Wis.LIRC ER Decision: Olivares, Teresa - October 23, 1973 - Procedure - Coverage of the WFEA - A "person" other than an employer, labor organization or licensing agency can violate the Wisconsin Fair Employment Act if it engages in discriminatory conduct which has a sufficient nexus with the denial or restriction of an individual's employment opportunities

STATE OF WISCONSIN
DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS
EQUAL RIGHTS DIVISION

TERESA OLIVARES, Complainant

UNIVERSITY OF WISCONSIN - OSHKOSH,

UNIVERSITY OF WISCONSIN - MADISON, Respondents

FAIR EMPLOYMENT DECISION

The complaint in the above entitled matter, which was filed with the Equal Employment Opportunity Commission on February 20, 1973, and deferred to the Equal Rights Division of the Wisconsin Department of Industry, Labor and Human Relations on March 13, 1973, alleges that Respondents discriminated against Complainant because of her age, sex, race, color, and national origin in violation of the Wisconsin Fair Employment Act, Wis. Stat. ss. 111.31-111.37 (1971). On June 20, 1973, Respondent University of Wisconsin-Madison (hereinafter referred to as "UW-Madison") moved that the complaint be dismissed as to it on the ground that the Department lacked jurisdiction to proceed under the Act. Pursuant to a Notice of Oral Argument issued on September 4, 1973, oral argument on the motion was held before the Commissioners of the Department on September 24, 1973, at General Executive Office Facility I, 201 East Washington Avenue, Madison, Wisconsin.

Having considered the arguments advanced by the parties and the issues presented by this motion, the Commission hereby issues the following:

MEMORANDUM DECISION

It should be noted at the outset that the question raised here is strictly one of jurisdiction -- i.e., whether the Department has the authority under the Fair Employment Act to proceed with an investigation and determination of the allegations of the complaint and the inferences which can reasonably be drawn therefrom. Nothing contained in this decision is intended to express any opinion on the merits of Complainant's claims.

The complaint alleges that Respondent UW-Oshkosh discriminated against Complainaint in various respects with regard to her employment as a member of the UW-Oshkosh faculty, and that Respondent UW-Madison discriminated against her in refusing to admit her to a doctoral prograrm in the UW-Madison Spanish Department, both in violation of the Fair Employment Act. The complaint is also construed to allege that Complainant was denied a promotion with the Foreign Language Department at the Oskhosh campus at least in part because she was not admitted to the doctoral program at the Madison campus.

Respondent UW-Madison contends that there is no allegation in the complaint of any employer-employe/applicant relationship between it and Complainant, that the Fair Employment Act requires such a relationship as a condition precedent to Department action on a complaint, and that, therefore, the Department should dismiss the instant complaint for lack of jurisdiction.

Assuming, for the moment, that the Act requires the existence of an employer-employe/applicant relationship between a respondent and a complainant, this requirement is clearly satisfied in the present case if the allegedly disciminatory conduct of Respondent UW-Madison occurred on or after October 1, 1971, the effective date of the merger between the former University of Wisconsin and the former State University System. Although, as Respondent's counsel noted in oral.argument, certain provisions of Chapter 100, Wis. Laws of 1971 (hereinafter referred to as "the Merger Act"), indicate a legislative intent to permit the various campuses to operate with a degree of autonomy during an interim period of implementation of the merger, these provisions do not justify the treatment of each campus as a separate "employer" for the purposes of the Fair Employment Act. Other sections of the Merger Act provide that "all powers, duties and functions previously vested in the board of regents of the university of Wisconsin, the board of regents of state universities and the coordinating council for higher education..." shall be vested in the Board of Regents of the merged UW System (s. 20 (1)(a)), and that "employes of the board of regents of the university of Wisconsin and of the board of regents of state universities shall become employes of the board of regents of the university of Wisconsin system..." (s. 20 (3)). These latter provisions became effective on October 1, 1971, and they indicate a clear intent on the part of the legislature to place the overall control and direction of academic as well as employment matters on all campuses, including the Madison campus and the Oshkosh campus, in the hands of the Board of Regents of the merged UW System as of that date. Neither the former organization of the University of Wisconsin and the Wisconsin State University at Oshkosh as separate educational institutions, nor the present retention of a certain degree of autonomy by each campus during the interim period of merger implementation, can be used to thwart this clear legislative intent. Thus, the Department has jurisdiction over any complaint alleging that, on or after October 1, 1971, discriminatory action taken by one campus in the UW System has excluded a person from an employment opportunity at another campus in the UW System. Since the complaint in this matter alleges that one arm of the Board of Regents (UW-Madison) has discriminatorily refused to provide Complainant with the training and degree required for her to obtain a promotion from another arm of the Board of Regents (UW-Oshkosh), and since the Board of Regents of the merged UW System is the relevant "employer" within the meaning of the Fair Employment Act, the Department clearly has jurisdiction to investigate and determine Complainant's claims, insofar as they relate to events occurring on or after October 1, 1971.

However, the complaint in this matter alleges that the events complained of commenced in 1967 and continue to date, without any further specification of the time of their occurrence. It is therefore necessary to decide whether the Department has jurisdiction over this case if the complaint is construed as alleging that Respondent UW-Madison discriminatorily denied Complainant admission to its doctoral program prior to October 1, 1971, when UW-Madison (the former University of Wisconsin) and UW-Oshkosh (the former Wisconsin State University at Oshkosh) could arguably have been considered separate entities for the purposes of the Fair Employment Act.

Respondent UW-Madison contends that the Department has no jurisdiction over the complaint against it because Complainant has not alleged the existence of any employer-employe/applicant relationship between UW-Madison and Complainant. It is, of course, clear from the statutory language that parties other than employers may be charged with and held liable for discriminatory practices which violate the Fair Employment Act. The Act provides that it is unlawful "for any employer, labor organization, licensing agency or person to discriminate against any employe or applicant for employment or licensing." Wis. Stet. s. 111.325 (emphasis added). The statute also states that it is unlawful age discrimination "for an employer, labor organization or person in the field of...education..., because an individual is between the ages of 40 and 65,...to bar ...from employment such individual ...." Id., s. 111.32 (5)(b)(1) (emphasis added). The Act further provides that it is unlawful sex discrimination "for an employer, labor organization, licensing agency or person...to bar...from employment...such individual..." because of her/his sex. Id., s. 111.32 (5)(g)(1) (emphasis added).

In order for the Department to have jurisdiction under the quoted provisions of the Fair Employment Act, three requirements must be satisfied: (1) the complaint must allege that an actual or potential "employe" or "applicant for employment or licensing" has been unlawfully discriminated against; (2) the complaint must name as respondent a party who is an "employer," a "labor organization," a "licensing agency," or a "person" within the meaning of the Act; and (3) the complaint must allege a sufficient nexus between the discrimination complained of and the denial or restriction of some employment opportunity. The first two requirements are clearly satisfied in the instant matter: Complainant alleges that she was an employe of and an applicant for promotion within UW--shkosh (the former Wisconsin State University at Oshkosh); and Respondent UW-Madison is undisputably a "person" within the meaning of the Act (see Wis. Stet. s. 390.01 (25)).

Respondent UW-Madison contends, however, that the relationship between its alleged discrimination (the refusal to admit Complainant to its doctoral program) and the denial or restriction of Complainant's employment opportunities (the refusal of UW-Oshkosh to promote Complainant to a higher position in its Foreign Language Department) is not sufficiently direct to satisfy the third jurisdictional requirement. To illustrate the point in oral argument, Respondent's counsel posed the hypothetical case of a complaint alleging that the respondent, a bowling alley, had refused to allow the complainant to bowl with her church team in an amateur league because of her sex, age, race, or national origin, and further alleging that she had lost her job as a secretary at the University because this discrimination had caused her such emotional turmoil that she could no longer adequately perform her duties. We are constrained to agree with Respondent's counsel that, if this Commission were presented with such a case, a motion to dismiss for lack of jurisdiction would, in all probability, be granted. Although the hypothetical complainant is an "employe" and the bowling alley is a "person" within the meaning of the Act, the bowling alley is not functionally related to the complainant's employer, nor is the performance of its essential function for the complainant (the provision of recreational services and facilities) related in any way to the complainant's general employment status. The connection between the bowling alley's allegedly discriminatory conduct and the complainant's employment status would be insufficient to support a finding of jurisdiction under the Fair Employment Act.

However, the hypothetical case posed by Respondent's counsel is not directly in point with the case at hand. A more apt analogy to the case of Teresa Olivares can be constructed by means of a slight modification of the hypothetical. Assume that the mythical complainant is a professional bowler, that her complaint alleges that the respondent bowling alley is in the business of providing training to professional bowlers, and that her complaint alleges that the bowling alley has refused to admit her to its training program because of her sex, age, race, or national origin, thereby impairing her ability to earn a living at and advance within her chosen profession. In other words, the complainant alleges that the bowling alley has discriminatorily refused to provide her with services which are necessary to her performance and advancement as a professional bowler. Here, the link between the respondent's conduct and the complainant's employment status is forged not by the precarious and idiosyncratic state of the complainant's mental and emotional health, but rather by the very nature of the services offered by the respondent. Therefore, the claims of the modified hypothetical complaint would be sufficient to vest the Department with jurisdiction under the Fair Employment Act.

The allegations of the Olivares complaint, including the inferences which can reasonably be drawn therefrom, state a relationship between the conduct of Respondent UW-Madison and the employment status of Complainant which closely resembles the relationship between the bowling alley and the professional bowler in the second hypothetical complaint discussed above. Complainant, a member of the faculty at UW-Oshkosh, alleges that she was denied a promotion there as a result of UW-Madison's discriminatory refusal to admit her to a doctoral program -- i.e., that Respondent UW-Madison refused to admit her to its training program, thereby impairing her ability to earn a living at and advance within her chosen profession. Moreover, even before merger, UW-Madison (the former University of Wisconsin) and UW-Oshkosh (the former Wisconsin State University at Oshkosh) were both parts of this state's higher educational establishment, and therefore bore a relationship to each other which would not ordinarily be present between a university which denied a person admission to a graduate degree program and an employer who then refused to promote the person because she lacked the appropriate degree. Thus, since Complainant is an "employe" and Respondent UW-Madison is a "person" within the meaning of the Fair Employment Act, and since the complaint alleges a sufficient nexus both between the two Respondents and between Respondent UW-Madison and Complainant's employment status, the Department has jurisdiction to proceed with the investigation and determination of Complainant's claims against Respondent UW--Madison, regardless of whether the events complained of occurred before or after October 1, 1971.

Based upon the foregoing Memorandum Decision, the Commission issues the following:

ORDER

1. That Respondent UW-Madison's motion to dismiss for lack of jurisdiction be, and hereby is, denied.

2. That, commencing with the date of issuance of this Order, Respondent UW-Madison cooperate with the Department's investigation and determination of the above entitled matter, as required by Wis. Stat. Chapters 101 and 111.

Dated and mailed October 23, 1973.

/s/ Philip E. Lerman, Chairman

/s/ John C. Zinos, Commissioner

/s/ William Johnson, Commissioner

rk : 12/3

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