RICHARD J. BIRK, Complainant


ERD Case No. 8720447

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on August 18, 1989. Complainant filed a timely petition for review by the Commission and both parties subsequently submitted written arguments to the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:


The decision of the Administrative Law Judge is modified as follows:

1. In the last sentence of paragraph 6 of the FINDINGS OF FACT, delete the words "a few days after the interview."

2. Add the following as CONCLUSION OF LAW paragraph 3:

"3. The complaint is subject to the Wisconsin Fair Employment Act and the Department of Industry, Labor and Human Relations has jurisdiction over the complaint."

As modified, the decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed August 3, 1990.

/s/ Kevin C. Potter, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner



In its brief to the Commission, the Respondent, Georgia-Pacific Corporation, has objected to an earlier decision by an Administrative Law Judge that the State of Wisconsin, through the Department of Industry, Labor and Human Relations, has jurisdiction over this complaint.

The Commission has held that the controlling factor in determining whether the Wisconsin Fair Employment Act (WFEA) applies to a particular employment action is where the action took place. Gray v. Walker Mfg. Co., ERD Case # 8025006 (LIRC, 7/21/82); Buyatt v. C.W. Transport, Inc., ERD Case # 7500097 (LIRC, 7/25/77). In the present case, Georgia-Pacific argues that the Complainant, Richard Birk, had already transferred and started working in Georgia on July 12, 1985, that he quit (or was terminated) when he refused, on July 16, 1985, to accept the conditions imposed on his employment by Charles Frey, that the alleged act of employment discrimination therefore occurred in Georgia, and that the WFEA consequently does not apply.

Birk, on the other hand, contends that he accepted the transfer to Georgia while he was employed in Wisconsin, that his acceptance was conditioned upon obtaining a satisfactory price for the sale of his house, that his refusal, ultimately, to accept the transfer was based upon his failure to obtain any assurance of a satisfactory selling price by the time Frey had required his wife to move to Georgia, that he therefore was still a Wisconsin employe at the time his employment was terminated, and that the WFEA consequently does apply.

While reasonable arguments can be made for either position, the Commission believes it is appropriate in this case to find that the Department, through the WFEA, has jurisdiction over this matter. First, as Administrative Law Judge Pam Rasche found, Birk's W-2 forms for 1985 show that his entire salary for that year was taxable in Wisconsin and that he did not receive any income in Georgia. If Birk had been employed in Georgia, even for four days as Georgia-Pacific argues, his income should have been taxable in that state. Since there was no taxable income in Georgia, the Commission finds it difficult to reconcile a finding that he was employed in Georgia.

Second, and more importantly, the Commission does not accept Georgia-Pacific's argument that the act of employment discrimination occurred solely in Georgia. On July 9, when Charles Frey first told Birk that his wife would have to move to Albany by mid-August or Birk could not have the position, Birk was in Milwaukee and had not yet moved to Albany or started to work there. There is no indication in the record that the initial imposition of this employment condition was placed upon Birk after he moved to Georgia. The record supports a finding that Birk accepted the job and went to Georgia to begin working at that plant with full knowledge that his wife was required to go with him. It is true that Birk was terminated after he began working at the Georgia facility. Nevertheless, the imposition of this as a condition of his employment occurred in Wisconsin while Birk was negotiating with Georgia-Pacific for the Albany position. The Commission believes that it is reasonable to conclude that the employment act which is being challenged occurred both in Wisconsin and in Georgia. While Georgia-Pacific pursued this condition of employment to a point of culmination/termination in Georgia, that presumably would not have occurred had the condition not been previously imposed while Birk was still in Wisconsin. The Commission, therefore, concludes that the employment action in question took place both in Wisconsin and in Georgia and that the Wisconsin Fair Employment Act does apply under these circumstances.


The WFEA makes it unlawful to terminate an individual's employment or to discriminate against an individual in promotion, compensation, or in terms, conditions or privileges of employment on the basis of "marital status." See sections 111.321-111.322, Wis. Stats. The term "marital status" means the "status of being married, single, divorced, separated or widowed." Section 111.32(12), Wis. Stats.

Georgia-Pacific argues that Birk's employment was terminated because his failure to agree to move his family to Georgia by mid-August reflected a lack of commitment and vacillation about the Albany job, not because of his marital status (i.e., not because he was married). Georgia-Pacific has no policy of requiring that a spouse or family must move with an employe who is transferred. Moreover, this requirement was not imposed when Birk initially was offered the job of comptroller of the Albany facility, and it was imposed only after Birk had accepted, then rejected, and again accepted the position. Georgia-Pacific had offered the position initially to one of its other employes who refused to take the position because his wife did not want to transfer to a new city. Georgia-Pacific did not retaliate against this individual, nor was this individual required to terminate his employment, as was Birk.

Birk, on the other hand, argues that it is marital status discrimination to terminate an employe simply because the employe's spouse will not satisfy an employer's residence requirement, and that such requirement obviously would not apply to a non-married employe. Birk urges the Commission to construe the WFEA broadly and states in his brief that ". . . under a broad interpretation an employer may not discriminate because of who the applicant is or what that spouse does." (Complainant's brief, p. 4) After reviewing the record, the Commission concludes that Georgia-Pacific's argument is more persuasive and, further, that the Administrative Law Judge has correctly assessed the legislative intent with regard to this issue in her decision.

The WFEA prohibits "marital status" discrimination, i.e., discrimination based upon the "status of being married, single, divorced, separated or widowed." Sections 111.32(12), 111.321 and 111.322, Wis. Stats. In this case, the Commission believes that the evidence supports a finding that Birk's employment was not terminated simply because of his status as a married person (as opposed to a single or divorced person). His employment was terminated because he could not assure Georgia-Pacific that his wife would move to Georgia by mid-August. Georgia-Pacific felt that if Birk's wife's residence was not with Birk at the new Albany plant, that it could not be assured that Birk would remain in the position or that if he did remain, that Georgia-Pacific would be the recipient of his undivided attention and energy. Frey testified that "I felt the family should move with him to Albany. We had a lot of work to do, and we needed his undivided attention in the comptroller's position. It was a very responsible position and we needed his main efforts in Albany, Georgia . . . we had a job that needed to be taken care of. And I needed a commitment. We were trying to get the best individual we could and I needed commitment for somebody to come in and get things under control." (TR 77-78, 81-82) Frey also testified "I just felt that he was not going to be committed to the work in Albany without having his family in Albany. Them being this far away would be a problem for him." (TR 91) Frey also testified that he had never before imposed such a requirement on an employe and said that it was not Georgia-Pacific's policy to do this.

After reviewing the record, the Commission believes that Frey became increasingly frustrated with his attempts to obtain a comptroller for this position. He began looking for someone to fill the position in March 1985. He offered it to one individual who turned it down for the reason that the individual's wife did not want to move to Albany. Then, when he finally received an acceptance from Birk, Birk vacillated and at one point refused the transfer. When Birk went back to Frey and accepted the job, it is understandable that Frey did not fully trust Birk's commitment to the job. This is not to say that Frey's seemingly impulsive imposition of this employment condition was fair or justified, or that it would even solve the problem he sought to solve (to insure that Birk would remain in Albany). Nevertheless, the credible evidence supports a finding that Frey did not impose this employment condition for the purpose of discouraging Birk to remain married or discriminating against him on the basis of the fact that he was a married individual. Further, it is the Commission's impression that Frey and Birk became involved in a somewhat subtle power struggle over this issue. While Birk accepted the job under the condition that he would move his wife to Albany by mid-August, he returned to Frey four days after he had started the job in Albany and attempted to renege on his acceptance of that condition. The Commission believes it is likely that Frey simply became inflexible over this issue because he was angry about what he perceived to be Birk's backsliding. The fact that Frey did not impose this is as an initial condition of employment supports the conclusion that Frey's motive was not discriminatory. There is a subtle but important distinction between an employment condition which may be unfair, arbitrary and which directly involves or affects an individual's spouse, and an employment condition which is imposed for the purpose of discriminating against an individual based upon his or her marital status. While Birk established the former, he did not establish the latter. The WFEA does not prohibit a condition of employment simply because it involves or affects the employe's spouse, or requires a certain act of an employe's spouse. Also, the WFEA does not prohibit an employment act simply because it is unfair or arbitrary. The Commission agrees that the condition of employment imposed upon Birk was unreasonable. However, the Commission is unwilling to interpret the WFEA's prohibition against marital status discrimination as encompassing this particular condition of employment.


Appealed to Circuit Court.  Affirmed January 4, 1991.

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