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117.9 Miscellaneous

The issue of whether a police officer or firefighter who is discharged after a just cause hearing before the Police & Fire Commission (PFC) pursuant to Wis. Stat. §62.13(5) may pursue a discrimination complaint under the WFEA was considered and resolved by the Wisconsin Supreme Court in City of Madison v. DWD, 262 Wis. 2d 652, 664 N.W.2d 584 (2003). The Court concluded that the Equal Rights Division could not exercise jurisdiction over WFEA claims arising out of actions by the PFC under §62.13(5). The Commission concluded that the rationale relied upon in City of Madison to find exclusive PFC jurisdiction to hear complaints of discriminatory discharge or discipline under Wis. Stat. §62.13(5) applies equally to the treatment of WFEA claims arising out of actions by the PFC under Wis. Stat. §62.50(11). Koch v. City of Milwaukee (LIRC, 06/09/11).

The Wisconsin Fair Employment Act does not require individuals to exhaust other administrative remedies prior to initiating an action under the Act. The Complainant was discharged from his job as a truck driver based upon a report from a physician that recommended that he be barred from driving. The physician’s report was based primarily on a federal Department of Transportation medical conference report which concluded that a diagnosis of Wilson’s Disease should unequivocally indicate disqualification. The Complainant was not required to exhaust the federal administrative process for appealing his denial of a medical certification in order to establish a violation of the Wisconsin Fair Employment Act. Szleszinski v. LIRC, 2005 WI App 229, 287 Wis. 2d 775, 706 N.W.2d 345, aff’d Szleszinski v. LIRC, 2007 WI 106, 304 Wis. 2d 258, 736 N.W.2d 111.

Municipalities with populations above 4,000 are required to maintain a police and fire commission with jurisdiction over the hiring, promotion, discipline, and discharge of members of the police and fire departments. The police and fire commissions have the authority to evaluate whether employment actions under their review are fair and without discrimination. The Department of Workforce Development may not take jurisdiction over a WFEA complaint arising out of a decision of a police and fire commission. City of Madison v. DWD, 2003 WI 76, 262 Wis. 2d 652, 664 N.W.2d 584.

The work-sharing agreement between the United States Equal Employment Opportunity Commission and the Equal Rights Division of the Wisconsin Department of Workforce Development does not superimpose federal substantive and procedural law on the Department. A work-sharing agreement does not change laws or administrative rules. Matis v. LIRC (Ct. App., Dist. III, unpublished opinion, 05/07/02). The fact that redress might be available to the Complainant under either the Worker’s Compensation Act or the Wisconsin Open Personnel Records Law would not prohibit the Complainant from stating a claim under the Wisconsin Fair Employment Act, provided the conduct alleged was otherwise covered under the Act. Ferguson v. Buechel Stone Corp. (LIRC, 10/31/01).

There is nothing in the Wisconsin Fair Employment Act which provides, or even implies, that the authority of the Equal Rights Division to interpret and apply the provisions of the Act is in any respect subordinated to the authority of any other administrative agency, or that a decision by any other administrative agency must be given weight in the interpretation and application of the provisions of the Act. Borum v. Allstate Ins. Co. (LIRC, 10/19/01).

The Notice of Claims statute, sec. 893.80, Stats., does not apply to claims of discrimination under the Wisconsin Fair Employment Act. Schiller v. City of Menasha Police Dept. (LIRC, 01/14/93).

Federal regulation of the National Guard preempts the application of the Wisconsin Fair Employment Act’s anti-discrimination provisions with respect to the discharge of an HIV-positive National Guard member. Federal law preempts the enforcement of the Wisconsin Fair Employment Act in this area because Congress and the framers of the Constitution intended that the federal government exclusively occupies the field of regulation of personnel criteria for the national guard. Hazelton v. Wis. Pers. Comm'n, 178 Wis. 2d 776, 505 N.W.2d 793 (Ct. App. 1993).

The Respondent contended that it prohibited a deaf employee from driving tuggers and scooters in its lant pursuant to OSHA regulations and that federal law preempted state law in this matter. However, the OSHA regulations cited by the Respondent did not clearly regulate driver qualifications for tuggers and scooters. Willett v. Delco Electronics (LIRC, 01/17/90).

Although there is a statutory method to appeal Department of Employee Trust Fund coverage determinations, such appeals are not the exclusive means of challenging those decisions. The Personnel Commission has concurrent jurisdiction to deal with violations of the Wisconsin Fair Employment Act. Phillips v. DHSS (Wis.Pers. Comm’n, 03/15/89).