Discrimination - Other - Wisconsin

Summary of differences between federal and state regulations

The federally protected classes in employment discrimination include race, color, religion, national origin, age (40 and over), sex (including pregnancy, sexual orientation, and gender identity), disability, and genetic information.

Wisconsin’s fair employment law identifies the following protected classes for purposes of employment discrimination:

• Age (40 and over),
• Race,
• Religion/Creed (a system of religious beliefs, including moral or ethical beliefs that are sincerely held with the strength of traditional religious views),
• Color,
• Disability (physical or mental impairment which makes achievement unusually difficult or limits the capacity to work),
• Marital status (single, married, divorced, separated or widowed),
• Sex (includes sexual harassment, pregnancy, childbirth, maternity leave or related medical conditions),
• Sexual orientation (having a preference for heterosexuality, homosexuality or bisexuality, having a history of such a preference or being identified with such a preference),
• National origin,
• Ancestry,
• Arrest record,
• Conviction record,
• Military service (service in the U.S. armed forces, the state defense force, the national guard of any state, or any other reserve component of the U.S. armed forces),
• Use or nonuse of lawful products off the employer's premises during nonworking hours, and
• Declining to attend a meeting or to participate in any communication about a religious or political matter.

A discrimination action can be brought against an employer of any size.

In addition, no employer may solicit, require or administer a genetic test to any person as a condition of employment; to affect the terms, conditions or privileges of employment; or to terminate the employment of any person.

Employer defined

“Employer” means the state and each agency of the state and any other person engaging in any activity, enterprise, or business employing at least one individual. “Employer” does not include a social club or fraternal society with respect to a particular job for which the club or society seeks to employ or employs a member, if the particular job is advertised only within the membership.

Arrest or conviction record

Arrest record is defined as information that a person has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense by any law enforcement or military authority.

Conviction record is defined as information indicating that a person has been convicted of any felony, misdemeanor or other offense, has been judged delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned or paroled by any law enforcement or military authority.

An employer can not discharge a current employee because of a pending criminal charge. An employer may, however, suspend an employee if the circumstances of the offense giving rise to the pending criminal charge is substantially related to the circumstances of the particular job or licensed activity.

An employer can not refuse to hire a person because of a record of arrests that did not lead to conviction. An employer is not allowed to ask about arrests, other than pending charges. An employer may ask whether an applicant has any pending charges or convictions, as long as the employer makes it clear that these will only be given consideration if the offenses are substantially related to the particular job. An employer cannot, legally, make a rule that no persons with conviction records will be employed. Each job and record must be considered individually.

An employer may only refuse to hire a qualified applicant because of a conviction record for an offense that is substantially related to the circumstances of a particular job. Whether the crime is an upsetting one may have nothing to do with whether it is substantially related to a particular job. The law does not specifically define this term. The “substantially related” test looks at the circumstances of an offense, where it happened, when, etc. - compared to the circumstances of a job - where is this job typically done, when, etc. The more similar the circumstances, the more likely it is that a substantial relationship will be found. For example, a bank could decline to hire someone as a teller who was convicted of theft, but not for driving while intoxicated.

An employer can not refuse to hire or discharge a person with a pending charge or conviction because other workers or customers don’t want the person with a conviction there. The employer must show that the conviction record is substantially related to the particular job. Co-worker or customer preference is not a consideration.

An applicant should answer questions on an application regarding conviction record. It is best to answer all questions as honestly and fully as possible, and to offer to explain the circumstances of the conviction to the employer.

An employer should ask about the circumstances of a conviction during an interview. An employer must obtain enough information to determine if the conviction record is substantially related to the job. If the employer decides there is a substantial relationship, employment may be refused but the employer must be prepared to defend the decision if the applicant believes there is not a substantial relationship and files a complaint.

Marital status

The unlawful employment practices regarding martial status are the same as those for other protected classes (age, sex, etc.). However, it is not employment discrimination to prohibit an individual from directly supervising or being directly supervised by his or her spouse.

Sexual orientation

The law prohibits sexual orientation discrimination in hiring, pay, training, and other areas of employment. The law also prohibits an employer from retaliating against applicants or employees who assert rights under the law. Harassment on the job because of a person’s sexual orientation is prohibited. Under Wisconsin law, harassment may include verbal abuse, epithets, vulgar or derogatory language, display of offensive cartoons or materials, mimicry, lewd or offensive gestures, and telling jokes that target groups of people based on sexual orientation. The behavior must be more than a few isolated incidents or casual comments. The law also prohibits discrimination because of being identified as a relative, friend or significant other of someone with a particular sexual orientation.

Harassment involves a pattern of abusive and degrading conduct directed against the employee based on sexual orientation that is sufficient to interfere with his or her work or to create an offensive and hostile work environment.

An employer can not refuse to hire a person because of their sexual orientation. Religious institutions are sometimes exempt when hiring for a religion-based position. To be exempt, the job description must demonstrate that the position is clearly related to the religious teachings and beliefs of the institution.

The Fair Employment Law prohibits any inquiry that implies or expresses any limitation because of a protected basis, including sexual orientation.

Use or nonuse of lawful products

Employers can not discriminate against an applicant or employee because of that person’s use of lawful products (such as tobacco) off the employer’s premises during nonworking hours.

It is not employment discrimination if a nonprofit corporation that, as one of its primary purposes or objectives:

• discourages the general public from using a lawful product to refuse to hire or employ, to suspend or terminate the employment, or to discriminate against an individual in terms, conditions or privileges of employment, because that individual uses off the employer’s premises during nonworking hours a lawful product that the nonprofit corporation discourages the general public from using.
• encourages the general public to use a lawful product to refuse to hire or employ, to suspend or terminate the employment, or to discriminate against an individual in terms, conditions or privileges of employment, because that individual does not use off the employer’s premises during nonworking hours a lawful product that the nonprofit corporation encourages the general public to use.

It is not employment discrimination for an employer or other person to refuse to hire, employ, admit, or license an individual; to bar, suspend or terminate an individual from employment, membership or licensure; or to discriminate against an individual in promotion, in compensation or in terms, conditions or privileges of employment or membership if the individual’s use or nonuse of a lawful product off the employer’s premises during nonworking hours does any of the following:

• Impairs the individual’s ability to undertake adequately the job-related responsibilities of that individual’s employment, membership or licensure.
• Creates a conflict of interest, or the appearance of a conflict of interest, with the job-related responsibilities of that individual’s employment, membership or licensure.
• Conflicts with a bona fide occupational qualification that is reasonably related to the job-related responsibilities of that individual’s employment, membership or licensure.
• Involves the purchase or possession of cigarettes or tobacco products by person under 18.
• Conflicts with any federal or state statute, rule, or regulation.

It is not employment discrimination for an employer or other person to offer a policy or plan of life, health, or disability insurance coverage under which the type of coverage or the price of coverage for an individual who uses a lawful product differs from the type of coverage or the price of coverage provided for an individual who does not use that product, if all of the following conditions apply:

• The difference between the premium rates charged reflects the cost of providing the coverage to the individual who uses that lawful product.
• The employer or other person that offers the coverage provides each individual who is charged a different premium rate with a written statement specifying the premium rate differential used by the insurance carrier.

It is not employment discrimination because of use of a lawful product off the employer’s premises during nonworking hours to refuse to employ an applicant if the applicant’s use of a lawful product consists of smoking tobacco and the employment is as a fire fighter.

Mandatory attendance at religious or political meetings

State law prohibits discrimination against employees who decline to attend a meeting or to participate in any communication about religious matters or political matters, including the imposition of discipline or threat of termination. This includes employer-sponsored meetings to communicate the employer's opinion about such matters, including expressions for or against union activity. Employees may still voluntarily choose to attend such meetings.

Posting

The state statutes require that all employers prominently display the “Wisconsin Fair Employment Law” poster in places of employment.

State

Related information

Protected classes ezExplanation

Contact

Equal Rights Division

Regulations

Wisc. Statute Chapter 111, Subchapter II - Fair Employment

Wisc. Stat. 111.321 Prohibited bases of discrimination

Wis. Stat. § 111.32 Definitions

Wis. Stat. § 111.33 Age; exceptions and special cases

Wis. Stat. § 111.335 Arrest or conviction record; exceptions and special cases

Wis. Stat. § 111.337 Creed; exceptions and special cases

Wis. Stat. § 111.34 Disability; exceptions and special cases

Wis. Stat. § 111.355 Military service; exceptions and special cases

Wisc. Stat. 111.36 Sex, sexual orientation; exceptions and special cases

Wis. Stat. § 111.365 Communication of opinions; Religious and political matters; exceptions and special cases

Wis. Stat. § 111.372 Use of genetic testing in employment situations

Federal

Contact

Equal Employment Opportunity Commission (EEOC)

Regulations

See applicable discrimination topic.