112.1 Covered Individuals

The question of whether an individual has a disability within the meaning of the Act is not jurisdictional but goes to the issue of probable cause. Eason v. City of Milwaukee (LIRC, 08/29/23).

Volunteers are not covered under the Fair Employment Act, and mere proof of receipt of some type of tangible benefit is insufficient to render an individual an employee rather than a volunteer. Instead, the Complainant must show that he received the type of tangible benefits that could lead to a conclusion he was compensated for his services. Kirksey v. Int'l Assoc. for Orthodontics (LIRC, 09/29/22).

The Complainant alleged that the Respondent, a technical college, denied him admission into its funeral services program based upon his conviction record and contended that the Respondent’s actions related to a specific employment opportunity. The Complainant demonstrated a sufficient nexus between the alleged discrimination and the denial or restriction of an employment opportunity such that his claim was covered under the WFEA. Reid v. Milwaukee Area Tech. Coll. (LIRC, 08/13/19).

A complaint may be stated under the WFEA even in the absence of an actual or potential employment relationship between the parties, provided the Complainant has alleged that the Respondent engaged in an action that directly relates to an employment opportunity. Maxberry v. Goodwill Indus. (LIRC, 03/19/15).

Complainant alleged that he was refused re-entry into a master’s degree program in the Respondent’s English department because of his religion and sexual orientation. In order for an allegation of discrimination to come within the scope of the WFEA, it must show a nexus between the discrimination complained of and the denial or restriction of some real employment opportunity. There was no employment relationship or potential employment relationship between the Complainant and the Respondent here, only a hypothetical connection to an unidentified future employment opportunity. This is not a sufficient nexus on which to state a claim under the WFEA. Wilde v. UW-Milwaukee (LIRC, 02/27/15), aff'd, Wilde v. UW Milwaukee (Milwaukee Co. Cir. Ct., 3/28/16).

The Complainant alleged disability discrimination due to reduction in her pay for home care services she provided for her disabled son. The Complaint failed to state a cause of action under the WFEA because the Complainant is not an individual with a disability, and the WFEA does not cover allegations of discrimination based on a Complainant’s association with an individual with a disability. The Complainant’s retaliation claim for having filed a federal lawsuit fails to state a claim because the lawsuit did not allege any violation recognized by the WFEA as a basis for a retaliation complaint. Bach v. Cnty. of Milwaukee (LIRC, 10/09/14), aff’d, Bach v. LIRC (Milwaukee Co. Cir. Ct., 4/16/15), aff'd Bach v LIRC, Ct, App. No. 2015AP1097, 01/28/16).

Although anti-retaliation provisions of the WFEA extend to former employees, a nexus with employment is essential to find that retaliatory actions are covered. If the Complainant is alleging that the retaliatory action adversely affects prospects for future employment, the adverse action must have a significant and identifiable employment connection to the former employee’s opportunities for future employment. DeMoya v. Wis. Dep't of Veterans Affairs (LIRC, 12/12/13).

The rationale that the Supreme Court relied upon in City of Madison v. DWD, 262 Wis. 2d 652, 664 N.W.2d 584 (2003), to find that the Madison Police and Fire Commission has exclusive jurisdiction to hear complaints of discriminatory discharge or discipline under sec. 62.13(5), Stats., applies equally to the treatment of WFEA claims arising out of actions by the Milwaukee Police and Fire Commission under sec. 62.50(11), Stats. The Department of Workforce Development does not have jurisdiction over a WFEA complaint regarding discriminatory discipline or discharge by members of the Milwaukee Police and Fire Departments. Koch v. City of Milwaukee (LIRC, 06/09/11).

A complaint was dismissed where the Complainant was a former nursing student of the Respondent and her complaint centered around the Respondent’s refusal to allow her to return to complete her studies. The Complainant was not involved in an employment relationship with the Respondent, and her complaint did not allege discrimination in employment. Further, to the extent that the Complainant was alleging that she was denied an opportunity to obtain her nursing license, the Respondent could not be considered a licensing agency for purposes of the Act. Bledsoe v. Mount Mary College (LIRC, 04/25/08).

An Administrative Law Judge appropriately determined that the Complainant was not an employee under the Wisconsin Fair Employment Act where the Complainant had been found to be a “sexually violent person” who was committed to the Wisconsin Resource Center (WRC), which is operated by the State of Wisconsin Department of Health and Family Services (DHFS). The Complainant was part of the WRC’s Patient Work Program, which affords patients the opportunity to work while residing at the institution. He filed a complaint alleging that DHFS had discriminated against him with respect to compensation on the basis of disability, arrest record and conviction record. The ALJ utilized the “economic realities” test and determined that the context for the working relationship between the Complainant and WRC was entirely different from that of a voluntary employment relationship between parties. The working relationship was uniquely defined by the circumstances of the Complainant’s commitment to WRC. DHFS exercised control and direction over not only the Complainant’s work performance, but also over the Complainant himself. The conditions under which he performed his job were functions of his confinement to WRC, not those of an employee who voluntarily enters into an employment relationship with an employer. Desimone, et al v. State of Wis. (LIRC, 02/22/08).

A firefighter who was terminated from city service after a “just cause” hearing before a police and fire commission pursuant to sec. 62.13(5), Stats., may not pursue a discrimination complaint regarding the termination before the Department of Workforce Development under the Wisconsin Fair Employment Act. City of Madison v. DWD, 2003 WI 76, 262 Wis. 2d 652, 664 N.W.2d 584.

Application for service as a volunteer, or even actual service as a volunteer, does not meet the definition of “employee” in the Wisconsin Fair Employment Act, which is a prerequisite for coverage under the Act. Compensation is an essential condition in the employee/employer relationship. Ficken v. Harmon Solutions Group (LIRC, 02/07/03).

The Complainant, who had no employment relationship with the Respondent, alleged that the Respondent denied him the use of a trademark. Even assuming that the Respondent could be considered a licensing agency, the Complainant has not contended that he was denied a license. A trademark does not constitute a form of permission required by a state or local government for undertaking an occupation or profession. While a businessperson’s inability to make use of a trademark might arguably have some effect on his ability to earn an income, that is not a matter that is covered under the Wisconsin Fair Employment Act. Wendt v. Marathon County (LIRC, 07/31/02).

The Complainant was a member of a board of zoning appeals. Members of the board are appointed by the mayor and serve without compensation. The Complainant filed a complaint of discrimination against the city and against the mayor when the mayor denied her reappointment to the board. The complaint was properly dismissed because there was no employment relationship between the Complainant and either of the two named Respondents. Moreover, the Complainant did not allege that the Respondents engaged in any actions that affected her future opportunities for employment with them or for any other employer. The Complainant was, therefore, not protected by the Wisconsin Fair Employment Act. Langer v. City of Mequon (LIRC, 03/19/01).

Probationary employees are entitled to the same protections against unlawful discrimination under the Wisconsin Fair Employment Act as are regular employees. Hickman v. Milwaukee Immediate Care Ctr. (LIRC, 02/16/00), aff’d sub nom. Milwaukee Immediate Care Ctr. v. LIRC (Milwaukee Co. Cir. Ct, 11/02/00).

The Complainant, a prisoner at the Green Bay Correctional Institution who earned minimum wage and was required to pay taxes while working for the Badger State Industries Private Sector/Prison Industries Enhancement Program, was not an employee as defined by statute. The Complainant alleged that his decision to voluntarily terminate his employment with Badger Industries was due to racial discrimination in the workplace. The relationship of the Complainant with Badger Industries arose out of his status as an inmate, and not an employee. Whaley v. Wis. Pers. Comm’n (Brown Co. Cir. Ct., 05/13/97).

Inmates performing work in a correctional institution are not considered employees within the meaning of the Wisconsin Fair Employment Act unless the inmate is employed in an off-site work release program in which their employment has the same attributes as that of non-inmates performing similar work duties. Whaley v. Wis. Pers. Comm’n (Brown Co. Cir. Ct., 05/13/97); Pinkins v. DOC (Wis. Pers. Comm’n, 03/12/97). A stockholder of a corporation is not automatically precluded from filing a discrimination complaint against the corporation where she was also an employee. Schaefer v. New Berlin Realty (LIRC, 06/10/93).

The complaint was dismissed for lack of subject matter jurisdiction when the complaint offered no information which suggested that the Complainant was in an employment relationship with the Respondent. The Complainant’s allegations related to her status as a student. Fischer-Guex v. UW-Madison (Wis. Pers. Comm’n, 12/17/92).

A union has the right to bring a complaint of discrimination and to do so by its duly authorized representative. The Wisconsin Fair Employment Act itself does not preclude the possibility of an organization filing a complaint alleging discrimination against individual members of that organization or persons whose interests are shared or represented by that organization. The Act contains no limitation on who may file a complaint. While the Act does refer in sec. 111.39(3), Stats., to “the person filing the complaint,” the word “person”includes all partnerships, associations, and bodies politic or corporate. Helton v. Wesbar Corp. (LIRC, 03/19/92).

If a claim of sex discrimination is otherwise valid, it should not be rendered invalid because the discrimination does not run against the sex of the Complainant. In this case, the Complainant has stated a viable claim upon which relief could be granted when he alleged that his position was eliminated along with the position of a female friend when that female friend failed to “respond positively to sexual harassment” by the Respondent. The Complainant is alleging that his position was eliminated as a direct result of an illegal act of sexual harassment against his female friend. Christensen v. UW-Stevens Point (Wis. Pers. Comm’n, 01/24/92).

Unions may file complaints on behalf of their members under the Wisconsin Fair Employment Act. Racine Unified School Dist. v. Racine Educ. Ass’n, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991); GTE v. LIRC Communications Workers of America) (Ct. App. Dist. IV, unpublished opinion, 10/26/81); Hartford Educ. Ass’n v. Hartford Sch. Dist. (LIRC, 05/14/79); Sosnowski v. Uniroyal (LIRC, 05/14/79).

Members of the Wisconsin National Guard are state employees under the Wisconsin Fair Employment Act. Aries v. DMA (Wis. Pers. Comm’n, 11/06/91).

A military member of the Wisconsin National Guard is an employee of the state. A decision to separate someone from guard service falls within the jurisdiction of the Personnel Commission. (Note: The Commission did not address any question of federal supremacy). Hazelton v. DMA (Wis. Pers. Comm'n, 03/14/89).

The Complainant, an inmate in a pre-release work training program, was not in an employment relationship. As part of the program, the Complainant was paid less than the prevailing wage to perform work at a county mental health center. He received on-site supervision and worker’s compensation coverage, but he did not have access to an employee grievance procedure, and he was not provided any other benefits. The program agreement covering the Complainant specifically provided that the inmates that were not to be considered permanent employees. Dalton v. Wis. DHSS. (Wis. Pers. Comm’n, 09/26/88).

While professors involved in a faculty exchange technically remain on the faculties of their respective universities, numerous incidents of the employment relationship are present. To deny status as an employee under the Wisconsin Fair Employment Act would be inconsistent with the liberal construction policy of the Act. McFarland & Joubert v. UW-Whitewater (Wis. Pers. Comm'n, 09/08/88).

The Personnel Commission lacks subject matter jurisdiction over a complaint filed by an inmate who alleged discrimination based on conviction record with respect to actions taken by the prison’s education director. Richards v. DHSS (Wis. Pers. Comm’n, 09/04/86).

The Wisconsin Fair Employment Act does not cover the right to purchase a proprietary interest in a business. The Complainant was not an employee or a potential employee of Montgomery Ward and Company in connection with his attempts to purchase a catalog sales outlet. Keys v. LIRC (Polk Co. Cir. Ct., 07/01/85).

The Personnel Commission has jurisdiction over a complaint charging that the Complainant’s status as a military member of the National Guard was terminated because of handicap. Military members of the Guard are employees of the states. However, the Complainant had dual status as a federal civil service technician and as a Guard member, and those aspects of the complaint relating to his technician status are outside of the Personnel Commission’s jurisdiction. Schaeffer v. DMA (Wis. Pers. Comm’n, 11/07/84).