113.4 Other persons, joint employers, and de facto employers

Liability of a "person" who is not an employer or other entity named as a Respondent under the WFEA, Wis. Stat. §111.321 depends on showing that that person engaged in some discriminatory act that has a connection with the denial or restriction of the Complainant's employment opportunities. Heart v. UW-Superior Found. (LIRC, 02/28/20).

The Commission contemplates situations in which an individual may have one or more employers, each of whom in concert exercises control over some aspect of that individual's hiring, firing, or terms and conditions of employment. Bach v. Easter Seals Se. Wisc. (LIRC, 10/09/14).

The Department of Corrections was subject to the Wisconsin Fair Employment Act as a “person” within the meaning of the Act with respectLKjto its work-release program for inmates. The concept of “person” is a very broad one. Monroe v. Birdseye Foods (LIRC, 03/31/10); But see; Jackson v. State of Wis. Dep't of Corr. (LIRC, 11/14/16). The Complainant alleged that the Department of Corrections 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. LIRC 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.

A “person” other than an employer, labor organization or licensing agency can violate the Wisconsin Fair Employment Act if it engages in discriminatory conduct which has a sufficient nexus with the denial or restriction of an individual’s employment opportunity. In this case, the Respondent did not directly employ the Complainant. The Complainant worked as a commercial truck driver for another company which leased its trucks and drivers exclusively to the Respondent. The Respondent had the authority to approve or reject drivers. It also oversaw driver safety, including drivers’ federally required Department of Transportation certifications. The Respondent’s actions had a sufficient nexus with the denial or restriction of the Complainant’s employment opportunities. Even if it was not an employer, it was, at the very least, an “other person” under the Wisconsin Fair Employment Act. Szleszinski v Transhield Leas. Co. et al (LIRC, 02/04/04); Szleszinski v. LIRC, 2005 WI App 229, 287 Wis. 2d 775, 706 N.W.2d 345, aff’d Szlezinski v. LIRC, 2007 WI 106, 304 Wis. 2d 258, 736 N.W.2d 111.

While secs. 111.321 and 111.325 of the Wisconsin Fair Employment Act provide that no “person” may engage in an act of employment discrimination, the Act also expressly provides for employer liability for any financial remedies ordered as a result of a violation of the law “by an individual employed by the employer.” Sec. 111.39(4)(c), Stats. Thus, individual supervisors acting as agents of the employer should not be named as separate Respondents in discrimination complaints. Yaekel v. DRS Ltd. (LIRC, 11/22/96).

Notwithstanding the general suggestion in some decisions by the Labor and Industry Review Commission that the “person” language in sec. 111.325, Stats., might reach non-employer entities that affect employment opportunities, this possibility does not exist in the case of non-governmental organizations which make determinations affecting decisions of governmental licensing organizations. Johnson v. Cent. Reg’l Dental Testing Serv. (LIRC, 02/29/96).

The Wisconsin Fair Employment Act is not limited to discrimination by “employers” against their own “employees.” While sec. 111.325, Stats., provides that it is unlawful for “any employer . . . or person to discriminate against any employee or any applicant for employment,” the disjunctive use of the term “person” clearly implies that the “person” doing the discriminating can be someone or something other than an "employer" and therefore can be something or someone other than the employer of the person being discriminated against. In this case, the City of Milwaukee is a person within the meaning of sec. 990.01(26), Stats. The Complainant is clearly an “individual,” and he is also an "employee," in that he was an employee of an agency which contracted to provide security guard services for the City. Therefore, the Wisconsin Fair Employment Act is applicable to the Complainant's claim of discrimination against the City. Jackson v. City of Milwaukee (LIRC, 10/28/93).