STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JEFFREY M WHITING, Complainant

COUNTY OF SHAWANO, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200101592,

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed March 15, 2004
whitije . rsd : 115 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The complainant alleges that he was discriminated against on the basis of marital status, in violation of the Wisconsin Fair Employment Act (WFEA), in regard to the manner in which the respondent applied its nepotism policy to him.

First of all, the record establishes that the adverse actions of which Whiting complains were not taken because he was married per se, but instead because of the identity of the person to whom he was married, i.e., a subordinate employee in the same facility. As the Court of Appeals ruled in Bammert v. LIRC, 232 Wis. 2d 365, 606 N.W.2d 620 (Ct. App. 1999), however, the prohibition against marital status discrimination in the WFEA is intended to protect the status of being married in general rather than the status of being married to a particular person.

Moreover, although Whiting argues that the respondent enforced its nepotism policy less favorably in regard to married persons than it did in regard to employees in other types of family relationships, he failed to prove that the pairs of related employees he cites as examples were similarly situated to him and his wife. Specifically, the Marquardts were separated by additional levels of supervision; the Thorpes were employed in different branches of the department; and Nelson and Taufner were employed in different facilities.

Finally, Whiting contends that he was treated less favorably because of his tendency to be outspoken. This contention, however, does not lend support to his allegations of marital discrimination here.

cc: Attorney Andrew T. Phillips

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