Sex Discrimination

Overview

The Wisconsin Fair Employment Act prohibits employers, employment agencies, labor unions, licensing agencies, and other persons from discriminating against employees, job applicants, or licensing applicants because of their membership in specific protected categories, including sex.

The statute of limitations for filing a complaint is 300 days from the date the action was taken or the individual was made aware the action was taken.

What actions are covered?

When an individual's sex or gender motivates the decision related to an employment action or a licensing action, it becomes unlawful discrimination.

Specifically, the law prohibits discrimination in recruitment and hiring, job assignments, pay, leave or benefits, promotion, licensing or union membership, training, layoff and firing, harassment, and other employment related actions.

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Sexual Harassment means unwelcome sexual advances, request for sexual favors, physical contact of a sexual nature, or verbal or physical conduct of a sexual nature. Sexual harassment includes conduct directed by a person at another person of the same or opposite gender.

Harassment on the job because of a person's sex or gender is also prohibited. It involves a pattern of abusive and degrading conduct directed against the employee based on sex that is sufficient to interfere with the employee's work or to create an offensive and hostile work environment.

If you experience harassment, you can take these steps.

Yes, pregnancy discrimination is a form of sex discrimination. Discriminating against any woman on the basis of pregnancy, childbirth, maternity leave or related medical conditions is unlawful.

Yes, sexual orientation discrimination is a form of sex discrimination. You cannot be discriminated against because of your sexual orientation, which means having a preference for heterosexuality, homosexuality, or bisexuality, having a history of such a preference, or being identified with such a preference.

The Wisconsin Fair Employment Act does not explicitly prohibit gender identity or transgender status discrimination, but it does cover claims alleging sex stereotyping, sex or gender harassment, sexual harassment, and sexual orientation discrimination.

The Equal Employment Opportunity Commission, the agency that enforces the federal anti-discrimination laws, has taken the position that an individual's gender identity or transgender status constitutes a form of sex discrimination. See, EEOC's Enforcement Protections for LGBT Workers.

In two types of situations where sex is a bona fide occupational qualification ("BFOQ"), an employer will not be liable for sex discrimination. Those situations are:

  • All the members of one sex are physically incapable of performing the essential duties required by a job
  • The essence of the employer's business operation would be undermined if employees were not hired exclusively from one sex.

The BFOQ exception has to be determined on a job-by-job basis.

An employer raising a BFOQ defense based on privacy concerns of employer's customers or clients bears a heavy burden of showing a factual basis for asserting that hiring a member of one sex would undermine the essence of the employer's business operation, and it would not be feasible, due to the nature of the business, to assign job responsibilities in a selective manner.

Examples where BFOQ defense established:

  • A youth care worker of each sex for each shift in secure and non-secure sections of a juvenile detention facility.
  • A position where same-sex role model required in the treatment of pre-delinquent boys.

Examples where BFOQ defense not established:

  • A gender-neutral split-shift youth care worker position in secure and non-secure sections of a juvenile detention facility.
  • Seasonal work involving heavy manual labor in a nursery.

An employer engages in sex discrimination if it pays employees of different sexes differently for jobs requiring equal skill, effort and responsibility, which are performed under similar working conditions.

  • Equal skill refers to factors such as training, education, and ability.
  • Equal effort refers to duties performed on the respective jobs encompassing both mental and physical exertion.
  • Equal responsibility refers to the degree of accountability required in the performance of the job.

When looking at non-identical jobs, the crucial questions are whether the jobs have a common core of tasks and whether any of the additional tasks make the jobs substantially different. If you believe that you were being paid less because of your sex, you can file a discrimination complaint.

When the pay gap is sequential, involving a predecessor and successor, then the employer is liable if it intentionally discriminated based on sex.

When the pay gap is simultaneous, occurring at the same time, then the employer is liable unless it proves that the pay difference is a result of:

  1. seniority system,
  2. merit system,
  3. system that measures earnings by quantity or quality of production, or
  4. any factor other than sex.

The law prohibits an inquiry that implies or expresses any limitation because of a protected basis, including sex.

An employer may make pre-employment inquiries and keep employment records to determine statistically the age, race, color, creed, sex, national origin, ancestry or marital status of applicants and employees. Pre-employment inquiries and employment records which tend directly or indirectly to disclose such information do not constitute unlawful discrimination per se.

Wrongful termination does not necessarily mean that the action is prohibited by the Wisconsin Fair Employment Act. Only if your membership in a specific protected category, such as sex, motivated the termination, can you file a complaint.

An employment action that is unfair, unequal, or wrong is not enough to file a discrimination complaint. To file a discrimination complaint, you must identify your membership in a specific protected category, such as sex, as a reason or basis for the discrimination.

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