive meaning of Wisconsin’s "reasonable accommodation" requirement to a federal law that may be changed or eliminated at any time, without any role having been played by the Wisconsin Legislature.  A related difficulty is that such an interpretation makes the scope of Wisconsin's "reasonable accommodation" requirement dependent on distinctions and classifications inherent in the federal law which may have no sensible relationship to the intended scope and purpose of Wisconsin's law.  It is preferable to interpret the "reasonable accommodation" provision of the Wisconsin Fair Employment Act by reference to Wisconsin statutes and court decisions, rather than the law of other jurisdictions. Geen v. Stoughton Trailers (LIRC, 09/11/03), aff'd sub nom. Stoughton Trailers Inc. v. LIRC and Douglas Geen (Dane Co. Cir. Ct., May 13, 2004); aff'd., Stoughton Trailers v. LIRC & Geen, 2006 WI App 157, 295 Wis. 2d 750, 721 N.W.2d 102;  aff'd, Stoughton Trailers, Inc. v. LIRC and Geen, 2007 WI 105, 303 Wis. 2d 514, 735 N.W.2d 477.

 

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117.9 Coverage and application; Effect of other laws; Miscellaneous

A complaint pending before LIRC on appeal from ALJ's decision finding no discrimination, was barred by a final order of the Bankruptcy Court in proceedings on respondent's Chapter 11 petition. The complainant had adequate notice of the pendency of the bankruptcy proceedings and the need for the filing of a claim.  Her complaint, which included allegations of discrimination in rate of pay, was a 'claim' cognizable in the bankruptcy proceedings because payment of a monetary remedy was possible.  The Bankruptcy Code's exception to dischargeability , for claims for "willful and malicious injury", is not applicable here because that exception applies only to individual debtors, and respondent here was a corporate entity.  Vanderwulp v. USG Interiors, Inc. (LIRC, July 19, 2007)

The Complainant was discharged from his job as a truck driver based upon a report from a physician that recommended that he be barred from driving.  The physician’s report was based primarily on a federal Department of Transportation medical conference report which concluded that a diagnosis of Wilson’s Disease should unequivocally indicate disqualification.  The Complainant was not required to exhaust the federal administrative process for appealing his denial of a medical certification in order to establish a violation of 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.

The Wisconsin Fair Employment Act does not require individuals to exhaust other administrative remedies prior to initiating an action under the 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.

Municipalities with populations above 4,000 are required to maintain a police and fire commission with jurisdiction over the hiring, promotion, discipline, and discharge of members of the police and fire departments. The police and fire commissions have the authority to evaluate whether employment actions under their review are fair and without discrimination. 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 work-sharing agreement between the United States Equal Employment Opportunity Commission and the Equal Rights Division of the Wisconsin Department of Workforce Development does not superimpose federal substantive and procedural law on the Department. A work-sharing agreement does not change laws or administrative rules. Matis v. LIRC (Ct. App., Dist. III, unpublished decision, 05/07/02).

The fact that redress might be available to the Complainant under either the Workers’ Compensation Act or the Wisconsin Open Personnel Records Law would not prohibit the Complainant from stating a claim under the Wisconsin Fair Employment Act, provided the conduct alleged was otherwise covered under the Act. Ferguson v. Buechel Stone Corp. (LIRC, 10/31/01).

There is nothing in the Wisconsin Fair Employment Act which provides, or even implies, that the authority of the Equal Rights Division to interpret and apply the provisions of the Act is in any respect subordinated to the authority of any other administrative agency, or that a decision by any other administrative agency must be given weight in the interpretation and application of the provisions of the Act. Borum v. Allstate Ins. Co. (LIRC, 10/19/01).

The Notice of Claims statute, sec. 893.80, Stats., does not apply to claims of discrimination under the Wisconsin Fair Employment Act. Schiller v. City of Menasha Police Dept. (LIRC, 01/14/93).

Federal regulation of the National Guard preempts the application of the Wisconsin Fair Employment Act's anti-discrimination provisions with respect to the discharge of an HIV-positive National Guard member. Federal law preempts the enforcement of the Wisconsin Fair Employment Act in this area because Congress and the framers of the Constitution intended that the federal government exclusively occupies the field of regulation of personnel criteria for the national guard. Hazelton v. State Personnel Comm., 178 Wis. 2d 776, 505 N.W.2d 793 (Ct. App. 1993).

The Respondent contended that it prohibited a deaf employe from driving tuggers and scooters in its plant pursuant to OSHA regulations and that federal law preempted state law in this matter. However, the OSHA regulations cited by the Respondent did not clearly regulate driver qualifications for tuggers and scooters. Willett v. Delco Electronics (LIRC, 01/17/90).

Although there is a statutory method to appeal Department of Employe Trust Fund coverage determinations, such appeals are not the exclusive means of challenging those decisions. The Personnel Commission has concurrent jurisdiction to deal with violations of the Wisconsin Fair Employment Act. Phillips v. DHSS (Wis. Personnel Comm., 03/15/89).

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118 Coverage and application; Constitutional issues

The freedom of exercise clause of the First Amendment of the United States Constitution and the freedom of conscience clauses of the Wisconsin Constitution preclude employment discrimination claims under the Wisconsin Fair Employment Act for employees whose positions are important and closely related to the religious mission of a religious organization.  The Equal Rights Division did not have jurisdiction to consider the Complainant's age discrimination complaint in this case because it impinged on the Respondent's right to religious freedom.  Coulee Catholic Schools v. LIRC and Ostlund, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868 .

If the Equal Rights Division concludes that a position is “ministerial” or “ecclesiastical,” further enforcement of the Wisconsin Fair Employment Act against the religious association is constitutionally precluded, even if there is no religious justification for the alleged discrimination. Because the ministerial exception precludes further inquiry into the reasons for the employment action, if the exception applies, the stated reason for the employment action should not be considered. If, on the other hand, the ministerial exception does not apply, the court may then address the issue of excessive entanglement by the State in matters of religious doctrine. In this case, the Complainant was a first grade teacher at an elementary school which is part of the Coulee Catholic Schools Association, and is owned and operated by the Roman Catholic Diocese of La Crosse, Wisconsin. The Complainant's position was not ministerial. Coulee Catholic Schools v. LIRC and Ostlund, 2008 WI App 68, 312 Wis. 2d 331, 752 N.W.2d 342; reversed, Coulee Catholic Schools v. LIRC & Ostlund, 320 Wis. 2d 275, 768 N.W.2d 868 .

An administrative agency is not empowered to determine whether the statutory provisions that it administers are constitutional. Salley v. Nationwide Mortgage & Realty Corp. (LIRC, 12/13/07).

The Salvation Army is a church and its officers serve a ministerial or ecclesiastical function. The Equal Rights Division does not have jurisdiction to resolve a discrimination complaint involving an officer position in the Salvation Army. To allow the Complainant to proceed with such a case would cause the state to intrude upon matters of church administration and government which are matters of ecclesiastical concern and, as such, would violate the Free Exercise and Establishment Clauses of the First Amendment. Coryell v. The Salvation Army (LIRC, 09/27/99).

The Respondent’s decision to discharge the Complainant because she stopped participating in Catholic worship activities and because she married outside the Catholic Church was ecclesiastically based. The Complainant maintained that the Respondent should have been required to demonstrate what a non-sacramental marriage was, according to an objective Catholic text, before the complaint could be dismissed. However, the question of whether the Complainant’s marriage was truly "non-sacramental" pursuant to the tenets of the Catholic faith is the very type of issue which the Equal Rights Division may not reach. In order to decide this question it would be necessary to assess, evaluate and possibly challenge aspects of the Respondent’s religious philosophy in a manner that would clearly be inconsistent with the mandates of the Free Exercise Clause and the Establishment Clause of the First Amendment of the Constitution of the United States. Newton v. St. Gregory Educ. and Christian Formation Comm. (LIRC, 12/10/97).

An administrative agency is not empowered to rule on the constitutionality of the statutory provisions it administers. Rathbun v. City of Madison (LIRC, 12/19/96)

The legislature conferred upon the Department subject matter jurisdiction over all complaints that are brought under the auspices of the Wisconsin Fair Employment Act. Non-profit religious associations are considered "employers" under the Wisconsin Fair Employment Act. Hence, the Act empowers the Department to review and investigate employment discrimination complaints filed against religious associations. However, notwithstanding the agency's legislatively created authority and jurisdiction, constitutional religious protection may preclude the State and the courts from enforcing secular mandates on religious organizations. The State is prevented from enforcing the State's employment discrimination laws against religious associations when the employment position at issue serves a "ministerial" or "ecclesiastical" function. Jocz v. LIRC, 196 Wis. 2d 273, 538 N.W.2d 588 (Ct. App. 1995). The right to free speech is not absolute and the courts have consistently found that harassing speech in the workplace is not protected by the first amendment. Similarly, the state's interest in providing non-discriminatory public accommodation may justify slight incursions into free speech. In this case, the Respondent was found to have violated the Wisconsin Public Accommodations Act because she repeatedly used the term "nigger" in the presence of black restaurant patrons. Bond v. Michael's Family Restaurant (LIRC, 03/30/94).

The Department's decision finding that a newspaper violated the Wisconsin Open Housing Act by publishing advertisements in connection with the rental of housing did not violate the newspaper's rights to freedom of speech and press as protected by the United States and Wisconsin Constitutions. Metropolitan Milwaukee Fair Housing Council v. Hartford Times Press (LIRC, 08/31/93).

The Equal Rights Division did not violate the free exercise clause of the First Amendment of the U.S. Constitution by holding a hearing to determine whether a religious school's asserted religious-based reason was in fact the real reason for discharging the Com-plainant. Sacred Heart School Board v. LIRC, 157 Wis. 2d 638, 460 N.W.2d 430 (Ct. App. 1990).

Wisconsin Administrative Code Section IND 88.08, providing for hearings on the issue of probable cause upon appeal of initial determinations of no probable cause, was validly promulgated under the statutory authority of the Equal Rights Division and is constitu-tional. Sections 111.375(1) and 111.39(2), Stats., both empower the Division to hold hearings necessary to perform its functions, and the no probable cause hearing is thus a proper exercise of the Division's authority to investigate complaints to determine if probable cause exists. Black & Decker v. DILHR (Ct. App., District IV, unpublished decision, 09/15/88).

The Equal Rights Division would have jurisdiction to hear a case in which a Complainant alleged that a Catholic university refused to hire her because of her sex. It is not clear how far into the process the Department may proceed before running into First Amendment issues and violations, but the Supreme Court has indicated that a state administrative body violates no constitutional rights by investigating and determining whether a religious employer's asserted religious reason for its alleged discriminatory action was the real reason. Maguire v. Marquette Univ. (LIRC, 08/18/88).

It would be an unconstitutional infringement of first amendment rights to freedom of religion for the Equal Rights Division to assert jurisdiction over the practice of a Catholic school of requiring that one of its lay teachers, once divorced, would not be allowed to remarry. Kovach v. Marinette Catholic Central High School (LIRC, 06/12/86).

The Act does not provide for a jury trial in discrimination cases and the failure of Wisconsin's Administrative Code to so provide is not unconstitutional. Traywick v. LIRC (Pabst Brewing) (Milwaukee Co. Cir. Ct., 01/27/83).

LIRC's order that the employer cease from excluding pregnancy from its sick leave compensation policy and pay the employe all sick leave due her does not constitute an impairment of contract in violation of the Constitution. Vocational, Technical and Adult Educ. v. LIRC (Nelson) (Milwaukee Co. Cir. Ct., 08/09/80).

DILHR is without jurisdiction to decide the validity of granting veteran preference points under the Equal Protection clause. Nettleson v. Wisconsin Department of Admin. (LIRC, 04/01/80).

The Act does not give LIRC jurisdiction to decide whether a hiring process violates con-stitutional or other statutory rights; and such claim cannot be joined with a court action to review a LIRC decision. Cooper v. LIRC (Martin Service Bureau) (Dane Co. Cir. Ct., 10/22/79).

A school district has no standing to make state and federal constitutional law arguments because of the long standing rule that, in a suit between arms of the state, neither party can question the constitutionality of a statute. Joint District No. 1, City of Nekoosa v. DILHR (Hinrichsen) (Dane Co. Cir. Ct., 10/20/78); also, Waukesha Public Schools v. DILHR (Coulson) (Dane Co. Cir. Ct., 07/06/78).

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