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The Wisconsin Equal Rights (ER) Decision Digest -- Section 126     

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126 CREED (RELIGION) DISCRIMINATION

126.1 Creed (Religion) discrimination; General coverage 

The term "creed," as used in the Wisconsin Fair Employment Act, means not a system of political philosophy or beliefs, but a system of religious beliefs. Augustine v. Anti-Defamation League of B’nai B’rith, 75 Wis. 2d 207, 249 N.W.2d 547 (1977).

An employe's burden of demonstrating the sincerity of a belief system is not a heavy one. The fact that an employe's religious belief does not directly correspond to that of a particular Christian denomination with which the employe is associated is not a basis for finding that her belief is either not religious or not sincere. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

The fact that an employe initially accepted an employer's offer to work one Sunday out of four per month did not show that her belief in not working on Sunday was not a sincerely held religious belief, where the employe has studiously abstained from working on Sunday since 1978 and she only agreed to work on Sunday because she was under considerable pressure to find employment and obtain new housing. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93) .

Sec. 111.31(3m), Stats., defines creed as "a system of religious beliefs, including moral or ethical beliefs about right and wrong, that are sincerely held with the strength of traditional religious views." Where there was evidence in the record regarding the Complainant's beliefs as to a supreme being, moral imperatives governing conduct towards others, and ceremonies and observances, the Complainant demonstrated that her adherence to WICCA is a creed subject to the protection of the Wisconsin Fair Employment Act. Catley v. Benjamin Air Rifle Co. (LIRC, 06/21/91) .

The term "creed" is not defined in the Act, but should be interpreted to refer to a "system of religious beliefs." AMC v. DILHR (Bartell), 101 Wis. 2d 337, 305 N.W.2d 690 (1981) .

The refusal to hire a member of the Ku Klux Klan did not constitute discrimination based on "creed" because that term does not mean a system of political philosophy or beliefs. Health v. West Cap (LIRC, 08/03/77) .

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126.2 Creed (Religion) discrimination; Exception allowing religious associations to give preference to adherents to their creed

A home for delinquent and dependent children operated as a non- profit venture, "founded on Christian principles and carrying out operations in a Christian context," is a religious association within the meaning of sec. 111.32(3)(a), Stats. Sack v. Christ the King Home (DILHR, 02/27/75), aff'd. sub nom. Sack v. DILHR, (Dane Co. Cir. Ct., 07/28/76) .

A restaurant managed by the Phoenix Fellowship Society was not a religious organization and therefore not exempt from the Act and its demotion of an employe and reduction of her wages because of her refusal to become a member of the Society was discrimination based on creed. Belle v. Ovens of Brittany (DILHR, 08/29/75) .

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126.3 Creed (Religion) discrimination; Constitutional issues

 

The Equal Rights Division lacked jurisdiction over the Complainant's age discrimination complaint.  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.  Two factors must be considered in determining whether the function of an employee is part of the spiritual and pastoral mission of the church:  (1) Does the organization have a fundamentally religious mission? and (2) How closely linked is the employee's work to the fundamental mission of the organization?  In this case, the Respondent had a fundamentally religious mission, and the Complainant?s position as a first grade teacher was closely linked to the religious mission of the school.  The Complainant led her students in prayer, she taught Catholic doctrine and practice, she took her students to Mass every week, and she tried to incorporate Catholic values and to encourage spiritual growth in all of her classes.  The Complainant?s age discrimination complaint impinged upon the Respondent?s right to religious freedom.  The Equal Rights Division had no jurisdiction over this matter, and could not interfere with the Respondent?s employment decision in this case.  Coulee Catholic Schools v. LIRC and Ostlund, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868.

The concept of the ministerial exception has been a judicial shorthand for determining the constitutional question of whether a particular adjudication interferes with the free exercise rights of a religious association.  The inquiry in this case was whether a decision not to renew the Complainant's teaching contract was based on her age. This was a limited inquiry. The Respondent did not assert a religious reason for its termination of the Complainant's employment. Therefore, an adjudication under the Wisconsin Fair Employment Act would not cause unconstitutional governmental entanglement with religion. Ostlund v. Coulee Catholic Schools (LIRC 02/28/06); aff'd. sub nom. Coulee Catholic Schools v. LIRC (La Crosse Co. Cir. Ct., 01/12/07);  aff'd, 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, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868 .

 The “primary duties” test is a useful guide to determine whether a position is ministerial. 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. For several reasons, the position in this case was not ministerial. First, a general exemption for teachers in religious schools would be more expansive than warranted when considered in light of the magnitude of the State’s interest in the enforcement of anti-discrimination laws. Second, a religious teacher’s duty to model and support particular religious values does not in itself constitute teaching or spreading the faith. Third, there were few specific findings of religious content in the courses taught by the Complainant. Fourth, the religious class, prayers, and the Complainant’s participation with her students in liturgies did not constitute the primary part of the Complainant’s work day, and they were not the primary focus either of the job description or the job evaluation. Fifth, because the Complainant’s primary duties did not implicate matters of Church, faith, and doctrine, the prospect that employment decisions would implicate those matters was significantly diminished. 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, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868 .

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).

Neither the Free Exercise Clause of the United States Constitution nor the Freedom of Worship Clause of the Wisconsin Constitution deprive the Equal Rights Division of subject matter jurisdiction to review and investigate whether evidence supports an employment discrimination complaint filed against a religious association. If the employment position at issue, however, is inherently "ministerial" or "ecclesiastical" the religious protection embodied in the federal and state constitutions precludes the state and its agencies from enforcing the mandates of the Wisconsin Fair Employment Act against the religious association. In this case, the Complainant alleged that a seminary failed to renew her employment contract, and thereby discriminated against her because of sex and her opposition to discriminatory practices. A state agency or court confronting the issue of whether a position is ministerial or ecclesiastical must immediately resolve the question before further investigating or reviewing the employment discrimination complaint. As a general rule, if the employe's primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered ministerial or ecclesiastical. This test should provide a basic framework to follow when addressing the prima facie question of whether a position is entitled to constitutional protection from state interference. Jocz v. LIRC and Sacred Heart School of Theology, 196 Wis. 2d 273, 538 N.W.2d 588 (Ct. App. 1995).

The Commission does not have to address the issue of whether interpreting the Wisconsin Fair Employment Act as prohibiting harassment of employes because of religion would violate the first amendment free speech rights of the harasser because there was no unlawful harassment in this particular case. Catley v. Benjamin Air Rifle Co. (LIRC, 06/21/91).

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 Complainant. Sacred Heart School Bd. v. LIRC, 157 Wis. 2d 638, 460 N.W.2d 430 (Ct. App. 1990).

The Department 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).

The Equal Rights Division would have jurisdiction to conduct a hearing on a complaint alleging that the Respondent, a Catholic University, discriminated against an employe because of sex in regard to hire, notwithstanding the school's claim that its constitutional rights to freedom of religion would be interfered with by inquiry into its reasons for its decision. Maguire v. Marquette University (LIRC, 08/18/88).

It would be an unconstitutional infringement of the first amendment right to freedom of religion for the Equal Rights Division to assert jurisdiction over the practice of a Catholic school of forbidding divorced teachers to remarry. Kovach v. Marinette Catholic Central High School (LIRC, 06/12/86).

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126.4 Creed (Religion) discrimination; The employer's duty to accommodate

Allowing an employee to trade shifts in order to participate in religious observances has been held to be a reasonable accommodation even if the employee is unable to locate anyone willing to trade. Feiler v. Midwest Express Airlines (LIRC, 06/06/03).

The Respondent allowed the Complainant to take twelve of her forty hours of accrued paid vacation time to observe the Jewish high holy days. This permitted the employee to fulfill her obligations both to her employer and to her religion, i.e., it successfully eliminated the conflict between her duties and her religious needs and, as a result, constituted a reasonable accommodation. The Complainant’s contention that the Respondent’s requirement that she use a significant percentage of her paid annual vacation time was not a reasonable accommodation was rejected. Feiler v. Midwest Express Airlines (LIRC, 06/06/03).

The undue hardship issue arises only when the employer fails to reasonably accommodate the employee. Feiler v. Midwest Express Airlines (LIRC, 06/06/03).

The Complainant failed to state a claim for which relief could be granted under the Wisconsin Fair Employment Act where she alleged that she did not have a social security number due to her religious beliefs, and that she was discharged by the Respondent for not obtaining and providing the Respondent with a social security number. The Respondent was required to obtain a social security number from the Complainant, and it would have caused an undue hardship on the Respondent to accommodate the Complainant’s religious belief. Deguire v. Swiss Colony (LIRC, 08/17/01).

An employe cannot expect an accommodation where there is no legitimate conflict between the employe’s religious practice and the employment. In this case, the Complainant volunteered to staff a booth for a Christian Fellowship event on a day she was scheduled to work. It would not have been burdensome for her to engage in that activity at a time that did not conflict with her employment. Her religious beliefs did not require her to engage in the particular activity in question on the particular day in question. Therefore, the Respondent was not required to accommodate her request to have time off on that particular day. Kramer v. Leath Furniture (LIRC, 03/26/97), aff’d. sub nom. Kramer v. LIRC (Dane Co. Cir. Ct., 12/03/97).

A Respondent cannot be legally required to accommodate an employe’s religious beliefs if the accommodation sought would compel it to contravene a contractually agreed upon seniority system. Brackemyer v. Wisconsin State Employes Union (LIRC, 04/18/97).

To avoid undue hardship to an employer, the impact upon the employe of an accommodation can be no more than de minimis. In this case, the Respondent offered an adequate accommodation to the Complainant, whose belief system was at odds with several of the standard chiropractic principles articulated by the Respondent in daily staff meetings. The Complainant could have had language she objected to taken out of the purpose statement the Respondent's employes recited every morning. The Complainant also could have excused herself from the meditation and relaxation portions of the afternoon meetings the Respondent held with her employes. Feirer v. Marshfield Chiropractic Center (LIRC, 08/20/96).

Where an employe's religious beliefs prohibit performing work on Sundays, it is not a reasonable accommodation to offer to allow the employe to only work one Sunday per month. A reasonable accommodation is one which eliminates the conflict between employment requirements and the religious practices by allowing the employe to fully observe religious holidays. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

Asking an employe to forego their religious practices is not an accommodation of those practices. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

An employer is required to make reasonable efforts to help employes avoid conflicts between their work schedules and their religious beliefs through swapping shifts. If an employer makes such efforts and no other employe can be found to swap shifts, there would be no violation if the employer required an employe with religious beliefs to work the scheduled hours uniformly imposed on all employes of that classification. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

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).

An employer may not be required to bear more than a de minimis cost to give an employe certain days off for religious reasons. To require an employer to bear more than a de minimis cost would impose an undue hardship on the employer. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

An employer may not require other employes to take work assignments that they would not otherwise be required to take solely to accommodate another an employe's religious need for time off from work. Such a requirement would constitute religious discrimination against the employes whom the employer forced to work. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

An Administrative Law Judge erred in determining that an employer should have accommodated an employe's request to be off from work for religious reasons by requiring co-workers to work for the employe. However, a finding of discrimination was upheld where the evidence established that the employer failed to accommodate the employe's request for accommodation by informing the employe of the employer's policy of allowing and assisting employes to find co-employes who would voluntarily work for an employe on a particular shift. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

An employer need not accommodate an employe's religious need for time off from work by doing any of the following: (1) breaching a seniority system contract, (2) paying a premium wage for substitutes, (3) using overqualified supervisors to substitute for the absent employe, (4) leaving the employe's position vacant, or (5) discriminating against co-employes. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

In determining what is a "reasonable accommodation" and a "hardship" in the area of religious discrimination, it is not a valid guide to look to the law regarding "hardship" and "reasonable accommodation" under the area of handicap discrimination. The scope for the accommodation of a handicap is much greater than the accommodation of religion because it is not unlawful to discriminate in favor of the handicapped or against the non-handicapped. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

Where an employe temporarily tolerated employment requirements inconsistent with the employe's religious beliefs, she is still entitled to reasonable accommodation at a later date as though the employe had insisted on full accommodation from the beginning of her employment. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

The Respondent did not violate the Wisconsin Fair Employment Act by failing to provide the Complainant, an adherent of the Christian Science religious faith, with health insurance coverage encompassing payment for treatments administered by Christian Science practitioners. The Respondent's failure to grant a religiously-motivated request for a fringe benefit not provided for by its personnel and management procedures to any employe does not create a conflict between an employe's religious practices and the employer's personnel and management procedures. Lazarus v. DETS (Wis. Personnel Comm., 09/21/92).

A collective bargaining agreement in force at the Respondent's place of business provided that employes who were willing to accept work assignments on any hours on any days were paid more than employes who restricted their availability for work. The Complainant, a member of Jehovah's Witnesses, attended church meetings on Tuesday and Thursday nights and Sunday mornings. She was not willing to take work assignments on those days and she was, therefore, placed in a lower salary scale than she would have been had she not placed these restrictions on the times when she was available for work. This did not constitute discrimination on the basis of religion. The policy that employes who will not make themselves available for work assignments at particular times will be paid less than employes who will make themselves available is completely neutral in terms of religion. Green v. Woodman's Food Markets (LIRC, 01/30/91).

The Wisconsin Fair Employment Act does not require accommodation of employes' religious practices. AMC v. DILHR (Bartell), 101 Wis. 2d 337, 305 N.W.2d 62 (1981) . [Ed. note: The Fair Employment Act was amended in 1982 to specifically provide that employers have a duty of reasonable accommodation.]

[Ed. note: The following cases were decided under the theory, then prevailing, that the pre-amended Act did impose a duty of accommodation of religious practices.]

The employer reasonably accommodated Jewish teachers by permitting them to use unpaid personal leave days for their religious observances. To expect the employer to provide paid leave days would cause undue hardship to the school district and would give an unlawful preference to Jewish teachers over others whose holidays occur during unpaid vacations. Meltzer v. LIRC (Kenosha Co. Cir. Ct., 01/08/81).

It was the responsibility of employes to inform the employer of their religious creed so that the employer could carry out its responsibility to accommodate them. Godfried v. Parts Mart (DILHR, 03/05/76).

When an employe advised his employer that he could not work after sundown on Fridays because of his religion, and there was no question that the employer could have accommodated the employe's religious need without hardship, his discharge for leaving work before sundown on two consecutive Fridays after nine months of consistent attempts to get his employer's permission to start a half hour earlier was religious discrimination. Liberty Trucking v. DILHR (Carnahan), (Dane Co. Cir. Ct., 09/24/75).

It was not reasonable to require a union to excuse a member from Sunday morning union meetings so that he could attend church services where such an accommodation would have created an undue hardship on the conduct of the union's functions. Rau v. International Ass'n. of Machinists (DILHR, 01/25/74).

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126.5 Creed (Religion) discrimination; Harassment because of creed

The Complainant was not subject to unlawful religious harassment where there were no acts of disparagement of the Complainant because of his beliefs. While a supervisor's proselytizing of its employes could in some circumstances rise to the level of harassment if it were persistent, unwelcome, and created either a hostile environment or a perception on the part of an employe that a quid pro quo was contemplated, this case does not approach that level. The topic of religion and religious belief arose between the Complainant and the Respondent only sporadically, and without any significant pressure being applied to the Complainant. Brye v. Brakebush Bros. (LIRC, 01/11/93).

An employer cannot be found liable for religious harassment unless it is carried out directly by the employer or, if carried out by co-employes, the employer knows or should reasonably know about the harassment and fails to take reasonable action to prevent it. Valentin v. Clear Lake Ambulance Serv. (LIRC, 02/26/92).

Occasional and sporadic use of religious slurs, albeit deplorable, may still not rise to the level of a violation of law. Valentin v. Clear Lake Ambulance Serv. (LIRC, 02/26/92).

An employer can violate the Wisconsin Fair Employment Act's prohibition on discrimination because of creed if it either engages directly in religious harassment of an employe (through its management or supervisory personnel) or if it tolerates religious harassment of an employe by co-workers. However, in order to constitute a violation of the Act, harassment must rise above the level of occasional and sporadic use of slurs or epithets. In this case there was some evidence of hostility directed toward the Complainant, whose creed is WICCA, by her co- workers. In some instances the Complainant's self-identification as a witch was referred to. However, the inconsistencies in the Complainant's evidence as to the extent of this type of conduct and her general lack of credibility left no basis for deciding how extensive that conduct may have been. The Complainant, therefore, failed to meet her burden of proving that she was subject to religious harassment that rose to a level of a violation of the Act. Catley v. Benjamin Air Rifle Co. (LIRC, 06/21/91).

An employer was not aware of a Jewish employe's religion at the time he was discharged on the basis of his job performance, although there was evidence that a supervisor had made anti- semitic comments in the employe's presence. Ugent v. Gilbert's Liquor Store (LIRC, 08/14/84).

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126.6 Creed (Religion) discrimination; Cases

The Complainant asserted that the extension of his probationary period by six hours to account for his observance of Yom Kippur was direct evidence of discrimination because of creed. However, the disputed employment action in this case was the Complainant?s discharge, not the extension of his probation period. The Complainant?s probation would have been extended even if Yom Kippur had not been included in the calculation because he missed 194 hours of work for non-religious purposes. Further, the Respondent would have assessed hours taken off by a Christian worker to observe Good Friday in the same manner. Stern v. LIRC (Dane Co. Cir. Ct., 06/05/09).

The Respondent violated the Wisconsin Fair Employment Act when it terminated the Complainant's employment because he refused to work on Sundays for religious reasons. The Complainant's work-related problems were also a factor in the Respondent's decision to discharge him; however, the Complainant would not have been terminated for these work-related problems if his religious observance had not been a motivating factor in the employer's decision to terminate him. Tolibia Holdings, Inc. v. DILHR (Ct. App., Dist. II, unpublished decision, 02/15/95).

LIRC found unpersuasive the Complainant's contention that evidence she offered concerning the dismissal by the Respondent of two other employes proved a pattern and practice of discrimination against Jewish employes. Forman v. Cardinal Stritch College (LIRC, 06/08/92), aff'd., Milwaukee Co. Cir. Ct., 11/19/93.

A Respondent's failure to recognize the Star of David or identify the flag of Israel may be surprising, as was his ignorance about a kibbutz; however, such lack of knowledge is not affirmative proof of prejudice against members of the Jewish faith. Vaisman v. LIRC (Milwaukee Co. Cir. Ct., 01/25/93).

The fact that the Complainant's actions offended the values and standards of the Respondent's owners, which they saw as part of their Christian religious beliefs, does not mean that they discharged him for a religious reason. The Complainant was terminated for engaging in conduct which would generally be considered unacceptable for entirely secular reasons. Brye v. Brakebush Bros. (LIRC, 01/11/93).

Where the gist of the complaint was that the Respondent discharged the Complainant on the basis of false reports made to the Respondent by others, and where the complaint failed to allege that the false reports concerned, or were motivated by, the Complainant's religious beliefs, that the Respondent knew or believed that the complaining individuals disliked the Complainant's religious beliefs, or that the employer itself shared any dislike others may have held for his religious beliefs, the complaint failed to state a claim upon which relief could be granted on a theory of religious or creed discrimination. Furthermore, the Complainant expressly stated that he was terminated, not because of his creed, but upon receipt by his employer of anonymous complaints about him. Hallingstad v. A. B. Dick Products (LIRC, 11/05/87).

To establish a prima facie case of disparate treatment, a Jewish job applicant must prove that he applied for an available position for which he was qualified, but was rejected under circumstances which gave rise to an inference of unlawful discrimination. The Complainant's case was properly dismissed where he failed to demonstrate his qualifications for the police officer job for which he had applied. Cohen v. City of Madison (LIRC, 12/18/81).

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