Wis.LIRC ER Decision: Miner, William - May 29, 1991 - Marital Status discrimination - "spousal identity" - discrimination against someone because of the particular identity of that person's spouse does not constitute "marital status"discrimination

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

WILLIAM L. MINER, Complainant

BLUNT, ELLIS AND LOEWI, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 8701977, EEOC Case No. 26G870150

In a complaint filed on September 28, 1987, and an amended complaint filed on November 18, 1987, Complainant William L. Miner alleged that Respondent Blunt, Ellis and Loewi had discharged him because of marital status and sex in violation of the Wisconsin Fair Employment Act. Following an investigation, the Equal Rights Division issued an Initial Determination concluding that there was no probable cause to believe that Miner had been discharged because of his sex, but that there was probable cause to believe that he had been discharged because of his marital status. No appeal was filed from the determination on the allegation of sex discrimination, and that issue is no longer presented. Respondent declined to participate in the conciliation process, and the matter was therefore set for hearing. Prior to hearing, Respondent filed a motion to dismiss the complaint on the grounds that the Department had no jurisdiction since the acts complained of by Miner, even if true, did not state a claim of discrimination on the basis of marital status under the Wisconsin Fair Employment Act. Both parties filed briefs supporting their respective positions on Respondent's motion to dismiss. On April 5, 1990, the Administrative Law Judge issued a decision granting the motion and dismissing the complaint. Complainant filed a timely petition for review by the Commission of the Administrative Law Judge's decision.

Based upon a review of the entire record in this matter, and for the reasons stated in the attached Memorandum Opinion, the Commission concludes that the acts alleged by the complaint and the amended complaint in this matter do not, as a matter of law, constitute a violation of the Wisconsin Fair Employment Act's prohibition on discrimination because of marital status, and it therefore makes the following:

ORDER

That the complaint in this matter be dismissed.

Dated and mailed May 29, 1991

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

Allegations of the Complaint -- Because of the procedural posture of this case there is not an evidentiary record as such which provides a basis for making findings of fact. The issue presented is whether the facts alleged would, even if true, establish a violation of the Act. Therefore, the appropriate focus must be on the facts alleged in the complaint.

The facts alleged, which are assumed to be true for purposes of testing the legal sufficiency of the complaint, are described as follows in the original complaint:

"[Complainant was] discharged from employment as a stockbroker with Blunt, Ellis and Loewi ('BEL') after approximately 18 years of excellent performance because of . . . marital status and the reasons given are pretextual. The manager of BEL's Janesville office had a sexual relationship with [Complainant's] former wife which played a role in BEL's decision to fire [Complainant]." (1 )

The amended complaint added no material allegations of fact.

For purposes of evaluating the legal sufficiency of the claim, the Commission also looks to the factual assertions made in Complainant's brief in opposition to Respondent's motion to dismiss:

"The Complainant began his employment with the Respondent in 1969. From the beginning of his employment with the Respondent until his termination on March 31, 1987, Complainant was employed in Respondent's Janesville, Wisconsin office. The Complainant operated as a broker for the Respondent and performed his job in an exemplary fashion. Richard Lane was also employed by the Respondent in the Janesville branch at all times relevant to this action. Lane was the Complainant's supervisor until he was demoted from this position in late 1983 due to Complainant's complaint to senior management officials of the Respondent that Lane was having an affair with Complainant's wife, Linda. Lane told the Complainant that he would "get even" with the Complainant some day for causing this demotion. The relationship between Lane and Complainant's wife caused severe tensions within the Janesville office. The Complainant and his wife were eventually divorced in 1986. When the Complainant was terminated in (sic) March 31, 1987, the Respondent claimed that the termination was due to Complainant's alleged violation of corporate policy and inability to respond to supervision. . . . The Complainant has alleged that the relationship between Lane, an employe of the Respondent, and the Complainant's former wife, at least in part led to his termination from the employ of the Respondent." [Complainant's Brief, pp. 1-2, 3- 4]

The issue presented is whether the situation thus described involves a violation of the Fair Employment Act's prohibition on discrimination because of marital status.

The Prohibition on Marital Status Discrimination -- The Fair Employment Act was amended by Chapter 334 of Laws of 1981 to provide that discrimination because of "marital status" was unlawful. Virtually from its inception, there has been uncertainty about the scope of this provision. One area of difficulty has involved application of the provision to health insurance coverage provided as a fringe benefit. See, Bourque v. Wausau Medical Center (LIRC, February 10, 1984); Hartman and Lavine v. Mueller Food Services (LIRC, September 10, 1985); Ray v. Dept. of Health & Social Services (Wisconsin Personnel Commission, 83-129-PC- ER, October 10, 1984); Kortesma, et al. v. School District of Maple (LIRC, October 26, 1990); Dacquisto v. Knapp Engraving Co., Inc. (LIRC, November 30, 1990). Another area of difficulty involves adverse actions taken against employes not because of the fact that they are married per se, but rather because of some characteristic of or something to do with the particular person to whom they are married. For the sake of convenience, this can be referred to as the issue of "spousal identity" discrimination, referring to discrimination because of the particular identity or circumstances of a person's spouse. Ray, supra; Arrowood v. HGCC of Wisconsin, Inc. (Case No. 641-354, Milwaukee County Circuit Court, January 29, 1985), Birk v. Georgia-Pacific Corp. (LIRC, August 3, 1990), aff'd. Birk v. LIRC and Georgia-Pacific Corp. (Case No. 90-CV-011832, Milwaukee County Circuit Court, January 4, 1991).

It is evident to the Commission, as it was evident to both parties herein, that this case presents an issue of spousal identity discrimination. William Miner alleges, not that Richard Lane discriminated against him because he had been married, but that Lane discriminated against him because he had been married to Linda Miner.

Application of the Statute to the Facts Alleged in the Complaint -- This case requires application of the provisions of the Fair Employment Act respecting marital status discrimination, to the facts described above, and this in turn requires determining the intent of the Legislature in adopting those provisions. First resort should be to the language of the statute itself. In re P.A.K., 119 Wis. 2d 871, 878, 350 N.W.2d 677 (1984).

However, interpreting the Fair Employment Act's prohibition on discrimination because of marital status is difficult because of the contrasting implications of sec. 111.32(12), Stats., which defines marital status, and sec. 111.345, Stats., which establishes a specific exception to the prohibition. The definition of the term "marital status" states that it means "the status of being married, single, divorced, separated or widowed." Standing by itself, this would suggest that the status of being married to a particular person, as opposed to simply being married, would not be a protected status under the Act. However, this argument can be called into question by reference to sec. 111.345, Stats., which provides that notwithstanding the general prohibition on discrimination because of marital status, "It is not employment discrimination because of marital status to prohibit an individual from directly supervising or being directly supervised by his or her spouse." This section is sometimes argued to suggest that the status of being married to a particular person can be seen as a protected status under the Act, on the theory that it would be rendered surplusage if "marital status discrimination" did not extend to discrimination because of the identity or circumstances of the spouse. This argument, in turn, is subject to the counter-argument that, even if "spousal identity discrimination" were not entirely prohibited as such, there could still be implicit limitations on its reach as a theory of intentional discrimination, as well as circumstances in which an employer's anti-nepotism policy could be shown to have a statistically significant disparate impact on the employment opportunities of married persons in the area. Section 111.345, Stats., would have potential applicability in such cases.

Certain other matters appearing in the drafting file for sec. 111.345, Stats., further complicate matters. That section originated as an amendment offered by Senator Braun. The drafting request from his office which led to the drafting of the language eventually adopted as the amendment stated:

"Marital status -- He wants it not to apply to H/W in some close situation, i.e., H supervisor over W not permitted (wants it only to apply to Q of whether married, single, divorced). Fix this."

(Legislative Reference Bureau file, Chapter 334, Laws of 1981)

The purpose of this request is ambiguous. The parenthetical phrase seems to suggest a narrow definitional scope, but the request for the specification of an exception seems to evidence a concern that the definition might be treated more broadly. The drafting file for Chapter 334, Laws of 1981 also contains an undated handwritten note, which may have been written by the drafter of the amendment, containing two alternatives in response to Braun's drafting request, the first alternative containing the language ultimately enacted as sec. 111.345, Stats., and the second alternative simply amending the definition of marital status contained in sec. 111.32(12), Stats., so that it would provide:

"Marital status means . . . but does not mean the status of being married to [or divorced or separated from] a particular individual [whom one supervises or is supervised by]."

(Legislative Reference Bureau file, Chapter 334, Laws of 1981)

The fact that this second alternative was not adopted could be argued to be a rejection by the originator of the amendment of a narrower reading of "marital status." However, it could also represent his sense that the second alternative was simply not necessary, as already being implicit in the definition.

Having noted these documents, the Commission must further note that they ultimately provide little if any guidance in properly construing the legislative language. Not only are they themselves not free from ambiguity, but they are so marginal to the legislative process that their significance must be questioned. All that was ever submitted for the consideration of the entire Legislature was the language of Senator Braun's amendment which was eventually adopted as sec. 111.345, Stats. Senator Braun's apparent rejection of one alternative formulation of his amendment is not equivalent to the Legislature's rejection of an amendment actually before it, and the Legislature as a whole cannot be charged with an understanding of the fine points of Senator Braun's intentions, as reflected in his drafting request. Ultimately, all that is arguably significant is the nature of the statutory language originally proposed (i.e., the general prohibition and the definition contained in sec. 111.32(12), Stats.), and the language of the amendment subsequently adopted as sec. 111.345, Stats. Despite careful consideration, the Commission is unable to discern in this legislative history any unambiguous indication of the intent of the Legislature with respect to the question of whether the prohibition on marital status was intended to extend to the prohibition of discriminating against a person because of the particular identity or circumstances of the person's spouse.

Another aspect of the legislative history, however, does provide some information on what the Legislature saw as the problem the bill was intended to address. In the fiscal note attached to the bill by DILHR, the narrative stated that the new prohibition

"could be expected to result in additional inquiries and complaints primarily in areas related to fringe benefits (insurance coverage benefits which distinguish between married and single persons).

(Legislative Reference Bureau file, Chapter 334, Laws of 1981; emphasis added)

Such a third-party explanation of a bill's purpose or effect, attached to the bill during the legislative process, is probative of the Legislature's intent in subsequently passing the bill. See, County of Milwaukee v. LIRC and Williams, 113 Wis. 2d 199, 204-05, 335 N.W.2d 412 (App. 1983).

The Commission is more inclined to determine the scope of the marital status discrimination prohibition from sec. 111.32(12), Stats., which is a general definition of "marital status," than from sec. 111.345, Stats., which is merely an exception to the prohibition. Since "spousal identity" is not included in the definition of marital status, and since sec. 111.345, Stats., can be given meaning and purpose even absent a construction of "marital status" recognizing "spousal identity," the Commission is preliminarily inclined to construe "marital status" as not extending to "spousal identity" in circumstances such as are found in this case. That inclination is strengthened by consideration of the evidence, referred to above, that the Legislature may have understood the prohibition on marital status discrimination as being primarily addressed to other issues, such as class-based fringe benefit discrimination. Finally, it must be recognized that "spousal identity" discrimination is different in nature from the other evils which the Fair Employment Act is intended to prevent. Particularly in a case such as this, in which the alleged animus against the complainant arises from a set of unique personal circumstances, it is unlike an animus that arises because of a complainant's membership in a group or classification of persons who share certain attributes or characteristics (such as race, sex, advanced age, etc.). Therefore, the Commission's analysis based on the statutory language and its history, considering its context and purpose, leaves it inclined to construe marital status as not extending to circumstances such as those presented in this case. The appropriateness of this inclination needs to be evaluated further, however, by reference to any applicable precedent.

There are no reported cases in Wisconsin directly addressing the question of whether the prohibition on discrimination because of marital status extends to discrimination because of the particular identity or circumstances of a person's spouse. The only reported decision touching upon the area of marital status discrimination is Federal Rural Electric Insurance Co. v. Kessler, et al., 131 Wis. 2d 189, 388 N.W.2d 553 (1986). That decision interpreted the prohibition on marital status discrimination contained in the City of Madison Equal Opportunities Ordinance, and concerned a factual situation (a rule prohibiting the romantic association of any employe with any married employe of the opposite sex) sufficiently different from the typical spousal identity discrimination issue that its usefulness as a direct source of authority herein is doubtful. Apart from Kessler, there are (as noted above) a few unreported court and administrative decisions on the topic. In Arrowood, the Milwaukee County Circuit Court, Judge Clarence Parrish presiding, reversed an order of the Equal Rights Division which had concluded that the prohibition on marital status discrimination did not extend to discrimination because of the identity or circumstances of a person's spouse. In Ray, the Wisconsin Personnel Commission concluded that the definition of marital status found in the Wisconsin Fair Employment Act should be interpreted to include the identity of the spouse. In Birk, the Labor and Industry Review Commission found no discrimination in a case in which an employe's termination was connected with the unwillingness of the employe's spouse to relocate with him, and held that the Act did not prohibit a condition of employment simply because it involved or affected the employe's spouse or required a certain act of an employe's spouse.

Precedent on this issue is thus limited. With respect to an issue of first impression in this state, the decided weight of authority of other jurisdictions, while not binding precedent, can be persuasive in resolving the issue along with the tribunal's own independent analysis. Blackhawk Production Credit Assoc. v. Chicago Title Ins. Co., 144 Wis. 2d 68, 77, 423 N.W.2d 521 (1988).

A number of other jurisdictions have adopted statutory prohibitions on discrimination in employment because of marital status. Many of these jurisdictions have in turn been forced to confront the issue of whether "marital status" extends to the particular identity or circumstances of a person's spouse. The decided weight of authority from other jurisdictions is that "marital status" does not extend to the specific identity or circumstances of a person's spouse. Thomson v. Sanborn's Motor Express, Inc., 154 N.J. Super. 555, 382 A.2d 53, (N.J. Super. Ct. App. Div. 1977), Miller v. C. A. Meuer Corp., 420 Mich. 355, 362 N.W.2d 650 (1984), Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeals Board, 51 N.Y.2d 506, 415 N.E.2d 950, 434 N.Y.S.2d 961 (1980), Moore v. Honeywell, 558 F.Supp. 1229, (D. Hawaii, 1983), National Industries, Inc. v. Commission on Human Relations, 527 So.2d 894, (Fla. Dist. Ct. App., 1988). Additionally, while indicating that a blanket anti-nepotism rule might be found to violate its statute, the supreme court of Minnesota has held that marital status discrimination is not involved when a person is denied hire because of a particular characteristic of her spouse which was not a matter of his employment with the same employer. Cybyske v. Independent Sch. Dist. No. 196, 347 N.W.2d 256 (Minn. 1984), cert. den., Independent School Dist. v. Cybyske, 469 U.S. 933. As against these six jurisdictions, only two hold to a "broad" reading of marital status as incorporating the particular identity and circumstances of a person's spouse. Washington Water Power Co. v. Washington State Human Rights Commission, 91 Wash.2d 62, 586 P.2d 1149, (1978), Thompson v. Board of Trustees, 192 Mont. 266, 627 P.2d 1229 (1981).

An analysis of these cases demonstrates that there are two identifiably different types of situations in which a "spousal identity" discrimination case may be considered to fit. One is the case of anti-nepotism or "no spouse" rules, where an employer has a rule that restricts or prohibits employment of an employe's spouse. The other type of situation is presented in cases in which adverse action is taken against an employe allegedly because of some type of particular, individualized animus against that employe's spouse other than where they work. Thomson, Miller, and Manhattan Pizza Hut all involved anti-nepotism rules; Moore and National Industries, Inc. involved the other type of situation in which a specific and particularized characteristic of an employe's spouse led to adverse action against the employe. In Moore, the employe was terminated because her husband (who coincidentally was employed by the same employer) continued to engage in a separate business which the employer considered to be in competition with it. In National Industries, a woman whose husband had previously been fired by the same employer for sexual harassment and other misconduct at work was fired herself principally to eliminate the possibility that the husband would have any excuse or justification for coming onto the employer's premises.

Cybyske recognized the distinction between these two types of situations. That case involved a woman who was denied hire as a teacher, allegedly because of the "pro-teacher" views of her husband who was a member of a school board in a neighboring school district. Thus, the situation was not one involving the application of a general rule against nepotism or employment of spouses, but rather one related to a particular and individualized characteristic of one person's spouse. Although the Minnesota Supreme Court had previously held in Kraft, Inc. v. State, 284 N.W.2d 386, 21 EPD par. 30,405 (Minn. 1979), that it was marital status discrimination for an employer to refuse to hire a person because their spouse was already employed by the employer, it distinguished that holding in Cybyske. Characterizing the antinepotism rule addressed in Kraft as "just another way of saying that an employer refuses to hire a married couple," the court described it as "a direct attack on the husband and wife as an entity" and contrary to "the legislative judgment [that] reflects the protected status the institution of marriage enjoys in our society." The court characterized its decision in Kraft as holding that for an employer to employ others who were married, single, or divorced but not those married to a spouse already employed by the company was an arbitrary classification. It contrasted that with the situation presented in Cybyske, in which it concluded that there was no distinct invidious classification. In so doing, the Minnesota Supreme Court made a number of observations which the Commission believes are germane to the issue at hand. It noted,

"Human nature being what it is, people have their likes and dislikes. An employer may dislike an employe's spouse for a variety of reasons, but it seems unlikely the Legislature intended any kind of disliking to give rise always to a discrimination lawsuit . . . To adopt plaintiff's argument would mean that any employer bias or predilection towards a spouse which is imputed to an employe, whether of substance or not, would subject the employer to a lawsuit. We do not think the Legislature had this in mind." Cybyske, 347 N.W.2d at 260-61.

It is notable that the weight of authority on this issue has shifted in the last decade because of changes in the view of the law in two jurisdictions, Michigan and Minnesota. As noted, the Minnesota Supreme Court, in Cybyske, effectively limited its earlier holding in Kraft, and in so doing it joined the states subscribing to a "narrower" view of marital status, at least in cases which involved something other than blanket anti-nepotism policies. The Michigan Supreme Court's decision in Miller v. C. A. Meuer Corp., supra, was an outright reversal of a decision of the Michigan Court of Appeals, Miller v. C. A. Meuer Corp., 124 Mich. App. 780, 336 N.W.2d 215 (Mich. App. 1983), which had held that "no spouse rules" were prohibited by that state's anti-discrimination law.

These two changes are particularly significant, because they substantially undercut the rationales expressed in the Milwaukee County Circuit Court's decision in Arrowood, and the Wisconsin Personnel Commission's decision in Ray. In Ray, the Personnel Commission based its conclusion in part on its consistency with the holdings in other jurisdictions, citing specifically Kraft, the Michigan Court of Appeals decision in Miller, and the Montana Supreme Court decision in Thompson. As noted above, however, neither Minnesota nor Michigan may now be counted among the jurisdictions that fully subscribe to a "broad" interpretation of marital status. Similarly, the Milwaukee County Circuit Court based its Arrowood decision in part on the law from other jurisdictions. The court characterized this law from foreign jurisdictions as "suggesting strongly" the broad interpretation of marital status which the court adopted. The court relied on Kraft , the Michigan Court of Appeals decision in Miller, Washington Power Co., and Thompson. (2 ) As noted above with respect to the Ray decision, the Milwaukee County Circuit Court's reliance on the law from Michigan and Minnesota no longer provides a firm basis for the court's decision. Indeed, the Michigan Court of Appeals decision in Miller had in fact been reversed by the Michigan Supreme Court a month prior to the issuance by the Milwaukee County Circuit Court of its decision. In these circumstances, the Commission is less inclined than it might otherwise be to accord weight to Ray and Arrowood.

The Commission has recently indicated its disinclination to adopt an interpretation of "marital status" so broad that it would always encompass the particular identity or circumstances of a person's spouse, as opposed to the fact that the person had the status of being married. Birk v. Georgia-Pacific Corp. (LIRC, August 3, 1990), concerned an employe who was offered a promotion which required him to move to Georgia. He accepted the promotion, and his former position in Milwaukee was filled, but he was subsequently terminated when his spouse (and their children) stayed in Milwaukee instead of moving to Georgia with the employe. The employer was concerned about the employe's commitment to the new position given that his family stayed in their Milwaukee home. The employe argued 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 he urged the Commission to construe the Wisconsin Fair Employment Act broadly so as to hold that an employer "may not discriminate because of who the applicant (sic) is or what that spouse does." The Commission, however, rejected this argument. It emphasized that the prohibition on marital status discrimination was a prohibition of discrimination based on "the status of being married, single, divorced, separated or widowed," referring to sec. 111.32(12), Stats. It held that the employe was not terminated simply because of his status as a married person (as opposed to a single or divorced person), but because he would not assure the employer that his wife would move to Georgia by the deadline set by the employer. The Commission stated:

"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 . . . The Wisconsin Fair Employment Act 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."

In affirming this decision of the Commission, the Milwaukee County Circuit Court, Judge Victor Manian presiding, specifically noted the holding of the Commission as to the distinction between an employment condition involving or affecting an individual's spouse and an employment condition reflecting an intention to discriminate based on marital status.

Consistent with its decision in Birk, and with the clear majority of other jurisdictions who have addressed the question, the Commission concludes that the prohibition against discrimination because of marital status does not extend to prohibiting actions by an employer that are based upon the identity or particular characteristic of an employe's spouse such as occurred in this case. Whether or not, viewed abstractly, such employment actions might be deemed "unfair [and] arbitrary," Birk, the fact remains that they do not discriminate against persons because they belong to the protected classification of persons who are married. It has always been considered that the evil of invidious, class-based discrimination is that it judges or affects individuals not because of their individual characteristics but because of their membership in general classifications, which may or may not in themselves have commonly occurring characteristics, and which the individual in turn may or may not share. An example of such discrimination would be a bias against divorced persons in general, or differentiations in fringe benefit entitlement between married and unmarried persons. In this case, however, there is no general classification which William Miner's membership in serves to disadvantage him because of. The class of persons formerly married to Linda Miner has, as far as the record in this case discloses, only one member, that being Richard Miner. "Discrimination" against Richard Miner because of such highly particularized characteristics is not the type of discrimination which the Wisconsin Fair Employment Act was intended to remedy. In this respect, the Commission is in agreement with the Minnesota Supreme Court, that the legislative body enacting the prohibition on marital status discrimination did not have in mind a situation in which any kind of disliking (or liking) by an employer toward an employe's spouse based on even the most individualized and personal considerations, should give rise always to a discrimination lawsuit.

The Complainant nevertheless argues that such a broad interpretation should be given to the Fair Employment Act because otherwise, employers would be allowed to engage in invidious discrimination against employes because of statutorily protected characteristics of the person's spouse. Thus, Complainant argues, a "narrow" construction of the term "marital status" would allow employers to terminate employes in interracial marriages because of the race of the person's spouse. Complainant asserts, in effect, that the marital status provision should be construed broadly so as to reach such conduct, because it would not be reachable as race discrimination. This contention is simply wrong. Discrimination against a person because they are engaged in an interracial marriage is race discrimination. Bryant v. Automatic Data Processing, Inc., 151 Mich. App. 424, 390 N.W.2d 732, (Mich. Ct. App. 1986); see also Holiday v. Belles Restaurant, 409 F.Supp. 904 (W.D. Pa. 1976); Whitney v. Greater New York Corporation of Seventh Day Adventists, 401 F.Supp. 1363 (S.D. N.Y. 1975); 35 A.L.R. 3rd 859 "Civil Rights -- Indirect Discrimination." This was also recognized by the Wisconsin Supreme Court in Kessler, 131 Wis. 2d at 209, citing Whitney and Holiday. All that the Commission holds herein, is that if it is not illegal for an employer to take action against an employe because of a particular characteristic of that employe, then it is also not illegal for the employer to take action against that employe because the employe's spouse has that particular characteristic. This does not open the door to discrimination against persons because their spouses have some protected characteristic under the Act.

As the Minnesota Supreme Court recognized in Cybyske, a distinction may be drawn between spousal identity discrimination involving a blanket anti-nepotism policy, and spousal identity discrimination involving action against an employe because of some particular and individualized characteristic of that employe's spouse other than the spouse's employment with the same employer. The Minnesota Supreme Court evidently considered that the former situation would constitute a violation of Minnesota's prohibition on marital status discrimination. Certainly, an anti-nepotism policy might be subject to attack as having a disparate impact on the employment opportunities of married persons as a class. See, Morrison, J., dissenting in Thompson v. Board of Trustees, 26 EPD at p. 21,766. Whether a blanket anti-nepotism policy could also be considered a direct imposition on the right to marry, and thus on the marital relationship, such as to constitute marital status under the Wisconsin Fair Employment Act, see, Cybyske, is a question the Commission is not required to decide in this case. It holds here merely that, when the motivation for discrimination against an employe is an element of the particular identity of or characteristics of an employe's spouse other than the spouse's employment with the same employer, the discrimination is not "because of marital status" within the meaning of the Wisconsin Fair Employment Act.

110

Appealed to Circuit Court. Affirmed April 7, 1992.

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Footnotes:

(1)( Back ) Notwithstanding that allegations of a complaint are to be deemed true for purposes of evaluating the legal adequacy of the complaint, the Commission does not accept without question the complaint's assertion that Complainant was "discharged . . . because of . . . marital status." This allegation assumes the matter at issue, i. e., that if Respondent did what it did because of the reasons it had, it amounted to "marital status discrimination." That legal issue, however, is precisely what must be decided here.

(2)( Back ) The court also relied on Maryland Commission on Human Relations v. Baltimore Gas & Electric Co., 459 A. 2d 205 (Ct. App. Md. 1983), actually a case in which the court never reached the correctness of a holding made by the Maryland administrative agency which adopted a broad interpretation of "marital status." Since 1983, there have been no reported cases from Maryland confirming this interpretation of "marital status" as it appears in that state's law.

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