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2004 Wisconsin Attorney General Reports and Opinions 1 (2004)

handle is hein.sag/sagwi0002 and id is 1 raw text is: 114 East, State Capitol PEGGY A. LAUTENSCHLAGER P.O. Box 7857 ATTORNEY GENERALP..Bx75 Madison, WI 53707-7857 Daniel P. Bach Deputy Attorney General August 16, 2004 OAG - 1- 04 Ms. Helene Nelson Secretary Wisconsin Department of Health and Family Services 1 W. Wilson St. P.O. Box 7850 Madison, WI 53707-7850 Dear Secretary Nelson: You have asked whether the exclusion of contraceptives from an employer or college or university sponsored benefits program that otherwise provides prescription drug coverage violates Wisconsin law prohibiting sex discrimination in employment and in higher education. It is my opinion that such exclusion does violate Wisconsin law, specifically the Wisconsin Fair Employment Act (WFEA), Wis. Stat. §§ 111.31-111.395, and Wis. Stat. §§ 36.12 and 38.23 relating to the University of Wisconsin System and the Wisconsin Technical College System, respectively. Section 11 1.36(1)(a) of the WFEA defines employment discrimination because of sex as [d]iscriminating against any individual in . .. terms, conditions or privileges of employment ... on the basis of sex where sex is not a bona fide occupational qualification. WFEA further expressly forbids discrimination against any woman on the basis of pregnancy, childbirth, maternity leave or related medical conditions by engaging in any of the actions prohibited under s. 111.322, including, but not limited to, actions concerning fringe benefit programs covering illnesses and disability. Wis. Stat. § 111.36(l)(c). The latter language was added to the WFEA by ch. 334, s. 22, Laws of 1981. It was intended to codify existing Wisconsin case law. See Rice, The Wisconsin Fair Employment Act and the 1982 Amendments. Wis. Bar. Bull. (Aug. 1982). Wisconsin courts have held that the WFEA prohibits provisions in employer-sponsored insurance plans from treating pregnancy-related leave differently from other short-term disability leave. See Wisconsin Telephone Co. v. ILHR Dept., 68 Wis. 2d 345, 228 N.W.2d 649 (1975), Ray-O-Vac v. ILHR Dept., 70 Wis. 2d 919, 236 N.W.2d 209 (1975) and Goodyear Tire v. ILHR Dept., 87 Wis. 2d 56, 273 N.W.2d 786 (Ct. App. 1978). It is irrelevant whether the employer intended to discriminate or not. See Wisconsin Telephone Co., 68 Wis. 2d at 368 (the broad purpose of the [WFEA] is to eliminate practices that have a discriminatory impact as well as practices which on their face amount to invidious discrimination); Ray-O- Vac, 70 Wis. 2d at