118 Constitutional issues

The freedom of exercise clause of the First Amendment of the United States Constitution and the freedom of conscience clauses of the Wisconsin Constitution preclude employment discrimination claims under the Wisconsin Fair Employment Act for employees whose positions are important and closely related to the religious mission of a religious organization. The Equal Rights Division did not have jurisdiction to consider the Complainant’s age discrimination complaint in this case because it impinged on the Respondent’s right to religious freedom. Coulee Catholic Schools v. LIRC, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868.

If the Equal Rights Division concludes that a position is “ministerial” or “ecclesiastical,” further enforcement of the Wisconsin Fair Employment Act against the religious association is constitutionally precluded, even if there is no religious justification for the alleged discrimination. Because the ministerial exception precludes further inquiry into the reasons for the employment action, if the exception applies, the stated reason for the employment action should not be considered. If, on the other hand, the ministerial exception does not apply, the court may then address the issue of excessive entanglement by the State in matters of religious doctrine. In this case, the Complainant was a first grade teacher at an elementary school which is part of the Coulee Catholic Schools Association, and is owned and operated by the Roman Catholic Diocese of La Crosse, Wisconsin. The Complainant’s position was not ministerial. Coulee Catholic Schools v. LIRC, 2008 WI App 68, 312 Wis. 2d 331, 752 N.W.2d 342, reversed, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868.

An administrative agency is not empowered to determine whether the statutory provisions that it administers are constitutional. Salley v. Nationwide Mortgage & Realty Corp. (LIRC, 12/13/07).

The Salvation Army is a church, and its officers serve a ministerial or ecclesiastical function. The Equal Rights Division does not have jurisdiction to resolve a discrimination complaint involving an officer position in the Salvation Army. To allow the Complainant to proceed with such a case would cause the state to intrude upon matters of church administration and government which are matters of ecclesiastical concern and, as such, would violate the Free Exercise and Establishment Clauses of the First Amendment. Coryell v. The Salvation Army (LIRC, 09/27/99).

The Respondent’s decision to discharge the Complainant because she married outside the Catholic Church was ecclesiastically based. The Complainant maintained that the Respondent should have been required to demonstrate what a non-sacramental marriage was, according to an objective Catholic text, before the complaint could be dismissed. However, the question of whether the Complainant’s marriage was truly “non-sacramental” pursuant to the tenets of the Catholic faith is the very type of issue which the Equal Rights Division may not reach. In order to decide this question it would be necessary to assess, evaluate and possibly challenge aspects of the Respondent’s religious philosophy in a manner that would clearly be inconsistent with the mandates of the Free Exercise Clause and the Establishment Clause of the First Amendment of the Constitution of the United States. Newton v. St. Gregory Educ. & Christian Formation Comm'n (LIRC, 12/10/97).

An administrative agency is not empowered to rule on the constitutionality of the statutory provisions it administers. Rathbun v. City of Madison (LIRC, 12/19/96).

The legislature conferred upon the Department subject matter jurisdiction over all complaints that are brought under the auspices of the Wisconsin Fair Employment Act. Non-profit religious associations are considered “employers” under the Wisconsin Fair Employment Act. Hence, the Act empowers the Department to review and investigate employment discrimination complaints filed against religious associations. However, notwithstanding the agency’s legislatively created authority and jurisdiction, constitutional religious protection may preclude the State and the courts from enforcing secular mandates on religious organizations. The State is prevented from enforcing the State’s employment discrimination laws against religious associations when the employment position at issue serves a “ministerial” or “ecclesiastical” function. Jocz v. LIRC, 196 Wis. 2d 273, 538 N.W.2d 588 (Ct. App. 1995).

The right to free speech is not absolute and the courts have consistently found that harassing speech in the workplace is not protected by the first amendment. Similarly, the state’s interest in providing non-discriminatory public accommodation may justify slight incursions into free speech. In this case, the Respondent was found to have violated the Wisconsin Public Accommodations Act because she repeatedly used the term “nigger” in the presence of black restaurant patrons. Bond v. Michael’s Family Rest. (LIRC, 03/30/94). The Department's decision finding that a newspaper violated the Wisconsin Open Housing Act by publishing advertisements in connection with the rental of housing did not violate the newspaper's rights to freedom of speech and press as protected by the United States and Wisconsin Constitutions. Metro. Milwaukee Fair Housing Council v. Hartford Times Press (LIRC, 08/31/93).

The Equal Rights Division did not violate the free exercise clause of the First Amendment of the U.S. Constitution by holding a hearing to determine whether a religious school’s asserted religious-based reason was in fact the real reason for discharging the Complainant. Sacred Heart School Bd. v. LIRC, 157 Wis. 2d 638, 460 N.W.2d 430 (Ct. App. 1990).

Wisconsin Administrative Code Section IND 88.08, providing for hearings on the issue of probable cause upon appeal of initial determinations of no probable cause, was validly promulgated under the statutory authority of the Equal Rights Division and is constitutional. Sections 111.375(1) and 111.39(2), Stats., both empower the Division to hold hearings necessary to perform its functions, and the no probable cause hearing is thus a proper exercise of the Division’s authority to investigate complaints to determine if probable cause exists. Black & Decker v. DILHR (Ct. App., Dist. IV, unpublished opinion, 09/15/88).

The Equal Rights Division would have jurisdiction to hear a case in which a Complainant alleged that a Catholic university refused to hire her because of her sex. It is not clear how far into the process the Department may proceed before running into First Amendment issues and violations, but the Supreme Court has indicated that a state administrative body violates no constitutional rights by investigating and determining whether a religious employer's asserted religious reason for its alleged discriminatory action was the real reason. Maguire v. Marquette Univ. (LIRC, 08/18/88).

It would be an unconstitutional infringement of first amendment rights to freedom of religion for the Equal Rights Division to assert jurisdiction over the practice of a Catholic school of requiring that one of its lay teachers, once divorced, would not be allowed to remarry. Kovach v. Marinette Catholic Cent. High Sch. (LIRC, 06/12/86).

The Act does not provide for a jury trial in discrimination cases and the failure of Wisconsin’s Administrative Code to so provide is not unconstitutional. Traywick v. LIRC (Pabst Brewing) (Milwaukee Co. Cir. Ct., 01/27/83).

LIRC’s order that the employer cease from excluding pregnancy from its sick leave compensation policy and pay the employee all sick leave due her does not constitute an impairment of contract in violation of the Constitution. Vocational, Technical & Adult Educ. v. LIRC (Nelson) (Milwaukee Co. Cir. Ct., 08/09/80).

DILHR is without jurisdiction to decide the validity of granting veteran preference points under the Equal Protection clause. Nettleson v. DOA (LIRC, 04/01/80).

The Act does not give LIRC jurisdiction to decide whether a hiring process violates constitutional or other statutory rights; and such claim cannot be joined with a court action to review a LIRC decision. Cooper v. LIRC (Martin Serv. Bureau) (Dane Co. Cir. Ct., 10/22/79).

A school district has no standing to make state and federal constitutional law arguments because of the long-standing rule that, in a suit between arms of the state, neither party can question the constitutionality of a statute. Joint District No. 1, City of Nekoosa v. DILHR (Hinrichsen) (Dane Co. Cir. Ct., 10/20/78); also, Waukesha Public Sch. v. DILHR (Coulson) (Dane Co. Cir. Ct., 07/06/78).