Wisconsin Personnel Commission's             Digest of Decisions        March, 1999 Version

Sections 790 through 790.04

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790 Discrimination based on sexual orientation


790.02(2) Finding of no probable cause

It would have been speculative to conclude there was any connection between complainant's sexual preference and his failure to be reinstated to a vacant position where the decision-maker was unaware of complainant's sexual orientation and the person alleged by complainant to have had an animus against complainant because of his homosexuality had an extremely limited role in the selection process. Ames v. UW-Milwaukee, 85-0113-PC-ER, 12/23/88

No probable cause was found where complainant failed to produce any evidence indicating the persons comprising the interview panel or the person making the hiring decision was aware or should have been aware that the complainant was bisexual. Bisbee v. DHSS, 82-PC-ER-54, 6/23/83; affirmed by Dane County Circuit Court, Bisbee v. State Pers. Comm., 617-636, 10/3/84

790.03(2) Finding of no discrimination

The legislature has decided that heterosexual marriage and/or the presence of dependent children, not mere actual dependence, will determine eligibility for family health insurance benefits, and did not empower administrative agencies to extend family health insurance benefits to alternative families. Therefore, the complainant, who had a homosexual non-spousal partner but was not legally married, was not similarly situated to heterosexual married persons for purposes of finding discrimination. Public policy objectives justified disparate treatment of complainant and others with alternative families. Phillips v. Wis. Pers. Comm., Dane County Circuit Court, 89 CV 5680, 11/8/90; affirmed by Court of Appeals, 167 Wis. 2d 205, 2/13/92

No discrimination based on sex, sexual orientation or race, violation of FMLA, or retaliation based on FEA activities was found with respect to respondent’s decision to discharge the complainant where respondent concluded that complainant had violated various work rules when she gave a suggestive note to a coworker, telephoned the same coworker at home, and admitted to using profanity towards various other coworkers and about a client. Mitchell v. DOC, 95-0048-PC-ER, 8/5/96

The rationale for the imposition of a requirement of a physician's verification for absences was not shown to be pretextual where this requirement was imposed in accordance with a collective bargaining agreement and other applicable requirements, and complainant was not treated differently than any other similarly situated employe. Miller v. DHSS, 91-0106-PC-ER, 5/27/94

The rationale for the extension of complainant's probation was not shown to be pretextual where the record did not support complainant's contention that he had not been worried about the possible results of his absenteeism, and it was not necessary for respondent to demonstrate that complainant's absences had a negative impact on the operation of his unit in order to enforce its absenteeism policies. Miller v. DHSS, 91-0106-PC-ER, 5/27/94

Complainant was not discriminated against on the basis of marital status, sex or sexual orientation when she was denied family health insurance coverage for her homosexual non-spousal partner with whom complainant shared finances and maintained many attributes usually associated with the marital relationship. The failure of DETF to have promulgated a rule that would have included complainant's partner within the definition of a dependent for purposes of family insurance coverage is not discriminatory because precedent and legislative history establishes that the legislature did not intend that such coverage be provided, complainant was not similarly situated with respect to married employes whose relationships were legally recognized by Wisconsin family law, and DETF was not obligated by the Fair Employment Act to recognize relationships for the purpose of defining dependents that are not legally recognized by family law but which arguably are parallel to legally recognized relationships. Phillips v. DETF & DHSS, 87-0128-PC-ER, 3/15/89, 4/28/89, 9/8/89; affirmed by Dane County Circuit Court, Phillips v. Wis. Pers. Comm., 89 CV 5680, 11/8/90; affirmed by Court of Appeals, 167 Wis. 2d 205, 2/13/92

790.04 Prima facie case

The Commission properly ruled that complainant failed to state claim for denial of her application for family insurance coverage for her lesbian companion, where challenged rule distinguished between married and unmarried employees, not between homosexual and heterosexual employees. Complainant's contention that she was not married to her companion only because she could not legally marry another woman was not a claim of sexual orientation discrimination but was instead a claim that marriage laws are unfair because of their failure to recognize same-sex marriages. It was that restriction, not insurance eligibility limitations in statutes and rule, that resulted in complainant being unable to extend her state employee health insurance benefits to her companion. Phillips v. Wis. Pers. Comm., 167 Wis. 2d 205 (Court of Appeals, 1992)

Complainant failed to establish a prima facie case with respect to the decision to terminate his employment where the record did not reflect whether he was replaced by an employe who was, or was perceived by the employer as, heterosexual and where there was no other evidence which created an inference that the termination was based on complainant's sexual preference. Schilling v. UW-Madison, 90-0064-PC-ER, 90-0248-PC, 11/6/91


While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.

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