113.1 Employers

Because the Respondent was not a current or prospective employer of the Complainant, nor a union or licensing agency, there was a question as to whether it had the ability to directly engage in any of the enumerated acts of discrimination laid out in the WFEA. LIRC has repeatedly found that a complaint may be stated under the Act, even in the absence of an actual or potential employment relationship between the parties, provided the complaint has alleged that a Respondent engaged in an action that directly relates to an employment opportunity. The Complainant alleged that the Department of Corrections ("DOC") colluded with the third-party employer to discriminate against him in terms of compensation and stated a claim for relief. The commission distinguished this case from Jackson v. State of Wis. Dep't of Corr. (LIRC, 11/14/16), stating "there are meaningful distinctions" between this case and the Jackson case. The action at issue in Jackson was the DOC's decision to remove the Complainant from the work release program altogether based upon an infraction of DOC rules – a matter of internal prison policy that was completely separate from the actual terms and conditions of his employment with the third-party employer. In this case, the Complainant claimed that the DOC colluded with the third-party employer to discriminate against him in terms of compensation. Lofton v. State of Wis. Dep't of Corr. (LIRC, 09/27/18).

The Complainant alleged that the Respondent DOC violated the WFEA when it terminated his employment in an off-site work release program. Because the Respondent is not a prospective or actual employer, nor a union or licensing agency, it is unable to engage directly in any of the enumerated acts of discrimination laid out in the statute. The commission recognizes that the WFEA has been broadly interpreted to cover actions that may affect employment opportunities taken by employers or persons with whom the Complainant has no current or potential employment relationship. However, the decisions that take this approach have involved situations that are distinguishable from this case. The Respondent's actions in ending the Complainant's participation in a prison program that would have permitted him to obtain outside employment with a third-party employer do not fit within the definition of discrimination provided in the Act. "It strains common sense to find that a prison inmate whose only employment-related connection to the Respondent is due to the fact of his incarceration would be covered by the Act…" Jackson v. State of Wis. Dep't of Corr. (LIRC, 11/14/16)

The Complainant sought redress for the loss of her employment as a caregiver for her mother, the recipient of Medicaid-eligible in-home care services administered through the Department of Health Services ("DHS"). The program through which the Complainant's mother received caregiving services was referred to as Include, Respect, Self-Direct (IRIS). DHS contracted with a fiscal service agency, the Milwaukee Center for Independence ("MCFI"), to perform certain functions for the IRIS program including obtaining employees' criminal histories. MCFI was not a "person" under the WFEA as it was not in a position to engage in a discriminatory act that had a connection with the denial or restriction of the Complainant's employment opportunities. MCFI had no control over the Complainant's loss of employment and had no authority to reinstate her or tap her mother's Medicaid funds to pay her. MCFI simply gathered information for the background check that revealed the Complainant's conviction for theft. Haynes v. IRIS (LIRC, 11/07/14).

Adverse actions taken against the Complainant by an individual who at the time was not an employee or agent of the named Respondent fails to state a cause of action. DeMoya v. Wis. Dep't of Veterans Affairs (LIRC, 12/12/13).

The State Department of Corrections did not act as an employment agency within the meaning of the Wisconsin Fair Employment Act when it assigned the Complainant, an inmate, work under its work-release program. It is not part of the mission of the Department of Corrections to provide workers for business enterprises. Instead, the DOC develops associations with businesses willing to accept inmate workers, and places eligible inmates with these businesses for rehabilitation and other correctional purposes. (The DOC was subject to the Act as a “person,” however.) Monroe v. Birdseye Foods (LIRC, 03/31/10).

The State of Wisconsin is not considered a single employing entity. Wongkit v. UW-Madison (Wis. Pers. Comm’n, 10/21/98).

The Personnel Commission’s jurisdiction under the Wisconsin Fair Employment Act is over employment actions by a state agency acting in the capacity of an employer. The state agency that was a defendant in previous litigation in which a garnishment order was obtained and an agency which defended various other agencies in lawsuits filed by the Complainant did not act in the capacity of an employer within the meaning of the WFEA. Balele v. DOA (Wis. Pers. Comm’n, 06/04/97); aff’d sub nom. Balele v. DOA Wis. Pers. Comm’n (Dane Co. Cir. Ct., 02/13/98).

The discharge of an employee because of disability after a potential business partner of the employer demanded it as a condition of entering into partnership with the employer was discriminatory. Swanson v. State St. Stylists (LIRC, 11/26/97).

The decision by the Department of Workforce Development to deny the Complainant unemployment compensation benefits after her discharge from employment with the University of Wisconsin Hospital Clinics Board related to the regulatory authority of the Respondent, rather than to its authority as an employer. The Personnel Commission lacked jurisdiction to review the Complainant’s Wisconsin Fair Employment Act claim arising from the denial of benefits. Mosley v. DWD (Wis. Pers. Comm’n, 09/24/97).

The Complainant prevailed on her complaint that she had been sexually harassed by the Respondent (a company) and that the Respondent had terminated her employment because of her sex and because she had opposed a discriminatory practice under the Act. However, the Complainant’s supervisor and the owner of the Respondent were appropriately dismissed as Respondents. The Complainant argued that her supervisor should be held liable because he was acting as an agent of the company. However, sec. 111.39(4)(c), Stats., expressly provides that, “If the examiner awards any payment to an employee because of a violation of s.111.321 by an individual (i.e., agent) employed by the employer, under s.111.32(6), the employer of that individual is liable for the payment.” The Complainant argued that the owner of the company should be held liable since he exercised complete authority over all decision-making related to the corporation, including the decision to terminate her employment. One of the underlying purposes of the corporate structure is the advancement of limited liability of corporate investors. Exceptions to the general rule of limited shareholder liability exist where “applying the corporate fiction would accomplish some fraudulent purpose . . . or defeat some strong equitable claim.” However, in this case there was no evidence which supported piercing the corporate veil and imposing personal liability on the owner of the Respondent. Burton v. Marketing Technologies (LIRC, 05/10/96).

The Complainant argued that while the Respondent was not directly his employer, it controlled his access to employment with a third party. However, the Respondent in this case did not have significant control over the Complainant's employment opportunities and did not interfere with his employment opportunities with third parties. The Complainant was able to and did freely contract to perform work with other employers without any interference by the Respondent. Omegbu v. Mequon-Thiensville Sch. Dist. (LIRC, 12/21/95).

While it is unlawful for a “person” to discriminate, the Personnel Commission’s jurisdiction under the Wisconsin Fair Employment Act runs only to the state agency as the employer, and not to individual agents of the agency in their individual capacities. Goetz v. DOA (Wis. Pers. Comm'n, 11/13/95).

The Lesbian, Gay and Bisexual Campus Center, a registered student organization, is not sufficiently outside the control and governance of the University of Wisconsin-Madison to be considered in legal effect an independent agency such that it would have a capacity as an employer independent of the University of Wisconsin-Madison. While the center can independently make decisions regarding its own operation (including the employment of students), such decisions are subject ultimately to the authority of the Chancellor and the Board of Regents. Haselow v. UW-Madison (Wis. Personnel Comm'n, 06/09/95).

A manager who discharged a Complainant for an unlawful reason should probably not be named as a separate Respondent where there was no allegation in the complaint that the manager was acting outside of the scope of her apparent authority and the evidence in fact showed that she had the authority to discharge employees. The appropriate Respondent in such cases is the employer, and the employer is liable for the violation of the Act. Koll v. Hair Design (LIRC, 04/27/95).

A complaint arising from the action of the Respondent finding that the Complainant did not possess the requisite qualifications for status as a mental health professional related to the regulatory authority exercised by the State, rather than its authority as an employer. Mehler v. DHSS (Wis. Pers. Comm’n, 12/22/94).

The Personnel Commission lacks jurisdiction to hear a claim of discrimination brought by a student who alleged that the Respondent failed him for a doctoral qualifying exam. The Complainant’s allegations did not relate to the Respondent’s role as an employer. Hassan v. UW-Madison (Wis. Pers. Comm’n, 03/29/94).

An unincorporated proprietorship has no legal identity distinct from that of its owners. Therefore, an amended complaint purporting to add the owners as Respondents, in addition to the business itself, would make no real legal change in the parties, or in the allegations of the complaint. If a Respondent is a corporation, rather than an unincorporated proprietorship, there is no basis for separately naming owners (i.e., owners of the corporation's stock) as Respondents in their individual capacities based simply on their stock ownership. The corporation is a separate legal entity. Liability for actions taken by the corporation (acting through its agents) is liability of the corporation. The liability of stockholders for actions taken by the corporation is limited. While there may be cases in which the law will “pierce the corporate veil” to impose liability of a corporation directly on its owners on a personal basis, whether this is appropriate or necessary must be determined on a case-by-case basis, and it cannot be automatically achieved merely by naming the owners as Respondents. Sinclair v. Mike’s Towne & Country (LIRC, 10/15/93).

If the constitution or a law creates both an agency and one or more subdivisions within that agency, each such subdivision is not considered a separate, exclusive employer under the Wisconsin Fair Employment Act. Schilling v. UW-Madison (Wis. Pers. Comm’n, 11/06/91).

The Respondent was an employer of the Complainant for purposes of the Wisconsin Fair Employment Act where: (1) the Complainant was at least nominally a county employee, but worked in a program that was a cooperative venture of the county, and (2) the Respondent and the Complainant’s supervisor, on behalf of the Respondent, exercised the authority to exert significant control over the incidents of the Complainant’s employment. The fact that the supervisor did not have final authority to discipline the Complainant was not critical. Betz v. UW-Extension (Wis. Pers. Comm’n, 02/08/91).

There is little authority construing the definition of “employer” in the Wisconsin Fair Employment Act. The definition of employer in Title VII is quite similar to the definition in the Wisconsin Fair Employment Act. Case law under Title VII has given the definition of “employer” a broad construction that focuses on control over conditions of employment. Entities which exercise significant control over an employment situation may be proper defendants in a Title VII action even though they are not the immediate employer. Betz v. UW-Extension (Wis. Pers. Comm’n, 02/08/91).

The Supreme Court was not an employer with respect to certain positions filled by the Wisconsin Equal Justice Task Force. The fact that the WEJTF was in effect created by the court was an insufficient basis for finding that the court held employer status in the absence of both a traditional employment relationship and any alleged input into or control over the hiring process by the court. Novak v. Wis. Supreme Ct. (Wis. Pers. Comm’n, 02/07/91).

The Wisconsin Fair Employment Act and Title VII address the type of entity that is considered an employer, but they do not address the functional nature of the employment role. Title VII case law establishes that status as an employer can be based on control over the opportunity for and conditions of employment and does not require a traditional or common law employment relationship. Novak v. Wis. Supreme Ct. (Wis. Pers. Comm’n, 02/07/91).

The following factors may be considered in determining whether technically separate corporate entities may be consolidated in an employment discrimination matter: (1) the interrelationship of operations, (2) common management, (3) centralized control of labor relationships, and (4) common ownership or financial control. Novak v. Wis. Supreme Ct. (Wis. Pers. Comm’n, 02/07/91).

The court granted an Absolute Writ of Prohibition prohibiting the Equal Rights Division from taking any further proceedings against the Wisconsin Winnebago Business Committee, the duly authorized governing body of the Wisconsin Winnebago Indian Tribe, because that entity possessed sovereign immunity from suit. State ex rel. Wis. Winnebago Business Comm. v. DILHR (Dane Co. Cir. Ct., 04/16/90).

The Department of Justice was not acting as an employer, but merely acted as a conduit for federal funding which ultimately found its way to the organization which had employed the Complainant. Therefore, the complaint was dismissed. Murchison v. DOJ (Wis. Pers. Comm’n, 10/04/89).

Three business entities were a joint employer where their operations were interrelated, they had common management, and one person had the final decision on employment matters for each of the three corporations. Gustafson v. C.J.W., Inc. (LIRC, 03/21/89).

Where the Complainant worked as an employee of Kelly Services at Madison Area Technical College, MATC could be found to be an employer of the Complainant under the Wisconsin Fair Employment Act when, because of the Complainant’s arrest record, MATC caused the person's work assignment at its workplace to be terminated. Collins v. MATC (LIRC, 12/19/86).

A public employer can be found liable for discrimination if it caused a temporary employment agency to terminate the assignment of an employee of that agency who worked at the public employer's workplace. Collins v. MATC (LIRC, 12/19/86).

The Personnel Commission lacked jurisdiction to consider the Complainant’s allegation that the Commission discriminated against him by delaying the investigation of a charge of discrimination, since there was no employment relationship between the Complainant and the Personnel Commission. Poole v. DILHR (Wis. Pers. Comm’n, 12/06/85).

The Department of Military Affairs is not exempt from the Wisconsin Fair Employment Act when making decisions to terminate the employment of military members of the National Guard. Schaeffer v. DMA (Wis. Pers. Comm’n, 11/07/84).

In assigning a classification to a salary range, the administrator is acting as an employer as the term is used in the Wisconsin Fair Employment Act, as he is controlling an aspect of the employees’ compensation and is involved in the total employment process, even though the Complainants were employed in agencies other than the Division of Personnel. WFT v. Wis. Div. of Pers. (Wis. Pers. Comm’n, 04/02/82).

A nonprofit corporation exempt from federal and state income taxes and organized for the purpose of promoting social activities among the club's members is not an employer within the meaning of the Act. Victoreen v. Milwaukee Athletic Club (LIRC, 10/13/81).

The UW-Press was not an employer of the Complainant with respect to a complaint of discrimination regarding its refusal to publish a manuscript. Acharya v. UW (Wis. Pers. Comm’n, 10/01/79).

A complaint against the Director of the Bureau of Grain Regulation was dismissed because he is not an employer within the meaning of the Act. Wis. Dep’t of Agric. v. LIRC (Anderson) (Dane Co. Cir. Ct., 05/25/78).