121.13 Hazardous occupations

Wisconsin Stat. § 111.33(2)(f) provides that it is not employment discrimination because of age “to exercise an age distinction with respect to employment in which the employee is exposed to physical danger or hazard, including, without limitation because of enumeration, certain employment in law enforcement or fire fighting.” Had the Complainant met his burden of establishing that a fitness test employed by the Respondent as part of the application process for the job of conservation warden discriminated against older workers, the commission would have remanded for further evidence as to the applicability of that section. Mitchell v. State of Wis. Dep't of Nat. Res. (LIRC 10/30/23).

In light of legislative history and general rules of statutory construction, the wording of the exception from liability with respect to hazardous occupations requires that a factual determination be made concerning whether a Complainant’s job actually exposed him to physical danger or hazard. One’s employment in law enforcement or firefighting comes under the exception or not depending on the particular characteristics of the employment. A remand is necessary where the ALJ failed to make a factual determination. Ohrmundt v. Town of Maine (LIRC, 02/10/15).

The Administrative Law Judge properly dismissed a complaint of age discrimination because the employment involved, firefighting, was a hazardous occupation which is exempt from the prohibition against discrimination based on age pursuant to sec. 111.33(2)(f), Stats. It is obvious that the legislature deemed age to be a bona fide occupational qualification reasonably necessary in jobs such as firefighting where the employee is exposed to physical danger or hazard. The Administrative Law Judge’s dismissal of the case was appropriate even though the Respondent never raised the statute as a defense by motion or in its answer. Johnson v. LIRC, 200 Wis. 2d 715, 547 N.W.2d 783 (Ct. App. 1996).

“Officer” positions at a camp for youthful offenders are covered by the hazardous occupations exception to the Act. Employees over age 55 were not discriminated against when they were denied transfers to those positions. Bunde v. LIRC (Wis. DHSS) (Dane Co. Cir. Ct., 07/09/81).

The age complaint of a firefighter did not state a cause of action because the Act specifically exempts hazardous occupations. Diedrich v. City of Kaukauna (DILHR, 12/01/76).

All law enforcement occupations are within the hazardous occupations exception, regardless of the degree of actual hazard in a particular position. Wold v. City of Eau Claire (DILHR, 11/26/76).