This is a declaratory judgment action which seeks to find sec. 3.23 Madison General Ordinances (M.G.O.) unconstitutional and illegal, and seeks temporary and permanent injunctive relief against enforcement of the ordinance by defendants against plaintiff. Defendants seek dismissal of the action. Both plaintiff and defendants have moved for summary judgment in the form of the relief each requests.

The facts are not in dispute. An employee of the plaintiff, hired in September, 1975, was fired in December, 1976. In February, 1977, he filed a complaint with Madison Equal Opportunities Commission (MEOC) claiming that his discharge was a result of his physical appearance (less than conservatively dressed) and his marital status (separated).

MEOC, in its Initial Determination, found probable cause to believe plaintiff had discriminated against the employee. The matter is currently awaiting public hearing.

This action was commenced in October, 1978. The Attorney General was served but has declined to participate. Extensive briefs were filed by the parties and oral arguments were heard on December 26, 1978. The matter is presently ripe for determination.

Sec. 3.23, M.G.O., provides, in pertinent part, as follows:

"3.23 EQUAL OPPORTUNITIES ORDINANCE.

(1) Declaration of Policy. The practice of providing equal opportunities in housing, employment, public accommodations and City facilities and credit to persons without regard to sex, race, religion, color, national origin or ancestry, age, handicap, marital status, source of income, arrest record or conviction record, less than honorable discharge, physical appearance, sexual orientation, political beliefs, or the fact that such person is a student as defined herein as a desirable goal of the City of Madison and a matter of legitimate concern to its government. Discrimination against any of Madison's citizens or visitors endangers the rights and privileges of all. The denial of equal opportunity intensifies group conflict, undermines the foundations of your democratic society, and adversely affects the general welfare of the community.

(2) Definitions.

. . .

(k) 'Physical appearance' means the outward appearance of any person, irrespective of sex, with regard to hair style, beards, manner of dress, weight, height, facial features, or other aspects of appearance. It shall not relate, however, to the requirement of cleanliness, uniforms, or prescribed attire, if and when such requirement is uniformly applied for admittance to a public accommodation or to employees in a business establishment for a reasonable business purpose.

(l) 'Marital status' shall include being married, separated, divorced, widowed, or single.

. . .

(7) Employment Practices. It shall be an unfair discrimination practice and unlawful and hereby prohibited:

(a) For any person or employer individually or in concert with others to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's sex, race, religion, color, national origin or ancestry, age, handicap, marital status, source of income, arrest record or conviction record, less than honorable discharge, physical appearance, sexual orientation, political beliefs or the fact that such person is a student as defined herein. Provided, that an employer who is discriminating with respect to compensation in violation of this subsection, shall not, in order to comply with this subsection, reduce the wage rate of any employee."

The thrust of plaintiff's claim of unconstitutionality is twofold: (1) the State pursuant to Ch. 111, Subchapter II, Fair Employment, has preempted the field of employment discrimination, thereby abrogating a municipality's right to legislate in that field; and (2) even if a municipality has the right to adopt a local ordinance in this field, sec. 3.23 M.G.O. exceeds the parameters of the state statute and creates a conflict therewith.

(1) State Preemption.

State preemption is another way of expressing the concepts of "statewide concern" as that concept relates to the Home Rule Amendment [Art. XI, sec. 3, Wisconsin Constitution]. "In an area solely or paramountly of statewide concern, the legislature may either delegate to local units of government ' . . . a limited authority or responsibility to further proper public interests, '13 or may preempt the field by expressly banning local legislative action as to such matter of statewide concern." State ex rel. Michalek v. LeGrand (1976), 77 Wis. 2d 520, 529. [Footnote omitted].

Plaintiff concedes that fair employment is not a matter "exclusively of statewide concern," Muench v. Public Service Comm. (1952), 261 Wis. 492, 515f. It is in that zone referred to by Chief Justice Cardozo ". . . where state and city concerns overlap and intermingle." Adler v. Dugan, 251 NY 467, 167 NE 705, 713 (1929).

Plaintiff argues that fair employment is primarily or paramountly of statewide concern, as evidenced by Ch. 111, Subchapter II. Therefore, it argues, ". . . the legislature would not have the power to delegate legislative authority to either cities or villages under the Home Rule Amendment." [Br. p. 14, citing Fond du Lac v. Empire (1955), 273 Wis. 333].

Plaintiff's argument is persuasive, and might be dispositive, if it were not for the home rule authority delegated by sec. 62.11(5) Stats. Sec. 62.11(5) Stats. provides:

"POWERS. Except as elsewhere in the statutes specifically provided, the council shall have the management and control of the city property, finances, highway, navigable waters, and the public service, and shall have power to act for the government and good order of the city, for its commercial benefit, and for the health, safety, and welfare of the public, and may carry out its powers by license, regulation, suppression, borrowing of money, tax levy, appropriation, fine, imprisonment, confiscation, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants, and shall be limited only by express language."

The Supreme Court held in Johnston v. Sheboygan (1965), 30 Wis. 2d 179, 185-186, that:

"In our opinion, sec. 62.11(5) constitutes a broad grant of home-rule authority and vests the city with the authority to enact legislation to promote and protect 'the health, safety and welfare of the public.'"

The police power authority delegated by the legislature under sec. 62.11(5) permits cities to legislate in the "mixed bag" category to "further proper public interests," Menzer v. Elkhart Lake (1971), 51 Wis. 2d 70, 78, unless the State has expressly banned local legislative action. Michalek, supra, at 529.

There is no express ban contained in Ch. 111, Subchapter II. In fact, a fair reading of the Act's Declaration of Policy indicates the opposite conclusion. The Declaration of Policy reads as follows:

"111.31 Declaration of Policy. (1) The practice of denying employment and other opportunities to, and discriminating against, properly qualified persons by reason of their age, race, creed, color, handicap, sex, national origin or ancestry, is likely to foment domestic strife and unrest, and substantially and adversely affect the general welfare of a state by depriving it of the fullest utilization of its capacities for production. The denial by some employers, licensing agencies and labor unions of employment opportunities to such persons solely because of their age, race, creed, color, handicap, sex, national origin or ancestry, and discrimination against them in employment, tends to deprive the victims of the earnings which are necessary to maintain a just and decent standard of living, thereby committing grave injury to them.

(2) It is believed by many students of the problem that protection by law of the rights of all people to obtain gainful employment, and other privileges free from discrimination because of age, race, creed, color, handicap, sex, national origin or ancestry, would remove certain recognized sources of strife and unrest, and encourage the full utilization of the productive resources of the state to the benefit of the state, the family and to all the people of the state.

(3) In the interpretation and application of this subchapter, and otherwise, it is declared to be the public policy of the state to encourage and foster to the fullest extent practicable the employment of all properly qualified persons regardless of their age, race, creed, color, handicap, sex, national origin or ancestry. This subchapter shall be liberally construed for the accomplishment of this purpose."

This broad language, in my opinion, encourages, rather than bans, local legislative action in this field. This opinion is buttressed by the legislature's passage of sec. 66.433 Stats. in 1963 recommending and encouraging local community relations commissions to study areas of discrimination and to recommend ordinances that will, inter alia, ensure to municipal residents "equal employment opportunities." [See, also, sec. 66.433(3) Stats. (1975)].

The State, therefore, has not preempted the field and has not expressly banned local legislative action.

(2) Conflict between Ch. 111, Subchapter II and 3.23 M.G.O.

Sec. 111.32(5)(a) Stats. defines discrimination in employment as follows:

"111.32(5)(a) 'Discrimination' means discrimination because of age, race, color, handicap, sex, creed, national origin or ancestry, by an employer or licensing agency individually or in concert with others, against any employe or any applicant for employment or licensing, in regard to his hire, tenure or term, condition or privilege of employment or licensing and by any labor organization against any member or applicant for membership, and also includes discrimination on any of said grounds in the fields of housing, recreation, education, health and social welfare as related to a condition or privilege of employment."

Sec. 3.23 M.G.O. extends that definition to include several other categories including physical appearance and marital status, the two categories under which plaintiff is being investigated.

Plaintiff argues that the additional categories create a conflict with sec. 111.32(5)(a) Stats. I disagree. Sec. 3.23 M.G.O. does not "forbid what the legislature has expressly licensed, authorized or required, or authorize what the legislature has expressly forbidden." Fox v. Racine (1937), 225 Wis. 542, 545. Madison has clearly gone farther than the State, but in the same direction. 3.23 M.G.O. and sec. 111.31-37 are not "locomotives on a collision course." Michalek, supra, at 530.

Discrimination in employment is an area of concern to local municipalities. 3.23 M.G.O. is not designed to block the statewide interest in the same field or to infringe on that interest. 3.23 M.G.O. extends but complements the state legislation. State ex rel. Hammermill Paper Co. v. La Plante (1972), 58 Wis. 2d 32; Johnston v. Sheboygan, supra; Fox v. Racine, supra.

(3) Vagueness and Overbreadth.

Plaintiff also raises the constitutional issue that portions of sec. 3.23 M.G.O. are vague and overbroad. Specifically, plaintiff points to the following categories: source of income, physical appearance, political beliefs and marital status. Each of those categories is defined by the ordinance in clear, concise language. None are so vague as to permit the toppling of the entire ordinance as unconstitutionally vague on its face. Equally, none of the categories are so broad as to apply to situations that cannot be regulated.

Plaintiff will have its opportunity in the administrative process to challenge the two categories that have been alleged to apply in that case. Plaintiff can make that challenge on the facts of that case, after a full and complete hearing.

I cannot find those two categories or the others questioned by plaintiff to be unconstitutionally vague or overbroad on their face. If they are applied to plaintiff, plaintiff can seek review through the administrative process.

Summary judgment is, therefore, granted to defendants.

Counsel for defendants may prepare a Judgment for my signature. Plaintiff's counsel shall approve it as to form.

So ordered.

Dated: March 12, 1979.

BY THE COURT:
P. CHARLES JONES, CIRCUIT JUDGE
DANE COUNTY CIRCUIT COURT III

APPEAL from a judgment of the Dane county circuit court: P. CHARLES JONES, Judge. Affirmed.

Before, Gartzke, P.J., Bablitch, J. and Dykman, J.

BABLITCH, J. The plaintiff Federated Rural Electric Insurance Company (company) appeals from a summary judgment granting the defendants' motion to dismiss a complaint for declaratory and injunctive relief. The complaint sought a declaration that an employment discrimination ordinance adopted by the City of Madison (city) was beyond the power of the city to enact, and that it is void under the federal constitution. It also sought an injunction prohibiting the Madison Equal Opportunities Commission (commission) and William Kessler, a company employee allegedly discharged in violation of the ordinance, from enforcing the same. We affirm.

The Wisconsin Fair Employment Act (WFEA), sec. 111.31-111.37, Stats., prohibits discrimination in employment based on factors of age, race, color, handicap, sex, creed, national origin, ancestry, arrest record or conviction record. Madison General Ordinance sec. 3.23 prohibits employment discrimination on the same grounds as WFEA and on the additional grounds of marital status, source of income, less than honorable discharge, physical appearance, sexual orientation, political beliefs, or the fact that an applicant or employee is a student as defined in the ordinance.

William Kessler filed a complaint with the commission alleging that he had been fired because of his marital status (separated) and his physical appearance (less than conservative dress) in violation of the ordinance. The commission found probable cause to believe those allegations to be true and scheduled a public hearing. Further administrative proceedings were stayed after this action was commenced. 

The following issues^l are presented on appeal:

(1) Whether the city is empowered by sec. 62.11, Stats., to prohibit employment discrimination based on factors other than those specified in WFEA:

(2) Whether the portion of the ordinance defining the additional factors is void for vagueness and overbreadth.

Statutory Authority

The city concedes that the subject of employment discrimination is a matter of mixed statewide and local concern, and that the statewide interest reflected in WFEA is paramount to the local interest. It nonetheless claims authority to enact the ordinance in question under sec. 62.11(5), Stats., which provides in pertinent part:

Except as elsewhere in the statutes specifically provided, the council shall . . . have power to act for the government and good order of the city, for its commercial benefit, and for the health, safety, and welfare of the public, and may carry out its powers by license, regulation, suppression, borrowing of money, tax levy, appropriation, fine, imprisonment, confiscation, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants and shall be limited only by express language.

In Wis. Environmental Decade, Inc. v. DNR, 85 Wis. 2d 518, 271 N.W.2d 69 (1978), the supreme court discussed the difference between powers conferred on municipalities under this section, which is a part of the general charter law, and powers conferred by the "home rule amendment" to the Wisconsin Constitution, sec. 3, art. XI. The court pointed out that the constitutional provision confers power to regulate "matters which primarily affect the people of the locality, in contrast to matters of 'statewide concern' which affect all the people of the state." 85 Wis.2d at 530, 271 N.W.2d at 74. It construed the general charter statutes as providing a separate source of power to regulate locally in areas of statewide concern, stating:

[A]n otherwise legitimate exercise of this "general charter" power by the city is not rendered invalid and constitutionally defective merely because it deals with a matter of state-wide concern. Indeed, sec. 62.11(5), Stats., would be a nullity if it were construed to confer on municipalities only that authority which related to "local affairs" since that power is already constitutionally guaranteed by the home-rule amendment. 85 Wis.2d at 533, 271 N.W.2d at 76. [Footnote omitted.] 

Wis. Environmental Decade recognized two kinds of limitations on the power of municipalities to exercise the police power conferred upon them by section 62.11(5), Stats. They may not regulate in areas of statewide concern where the legislature has expressly restricted or revoked their power to do so, or where the local regulation  would ' " ' infringe the spirit of a state law or . . . [the] general policy of the state.' " ' 85 Wis. 2d at 534, 271 N.W.2d at 76, citing Fox v. Racine, 225 Wis. 542, 545, 275 N.W.513, 514 (1937). The court approved the following rule:

"If a municipality acts within the legislative grant of power but not within the constitutional initiative, the state may withdraw the power to act; or if there is logically conflicting legislation, or an express withdrawal of power, the local ordinance falls. Furthermore, if the state legislation does not logically conflict, or does not expressly withdraw power, it is possible that the local ordinance must fall if an intent that such an ordinance not be made can be inferred from the fact that it defeats the purpose or goes against the spirit of the state legislation." 85 Wis.2d at 534-35, 271 N.W.2d at 76, quoting Solheim, Conflicts Between State Statutes and Local Ordinance in Wisconsin, 1975 Wis. L. Rev. 840, 848.

The company concedes that there is no express language in WFEA restricting the power of municipalities to regulate in the area of employment discrimination. It contends, however, that the ordinance in question violates the spirit of WFEA by expanding the factors upon which the discrimination is prohibited, and thus expanding the classes of persons protected by local regulation. We disagree with this assertion.

The declaration of legislative policy underlying WFEA is set forth in sec. 111.31, Stats. That section recognizes that employment discrimination based upon the factors prohibited by the act "is likely to foment domestic strife and unrest, and substantially and adversely affect the general welfare of a state by depriving it of the fullest utilization of its capacities for production." Such discrimination also "tends to deprive the victims of the earnings which are necessary to maintain a just and decent standard of living, thereby committing grave injury to them." Section 111.31(3) requires a liberal construction of the act in order to "encourage and foster to the fullest extent practicable the employment of all properly qualified persons."

The declaration of policy set forth in the ordinance similarly provides:

The denial of equal opportunity intensifies group conflict, undermines the foundations of our democratic society, and adversely affects the general welfare of the community. Denial of equal opportunity in employment deprives the community of the fullest productive capacity of those of its members so discriminated against and denies to them the sufficiency of earnings necessary to maintain the standards of living consistent with their abilities and talents. . . .  Madison General Ordinance, sec. 3.23(1).

The ordinance declares that it is the public policy of the city "to foster and enforce to the fullest extent the protection by law of the rights of all of its inhabitants to equal opportunity to gainful employment, housing, credit and the use of City facilities and public accommodations without regard to" the factors it enumerates.

The ordinance and the act have a common purpose. They are intended to protect the general public and individual citizens from the harmful effects of discrimination based upon factors legislatively presumed to bear no reasonable relationship to job performance. The ordinance goes farther than the act. It extends the prohibition against discrimination into the fields of housing and credit, as well as expanding the factors upon which discrimination is prohibited. We find no inconsistency with the letter or spirit of WFEA arising out of the extension.

In Fox v. Racine, 225 Wis. 542, 275 N.W. 513 (1937), the supreme court upheld a city ordinance prohibiting marathon endurance contests against the claim that it was inconsistent with a state statute limiting the duration of such contests to sixteen hours per day. The court noted that sec. 62.11, Stats., conferred on cities "all the powers that the legislature could by any possibility confer upon them" subject to the qualification that " 'a municipality cannot lawfully forbid what the legislature has expressly licensed, authorized or required, or authorize what the legislature has expressly forbidden.' " 225 Wis. at 545, 275 N.W. at 514, quoting 19 R.C.L. pp. 803-04, sec. 110. The court held:

The statute, as well as the ordinance, . . . is prohibitory, and the difference between them is only that the ordinance goes farther in its prohibition, but not counter to the prohibition under the statute. The city does not attempt to authorize by this ordinance what the legislature has forbidden; nor does it forbid what the legislature has expressly licensed, authorized, or required. Under those circumstances there is nothing contradictory between the provisions of the statute and of the ordinance because of which they cannot co-exist and be effective. Unless legislative provisions are contradictory in the sense that they cannot co-exist, they are not to be deemed inconsistent because of mere lack of uniformity in detail. 225 Wis. at 546-47, 275 N.W. at 515. [Citations omitted.]

A similar result was reached in Caeredes v. Platteville, 213 Wis. 344, 251 N.W. 245, 91 A.L.R. 308 (1933) with respect to a municipal ordinance licensing movie theaters which was stricter than the state building code. The court held:

[T]he safety requirements of the [state industrial] commission are to be considered as minimum requirements. The building code is to be accepted as a foundation on which to build other safety regulations by local authorities when reasonably necessary in situations in which a city may act. There is no conflict between any of the "general orders" or requirements of the building code and the ordinances in question. City ordinances go more into detail and may include severer regulations when reasonably necessary, than those of the state code. . . . [T]he city having required more in the way of protection against fire than was required by the rule of the commission, and the requirement being within the power of the city, the appellant cannot conduct his theater except in a building in which the construction meets the demands of the ordinances. The safety requirements fixed by the commission have been increased [by the ordinance], but the increased requirements have in no sense of the word run counter to the state requirements. The city moved in the same direction the commission did; it has gone farther but not counter to the building code. 213 Wis. at 350, 251 N.W. at 248. [Emphasis supplied.]

See also, State ex rel Michalek v. LeGrand, 77 Wis.2d 520, 253 N.W.2d 505 (1976) [city ordinance governing landlord-tenant relations not in conflict with correlative state statutes]; Johnston v. Sheboygan, 30 Wis.2d 179, 140 N.W.2d 247 (1966) [ordinance licensing bakeries not in conflict with statute licensing sales of food]; La Crosse Rendering Works v. La Crosse, 231 Wis. 438, 285 N.W. 393, (1939) [ordinance licensing state board of health to inspect and supervise same as to location, construction and operation]; Brittingham & Hixon L. Co. v. Sparta, 157 Wis. 345, 147 N.W. 635 (1914) [local ordinance regulating weighing and sale of coal not in conflict with statutes governing identical subject].

The company insists that these cases must be distinguished from this case because the ordinances they approved had a strictly local impact. It urges that the ordinance in question thwarts the discrimination policies set forth in WFEA, which the legislature intended to apply with uniformity throughout the state. It suggests that if municipalities are free to adopt additional local discrimination policies, perhaps at variance with one another, employers doing business in multiple locations will either withdraw from municipalities having stricter standards than WFEA, thereby creating pockets of unemployment, or suffer an impossible burden in monitoring compliance with differing local requirements applicable to the employer's various branch offices. We find these arguments unpersuasive.

The legislature's recognition that different communities in this state may have differing problems arising out of discriminatory practices, and its determination that these should be addressed at the local level, are reflected in sec. 66.433, Stats., The Wisconsin Bill of Human Rights. In that bill, which was created by ch. 543, Laws of 1963, the legislature expressly "authorized and urged" every municipality to establish or participate in a "community relations-social development commission," sec. 66.433(3), whose functions it defined in sec. 66.433(3) as follows:

(a) The purpose of the commission is to study, analyze and recommend solutions for the major social, economic and cultural problems which affect people residing or working within the municipality including, without restriction because of enumeration, problems of the family, youth, education, the aging, juvenile delinquency, health and zoning standards, and discrimination in housing, employment and public accommodations and facilities on the basis of sex, class, race, religion or ethnic or minority status.

(b) The commission may:

1. Include within its studies problems related to . . . industrial strife and the inciting or fomenting of class, race or religious hatred and prejudice.

. . . .

(c) The commission shall:

1. Recommend to the municipal governing body . . . the enactment of such ordinances or other action as they deem necessary:

. . . .

(b) To ensure to all municipal residents, regardless of sex, race or color, the rights to possess equal housing accommodations and to enjoy equal employment opportunities. [Emphasis supplied.]

The legislative declaration of purpose is set forth in sec. 66.433(9) as follows:

It is the intent of this section to promote fair and friendly relations among all the people in this state, and to that end race, creed or color ought not to be made tests in the matter of the right of any person to sell, lease, occupy or use real estate or to earn his livelihood or to enjoy the equal use of public accommodations and facilities.

Section 66.433, Stats., does not purport to confer power or delegate authority to municipalities to regulate on the subject of discrimination. Rather, it assumes the existence of the police powers conferred by the general charter laws and issues a broad invitation to municipalities to direct these powers towards ameliorating a broad variety of problems caused by discrimination at the local level.

It is irrelevant that neither sec. 66.433, Stats., nor WFEA contain an express declaration, comparable to those contained in statutes concerning housing discrimination², that municipalities are not preempted from enacting employment discrimination ordinances. The legislature has urged local study and action to prevent industrial strife, among other effects of discrimination, and to ensure equal employment opportunities. That a diversity of local enactments was likely to result was doubtless contemplated by the legislature. Contrary to the company's assertion, there is no suggestion in the statute that the legislature intended to decree uniformity of municipal regulation, to preempt the field of employment discrimination, or to limit municipalities to enacting mere echoes of the WFEA provisions.

Absent an express limitation on the city's power under sec. 62.11(5), Stats., the expansion of the prohibited factors of employment discrimination was within its authority to enact. Like the power to prohibit chemical treatment of lakes at issue in Wis. Environmental Decade, 85 Wis.2d at 534, 271 N.W.2d at 76, the power to prohibit employment discrimination based upon factors other than those prohibited by WFEA "is one which the legislature could confer on Madison and, therefore, is one which the city now possesses under sec. 62.11(5), Stats." These provisions do not violate the spirit of WFEA nor impede its purposes. They complement the act's provisions by addressing employment discrimination practices determined by the city council to present problems for residents of Madison. The fact that employers doing business in multiple municipalities may be subject to differing regulations in this area is no more onerous than the fact that they are subject to different regulations with respect to building permits, sales permits, zoning, and a host of other local laws. Compliance is a legitimate cost of doing business in a given community. Cf. Brittingham & Hixon, L. Co. v. Sparta, 157 Wis. 345, 353-54, 147 N.W. 635, 638-39 (1914).

The brief of amicus curiae, Wisconsin Telephone Company, contends that those provisions of the ordinance which prohibit discrimination based on factors of age, sex, and conviction record are in direct conflict with corresponding provisions of WFEA because the prohibitions do not contain certain exemptions found in the act. It also contends that the city has no authority under sec. 62.11(5), Stats., to provide by ordinance for back pay remedies for employment discrimination. These arguments are not properly before us. The defendant company is not alleged to have violated the ordinance by discriminating because of age, sex, or conviction record. Back pay has not been imposed. We decline to reach issues which are not properly framed by the facts of record. See Loy v. Bunderson, No. 79-1657, slip op. (Ct.App. February 13, 1981).

Vagueness and Overbreadth

The company maintains that it is entitled to challenge all categories of discrimination prohibited by the ordinance, including political beliefs and source of income, despite the fact that the employee has made no claim that he was discriminated against on these grounds. We reject the contention.

A court's authority to grant declaratory relief under sec. 806.04, Stats., is subject to conditions precedent "intended primarily to insure that a bona fide controversy exists and that [the] court in resolving the question raised will not be acting in a merely advisory capacity." Tooley v. O'Connell, 77 Wis.2d 422, 434, 253 N.W.2d 335, 340 (1977). Among these conditions is the requirement that there be a justiciable controversy and that it be ripe for judicial determination. Tooley, 77 Wis.2d at 433, 253 N.W.2d 340; State ex rel. La Follette v. Dammann, 220 Wis. 17, 22, 264 N.W. 627, 629 (1936); Borchard, Declaratoroy Judgments, at 61-67 (2d ed. 1941). As we stated in Loy, slip op. at p. 7:

A justiciable controversy is a claim of present and fixed rights, as opposed to hypothetical or future rights, asserted by one party against another party who has an interest in contesting the claim. Tooley, 77 Wis.2d at 434, 253 N.W. 2d at 340; Pension Management, Inc. v. DuRose, 58 Wis.2d 122, 128, 205 N.W.2d 553, 555-56 (1973), and cases cited. Rights must therefore be declared "upon an existing state of facts, not . . . upon a state of facts that may or may not arise in the future." Heller v. Shapiro, 208 Wis. 310, 313, 242 N.W. 174-175 (1932). Courts should not declare rights in anticipation of an event but "should wait until the event giving rise to rights has happened." Skowron v. Skowron, 259 Wis. 17, 20, 326 N.W.2d 326, 327 (1951); Rose Manor Realty Company v. City of Milwaukee, 272 Wis. 339, 345, 75 N.W.2d 274, 277 (1956). [Footnote omitted.]

The company's contention that it may be charged at some future time with violating other portions of the ordinance is a speculation in which we are not free to indulge under these familiar principles of judicial restraint.

In material part, the ordinance makes it unlawful for any employer "to discharge any individual . . . because of such individual's marital status . . . [or] physical appearance." Those two categories are defined as follows:

"Physical appearance" means the outward appearance of any person, irrespective of sex, with regard to hair style, beards, manner of dress, weight, height, facial features, or other aspects of appearance. It shall not relate, however, to the requirement of cleanliness, uniforms, or prescribed attire, if and when such requirement is uniformly applied for admittance to a public accommodation or to employees in a business establishment for a reasonable business purpose. Madison General Ordinance, 3.23 (2) (k).

"Marital status" shall include being married, separated, divorced, widowed, or single. Madison General Ordinance, 3.23 (2) (1).

A regulation is unconstitutionally vague if it is "so obscure that persons of common intelligence must necessarily guess at its meaning and differ as to its applicability. State v. Tronca, 84 Wis.2d 68, 86, 267 N.W.2d 216, 224 (1978). To survive constitutional scrutiny a regulation "need not meet impossible standards of specificity," but must only attain "a fair degree of definiteness." Tronca, 84 Wis.2d at 86, 267 N.W.2d at 224, citing State v. Courtney, 74 Wis.2d 705, 710, 247 N.W.2d 714, 718 (1976); State v. Zwicker, 41 Wis. 2d 497, 508, 164 N.W.2d 512, 517, cert. den. 396 U.S. 26 (1969).

We find nothing vague about either provision of the ordinance. An employee may not be discharged because he or she is married, separated, divorced, widowed or single. An employee may not be discharged because of his or her manner of dress unless an employer's dress requirement has a reasonable business purpose. Although there may be disputes over what constitutes a "reasonable business purpose," which must be resolved on a case-by-case basis, that fact does not render the statute unconstitutionally vague. As the Supreme Court stated in Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973):

Words inevitably contain germs of uncertainty . . . "[T]here are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest." [Quoting CSC v. Letter Carriers, 413 U.S. 548, 578-79; footnote omitted.]

In this case, as in Broadrick, the company's conduct is alleged to have fallen squarely within the prohibitions of the ordinance. In such circumstances it will not be heard to speculate as to imprecisions in the outermost boundaries of the ordinance. Broadrick, 413 U.S. at 608-09; Tronca, 84 Wis.2d at 86, 267 N.W.2d at 224; State v. Driscoll, 53 Wis.2d 699, 701-02, 193 N.W.2d 851, 854 (1972).

A regulation is unconstitutionally overbroad if its language, "given its normal meaning, is so broad that the sanctions of the statute may apply to conduct which the state is not entitled to regulate." Tronca, 84 Wis.2d at 89, 267 N.W.2d at 225; State v. Starks, 51 Wis.2d 256, 263, 186 N.W.2d 245, 249 (1971). The overbreadth doctrine is based on the requirement of substantive due process and has the effect of preventing the limiting, by indirection, of constitutional rights. Tronca, 84 Wis.2d at 89, 267 N.W.2d at 225; State v. Driscoll, 53 Wis.2d at 703, 193 N.W.2d at 855.

The only right upon which the ordinance conceivably intrudes is the right of employers to terminate employment contracts at will. " [L]egislation which is grounded on important considerations of public policy may constitutionally circumscribe the right to contract." Smazal v. Estate of Dassow, 23 Wis.2d 336, 341, 127 N.W.2d 234, 237 (1964). The company's overbreadth claim is without merit.

The company also asserts, without citation of relevant authority, that the ordinance violates the equal protection clause of the United States Constitution because it allows for the possibility of arbitrary enforcement. This theory was not presented to the trial court and is not developed on appeal. We view it as an attempt to reargue issues previously addressed in this opinion and decline to address it further.

By the Court:--Judgment affirmed.

Inclusion in the official reports is not recommended.

COURT OF APPEALS DECISION DATED AND RELEASED APR. 27, 1981

FOOTNOTES

¹The city's brief concedes that its authority to enact the ordinance does not lie in the home rule amendment to the Wisconsin Constitution. We therefore do not address the company's arguments on this point.

²See sec. 66.432(1). Stats., and sec. 101.22(1), Stats.

NOTICE

No. 79-538

STATE OF WISCONSIN : IN SUPREME COURT

REVIEW of a decision of the Court of Appeals. Affirmed. 

PER CURIAM. The court is equally divided on the question of whether the decision of the court of appeals should be affirmed or reversed, Justice Day, Justice Coffey and Justice Steinmetz being of the opinion that the decision should be reversed; Chief Justice Beilfuss, Justice Heffernan and Justice Callow being of the opinion that the decision should be affirmed; and Justice Abrahamson not having participated in this review. The decision is therefore affirmed.

The decision of the court of appeals is affirmed.

Filed March 20, 1982

A complaint of discrimination was filed February 2, 1977 with the Madison Equal Opportunities Commission (MEOC) alleging discrimination on the basis of marital status and physical appearance in regard to employment. Said complaint was investigated by (then) MEOC Human Relations Investigator Yvonne Thomas and an Initial Determination dated March 23, 1978 was issued concluding that probable cause existed to believe that discrimination had occurred as alleged.

Conciliation was waived or failed, and the matter was certified to public hearing. Prior to a hearing being held, the Respondent initiated court proceedings challenging the constitutionality of Madison General Ordinance Sec. 3.23 (The Equal Opportunities Ordinance). The administrative proceedings were stayed by court order during the pendency of the Respondent's challenge in both the Dane County Circuit Court and the Wisconsin Court of Appeals. The constitutionality of the ordinance was upheld at both the circuit and appellate levels (the latter decision being issued on April 27, 1981), and the stay on administrative proceedings was lifted although the Respondent filed a further appeal with the Wisconsin Supreme Court. The Wisconsin Supreme Court, in a split decision, affirmed the lower court decision in an opinion filed March 26, 1982.

In the meantime, a public administrative hearing was held commencing on November 19, 1981 and concluding on December 18, 1981. Attorney Paul Soglin (presently of SCHULTZ AND SOGLIN) appeared on behalf of the Complainant who also appeared in person. Attorney Gerald C. Nichol (presently of LEE, JOHNSON, KILKELLY AND NICHOL) appeared on behalf of the Respondent who also appeared by employee-representative John Bockoven, the company President. Based upon a review of the record, and after consideration of the written arguments submitted by the parties, the Examiner proposes the following Recommended Findings of Fact, Conclusions of Law and Order:

RECOMMENDED FINDINGS OF FACT

1. The Complainant, William Kessler, is an adult male who resides in the City of Madison, State of Wisconsin.
2. The Respondent, Federated Rural Electric Insurance Company, is an insurance company employing persons within the City of Madison, State of Wisconsin at an office located at 5709 Odana Road.
3. The Complainant was employed as a Claims Manager by the Respondent sometime in September, 1975 after having been interviewed by Dr. John Wrage, a private personnel consultant hired by the Respondent, and by John Bockoven, the Respondent's company president. The Complainant was legally married at the time of his initial hire by the Respondent.
4. When the Complainant first came to Madison from Boston, Massachusetts in September of 1975, Bockoven assumed he was happily married based on his (Bockoven's) own impressions as well as on conversations he (Bockoven) had with Wrage.
5. The Complainant moved to Madison in September of 1975 without his wife and children, all of whom he expected to join him in December, 1975.
6. In October of 1975, the Complainant first became aware that his wife might not join him in Madison, a belief that he (the Complainant) conveyed to Bockoven at that time.
7. Around October of 1975, unbeknownst to Bockoven, Bockoven's secretary - Nancy Farin - stopped living together with her husband.
8. Farin and the Complainant first met on a social basis in November of 1975.
9. In December of 1975, the Complainant went to Boston to move his family to Madison. At that time he learned with certainty that his wife would not be joining him.
10. At Farin's request, her husband (with whom she had stopped living together in October of 1975) appeared with her at an office "Christmas" party in February of 1976 at which Bockoven was also present.
11. The Complainant and Farin developed a "serious" relationship sometime in February or March, 1976. This relationship continued until such time as each was divorced from their spouses and became married to one another sometime in mid-1977 or after.
12. Farin was dismissed by Bockoven in April of 1976 for problems with her work in relation to preparing an annual report.
13. The Respondent had an unwritten work rule in effect during the term of Kessler's employment with Respondent that prohibited employees from associating with married employees of the opposite sex outside of work-related matters.
14. Bockoven first became aware of the Complainant's marital problems no later than sometime in December, 1975. Bockoven first became aware of Farin's marital problems around April of 1975, sometime just prior to or concurrent with her termination. Bockoven had observed Kessler and Farin return from lunch together on more than one occasion prior to his (Bockoven's) having become aware of Farin's marital problems, and Bockoven believed the Complainant violated the Respondent's work rule as recited in Finding of Fact 13 above. Further, Bockoven also believed that the Complainant misrepresented to him the seriousness of the Complainant's relationship with Farin.
15. The Complainant was terminated by the Respondent on December 9, 1976. A determining factor in Respondent's decision to terminate the Complainant was Bockoven's distrust of the Complainant based on Bockoven's belief that the Complainant refused to or failed to follow his (Bockoven's) instructions. The determining factors contributing to Bockoven's distrust of the Complainant were Bockoven's beliefs that:
    (a) The Complainant had violated the work rule recited in Finding of Fact 13, above (regarding the association of any employees of one sex with married employees of the opposite sex);
    (b) The Complainant purposefully set reserves too low on some insurance claims so that he (the Complainant) would not have to discuss them with Bockoven;
    (c) The Complainant issued letters with strikeovers contrary to Bockoven's instructions;
    (d) The Complainant drank alcohol on his lunch hour and encouraged other employees to drink alcohol on their lunch hours;
    (e) The Complainant did not come to work wearing the manner of dress Bockoven requested he should.
16. The Complainant came to work in casual clothing, particularly in the early stages of his employment. He was verbally made aware by Bockoven in December of 1975 that he was to wear to work a suit and tie and/or sportcoat and tie. While the Complainant usually had no public contact in his day to day job duties as a Claims Manager, he on at least one occasion attended a conference on behalf of the Respondent at which persons from other insurance companies attended. Other male employees in managerial positions comparable to the Complainant's wore suits and ties or sportcoats and ties to work, without exception. There was no dress code for female employees. Bockoven, at the time of the Complainant's termination, told the Complainant that his dress had improved but it was "too little, too late."
17. In 1976, the Complainant earned $20,728.92 in annual compensation from the Respondent.
18. In 1977, the Complainant earned $7,309: $4,077 in employee compensation and $3,832 in business income less $300 in a partnership loss.
19. In 1978, the Complainant earned $33,437 including $31,717 in employee compensation and $1,720 in partnership income,
20. In 1979, the Complainant earned $11,671: $10,306 in employee compensation, $1,231 in business-related capital gains and $517 in partnership income less $483 in business loss.
21. Had the Complainant not been terminated by the Respondent and had he received 8% annual raises in his salary, he would have earned the following amounts:
    1977 - $22,387.23
    1978 - $24,178.21
    1979 - $26,112.46
22. Subsequent to his termination in 1976, the Complainant sought and/or obtained employment as follows:
    (a) He checked with every insurance company in Dane County for jobs, left a resume at all Madison employment agencies, and contacted a company in Sheboygan where he had interviewed prior to having taken a job with the Respondent.
    (b) The Complainant did not receive any job offers, but did receive three to five interview offers from insurance companies. He interviewed for one position with the Heritage Insurance Company, but was not offered a job because he would not agree to move to Sheboygan. He did not interview for another job because it involved traveling. He did not interview for a second job because it involved partial travel and relocation, and he did not remember why he refused still another interview.
    (c) Unable to obtain employment in the insurance industry, he performed the jobs of delivering telephone directories, preparing tax returns at H&R Block, and working for Retail Credit (now Equifax) subsequent to his termination by Respondent.
    (d) After obtaining his real estate license in June, 1977 and selling his first property in August, 1977, he formed A-K Realty on November 21, 1977 and devoted full time to the real estate business beginning in April of 1978.

RECOMMENDED CONCLUSIONS OF LAW

1. The Complainant is a member of the protected class of marital status within the meaning of Section 3.23, Madison General Ordinances.
2. The Complainant is a member of the protected class of physical appearance within the meaning of Section 3.23, Madison General Ordinances.
3. The Respondent is an employer doing business in the City of Madison, within the meaning of Sec. 3.23, Madison General Ordinances.
4. The Complainant was discriminated against by the Respondent on the basis of his physical appearance in regard to employment within the meaning of See. 3.23, Madison General Ordinances, specifically in regard to discharge.
5. The Complainant was discriminated against by the Respondent on the basis of his marital status in regard to employment within the meaning of Sec. 3.23, Madison General Ordinances, specifically in regard to discharge.
6. The Complainant used reasonable diligence in mitigating and attempting to mitigate his losses subsequent to his termination by Respondent.

RECOMMENDED ORDER

1. That the Respondent cease and desist from discriminating against the Complainant on the basis of his marital status and physical appearance.
2. The Respondent pay to the Complainant $15,078.23, representing the difference between the amount that the Complainant would have earned in 1977 had he not been terminated by the Respondent (see Finding of Fact 21) less the amounts he actually earned (see Finding of Fact 18) in 1977, plus 7% annual interest on said amount ($15,078.23) from January 1, 1978 until the date the Respondent complies with this Order.

MEMORANDUM OPINION

There is testimony in the record from Dr. Hyde that in regard to Kessler's termination, his dating of (then) Nancy Farin during the course of his employment until her termination in April of 1976 was at best a residual factor in Bockoven's decision to terminate Kessler. The residual effect Hyde referred to was his (Bockoven's) distrust of Kessler as a result of his (Bockoven's) perception that the Complainant failed to follow an unwritten work rule established by Bockoven proscribing any employees of one sex from associating on a social basis with married employees of the opposite sex, as well as his (Bockoven's) belief that the Complainant had purposely deceived him (Bockoven) by initially representing himself to be happily married.^l

As discussed in Finding of Fact 15, other factors also contributed to Bockoven's feeling of distrust toward Kessler which in turn led to Kessler's termination. Even assuming, arguendo, that all of the Respondent's other misgivings about Kessler were true - that Kessler intentionally set low reserves, that Kessler issued letters with strikeovers contrary to Bockoven's direction, that Kessler drank on his lunch hour and encouraged other employees to drink on their lunch hours, and that Kessler disobeyed the Respondent's dress policy (see discussion later) - the Respondent is not shielded from liability for its discriminatory motive in terminating Kessler. The Complainant must prove that his marital status was a determining factor in his discharge, but he need not prove that marital status was the determining factor in his discharge.²

If Kessler's violation of the Respondent's work rule (re: association of employees of one sex and married employees of the opposite sex), which on its face discriminates against persons on the basis of marital status, were a determining factor in Kessler's discharge, it would be clear that discrimination occurred in this case. That the work rule violation became a "residual" factor did not transform the seriousness of its effect on the termination decision, and the Respondent's reliance on the residual effect of a discriminatory policy is in actuality no different and no less discriminatory than relying on the policy itself.

For example, if the Respondent's work rule were that White male employees were not to associate with Black employees of the opposite sex, clearly such a policy would be discriminatory. If an employee were later terminated even in part for having failed to follow instructions by not observing the discriminatory policy while it was in force (a "residual effect"), such termination would be discriminatory as the employee is not obligated to nor can be made to suffer any adverse consequences from the failure to follow a discriminatory policy.

To permit an employer in making termination decisions to rely on "residual factors" arising out of an employee's violation of a discriminatory work rule is equivalent to giving sanction to the discriminatory policy itself.

Similarly, any residual consideration by Bockoven of whether the Complainant was happily married or not was also discriminatory, absent a showing that being happily married was some kind of bona fide occupational qualification.

II. PHYSICAL APPEARANCE

As discussed in the previous section, the Respondent's contention that Bockoven's consideration of the Complainant's physical appearance was only a residual factor in his termination decision does not shield the Respondent from liability for discrimination on that basis.

In this case, the evidence shows that the Complainant was at some point made aware of the type of clothing Bockoven expected him to wear, and that the Complainant conformed somewhat to Bockoven's requirements, but "too little, too late." It was further shown that the Complainant had no public contact, did not lose the respect of the employees he supervised due to his manner of dress, and that the Complainant's manner of dress in no way affected his job performance. Also, there existed no dress code as such for female employees, although there existed an unwritten dress code for managerial employees (presumably all male).

Under these facts and circumstances, there was no reasonable business purpose for the requirements placed on the Complainant, and this case is distinguished from previous decisions (as discussed in the footnote below).³

III. REMEDY

The Complainant asserts that he is entitled to back pay January 1, 1977 through December 31, 1979 on the grounds that the Complainant's real estate business did not become, on the average, more lucrative until after December 31, 1979.

The Respondent asserts that if the Complainant is entitled to any backpay, it should toll when the Complainant became a partner in A-K Realty (presumably in November of 1977).

My view is that both positions are incorrect, and that the Complainant is entitled to backpay from January 1, 1977 through, at the latest, sometime in April of 1978 when he began devoting full time to A-K Realty. In no case is the Complainant entitled to backpay beyond April of 1978 (when he began devoting full time to A-K Realty).⁴

In the interest of measurability, I have entered an order calculating the back pay for the calendar year 1977, as no evidence was presented to show that the Complainant earned less than what he would have made with the Respondent for the first three-plus months of 1978.

Signed and dated the 12th day of October, 1982.

EQUAL OPPORTUNITIES COMMISSION

Allen T. Lawent
Hearing Examiner

¹Bockoven testified that ". . .We had two basic ground rules . . . The other is that we have no fooling around with married people in our office." (See Transcript, p. 9)

Bockoven further testified regarding a conversation that he had with the Complainant in December, 1975;

"Well, he came in and told me that Ann was not going to be coming to Madison, and I told him, well, that was unfortunate. I felt sorry for him, and I reminded him that because he would be single or separated from his wife, all the more reason that he followed the rules of not fooling around with any married women in the office." (See Transcript, pp. 10-11)

Further, as an illustration of Bockoven's preoccupation with the state of Kessler's marriage, the Respondent writes on page 6 of its own brief that "Bockoven felt that Kessler purposely deceived and further contributed to Bockoven's distrust of Kessler when Kessler in his pre-employment interview with Dr. Wrage represented himself to be happily married."

²As held by the Hon. George R. Currie in Wisconsin Department of Agriculture v. Wisconsin Labor and Industry Review Commission, 17 EPD 8607 (1978) - as paraphrased from Muskego - Norway C.S.J.S.C. v. W.E.R.B., 35 Wis 2d. at p. 562 - an employer's conduct is not insulated from a finding of illegality when one of the motivating factors is legally protected no matter how many other valid reasons might exist for the action complained of.

³It is not per se improper for an employer to have different dress standards for managerial and non-managerial employees, so long as there is a reasonable business purpose for the dress standards used. In this case, there was no dress code for women employees (presumably all of whom were non-managerial), but an unwritten dress standard existed for managerial employees (presumably all males).

However, Bockoven's own testimony indicates that the Respondent had no reasonable business purpose for the dress standard as it applied to Kessler's job, which distinguishes this case from my holding in Quinn-Gruber v. Wisconsin Physician's Service (September 27, 1982) that ". . . as a matter of law, it is not improper for any employer for purposes of business image to proscribe, in a uniform manner, the wearing of tennis shoes or blue jeans in an office setting where there is even minimal public contact, regardless of whether or not the wearing of those items of clothing physically interferes with a person's ability to do their job." (Emphasis added)

In this case, Bockoven testified that Kessler's manner of dress did not affect his working relationship with the Respondent's clientele or customers: "He wasn't out with them, so that (his appearance) wouldn't have an effect." The key here is that Kessler did not even have minimal public contact; the inference from Bockoven's own testimony is that Kessler had no public contact in his job, thus distinguishing this case from my holding in Quinn-Gruber. Further, Bockoven testified that Kessler did not suffer from a lack of respect from co-employees because of his appearance.

Below, I relate Bockoven's testimony on adverse direct examination by the Complainant's attorney (Attorney Soglin):

Q: What was wrong with Mr. Kessler's appearance, in your judgment?
A: It didn't meet the standards that a department manager of an insurance company normally would wear.
Q: What did Mr. Kessler wear?
A: Sport shirts with his elbow coming out of the sleeves sometimes, shirts and pants that had been washed and not ironed, sometimes they were clean and sometimes they weren't, boots unshined.
Q: Did it affect Mr. Kessler's working relationship with your clientele, your customers?
A: He wasn't out with them, so that wouldn't have an effect. (See Transcript, p.28)

Q: Do you recall ever having said that Mr. Kessler's personal appearance did not meet the usual management standards?
A: I'm sure I did.
Q: And what would those management standards be?
A: Neat, shoes shined, wear a tie, a suit or sport coat and slacks, neat appearing.
Q: How did this neat appearance of part of the management's standards relate to Mr. Kessler's work?
A: Only that as a supervisor of other people, I think they get more respect if they dress more neatly.
Q: Do you have any knowledge as to whether or not the individuals that Mr. Kessler supervised had little or no respect for him?
A: On, no, I have no such notion. That is a principle on dress, not specific as to Mr. Kessler. (See Transcript, pp. 36-37)

⁴It is clear from the record that the Complainant's real estate business became more financially lucrative in 1973 than his job with the Respondent would have been. Merely because the Complainant's real estate business suffered in 1979 does not expose the Respondent to further liability on some sort of an averaging scheme. The key in this matter is intent, and the Complainant's full-time devotion to what was then a more financially lucrative occupation in April, 1978 tolled the backpay liability of the Respondent, as the Complainant's intent may be inferred to be at that time having elected a new occupation.

However, up until the time that any of the Complainant's ventures became more financially lucrative than his previous occupation, his intent may be inferred to be that he would have still been interested in being employed at his previous occupation. Consequently, I reject the Respondent's position that the Complainant's back pay should toll at the start of his venture (when he became a partner in A-K Realty), because this was just one of several part-time endeavors engaged in by the complainant to make money and the realty venture had only speculative future prospects.

Further, regarding mitigation of damages, the Complainant clearly used reasonable (or due) diligence in seeking other work, and it was not unreasonable for him to refuse interviews for insurance jobs where it was known to him that the job would be outside Dane County or would involve more travel than his previous job with the Respondent. It is not unreasonable for a Complainant to reject possible future employment on the basis of geographical considerations (in his case, wanting to remain in Dane County) or working condition considerations (in his case, not wanting to travel much, as the job he had held with the Respondent would appear to have involved minimal or no travel).

The Examiner issued his Recommended Decision (including the Recommended Findings of Fact, Conclusions of Law and Order) on October 12, 1982. Timely exceptions were filed by both parties, written arguments were submitted and oral arguments were presented by Attorney Soglin (for Complainant) and Attorney Nichol (for Respondent) before eleven members of the Madison Equal Opportunities Commission (MEOC).

Based upon a review of the record in its entirety, the MEOC issues the following:

FINAL ORDER

1. That Recommended Conclusion of Law #4 (concerning physical appearance) of the attached Recommended Decision is hereby reversed and deleted;
2. That Recommended Order #2 of the attached Recommended Decision is modified as follows:
   The figure of "7%" is hereby deleted and the figure "12%" is substituted therefore; otherwise said Recommended Order #2 shall stand in its entirety;
3. That the Examiner's Recommended findings of Fact, Conclusions of Law and Order as contained in the attached Recommended Decision are affirmed in their entirety, except as modified by #1 and #2 above.

Commissioners Abrahamson, Amata, Cobb, Cox, Galanter, Goldstein, Hisgen, Kifle, Swamp and Ware all participated in entering the above FINAL ORDER. The respective positions of the Commissioners on various issues are discussed in the Commission Opinion below. Commissioner Feitlinger, although present at the oral arguments, did not participate in the entering of the Commission's Final Order.

COMMISSION OPINION

I. Reversal of Recommended Conclusion of Law #4

Commissioners Abrahamson, Amato, Cobb, Galanter, Hisgen and Kifle all joined in reversing and deleting Recommended Conclusion of Law #4. Commissioners Cox, Goldstein, Swamp and Ware, all dissented and could have affirmed Recommended Conclusion of Law #4. The six-member majority on this issue determined, based on the facts in the record, that the Complainant's physical appearance (manner of dress) was not a substantial (or determining) factor surrounding the Complainant's discharge. Although the record shows that problems existed earlier in the Complainant's employment, the majority finds that the Respondent was not dissatisfied with the Complainant's manner of dress at the time of his discharge.

II. Affirmance of the Examiner's Recommended Conclusion of Law #5 Finding the Respondent Liable for Discrimination on the Basis of the Complainant's Marital Status

The Commission affirmed the Examiner's Recommended Conclusion of Law #5 finding the Respondent liable for marital status discrimination by a 6-4 margin. Commissioners Amato, Cox, Goldstein, Kifle, Swamp and Ware all joined in affirming said Recommended Conclusion of Law #5. Commissioners Abrahamson, Cobb, Galanter and Hisgen dissented.

The six-Commissioner majority agreed with the Examiner's reasoning as detailed in the Memorandum Opinion on pages 7 and 8 of his Recommended Decision.

III. Interest Modification: Raising Complainant's Entitlement to 12%

The present statutory figure for interest to be awarded with a judgment in civil cases is generally twelve (12) percent.² While the statutory requirements do not necessarily apply to a municipal administrative order, the Madison Equal Opportunities Commission agrees with those court decisions which have awarded interest in fair employment cases and finds the statutory rate for civil cases to be the appropriate and reasonable rate.

Commissioners Abrahamson, Amato, Cobb, Cox, Galanter, Goldstein, Kisgen, Kifle, Swamp and Ware all joined in modifying the Examiner's interest award to the Complainant.

IV. Other Aspects of Remedy

Except for the modification of the interest figure, all ten Commissioners who participated in entering the Final Order approve the Examiner's Recommended Order (#1 and #2).³ While the Complainant did not specifically prove that he would have received an 8% salary increase (see Recommended Finding Fact #21) in 1977, the Commission finds the Complainant's assertion reasonable for that year.

While the Complainant carries a heavy burden in proving liability, once that liability is established, the burden shifts to the Respondent to show that the Complainant is not entitled to a full (make-whole) remedy.⁴ In a situation such as this, where the salary increase (if any) was discretionary with the Respondent (i.e., it could have been more or less than the Complainant's asserted figure), the Commission finds it proper to accept a reasonable assertion⁵ by the Complainant (8% increase), as there is an absence of persuasive proof by the Respondent, by at least a preponderance of the evidence (if not clear and convincing evidence), that the Complainant would have received less than an 8% increase.

V. Other Aspects of the Recommended Decision

For clarity of the record, it is further noted that the ten Commissioners unanimously affirm all of the Recommended Findings of Fact as well as unanimously affirm Recommended Conclusions of Law #1, #2 and #3. The other aspects of the Recommended Decision have been discussed above.

Signed and dated this 10th day of March, 1983.

EQUAL OPPORTUNITIES COMMISSION

Betsy Abrahamson
EOC President

¹The majority finds Bockoven's statement that the Complainant's improved appearance was "too little, too late" not to mean that Bockoven was still dissatisfied with the Complainant's appearance. Rather, the majority finds the statement to mean that in Bockeven's opinion, even the Complainant's improved dress was insufficient to save him from termination.

²The Commission acknowledges the recent Wisconsin Supreme Court ruling in Anderson vs. LIRC, No. 81-1911 (Filed March 1, 1983) holding that prejudgment interest is awardable under the Wisconsin Fair Employment Act. We find the high court's reasoning equally applicable to the Madison Equal Opportunity Ordinance (Section 3.23, Madison General Ordinances).

³Although four Commissioners dissented from the majority's finding of marital status discrimination (liability), given that the majority did find liability, those four Commissioners joined with the other six in the modification of the interest award and affirmance of the other aspects of the Examiner's Recommended Order.

⁴See Anderson v. LIRC (refer to Footnote 2) as well as State ex rel Schilling and Klingler v. Baird 65 Wis. 2d 394 (1974), the latter being a Wisconsin Supreme Court ruling in an employment matter (but not a discrimination case) discussing the allocation of the burden of proof (placing it heavily on the Respondent) on the issue of mitigation of "damages". See also EEOC v. Kallir, Phillips, Ross, Inc., 13 FEP Cases 1508, 1512 (1976) for a discussion of burden of proof in a discrimination matter, (in a federal court).

⁵Factors which may be relevant to a determination of whether or not a Complainant's assertion as to a projected salary increase is reasonable (in the context of determining a remedy) include, but are not limited to, a consideration of the Complainant's past salary history with the Respondent, the economic position of the Respondent at the time, the salary increases (if any) given to other (similarly situated) employees, industry-wide standards (if any), express or implied promises made to the Complainant by the Respondent or its agents, and so on. Where a Complainant is discharged, it is insufficient for the Respondent to merely assert (without further substantiation) that the Complainant would not have received an annual increase or that the Complainant's replacement was hired at a lesser salary.

NATURE OF PROCEEDINGS

This action is a review, on certiorari, of a decision of the Madison Equal Opportunities Commission, dated March 10, 1983, which ruled that plaintiff Federated Rural Electric Insurance Co. had discriminated against defendant William Kessler on the basis of his marital status in discharging him from employment, contrary to Madison General Ordinance 3.23, and awarded Mr. Kessler the sum of $15,078.23, plus 12% interest from January 1, 1978.

On April 6. 1983, plaintiff commenced the instant review of the Commission's decision by filing a complaint, pursuant to sec. 801.02(5), Stats. Plaintiff contends that the decision of the Commission should be reversed because the Commission's conclusion of law that the plaintiff discriminated against Mr. Kessler on the basis of marital status is not supported by substantial or credible evidence in the record, and because the Commission's finding that a legitimate business reason was a determining factor in the plaintiff's decision to dismiss Mr. Kessler should, as a matter of law, have required the Commission to dismiss Mr. Kessler's complaint of discrimination. Plaintiff also disputes the calculation of the award and the interest rate.

DECISION

In reviewing on certiorari the determination of the Commission, this court is limited to the questions of:

(1) Whether the board kept within its jurisdiction; (2) whether it proceeded on the correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question. State ex rel. De Luca v. Common Council, 72 Wis. 2d 672, 676, 242 N.W.2d 689 (1976), quoting from State ex rel. Ball v. McPhee, 6 Wis. 2d 190, 199, 94 N.W.2d 711 (1959).

Madison General Ordinance 3.23(7)(a) reads, in relevant part:

(7) Employment Practices. It shall be an unfair discrimination practice and unlawful and hereby prohibited:
(a) For any person or employer . . . to discharge any individual . . . because of such individual's . . . marital status . . .

In order to determine whether the conduct of plaintiff constituted prohibited discrimination, the initial task is to determine the meaning of the above ordinance. The term "marital status" is defined in Mad. Gen. Ord. 3.23(2)(1) as follows: "Marital status" shall include being married, separated, divorced, widowed, or single." "Because of" refers, in common usage, to the process of causation, and means that something happens or exists due to something else happening or existing. Thus, the ordinance in question, Mad. Gen. Ord. 3.23(7)(a), prohibits an employer from discharging an employee due to the employee's state of being married, separated, divorced, widowed, or single.

At issue in this case, therefore, is whether the plaintiff discharged Mr. Kessler because of Mr. Kessler's state of being married, separated, divorced, widowed, or single. The Commission decided this issue in the affirmative, and adopted the hearing examiner's fifth conclusion of law, which states:

5. The Complainant was discriminated against by the Respondent on the basis of his marital status in regard to employment within the meaning of Sec. 3.23, Madison General Ordinances, specifically in regard to discharge. (Rec., p. 408).

The questions which must be answered by this court on review are whether the findings of fact of the Commission are supported by substantial and credible evidence in the record, and whether the fifth conclusion of law of the Commission is supported by the found facts.

In reviewing findings of fact by certiorari, the standard is identical to that employed in judicial review of administrative agency decisions under Chap. 227, Stats. State ex rel. Harris v. Annuity and Pension Board, 87 Wis. 2d 646, 652, 275 N.W.2d 668 (1979). Sec. 227.20(6), Stats., states:

If the agency's action depends on any fact found by the agency in a contested case proceeding, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside agency action or remand the case to the agency if it finds that the agency's action depends on any finding of fact that is not supported by substantial evidence in the record.

"Substantial evidence" is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Bucyrus-Erie Co. v. ILHR Dept., 90 Wis. 2d 408, 280 N.W.2d 142 (1979). Substantial evidence does not mean preponderance of the evidence; if an agency's factual finding is supported by substantial evidence it must be upheld by the reviewing court, even if the factual finding is against the great weight and clear preponderance of the evidence. Wisconsin's Environmental Decade, Inc. v. Public Service Commission, 98 Wis. 2d 682, 298 N.W.2d 205 (Ct. of App., 1980); Omernick v. Department of Natural Resources, 94 Wis. 2d 309, 287 N.W.2d 841 (Ct. of App., 1979), aff'd, 100 Wis. 2d 234, 301 N.W.2d 437 (1981). This standard is required because s. 227.20, Stats., does not permit a reviewing court to weigh conflicting evidence or to pass on the credibility of witnesses. Wisconsin's Environmental Decade, Inc. v. Department of Natural Resources, 85 Wis. 2d 518, 271 N.W.2d 69 (1978).

This court has reviewed all of the Commission's findings of fact, and is of the opinion that all of them are supported by substantial evidence in the record, with the exception of the second sentence of Finding No. 14, in which there is no substantial evidence for the date "April of 1975." This is apparently a typographical error, for there is substantial evidence for the date April of 1976. With this amendment, the findings of fact of the Commission are found to be supported by substantial evidence in the record.

The next question which must be answered is whether the Commission's fifth conclusion of law is supported by the facts. The application of a legal standard to the facts is a legal question. The court is not bound by the Commission's determination of a question of law, and may properly substitute its judgment for that of the Commission. Bucyrus-Erie Co. v. ILHR Dept., supra.

The following findings of fact, found by the hearing examiner and adopted by the Commission, bear on the fifth conclusion of law:

3. The Complainant was employed as a Claims Manager by the Respondent sometime in September, 1975 after having been interviewed by Dr. John Wrage, a private personnel consultant hired by the Respondent, and by John Bockoven, the Respondent's company president. The Complainant was legally married at the time of his initial hire by the Respondent.

4. When the Complainant first came to Madison from Boston, Massachusetts in September of 1975, Bockoven assumed he was happily married based on his (Bockoven's) own impressions as well as on conversations he (Bockoven) had with Wrage.

7. Around October of 1975, unbeknownst to Bockoven, Bockoven's secretary - Nancy Farin - stopped living together with her husband.

11. The Complainant and Farin developed a "serious" relationship sometime in February or March, 1976. This relationship continued until such time as each was divorced from their spouses and became married to one another sometime in mid-1977 or after.

13. The Respondent had an unwritten work rule in effect during the term of Kessler's employment with Respondent that prohibited employees from associating with married employees of the opposite sex outside of work-related matters.

14. Bockoven first became aware of the Complainant's marital problems no later than sometime in December, 1975. Bockoven first became aware of Farin's marital problems around April of 1975 (1976), sometime just prior to or concurrent with her termination. Bockoven had observed Kessler and Farin return from lunch together on more than one occasion prior to his (Bockoven's) having become aware of Farin's marital problems, and Bockoven believed the Complainant had violated the Respondent's work rule as recited in Finding of Fact 13 above. Further, Bockoven also believed that the complainant misrepresented to him the seriousness of the Complainant's relationship with Farin.

15. The Complainant was terminated by the Respondent on December 9, 1976. A determining factor in Respondent's decision to terminate the Complainant was Bockoven's distrust of the Complainant based on Bockoven's belief that the Complainant refused to or failed to follow his (Bockoven's) instructions. The determining factors contributing to Bockoven's distrust of the Complainant were Bockoven's beliefs that:
(a) The Complainant had violated the work rule recited in Finding of Fact 13, above (regarding the association of any employees of one sex with married employees of the opposite sex);
(b) The Complainant purposefully set reserves too low on some insurance claims so that he (the Complainant) would not have to discuss them with Bockoven; 
(c) The Complainant issued letters with strikeovers contrary to Bockoven's instructions;
(d) The Complainant drank alcohol on his lunch hour and encouraged other employees to drink alcohol on their lunch hours;
(e) The Complainant did not come to work wearing the manner of dress Bockoven requested he should. (Rec., pp. 404-406).

It is clear that none of these facts support the conclusion that Mr. Kessler was discharged because of his marital status. These facts would support the conclusion that Mr. Kessler was discharged, in part, because he had violated the employer's work rule which discouraged employees from associating with other employees who are married outside of work-related matters, but that conclusion is quite a different matter.

The work rule, as stated in Finding No. 13, was not discriminatory as applied to Mr. Kessler. The rule applied to all employees, regardless of their marital status. Whether Mr. Kessler had been married, separated, divorced, widowed, or single, he would have been equally prohibited by the rule from developing a romantic relationship with a fellow employee who was married. The work rule was thus a regulation of Mr. Kessler's conduct, rather than a discrimination based on his marital status. The only conclusion possible from these facts is that Mr. Kessler's marital status was irrelevant to his discharge. Thus, the employer did not violate Mad. Gen. Ord. 3.23(7)(a).

There is one other aspect of the facts of this case which bears on Mr. Kessler's marital status. There is testimony in the record to the effect that Mr. Kessler, in his initial interview with Dr. Wrage, represented himself as being happily married, and that Mr. Bockoven later felt some distrust toward Mr. Kessler when he learned that Mr. Kessler had misrepresented his situation. It is somewhat difficult for the court to deal with this issue, because the Commission made no finding of fact as to its causative effect on Mr. Kessler's discharge. The Commission should be aware that it has an obligation to make written findings of any facts which are the basis for its decisions. Edmonds v. Board of Fire & Police Commissioners, 66 Wis. 2d 337, 348, 224 N.W.2d 575 (1975). In any event, the court can find no substantial evidence in the record supporting the position that the employer required, as a condition of employment, that Mr. Kessler be married, happily or otherwise. There is evidence that Mr. Bockoven lost some trust in Mr. Kessler because of Mr. Kessler's deception about his marital status. Indeed, both Mr. Kessler (Rec., p. 164) and Mr. Bockoven (Rec., p. 258) testified that Mr. Kessler's deception about his marital situation was the relevant point; not his marital status as such. Once again, then, the situation is that Mr. Kessler's conduct, rather than his marital status, led to his discharge. It is clear that honesty was a bona fide occupational qualification for the position of trust held by Mr. Kessler's, and that the employer was justified in having a negative reaction upon learning of Mr. Kessler's deception.

In summary, there is no support in the record for the Commission's conclusion that Mr. Kessler was discharged because of his marital status. Therefore, the Commission's order must be set aside, and this action must be remanded to the Commission for a new decision and order, based on the existing record, consistent with this opinion.

Since this case is controlled by the considerations stated above, it is unnecessary to consider the other arguments made by counsel.

The allowance of attorney fees and other costs to plaintiff is, in this action, discretionary with the court pursuant to sec. 814.036, Stats. The court finds that it is manifestly fair to allow plaintiff its costs of this action, since plaintiff was required to bring this action only because of the failure of the Commission to properly apply the ordinance which it is charged with enforcing. The allowance of attorney fees is limited to a maximum of $100 by sec. 814.04(1), Stats. Since it is apparent from the record that plaintiff's actual attorney fees for this action have been greater than $100, it is appropriate to allow plaintiff the maximum of $100 for its attorney fee in this action. In addition, plaintiff is allowed its actual disbursements of costs, pursuant to sec. 814.04(2). Plaintiff shall submit verification of its costs and disbursements pursuant to sec. 814.10, Stats., and the same shall be paid to plaintiff by defendants Madison Equal Opportunities Commission and City of Madison.

Although the disposition of this action is controlled by the considerations above, it may be useful to the Commission to discuss in some detail the errors of law made in its initial decision of this case.

The major error made by the Commission in attempting to apply the ordinance to the facts of this case is contained in the following sentence from the memorandum opinion of the hearing examiner, which was adopted by the Commission:

If Kessler's violation of the Respondent's work rule (re: association of employees of one sex and married employees of the opposite sex), which on its face discriminates against persons on the basis of marital status, were a determining factor in Kessler's discharge, it would be clear that discrimination occurred in this case. (Rec., p. 410).

One error in this reasoning lies in the Commission looking at what it perceives as a general discriminatory policy, rather than focusing on specific discrimination against the complainant, Mr. Kessler, based on his marital status. As stated above, Mr. Kessler's marital status was irrelevant to the operation of the rule; all employees, regardless of their marital status were prohibited from engaging in the conduct which Mr. Kessler engaged in. The Commission should be aware that, in a contested case such as this, it is not empowered to find in favor of a complainant unless the complainant shows that he or she was the victim of discrimination against him or her.

Another error in the Commission's reasoning is that the Commission's conclusion that the work rule in question is, by itself, illegally discriminatory is incorrect. The Commission apparently failed to realize that not every policy which categorizes employees based on their status or membership in a group is illegally discriminatory. Rather, illegal discrimination is a categorization which results, because of the categorization, in the loss by an individual of a legally protected right or privilege. See Mad. Gen. Ord. 3.23(1). In the instant case of employment practices and marital status, illegal discrimination consists of an employer basing hiring or discharge decisions on an individual's marital status (Mad. Gen. Ord. 3.23(7)(a)), or of an employer classifying employees by marital status in a way "which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his or her status as an employee . . ." (Mad. Gen. Ord. 3.23(7)(b)).

Using this standard, it is apparent that the work rule in question is not illegally discriminatory. The rule, in essence, prevents all employees from pursuing romances with fellow employees who are married, while not preventing any employees from pursuing romances with unmarried coworkers. It should be obvious that the ability to pursue a romantic relationship with a married coworker is not a legally protected right or privilege, and that the denial of that ability is not a denial of equal opportunity in employment. Prohibiting an employee from pursuing romances with married coworkers would not deprive that employee, because of his or her marital status, of employment opportunities, nor would it adversely affect the employment status of that employee because of his or her marital status. Thus, from the point of view of those whose conduct is restrained, the rule does not violate the ordinance.

The rule can also be examined as to its impact on the employees who are categorized. The rule, by preventing all employees from being involved in romances with married coworkers, thereby prevents all married employees from having romances with any coworkers, while it does not prevent unmarried employees from having romances with any coworkers. The rule thus creates two groups, married and unmarried employees, and the two groups have different abilities with regard to romances with coworkers. Although the rule does not, as such, have an effect on the conduct of the occupants of the two groups, the enforcement of the rule would cut off the access of the married employees to romances with coworkers.

The question then becomes whether the rule illegally discriminates against either of the two groups. The group of unmarried employees is not discriminated against, since the access of its members to romances with coworkers is unaffected by the rule. The group of married employees is also not discriminated against. Preventing the members of this group from access to romances with coworkers does not act to deprive them of "employment opportunities" or to affect their "status as an employee." Preventing married employees from having romances with coworkers does not tend to stigmatize them or to make them second class employees. It should be remembered that one of the socially recognized purposes of marriage is to establish an exclusive sexual bond with one's spouse. Thus, a married person is not stigmatized by an expectation that he or she will maintain a monogamous relationship with his or her spouse for as long as he or she chooses to remain in the marital state. The ability of a married employee to pursue a romantic relationship with a coworker who is not his or her spouse is thus not a legally protected right or privilege, and the denial of that ability is not a denial of equal opportunity in employment. Thus, once again, the rule does not violate the ordinance.

Not only does the work rule in question not violate the ordinance, it is clearly consistent with public policy, as expressed in the Wisconsin Statutes and the Madison General Ordinances. For example, sec. 765.001(2), Stats., states:

It is the intent of chs. 765 to 768 to promote the stability and best interests of marriage and the family. Marriage is the institution that is the foundation of the family and of society. Its stability is basic to morality and civilization, and of vital interest to society and the state. The consequences of the marriage contract are more significant to society than those of other contracts, and the public interest must be taken into account always. . . . The impairment or dissolution of the marriage relation generally results in injury to the public wholly apart from the effect upon the parties immediately concerned.

The work rule in question is in harmony with the public policy goals set forth in this section of the Wisconsin Statutes, in that it attempts to prohibit conduct, i.e., extramarital romantic affairs, which would generally tend to advance the impairment or dissolution of existing marital relationships.

Further, it should be noted that sec. 944.16, Stats., defines adultery, inter alia, as having "sexual intercourse with a person who is married to another," and categorizes this conduct as a Class E felony. It is not illegally discriminatory for an employer to recognize a distinction, based on marital status, which is set forth in the Wisconsin Statutes, nor is it discriminatory for an employer to attempt to prohibit conduct which, in the nature of things, is likely to lead to the commission of a felony.

Finally, it should be noted that Mad. Gen. Ord. 3.23(7)(j) requires that "employers shall ensure that all of their employees work in an environment free of sexual harassment." The same ordinance section holds employers presumptively responsible for all acts of sexual harassment committed by their agents and supervisory personnel. Thus, employers are required by this section to institute procedures and policies designed to prevent incidents of sexual harassment. As noted above, persons who choose to enter the marital state are generally considered to be expressing a preference for a sexually monogamous relationship with their spouse. Thus, the work rule is consistent with the sexual harassment ordinance, because it is not unreasonable for an employer to believe that married persons are generally not desirous of being subjected to romantic advances from persons other than their spouse, and it is not unreasonable for an employer to believe that such advances, sanctioned by the employer, could be presumptively considered to be sexual harassment.

THEREFORE, IT IS ORDERED:

1. That the decision of the Madison Equal Opportunities Commission of March 10, 1983, be set aside for failure to correctly apply the law to the found facts, and

2. That the cause be remanded to the Madison Equal Opportunities Commission for a new decision and order consistent with this opinion, and

3. That defendants Madison Equal Opportunities Commission and City of Madison pay to plaintiff its costs of the action.

Dated: January 31, 1984.

By the court:

James C. Boll, Judge
Dane County Circuit Court
Branch 6

No. 84-552

STATE OF WISCONSIN : IN COURT OF APPEALS - DISTRICT IV

APPEAL from a judgment of the circuit court for Dane county: JAMES C. BOLL, Judge. Reversed. 

Before Cane, P.J., Dean and LaRocque, JJ. 

DEAN, J. William Kessler and Madison Equal Opportunities Commission appeal a judgment reversing a commission order. The commission found that Federated Rural Electric Insurance Co. had discriminated against Kessler on the basis of his marital status, in violation of a city ordinance.¹ Kessler argues that the commission correctly concluded that he had been discriminated against because of his marital status. Because we conclude that the commission reasonably held that the work rule used in part to discharge Kessler did discriminate against him, we reverse. 

The commission found that Federated had an unwritten work rule prohibiting its employees from associating with married employees of the opposite sex outside of work-related matters. Kessler became involved with another married employee while working for Federated. In December, 1976, Federated discharged Kessler for several reasons, including his violation of this work rule.² The trial court reversed the commission's conclusion that Federated discriminated against Kessler based on his marital status and held that, as a matter of law, the work rule was nondiscriminatory. 

On certiorari review, an appellate court's scope of review is limited to the records of the administrative proceedings, and includes whether the agency kept within its jurisdiction, whether it proceeded on a correct theory of law, whether its action was arbitrary, oppressive or unreasonable, and whether the evidence reasonably supports its determination. See, e.g., State ex rel. Harris v. Annuity and Pension Board, 87 Wis.2d 646, 651-52, 275 N.W.2d 668, 671 (1979). At issue is the commission's conclusion that Federated discriminated against Kessler. The commission's conclusion raises a question of law that will be sustained if reasonable. Jenks v. DILHR, 107 Wis.2d 714, 720, 321 N.W.2d 347, 351 (Ct. App. 1982).

The commission's conclusion that Federated discriminated against Kessler on the basis of his marital status was reasonable. Federated's rule discriminated against Kessler because it was one-sided. The rule failed to restrict social associations both by and with married employees. As phrased by the employer, the rule prohibits a single employee from associations with a married employee. In other words, if any married employee associated with a single employee, the married employee would not be violating the rule while the single employee would. It is this arbitrary distinction that invalidates the rule. The trial court erroneously stated that the rule applied to all employees regardless of marital status. If the rule applied equally to all employees, we would reach a different conclusion. 

Federated argues that even if the rule is discriminatory, it is reasonably necessary to the normal operation of the business enterprise. The Madison ordinance does make specific exceptions to otherwise illegal discrimination. See, e.g., Madison, Wis., General Ordinances § 3.23(7)(i). In general, the ordinance allows certain kinds of discrimination when it is necessary to the business' normal operation. The ordinance, however, makes no exception for instances of marital status discrimination.

Next, Federated argues that it discharged Kessler for several legitimate reasons and that these reasons should negate any discriminatory motive for Kessler's discharge. We disagree. In State Department of Employment Relations v. WERC, 122 Wis.2d 132, 138-43, 361 N.W.2d 660, 663-65 (1985), our supreme court held that an employee may not be fined when one of the motivating factors is the individual's union activities, regardless of the legitimacy of the other factors. The court reasoned that this "in part" rule recognizes the practical difficulty that a discharged employee may have in proving anti-union hostility and refuting an allegation of misconduct.

We conclude that the "in part" test is applicable equally to this discrimination situation. The discharged employee and the employer do not stand on equal footing in cases alleging discrimination because of the employer's advantage of being able to monitor the employee's work performance and document any "legitimate" basis for discipline.³ We therefore reject Federated's dual purpose argument and conclude that the commission correctly decided that Federated had discriminated against Kessler because of his marital status.

By the Court.--Judgment reversed. 

Not recommended for publication in the official reports. 

A P P E N D I X

¹Madison, Wis., General Ordinances § 3.23(7)(a) provides in relevant part:

(7) Employment Practices. It shall be an unfair discrimination practice and unlawful and hereby prohibited:

(a) For any person or employer . . . to discharge any individual . . . because of such individual's . . . marital status. 

²Kessler argues that he could not have violated the work rule because, at the time of his discharge, the employee with whom he became romantically involved had already been discharged. The substantial evidence supports the commission's finding that one reason for Kessler's discharge was this relationship, which began while both were employed by Federated. 

³WERC reaffirmed the supreme court's holding in Muskego-Norway Consol. Sch. Jt. Sch. Dist. No. 9 v. WERB, 35 Wis.2d 540, 151 N.W.2d 617 (1967).

Court of Appeals Decision Dated and Released September 10, 1985