FORWARD State of Wisconsin DEPARTMENT OF EMPLOYMENT RELATIONS 149 East Wilson Street Madison, WI 53702 Lee Sherman Dreyfus Governor October 26, 1981 Hugh C. Henderson Secretary Representative David Clarenbach Wisconsin State Assembly Room 422 North State Capitol Building Dear Representative Clarenbach: Thank you for your inquiry of this date regarding the effect of the passage of Assembly Bill 70 on the State of Wisconsin's Affirmative Action Program. The Department of Employment Relations (DER) is responsible under Chapter 230 of the statutes for carrying out the State's equal employment opportunity mandate and, through affirmative action, correcting the imbalances in the workforces of the State agencies and educational institutions and eliminating the present effects of past discrimination. The State Affirmative Action Office is responsible under Chapter 230 for advising and assisting the Secretary of DER, the Administrator of the State Division of Personnel, and agency heads on equal employment opportunity and affirmative action. I have reviewed AB-70 as passed by the Assembly, particularly Sections 22 and 23 which amend Chapter 230. While these Sections require the State as an employer to provide equal employment opportunity without regard to sexual orientation, they do not authorize the State to take affirmative action on the basis of sexual orientation. Should you have any further questions in regards to the State's Equal Employment Opportunity or Affirmative Action Programs, please feel to contact this Office again. Sincerely, Chackne Claudean Roehmann Director SCM: scm cc: Dana Warren AN EQUAL OPPORTUNITY EMPLOYER --- David E. Clarenbach, State Representative October 26, 1981 422 North State Capitol Madison, Wisconsin 53702 608-266-8570 Chairperson: Committee on Government Operations Member: Committee on Agriculture and Nutrition Committee on Labor Legislative Council Ms. Claudean Roehmann, Director Wisconsin Affirmative Action Council Department of Employment Relations 149 E. Wilson St. Madison, WI 53702 Dear Ms. Roehmann: I am the author of Assembly Bill 70, a bill recently passed by the State Assembly, which would prohibit discrimination based on sexual orientation. Discussion regarding the bill has centered on whether, by prohibiting discrimination, a program of affirmative action establishing hiring quotas is created, either for state agencies or for contracts with the state. I would like to request an opinion from the Affirmative Action Council regarding this issue. Thank you for your assistance. I will look forward to hearing from you as soon as possible. Sincerely, David Clarenbach State Representative --- -3- currently mentioned in the two statutory provisions are included in the Department of Administration's rules on "balanced work force," it cannot be stated with certainty whether or not the Department of Administration will elect to include sexual orientation in those rules because of a change in the law. As we discussed last week, any change in the administrative rules would be subject to review by standing committees under s. 227.018 (4), Stats., and the Joint Committee for the Review of Administrative Rules under ss. 13.56 (2) and 227.018 (5), Stats. Feel free to contact me if I can be of further assistance in this matter. RNS: kjh; kja --- 1981 STATE OF WISCONSIN LRBA2850/1 JL:1t SENATE AMENDMENT TO 1981 ASSEMBLY BILL 70 1 At the locations indicated, amend the bill as follows: 2 3 1. Page 2, line 17: strike through the comma; and after "and" 8 10 11 11 insert ', except with respect to sexual orientation, ". strike through "The" and thereafter insert 2. Page 2, line 28: "Except with respect to sexual orientation, the". "Nothing in this sub- 3. Page 9, line 22: after that line insert: section requires an affirmative action program to correct an imbalance in the work force.". 4. Page 13, line 21: after the period insert: "Gender group does not include any group discriminated against because of sexual orientation. (End) --- DATE: WISCONSIN LEGISLATIVE COUNCIL STAFF MEMORANDUM Room 147 North, State Capitol, Madison 53702 Telephone (608) 266-1304 February 4, 1982 SEENFOMANE CAND ARE BACH FROM: Richard Sweet, Senior Staff Attorney SUBJECT: Analysis of a Proposed Amendment (LRBa2850/1) to 1981 Assembly Bill 70, Relating to Prohibiting. Discrimination Based Upon Sexual Orientation This memorandum is written pursuant to your request for an analysis of LRBa2850/1, a copy of which is attached to this memorandum. The draft is a proposed amendment to 1981 Assembly Bill 70, relating to prohibiting discrimination based upon sexual orientation. The proposed amendment contains four items. The first two items relate to contracts entered into by state agencies. Under current law, contracts entered into by state agencies must include a provision obligating the contractor not to discriminate against any employe or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, developmental disability or national origin, and obligating the contractor "...to take affirmative action to ensure equal employment opportunities." Assembly Bill 70 amends s. 16.765 (1) and (2) (a), Stats., to include sexual orientation in the list of items for which the contractor may not discriminate. The first two items of the proposed amendment would further amend s. 16.765 (1) and (2) (a), Stats., to state that the affirmative action requirement in those provisions would not apply to sexual orientation. The third item in the proposed amendment deals with the section in subch. II of ch. 111, Stats., which sets forth a declaration of policy on fair employment. Item three of the proposed amendment would amend s. 111.31 (3), Stats. That subsection currently provides that in the interpretation and application of subch. II of ch. 111, Stats., 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 --- -2- persons regardless of their age, race, creed, color, handicap, sex, national origin or ancestry. Assembly Bill 70 adds sexual orientation to that list. Item three of the proposed amendment would add to that subsection language stating that nothing in the subsection requires an affirmative action program to correct an imbalance in the work force. The fourth item in the proposed amendment affects the statement of policy in the chapter of the statutes dealing with the Department of Employment Relations [ch. 230, Stats. ]. That statement provides that it is the policy of the state to provide for equal employment opportunity by ensuring that all personnel actions are based on the ability to perform the duties and responsibilities assigned to the particular position without regard to age, race, creed or religion, color, handicap, sex, national origin, ancestry or political affiliation. Assembly Bill 70 adds sexual orientation to that list. The policy statement in current law goes on to provide that if there are substantial disparities between the proportions of members of racial, ethnic, gender or handicap groups in a classified civil service classification in an agency and the proportions of those groups in the state, it is the policy of the state to take affirmative action to correct the imbalances and to eliminate the present effects of past discrimination. Item four of the proposed amendment would state that gender group in the provision dealing with correcting imbalances does not include any group discriminated against because of sexual orientation. Feel free to contact me if I can be of further assistance. RNS: jc; jmm Attachment --- FORWARD David E. Clarenbach, State Representative February 17, 1982 FR: David Clarenbach RE: AB 70 422 North State Capitol Madison, Wisconsin 53702 608-266-8570 Chairperson: Committee on Government Operations Member: Committee on Agriculture and Nutrition Committee on Labor Legislative Council As you know, AB 70 (anti-discrimination on sexual orientation) has now passed both houses. The question of concurrence in Senate Amendment 1 will be before us tomorrow. Senate Amendment 1 to AB 70 was drafted at the request of Rep. Wayne Wood and other opponents of the bill who raised the concern that the bill might inadvertently impose a hiring quota or balanced work force affirmative action requirement for sexual orientation. Since that is not the intent nor was it the desired affect of the authors, there should be no objection to this clarification amendment. I support Senate Amendment 1. The question of passage of AB 70 will not be before us tomorrow only the question of concurrence. I hope this information, and the two attached items, will be of use to you in responding to any inquiries you might receive on our action on the bill. --- 1981 STATE OF WISCONSIN SENATE AMENDMENT 1, TO 1981 ASSEMBLY BILL 70 LRBA2850/1 JL: 1t February 11, 1982 - Offered by COMMITTEE ON STATE and LOCAL AFFAIRS and TAXATION. At the locations indicated, amend the bill as follows: 2 1. Page 2, line 17: strike through the comma; and after "and" 3 insert ", except with respect to sexual orientation,". 4 2. Page 2, line 28: strike through "The" and thereafter insert 5 6 7 "Except with respect to sexual orientation, the". "Nothing in this sub- 3. Page 9, line 22: after that line insert: section requires an affirmative action program to correct an imbalance in 8 the work force.". 9 10 4. Page 13, line 21: after the period insert: "Gender group does not include any group discriminated against because of sexual orientation. 11 (End) --- State of Wisconsin DEPARTMENT OF EMPLOYMENT RELATIONS 149 East Wilson Street Lee Sherman Dreyfus Governor October 26, 1981 Madison, WI 53702 Hugh C. Henderson Secretary Representative David Clarenbach Wisconsin State Assembly Room 422 North State Capitol Building Dear Representative Clarenbach: Thank you for your inquiry of this date regarding the effect of the passage of Assembly Bill 70 on the State of Wisconsin's Affirmative Action Program. The Department of Employment Relations (DER) is responsible under Chapter 230 of the statutes for carrying out the State's equal employment opportunity mandate and, through affirmative action, correcting the imbalances in the workforces of the State agencies and educational institutions and eliminating the present effects of past discrimination. The State Affirmative Action Office is responsible under Chapter 230 for advising and assisting the Secretary of DER, the Administrator of the State Division of Personnel, and agency heads on equal employment opportunity and affirmative action. I have reviewed AB-70 as passed by the Assembly, particularly Sections 22 and 23 which amend Chapter 230. While these Sections require the State as an employer to provide equal employment opportunity without regard to sexual orientation, they do not authorize the State to take affirmative action on the basis of sexual orientation. Should you have any further questions in regards to the State's Equal Employment Opportunity or Affirmative Action Programs, please feel to contact this Office again. Sincerely, Clackmann Claudean Roehmann Director SCM: scm cc: Dana Warren AN EQUAL OPPORTUNITY EMPLOYER --- Roberta Gassman M.S.S.W. equal employment and human relations consulting and training 10/26/81 Rep. David Clarenbach State Capitol Madison, Wisconsin Dear Rep. Clarenbach: I am writing to express my extreme concern over some of the misinforma- tion now circulating regarding AB 70. As you may know I am a private consultant specializing in the areas of affirmative action and equal employment law. I work extensively in the public sector writing and leading affirmative action training sessions for city, county and state managers. I am also the editor of the Wisconsin Affirmative Action Council's quarterly publication which keeps state officials informed of current affirmative action legal developments. AB 70 would simply ensure that employment discrimination in Wisconsin would be illegal not only on the basis of a person's age, race, religion, skin color, sex, handicapping condition, disability or national origin, as currently covered by law, but on the basis of a person's sexual orientation as well. Non discrimination against applicants or employees on the specific basis of sexual orientation is mandated by the bill, however, affirmative action on their behalf is not. AB 70 contains currently existing statute language which only calls for state contractors to "take affirmative action to ensure equal employment opportunities." It does not specify the groups covered by affirmative action mandates. The confusion and misinformation appears to be over the fact that some people do not realize that non-discrimination and affirmative action are two separate sets of legal responsibilities. All those groups covered by non discrimination laws are not covered by affirmative action laws. As specified under other Wisconsin statutes affirmative action covers "members of racial and ethnic minority groups, women and persons with disabilities." Any person knowledgeable about affirmative action knows that these are the only groups protected by affirmative action laws not only under Wisconsin law, but under analagous federal and municipal laws as well. 613 Rogers Street, Madison, Wisconsin 53703 (608) 256-6203 --- -2- AB 70 supports the specific inclusion of sexual orientation under Wisconsin non discrimination laws and only supports Wisconsin's already existing affirmative action policies. If I can be of any further assistance in clarifying this situation please let me know. Yours truly, Joberta Dasmar Roberta Gassman --- CORRESPONDENCE/MEMORANDUM October 23, 1981 Date: To: Representative David E. Clarenbach File Ref: From: Subject: Gaizka Usabel, Director State Office of Contract Compliance b Non-discrimination in contractual language AD-75 STATE OF WISCONSIN As per your office's request of October 23, 1981: The intent of Section 16.765 (1) is to ensure that all persons and companies that conduct business with Wisconsin state government "do not discriminate" in their employment practices. In July of 1981 the Department of Administration issued Chapter Adm 50, Contract Compliance. Adm 50.04 requires affirmative action plans from contractors who agree "to make every reasonable effort to develop a balance in either its total workforce or in the project- related workforce that is based on a ratio of work hours performed by handicapped persons, minorities, and women Adm 50.05 details the major parts of an affirmative action plan in order "to achieve a balanced work force." cc: Ed Young, Administrator Gordon Gronert, Bureau Director Ed Main, Secretary's Office --- CORRESPONDENCE/MEMORANDUM Date: October 26, 1981 File Ref: To: Rep. David Clarenbach From: Attorney Ed Main Department of Administration Subject: AB 70 AD-75 STATE OF WISCONSIN You have asked me for my opinion as to whether or not AB 70, if enacted in its present form, would require affirmative action in the contract compliance program (s. 16. 765, Stats.) by contractors for those persons having a particular sexual orientation. It is my opinion that if this bill is enacted, affirmative action could be required by contractors for those persons having a particular sexual orientation. Therefore, I believe the language of AB 70 should be clarified so the legislative intent with regard to affirmative action for sexual orientation will be clearly stated. Section 16. 765(1), Stats., obligates contractors to take affirmative action to insure equal employment opportunities. This means that a contractor could be required to actively recruit and hire persons having a particular sexual orientation. The requirement would not be mandatory until such time as our administrative rules were amended. Currently, the rules require affirmative action for race, sex and handicap categories. Other categories such as age or religion have not been included in the rules and affirmative action is not required for these categories at this time. The same would be true for sexual orientation. It would not be included as a category requiring affirmative action unless the rules are changed. My concern would be that the Department of Administration would be called upon to make this decision, or the decision might be made by the courts. I believe this determination should be made by the legislature in AB 70. rh --- STATE OF WISCONSIN November 18, 1981 TO: REPRESENTATIVE DAVID CLARENBACH FROM: Richard Sweet, Senior Staff Attorney LEGISLATIVE COUNCIL ROOM 147 NORTH, STATE CAPITOL MADISON, WI 53702 TELEPHONE (608) 266-1304 Bonnie Reese Executive Secretary Enclosed for your review is WLCS: 405/1, a proposed amendment to 1981 Assembly Bill 70, relating to prohibiting discrimination based upon sexual orientation. Feel free to contact me if you have any questions. RNS:kjh;las Enclosure --- 1 2 Discrimination RNS: kjh;ws SENATE AMENDMENT TO 1981 ASSEMBLY BILL 70 WLCS: 405/1 11/18/81 3 4 5 6 7 At the locations indicated, amend the bill as follows: 1. Page 2, line 19: after the period insert: "A contracting agency may impose a balanced work force requirement on the contractor only if this action is taken pursuant to rules promulgated under ch. 227.". 8 2. Page 3, line 4: after the period insert: 9 10 11 12 13 14 15 "The affirmative action requirement under this paragraph includes a balanced work force requirement only if the balanced work force requirement is included in the contract pursuant to rules promulgated under ch. 227.". 3. Page 13, line 21: after the period insert: "Nothing in this subsection requires the correcting of imbalances other than imbalances based on race, ethnicity, gender or handicap.". 16 (End) --- WISCONSIN LEGISLATIVE COUNCIL STAFF MEMORANDUM Room 147 North, State Capitol, Madison 53702 Telephone (608) 266-1304 DATE: October 26, 1981 TO: REPRESENTATIVE DAVID CLARENBACH FROM: Richard Sweet, Senior Staff Attorney SUBJECT: Affirmative Action Requirement in State Contracts This memorandum is written pursuant to your request for an explanation of the affirmative action requirement contained in s. 16.765, Stats. Under s. 16.765 (1) and (2) (a), Stats., contracting agencies of this state are required to include in all contracts executed by them a provision obligating the contractor not to discriminate against any employe or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, developmental disability or national origin. Additionally, the contracts must obligate the contractor "...to take affirmative action to ensure equal employment opportunities." The phrase "affirmative action" is not defined in s. 16.765, Stats. No language in that section clarifies what is meant by the phrase except the language which follows it "to ensure equal employment opportunities." Affirmative action taken by the contractor must ensure that employment opportunities are equal. The affirmative action requirement is clarified somewhat by administrative rules developed by the Department of Administration to implement the above section. Wisconsin Administrative Code s. Adm 50.04 (1) (b) requires the contractor to develop and submit to the Department of Administration a copy of an affirmative action plan or a copy of a current plan which has been approved by an agency of the federal, state or local government. Wisconsin Administrative Code s. Adm 50.05 contains the requirements of the affirmative action plan. Under Wis. Adm. Code s. Adm 50.05 (1), --- -2- the affirmative action plan must include an equal opportunity policy for all personnel including a statement that: a. in achieve a The contractor shall not engage discrimination and shall take action to balanced work force. b. Indicates which persons are responsible for the affirmative action program. c. The contractor shall comply with s. 16.765, Stats., state regulations and all applicable federal contract compliance laws and shall work cooperatively with the department and other interested persons in ensuring equal employment and advancement opportunities. Wisconsin Administrative Code s. Adm 50.05 (4) states that the affirmative action plan must include goals directed toward the achievement of a balanced work force within a reasonable period of time. That subsection goes on to state that a reasonable period shall normally be in the range of six months to no more than two years. It should be noted that the definition of "balanced work force," as set forth in Wis. Adm. Code s. Adm 50.03 (1), is: an equitable representation of qualified handicapped persons, minorities and women in each level of a work force which approximates the percentage of handicapped persons, minorities and women available for jobs at any particular level from the relevant labor market.... [Emphasis added.] Therefore, the "balanced work force" requirement applies to only some of the groups mentioned in s. 16.765, Stats., the statutory section which contains the nondiscrimination and affirmative action requirements. For example, the statute mentions religion, but the "balanced work force" requirement in the administrative rules does not apply to religion. The question you raised was in connection with 1981 Assembly Bill 70, which prohibits discrimination based upon sexual orientation. That Bill amends s. 16.765 (1) and (2) (a), Stats., to include sexual orientation within the requirement that contracting agencies of the state include in all contracts executed by them a provision obligating the contractor not to discriminate and obligating the contractor to take affirmative action to ensure equal employment opportunities. Since not all of the groups ---