129.2 Spousal Identity

Adverse actions which were taken not because the Complainant was married per se, but instead because of the identity of the person to whom he was married (i.e., a subordinate employee in the same facility) were not unlawful. Moreover, although the Complainant argued that the Respondent enforced its nepotism policy less favorably in regard to married persons than it did in regard to employees in other types of family relationships, he failed to present sufficient evidence to support this claim. Whiting v. County of Shawano (LIRC, 03/15/04).

Discrimination based upon the identity of one’s spouse is not covered by the Wisconsin Fair Employment Act, which is meant to protect the status of being married in general rather than the status of being married to a particular person. Bammert v. LIRC, 2000 WI App 28, 232 Wis. 2d 365, 606 N.W.2d 620.

The Complainant did not establish that she was discriminated against because of marital status where what the Complainant complained of was not that she was discharged because she was married, but that she was discharged because she was married to a particular person. The prohibition on discrimination on the basis of marital status does not extend to the particular identity, personal characteristics or actions of one’s spouse. Andree v. C.T. & I. Corp. of Wis. (LIRC, 08/29/91).

The prohibition against discrimination because of marital status does not extend to prohibiting actions by an employer that are based upon the identity or particular characteristics of an employee’s spouse. Whether or not such employment actions might be deemed unfair, the fact remains that they do not discriminate against persons because they belong to the protected classification of persons who are married. Miner v. Blunt, Ellis & Loewi (LIRC, 05/29/91), aff’d sub nom. Miner v. LIRC (Rock Co. Cir. Ct., 04/07/92).

DILHR has jurisdiction to hear a complaint alleging that an employer’s policy against hiring the spouse of a current employee is discrimination. The Act should be interpreted to prohibit discrimination based on the particular identify of one’s spouse. Arrowood v. H.G.C.C. of Wisconsin (Milwaukee Co. Cir. Ct., 01/29/85).