153 Printing or making an inquiry which expresses or implies discrimination.

For purposes of a sec. 111.322(2) "printing or circulating" claim, it is not necessary that the Complainant have been directly affected by the discriminatory conduct. The violation is complete when the policy is in place and then printed or circulated. Jackson v. Ruan Transp. Mgmt. Sys., Inc. (LIRC, 06/21/17).

An allegation that the Respondent violated Wis. Stat. § 111.322(2) by printing a discriminatory advertisement covers a discriminatory policy that is printed on the job application, even though not specified on the complaint. The fact that the Respondent was the party to introduce the application at the hearing and that the Complainant was not directly affected by it does not defeat his claim that the Respondent violated Wis. Stat. § 111.322(2). Jackson v. Ruan Trans. Mgmt. Sys., Inc. (LIRC, 06/21/17).

The Respondent violated sec. 111.322(2), Stats., when it posted a job advertisement that expressed an intention to discriminate against individuals with conviction records. While instatement into the job and back pay are potential remedies for a violation of this statute, these remedies are only granted where the facts warrant a conclusion that, but for the Respondent’s act of discrimination, the Complainant would have been hired for the job. In this case, the evidence established that the Respondent never actually filled the job. Therefore, the appropriate remedy was an order requiring the Respondent to cease and desist from printing or circulating such advertisements. No back pay or instatement was ordered. Jackson v. Dedicated Logistics (LIRC, 07/29/11).

By filing an action pursuant to sec. 111.322(1), Stats., a union had the burden of establishing that at least one of its members had been injured. That statute provides a cause of action for acts of discrimination which have already occurred. The union’s reliance on cases filed under sec. 111.322(2), Stats. (which creates a cause of action for statements printed or circulated by the employer which proclaim its present or future intent to discriminate) was misplaced. That section applies to prospective harm. It does not require that an individual has actually been harmed. Milwaukee Teachers Educ. Ass’n v. Milwaukee Bd. of Sch. Dir. (LIRC, 07/30/10).

The Wisconsin Fair Employment Act permits an employer to make employment decisions based upon an applicant’s conviction record if the circumstances of the offense are substantially related to the circumstances of the particular job. Therefore, it is not a violation of the Act to request conviction record information from a job applicant. A question about an applicant’s conviction record on an employer’s employment application would not, therefore, constitute prohibited discrimination within the meaning of sec. 111.322(2), Stats., which prohibits printing or circulating any statement, advertisement or publication or using any form of application for employment which implies or expresses any limitation or discrimination with respect to an individual. Lee v. LIRC (Ct. App., Dist. I, unpublished opinion, 05/27/10). Lee v. D.J.’s Pizza (LIRC, 05/20/09); Lee v. Wendy’s (LIRC, 05/20/09); Lee v. Speedway Super America (LIRC, 05/20/09).

A question on an employment application asking if an applicant has been convicted of a felony in the preceding five years is not prohibited by the Wisconsin Fair Employment Act. The Act provides that it is not employment discrimination because of conviction record to refuse to employ any individual who has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job. The Act presupposes that an applicant’s criminal record is known to the employer and does not prohibit an employer from asking questions about criminal records. Also, nothing in the Act prohibits an employer from conducting background checks. Jackson v. Klemm Tank Lines (LIRC, 04/29/05).

The types of violations covered by sec. 111.322(2), Stats., are sufficiently distinct from those covered by sec. 111.322(1), Stats., that they need to be specifically alleged and noticed as an issue. Greco v. Snap-On Tools (LIRC, 05/27/04).

The Wisconsin Fair Employment Act provides that it is an act of employment discrimination to print or circulate a statement or publication implying or expressing any limitation, specification or discrimination based on a protected category. Section 111.322(2), Stats. The Complainant was offended by negative references to gypsies in the Respondent’s cashier manual and in a memo. In order to prove a violation of sec. 111.322(2), Stats. in these circumstances, the Complainant would have to prove: (1) that the cashiers’ handbook and the memo were statements or publications which had been printed or circulated by the Respondent; (2) that the handbook and memo were actionable statements or publications within the meaning of s. 111.322(2); and (3) that the handbook or the memo implied or expressed any limitation, specification or discrimination based on ancestry. In this case, the hearing record supports the conclusion that the term “gypsy” is used in the handbook section and in the memo to describe a type of criminal activity, not a person of Romany ancestry and, as a result, these writings do not express or imply an intent to target either customers, visitors or employees based on their ethnicity. From the context in which this word appears in the handbook section, which directs employees to take certain actions if customers or visitors engage in certain activities, it has to be concluded that the author’s intent was to identify and describe an individual who engages in a certain type of activity, not a person of a certain ethnicity. Therefore, the Complainant failed to prove a violation of sec. 111.322(2), Stats. Schramm v. Farm & Fleet (LIRC, 05/14/03).

An internal memo to the Respondent’s legal advisors cannot be considered a “publication” or an “advertisement” within the meaning of sec. 111.322(2), Stats. While it might be considered a “statement” within the broadest sense of that term, for purposes of the statute it was neither printed nor circulated. The “print” provision of the statute has been interpreted to mean “to publish in print,” while the term “circulate” contemplates a wide degree of distribution. Valla v. Wal-Mart Distrib. Ctr. (LIRC, 11/30/01).

An employer’s letter to an employee containing a last-chance warning is not a publication within the meaning of sec. 111.322(2), Stats. Moreover, a memo and letters regarding the Complainant in this case were copied to nine individuals who all had a “need to know” basis for reviewing the documents. This did not constitute “circulation” within the meaning of the statute. For a thing to be circulated, a relatively wide quantitative degree of distribution is required. Guthrie v. UW (Wis. Pers. Comm’n, 08/28/00).

Offending conduct under sec. 111.322 (2), Wis. Stats., is not the adoption of a discriminatory employment policy, but rather the publication or circulation of such a policy. The dictionary defines “circulate” as “to cause to pass from person to person and. . .to become widely known.” Thus, for a thing to be circulated, a certain relatively wide quantitative degree of distribution is required. In this case, the Respondent distributed a letter regarding conditions placed on the Complainant’s future employment to nine individuals with a specific “need to know” basis. These individuals were in the supervisory chain over the Complainant, or were involved in personnel administration, which included the processing of disciplinary actions. This limited circulation of a specific warning to the Complainant cannot be considered to constitute circulation of that notice. Williams v. DOC (Wis. Pers. Comm’n, 11/03/99).

The Respondent asked the Complainant during her interview whether she was married and why she had changed her name. He indicated that he had problems in the past in connection with an employee going through a divorce and stated that he could not let that happen again. He informed the Complainant that divorced women were not stable and that the interview was at an end. The Respondent’s actions were in violation of sec. 111.322(2), Stats., because he made an inquiry in connection with prospective employment which implied or expressed a limitation, specification or discrimination because of marital status. Behm v. William Haasl, DDS, SC (LIRC, 10/21/91).

If an employer prints or circulates a discriminatory employment policy, this constitutes a violation of the Wisconsin Fair Employment Act and is actionable under sec. 111.322(2) Wis. Stats. This statutory provision requires an affirmative act of volition by the employer in publishing or circulating its discriminatory statements. Such is not demonstrated by media coverage of school board meetings. However, the inclusion of a discriminatory policy in a school board’s compilation of official policies does constitute printing and circulating the policy in violation of the statute. Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

A case may be brought under sec. 111.322(2), Wis. Stats., even though no individual has suffered actual injury as a result of a printed statement which implies an intent to discriminate. This statute addresses the evil of employment discrimination on the two fronts where it obviously is practiced -- against existing employees and against prospective employees. The violation is complete when the policy is in place and then printed or circulated. Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

Where a union successfully prevented a school district from pursuing a published official policy of unlawful employment discrimination against certain of its members it was acting as a private attorney general to implement a public policy that the legislature considered to be of major importance. Even though the policy was never implemented, this was no mere “moral” or “technical” victory. The union was properly awarded attorney’s fees. Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).