STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
KAREN R BAMMERT, Complainant
DONS SUPER VALU, Respondent
FAIR EMPLOYMENT DECISION
ERD Case No. 199703978
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed March 6, 1998
bammeka . rsd : 164 :
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
In the petition for commission review the complainant points out that, although the commission has previously found that discrimination on the basis of spousal identity is not marital status discrimination, this issue has yet to be reviewed by or approved by the state's appellate courts. The complainant argues that high courts in other states, such as Montana, Hawaii, and Washington, have held that discrimination on the basis of spousal identity is marital status discrimination, and maintains that the authority from those jurisdictions presents the better legal rule. The complainant contends that there is no reason for a "crabbed interpretation" of the Wisconsin Fair Employment Act (hereinafter "Act") which would allow an employer to intrude into the most personal area of an employe's relationships and potentially allow an employer to dictate that an employe must chose between her marriage and her job.
The complainant's arguments lack merit. The commission has given careful consideration to this issue on previous occasions and has concluded that discrimination based upon the identity of one's spouse is not covered by the Act, which is meant to protect the status of being married in general rather than the status of being married to a particular person. The commission does not consider its reading of the marital status provisions of the Act to be "crabbed", but believes that its interpretation comports with the intent of the legislature and that to define "marital status" as encompassing the particular identity or circumstances of a person's spouse would be overly broad. While it is conceivable that under the commission's interpretation of the law an employer could force an employe to choose between her marriage to a specific individual and her job, the Act is not intended to remedy every type of injustice that could potentially occur in the scope of employment, and animus based upon an individual's unique personal circumstances is simply not one of the evils which the Act seeks to prevent.
Turning to the complainant's argument that the commission's position on this issue has not yet been specifically affirmed by the Wisconsin Court of Appeals or Supreme Court, the lack of such affirmance suggests only that the issue has not been raised before those courts, but does not lead the commission to question its own analysis. Further, while the complainant argues that high courts in other jurisdictions have found discrimination based upon spousal identity to be marital status discrimination, the cases to which the complainant apparently refers involve general rules prohibiting employment of spouses, and are readily distinguishable from cases involving discrimination based on the particular characteristics of an individual's spouse. Moreover, the commission's earlier research on this issue revealed that the clear majority of other jurisdictions which have addressed this question concluded that the prohibition against discrimination based on marital status does not extend to the identity of an employe's spouse. See Miner v. Blunt, Ellis and Loewi (LIRC, May 9, 1991).
Finally, the complainant maintains that it seems odd that an employer would face liability under the sexual preference discrimination provisions if it terminated someone because of whom he or she slept with, but faces no liability if it terminates somebody because of whom he or she marries. In so arguing the complainant misapprehends the reach of the Act's prohibitions on discrimination based upon sexual orientation. The Act provides no protection for an individual who is discriminated against based upon his or her actions in maintaining a sexual relationship with a specific person. Rather, what is protected under the law is the employe's general preference for heterosexuality, homosexuality, or bisexuality. Thus, the commission's interpretation of the Act as providing no coverage for discrimination based upon the identity of an employe's spouse does not achieve the type of anomalous result the complainant fears. Because the commission agrees with the administrative law judge that the complaint in this matter does not fall within the purview of the Act, the dismissal of the complaint is affirmed.
Matthew A. Biegert
Bradley D. Lawrence
Appealed to Circuit Court. Affirmed April 26, 1999. Affirmed by the Court of Appeals December 21, 1999, sub nom. Bammert v. LIRC and Don's Super Valu, Inc., 2000 WI App 28, 232 Wis. 2d 365, 606 N.W.2d 620.
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