1981 Assembly Bill 70 STATE OF WISCONSIN Date published*: March 2, 1982 CHAPTER 112 , LAWS OF 1981 AN ACT to amend 15.04 (1) (g), 16.765 (1) and (2) (a), 21.35, 66.39 (13), 66.395 (2m), 66.40 (2m), 66.405 (2m), 66.43 (2m), 66.431 (3) (e) 2, 66.432 (1) and (2), 66.433 (3) (a) and (c) 1. band (9), 101.22 (1), (1m) (b), (2m) and (4n), 101.221 (1), 111.31 (1) to (3), 111.32 (5) (a), 111.70 (2), 111.81 (9) (b), 111.85 (1), 227.033 (1), 230.01 (2), 230.18, 234.29 and 942.04 (1) (a) to (c) and (3); and to create 111.32 (4s) and (5) (i) of the statutes, relating to prohibiting discrimination based upon sexual orientation. The people of the state of Wisconsin, represented in senate and assembly, do enact as follows: SECTION 1. 15.04 (1) (g) of the statutes is amended to read: 15.04 (1) (g) Discrimination review. In order to determine whether there is any arbitrary discrimination on the basis of race, religion, national origin, sex er, marital status or sexual orientation as defined in s. 111.32 (4s), examine and assess the statutes under which the head has powers or regulatory responsibilities, the procedures by which those statutes are administered and the rules promulgated under those statutes. If the department or agency head finds any such discrimination, he or she shall take remedial action, including making recommendations to the appropriate executive, legislative or administrative authority. SECTION 2. 16.765 (1) and (2) (a) of the statutes are amended to read: 16.765 (1) Contracting agencies of the state shall 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 as defined in s. 51.01 (5), sexual orientation as defined in s. 111.32 (4s) or national origin, and, except with respect to sexual orientation, obligating the contractor to take affirmative action to ensure equal employment opportunities. (2) (a) In connection with the performance of work under this contract, the contractor agrees not to discriminate against any employe or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, developmental disability as defined in s. 51.01 (5), sexual orientation or national origin. This provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Except with respect to sexual orientation, the contractor further agrees to take affirmative action to ensure equal employment opportunities. The contractor agrees to post in conspicuous places, available for employes and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of the nondiscrimination clause. SECTION 3. 21.35 of the statutes is amended to read: 21.35 Federal laws and regulations; no discrimination. The organization, armament, equipment and discipline of the Wisconsin national guard shall be that prescribed by federal laws or regulations; and the governor may by order perfect such organization, armament, equipment and discipline, at any time, so as to comply with such laws and regulations insofar as they are consistent with the Wisconsin code of military justice. Notwithstanding any rule or regulation prescribed by the federal government or any officer or department thereof, no person, otherwise qualified, shall may be denied membership in the Wisconsin national guard because of sex, color, race or, creed or sexual orientation and no member of the Wisconsin national guard shall may be segregated within the Wisconsin national guard on the basis of sex, color, race or, creed or sexual orientation. Nothing in this section shall prohibit prohibits * Section 990.05, 1979 WISCONSIN STATUTES: Laws and acts; time of going into force. "Every law or act which does not expressly prescribe the time when it takes effect shall take effect on the day after its publication." --- -2- 1981 Assembly Bill 70 separate facilities for persons of different sexes with regard to dormitory accommodations, public toilets, showers, saunas and dressing rooms. SECTION 4. 66.39 (13) of the statutes is amended to read: 66.39 (13) TENANT SELECTION, DISCRIMINATION. All tenants selected for veterans' housing projects shall be honorably discharged veterans of wars of the United States of America. Selection between veterans shall be made in accordance with rules and regulations promulgated and adopted by the department of veterans affairs which regulation said department is authorized to make and from time to time change as it deems proper. Such rules and regulations, however, shall give veterans of World War II preference over veterans of all other wars. Notwithstanding such rules and regulations or any law to the contrary a veteran shall not be entitled to or be granted any benefits under ss. 66.39 to 66.404 from a housing authority unless such veteran was at the time of induction into military service a resident of the state. Veterans otherwise entitled to any right, benefit, facility or privilege under this section shall not, with reference thereto, be denied them in any manner for any purpose nor be discriminated against because of sex, race, color, creed, sexual orientation or national origin. SECTION 5. 66.395 (2m) of the statutes is amended to read: 66.395 (2m) DISCRIMINATION. Persons otherwise entitled to any right, benefit, facility or privilege under this section shall not, with reference thereto, be denied them in any manner for any purpose nor be discriminated against because of sex, race, color, creed, sexual orientation or national origin. SECTION 6. 66.40 (2m) of the statutes is amended to read: 66.40 (2m) DISCRIMINATION. Persons otherwise entitled to any right, benefit, facility or privilege under ss. 66.40 to 66.404 shall not, with reference thereto, be denied them in any manner for any purpose nor be discriminated against because of sex, race, color, creed, sexual orientation or national origin. SECTION 7. 66.405 (2m) of the statutes is amended to read: 66.405 (2m) DISCRIMINATION. Persons otherwise entitled to any right, benefit, facility or privilege under ss. 66.405 to 66.425 shall not, with reference thereto, be denied them in any manner for any purpose nor be discriminated against because of sex, race, color, creed, sexual orientation or national origin. SECTION 8. 66.43 (2m) of the statutes is amended to read: 66.43 (2m) DISCRIMINATION. Persons otherwise entitled to any right, benefit, facility or privilege under this section shall not, with reference thereto, be denied them in any manner for any purpose nor be discriminated against because of sex, race, color, creed, sexual orientation or national origin. SECTION 9. 66.431 (3) (e) 2 of the statutes is amended to read: 66.431 (3) (e) 2. Persons otherwise entitled to any right, benefit, facility or privilege under this section shall not, with reference thereto, be denied such right, benefit, facility or privilege in any manner for any purpose nor be discriminated against because of sex, race, color, creed, sexual orientation or national origin. SECTION 10. 66.432 (1) and (2) of the statutes are amended to read: 66.432 (1) DECLARATION OF POLICY. The right of all persons to have equal opportunities for housing regardless of their sex, race, color, physical condition, developmental disability as defined in s. 51.01 (5), sexual orientation as defined in s. 111.32 (4s), religion, national origin or ancestry is a matter both of statewide concern under s. 101.22 and also of local interest under this section and s. 66.433. The enactment of s. 101.22 by the legislature shall not preempt the subject matter of equal opportunities in housing from consideration by local governments, and shall not exempt cities, villages, towns and counties from their duty, nor deprive them of their right, to enact ordinances which prohibit discrimination in any type of housing solely on the basis of sex, race, color, physical condition, developmental disability as defined in s. 51.01 (5), sexual orientation, religion, national origin or ancestry. (2) ANTIDISCRIMINATION HOUSING ORDINANCES. Cities, villages and towns may enact ordinances prohibiting discrimination in the sale or rental of any type of housing within their respective boundaries solely on the basis of sex, race, color, physical condition, developmental disability as defined in s. 51.01 (5), sexual orientation, religion, national origin or ancestry. Such an ordinance may be similar to s. 101.22 or may be more inclusive in its terms or in respect to the different types of housing subject to its provisions, but any such ordinance establishing a forfeiture as a penalty for violation shall not be less than the statutory forfeitures under s. 101.22. Counties may enact such ordinances under ss. 59.07 (11) and 66.433. SECTION 11. 66.433 (3) (a) and (c) 1. b and (9) of the statutes are amended to read: --- The Honorable Barbara Ulichny Page 3 Consequently, the federal government is excluded from section 16.765 because it is not expressly included. Moreover, other indicia of legislative intent point to the conclusion that the Legislature did not intend to include the ROTC program within the embrace of section 16.765. First, since contractors who discriminate are placed on an ineligible list for future state contracts under section 16.765 (8)-(9), construing the statute to apply to the ROTC program would be inconsistent with the legislative directive that the state Department of Administration "ensure the maximum utilization of federal resources." Sec. 16.98 (1), Stats. Compare secs. 16.54 (7) and 20.285 (1) (m), Stats. Moreover, if the term "contractor" encompasses the entire federal government, and not merely the Department of Defense or the armed forces, application of the statute could result in the termination of all state-federal contracts and the loss of several millions of dollars. It is unlikely that the Legislature intended such severe economic disruptions. Second, I am advised that the statute, which initially was enacted in 1959, chapter 540, Laws of 1959, has never been applied to the ROTC program. Thus, assuming that the statute is ambiguous with respect to its applicability to the federal government, such "practical construction [which] has obtained for many years ... is entitled to controlling weight." State ex rel. West Allis V. Dieringer, 275 Wis. 208, 218, 81 N.W.2d 533 (1957). This is particularly true where, as here, the statute has been repeatedly amended over the years because "[t]he rule here is based upon the theory that the legislature is acquainted with the contemporaneous interpretation ... by an administrative body ... charged with the duty of administering or enforcing the law, and therefore impliedly adopts the interpretation upon re- enactment." Id. at 220. The weight to be accorded this administrative practice increases because the military long has discriminated on account of sex. Section 16.765 was amended by chapter 94, section 5, Laws of 1975, to forbid dealing with contractors who discriminate on account of sex. Yet it has not been thought that the ROTC program was thereby voided. The notoriety of military classifications based on sex reinforces the conclusion that the Legislature has acquiesced in the administrative exclusion of ROTC from section 16.765. See Rostker v. Goldberg, 453 U.S. 57 (1981) (upholding the male-only draft registration), and Schlesinger v. Ballard, 419 U.S. 498 (1975) (upholding different rules for mandatory discharge of male and female military personnel because women are not eligible for combat assignments). Finally, the statute is not merely a proprietary statute by which the state chooses with whom to contract, but also, a --- The Honorable Barbara Ulichny Page 4 regulatory statute which imposes nondiscriminatory employment practices, affirmative action and posting requirements. Sec. 16.765(2), Stats. The statute establishes a complaint procedure and empowers state contracting agencies to direct contractors who violate the statute to take necessary action to halt or correct the violation. Sec. 16.765 (6) (7), Stats. Such regulatory features support the interpretation that the federal government is not a "contractor" within the meaning of the statute because the general rule is that states may not regulate the activities of the federal government. See 81A C.J.S. States sec. 23 at 316-18. For these reasons I conclude that the ROTC program is not within the scope of section 16.765. Sincerely yours, BC. C. L. Fallin Bronson C. La Follette Attorney General BCL: ked --- Dear Chancellor Horton and members of the Faculty Senate, Febuary 1905 As students of UW-M, we strongly encourage you to support the rights of all students when you consider the issue of discrimination by the campus ROTC program. As payers of both tuition and state taxes we believe it is fundamentaly unfair for one portion of the University to deny the participation of gay and lesbian students discrimination against whom also pay for the costs of this University. We believe participation by gay students in the ROTC program is a violation of our University nondiscrimination policy. In our opinion, ROTC should be treated no differently than any other campus program, and should be made aware of the nondiscrimination rules governing this campus. If the Army can not or will not comply with University rules, we believe the campus ROTC program should be suspened until the Army is willing to comply. We are aware that some nongay students rely in part on financial support they recieve because of this program. We are sensitive to their needs as well. If the ROTC program were to be suspended we suggest that: 1.) The University allocate the approx. $24,000 savings (from the suspension of the ROTC program) to students in need of financial support. 2.) The University help cadets currently enrolled in the Officer Commissioning Program on campus enroll in the ROTC program at Marquete University. We would also note that even if these options were not available, the money given to students by the ROTC is distributed on a discriminatory basis. All we ask is that the University enforce its nondiscrimination policy in a fair and uniform mannor. Sincerly NASM Um DEXT> Jo Mer FIST CENTER wim CANCY SELU LSBA-4 --- UW sticking to guns over ROTC, gays WGJ 5/8/87 By David Stoeffler State government reporter University of Wisconsin adminis- trators are downplaying complaints that ROTC programs are biased against gays, saying it is futile to try to stop the discrimination and action against it could threaten millions in federal research grants. UW President Kenneth Shaw, in a Feb. 24 letter to the UW Board of Re- gents, said he hoped the regents would not get involved in the contro- versy, despite earlier agreement to take up the matter. Shaw said the staff believes Re- serve Officers' Training Corps pro- grams, long the subject of anti-mili- tary protests, should be continued, de- spite clear conflict with state laws prohibiting discrimination on the basis of sexual preference. UW Regent John Schenian, a UW- Madison Law School student, said he will nonetheless ask regents to con- demn the discrimination policies and seek federal legislation to allow gays to enroll in ROTC. Schenian said, though, he will stop short of suggesting elimination of ROTC on 11 UW campuses, including UW-Madison, though he said such a move would send a clear anti-dis- crimination signal and "would cer- tainly get national attention." Elimination would penalize cer- tain students who are able to afford college only because ROTC pays their way, Schenian said. More than 1,500 UW students received financial aid totalling $1.2 million from ROTC in 1985-86, a report to regents showed. Plus, UW attorneys found the De- partment of Defense and the National Aeronautics and Space Administra- tion could pull grant money out of uni- versities refusing to offer ROTC pro- grams. The federal agencies have even threatened to pull grants from col- leges that restrict ROTC recruiting, Schenian said. They have never actu- ally followed through on any threats, though, UW officials said. In 1986, UW-Madison received $16.3 million in DOD and NASA money. While saying he is not a "militaris- tic person," Schenian said: "There is a place for ROTC. If that's what a stu- dent wants to do, he should have an opportunity, but not at the expense of discrimination against others." Condemnation of the programs is more politically possible, given ad- ministration reluctance to even dis- cuss the issue, Schenian said. The issue was raised last fall by Schenian, several gay organizations and then-Gov. Anthony Earl's Council on Lesbian and Gay Issues. Homosexuals are barred from military service by federal regula- tions, though state law forbids dis- crimination on the basis of sexual preference. Any student may take courses in the military science programs and participate in ROTC, but only to the point before enlistment in a service branch is required. At that point, avowed homosex- uals are prohibited from participa- tion. Patricia Hodulik, a UW System at- torney, reported there is no recorded instance of a UW student being denied admission to ROTC on the basis of sexual preference. Hodulik wrote that court chal- lenges to the federal policy have been unsuccessful in showing the govern- ment was illegally discriminating. She said the courts have held the regulations are reasonable given the military's "unique needs" in terms of discipline, security and, morale. The state cannot pre-empt the fed- eral government on this issue, Hodu-, lik said, citing a 1983 attorney gen- 'There is a place for ROTC. If that's what a student wants to do, he should have an opportuni- ty, but not at the expense of discrimination against others.' -John Schenian, UW regent eral's opinion on the matter. Also, UW-Madison, in order to ful- fill its obligations as a land-grant col- lege, must offer studies in military tactics, Hodulik said.. Since the federal government paid all but about $120,000 of the $1.6 million cost of ROTC at Madison in 1985-86, ROTC is a cheap way of meeting the obligation, not even considering the positive financial benefits given di- rectly to students, Hodulik suggested. Other UW campuses are not re- quired to offer such courses. __ Allowing gays would be "counter- productive to good order and disci- pline," Vice Admiral Dudley Carlson said. Carlson said ROTC programs are important, steady sources of revenue for universities, and programs are at their strongest in years. He said ROTC had recovered from the early 1970s of campus un- rest, which he described as a time of "significant undisciplined conduct on campuses." At UW-Madison, the Navy division was the most popular ROTC program in 1985-86, enrolling 122 of the 355 first- semester ROTC students and 100 of the 291 second-semester ROTC stu- dents, the report to regents said. The UW-Madison students shared in some $622,000 in ROTC financial aid. State taxpayers contributed $121,000, plus about 26,000 square feet of office space, for the ROTC pro- gram at UW-Madison, according to the regent report. In all, 1,557 UW System students were enrolled in ROTC during the first semester of 1985-86, while 1,252 were enrolled during the second semester. The state paid $536,000 for the sup- plies, salaries and fringe benefits re- lated to the program, plus provided more than 122,000 square feet of space. Besides UW-Madison, campuses with ROTC programs and the largest semester enrollment during 1985-86 were: UW-Milwaukee, 198 students; UW-Green Bay, 75 students; UW-La Crosse, 212 students; UW-Oshkosh, 119 students; UW-Platteville, 156 stu- dents; UW-Stevens Point, 204 stu- dents; UW-Whitewater, 180 students; UW-Superior, 35 students; UW-Fond du Lac (two-year campus), six stu- dents; UW-Waukesha (two-year cam- the U.S. pus), 19 students. The chief of personnel for the U.S. Navy, in an interview last week in Madison, said the military has no in- tention of changing its policy. --- In federal recruiting UW can't block gay bias By ROB FIXMER Capital Times Staff Writer Federal agencies that discriminate against homosexuals will be allowed to continue recruiting on the Univer- sity of Wisconsin campus, Madison Chancellor Irving Shain told the Fac- ulty Senate Monday. The issue arose as a result of a change in Wisconsin's Fair Employ- ment Law earlier this year to include "sexual orientation" among prohib- ited reasons for discrimination by employers. "Most employers who seek to inter- view and recruit our students will... be covered (by state law)," Shain said. "If they discriminate on the basis of sexual orientation in making employment choices, they... will, on that basis, be barred from access to UW interviewing and recruiting fa- cilities." The problem with federal agencies, Shain said, is that they are not specif- ically identified in the state's defini- tion of an employer. Though Shain noted that both the faculty and Legislature have ex- pressed opposition to discrimination based on sexual orientation, he said the UW has no legal basis for denying federal agencies access to UW facili- ties. Shain said that unless the Legisla- ture amends its definition of employ- er, or the Faculty Senate specifically directs him to apply recruiting rules to federal agencies, his hands are tied.. Last June, Attorney General Bron- son La Follette was asked to render an opinion on whether the state law applied to federal agencies, including ROTC programs of the various mili- tary branches. La Follette has not yet responded. In September, the Student Law As- sociation filed a grievance charging that the FBI was in violation of Wis- consin statutes because of its policy of not hiring or retaining homosex- uals. When asked to respond to the charges, the FBI announced it would not recruit on campus this year. Shain added that the UW could not afford to investigate discrimination allegations against private sector employers. He announced that when such a complaint is made, the UW "will for- ward the complaint and supporting information to the approptiate Wis- consin law enforcement agency... If after a hearing or other due process procedures, the employer is found to be in violation of Wisconsin law, it will be barred from usng UW facili- ties for interviews and recruitment." In another matter, members of the the University Committee denied charges by some faculty senators that the administration was dragging its feet on the question of whether to fire Joseph H. Treyz, director of UW Libraries. A report issued last spring by a spe- cial ad hoc committee headed by Classics Professor Barbara Fowler was highly critical of Treyz and called for either his removal or "radi- cal change" in his management of the libraries. Classics Professor Fannie Le- Moine, speaking for the University (Continued on Page 22, Col. 5) ● UW can't block gay bias (Continued from Page 21) Committee, said Monday that the findings of the Fowler committee in- cluded "serious allegations. It's im- portant not to rush to judgement. We I have to be fair and investigate them carefully." Math Professor Anatole Beck re- sponded that "the allegations were not made by the Fowler committee, but by others. They have already been investigated in depth and judi- ciously by the Fowler committee." Beck and others maintained that the University Committee has been charged with the responsibility of ex- ecuting the recommendations of the Fowler committee not investigat- ing them further. - Shain, the only administrator with the authority to fire Treyz, said he was "tempted to comment on that (the Fowler) report," but did not. --- 1981 Assembly Bill 70 -3- 66.433 (3) (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, sexual orientation or ethnic or minority status. (c) 1. b. To ensure to all municipal residents, regardless of sex, race, sexual orientation or color, the rights to possess equal housing accommodations and to enjoy equal employment opportunities. (9) INTENT. 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, sexual orientation 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 a livelihood or to enjoy the equal use of public accommodations and facilities. SECTION 12. 101.22 (1), (1m) (b), (2m) and (4n) of the statutes, are amended to read: 101.22 (1) INTENT. It is the intent of this section to render unlawful discrimination in housing. It is the declared policy of this state that all persons shall have an equal opportunity for housing regardless of sex, race, color, sexual orientation as defined in s. 111.32 (4s), handicap, religion, national origin, sex or marital status of the person maintaining the household, lawful source of income, age or ancestry and it is the duty of the local units of government to assist in the orderly prevention or removal of all discrimination in housing through the powers granted under s. 66.433. The legislature hereby extends the state law governing equal housing opportunities to cover single-family residences which are owner- occupied. The legislature finds that the sale and rental of single-family residences constitute a significant portion of the housing business in this state and should be regulated. This section shall be deemed an exercise of the police powers of the state for the protection of the welfare, health, peace, dignity and human rights of the people of this state. (1m) (b) "Discriminate" and "discrimination" mean to segregate, separate, exclude or treat any person or class of persons unequally because of sex, race, color, handicap, sexual orientation as defined in s. 111.32 (4s), religion, national origin, sex or marital status of the person maintaining a household, lawful source of income, age or ancestry. It is intended that the factors set forth herein shall be the sole bases for prohibiting discrimination. (2m) REPRESENTATIONS DESIGNED TO INDUCE PANIC SALES. It is unlawful to No person may induce or attempt to induce any person to sell, rent or lease any dwelling by representations regarding the present or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, national origin, sexual orientation or economic status, or by representations to the effect that such present or prospective entry will or may result in: a) the lowering of real estate values in the area concerned; b) a deterioration in the character of the area concerned; c) an increase in criminal or antisocial behavior in the area concerned; or d) a decline in the quality of the schools or other public facilities serving the area. (4n) REQUIRING REFERENCES. Nothing in this section shall be deemed to prohibit prohibits an owner; or agent; from requiring that any person who seeks to buy, rent or lease housing supply information concerning family, marital, financial and business status but not concerning race, color, physical condition, developmental disability as defined in s. 51.01 (5), sexual orientation or creed. SECTION 13. 101.221 (1) of the statutes is amended to read: 101.221 (1) The equal rights council shall disseminate information and attempt by means of discussion as well as other proper means to educate the people of the state to a greater understanding, appreciation and practice of human rights for all people, of whatever race, creed, color, sexual orientation or national origin, to the end that Wisconsin this state will be a better place in which to live. SECTION 14. 111.31 (1) to (3) of the statutes are amended to read: 111.31 (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, ancestry, sexual orientation, arrest record or conviction record, 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, ancestry, sexual orientation, arrest record or conviction record, 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 of, ancestry or sexual orientation, would remove certain recognized --- - 4- 1981 Assembly Bill 70 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 or sexual orientation. Nothing in this subsection requires an affirmative action program to correct an imbalance in the work force. This subchapter shall be liberally construed for the accomplishment of this purpose. SECTION 15. 111.32 (4s) of the statutes is created to read: 111.32 (4s) "Sexual orientation" means having a preference for heterosexuality, homosexuality, bisexuality, having a history of such a preference or being identified with such a preference. SECTION 16. 111.32 (5) (a) of the statutes is amended to read: 111.32 (5) (a) "Discrimination" means discrimination because of age, race, color, handicap, sex, creed, national origin, ancestry, sexual orientation, arrest record or conviction record, 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 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. SECTION 17. 111.32 (5) (i) of the statutes is created to read: 111.32 (5) (i) It is discrimination because of sexual orientation: 1. For any employer, labor organization, licensing agency or employment agency or other person to refuse to hire, employ, admit or license, or to bar or terminate from employment, membership or licensure any individual, or to discriminate against an individual in promotion, compensation or in terms, conditions or privileges of employment because of the individual's sexual orientation; or 2. For any employer, labor organization, licensing agency or employment agency or other person to discharge or otherwise discriminate against any person because he or she has opposed any discriminatory practices under this paragraph or because he or she has made a complaint, testified or assisted in any proceeding under this paragraph. SECTION 18. 111.70 (2) of the statutes is amended to read: 111.70 (2) RIGHTS OF MUNICIPAL EMPLOYES. Municipal employes shall have the right of self- organization, and the right to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection, and such employes shall have the right to refrain from any and all such activities except that employes may be required to pay dues in the manner provided in a fair-share agreement. Such fair-share agreement shall be subject to the right of the municipal employer or a labor organization to petition the commission to conduct a referendum. Such petition must be supported by proof that at least 30% of the employes in the collective bargaining unit desire that the fair-share agreement be terminated. Upon so finding, the commission shall conduct a referendum. If the continuation of the agreement is not supported by at least the majority of the eligible employes, it shall be deemed terminated. The commission shall declare any fair-share agreement suspended upon such conditions and for such time as the commission decides whenever it finds that the labor organization involved has refused on the basis of race, color, sexual orientation, creed or sex to receive as a member any employe of the municipal employer in the bargaining unit involved, and such agreement shall be made subject to this duty of the commission. Any of the parties to such agreement or any municipal employe covered thereby may come before the commission, as provided in s. 111.07, and ask the performance of this duty. SECTION 19. 111.81 (9) (b) of the statutes is amended to read: 111.81 (9) (b) Which discriminates with regard to the terms or conditions of membership because of race, color, creed, sex, age, sexual orientation or national origin. SECTION 20. 111.85 (1) of the statutes is amended to read: 111.85 (1) No fair-share agreement shall become effective unless authorized by referendum. The authorization of such fair-share agreement shall continue thereafter subject to the right of the employer or labor organization concerned to petition the commission to conduct a new referendum on the subject. Such petition must be supported by proof that at least 30% of the employes in the collective bargaining unit desire that the fair-share agreement be discontinued. Upon so finding, the commission shall conduct a new referendum. If the continuance of the agreement is approved by the referendum by at least the number of employes required for its initial authorization, it shall be continued in effect, subject to the right of the employer or labor organization to later initiate a further vote following the above --- O 1981 Assembly Bill 70 5- procedure. If the continuation of the agreement is not supported in any referendum, it shall be deemed terminated at the termination of the collective bargaining agreement, or one year from the date of the certification of the result of the referendum, whichever is earlier. The commission shall declare any fair- share agreement suspended upon such conditions and for such time as the commission decides whenever it finds that the labor organization involved has refused on the basis of race, color, sexual orientation or creed to receive as a member any employe in the bargaining unit involved, and such agreement shall be made subject to the findings and orders of the commission. Any of the parties to such agreement or any employe covered thereby, may come before the commission, as provided in s. 111.07, and allege a violation of this provision. SECTION 21. 227.033 (1) of the statutes is amended to read: 227.033 (1) No rule, either in its terms or in its application, shall may discriminate for or against any person by reason of sex, race, creed, color, sexual orientation, national origin or ancestry. A rule which discriminates for or against any person by reason of physical condition or developmental disability as defined in s. 51.01 (5) shall be permitted only if that rule is strictly necessary to a function of the agency and is supported by data demonstrating that necessity. Every person affected by a rule shall be entitled to the same benefits and subject to the same obligations as any other person under the same or similar circumstances. SECTION 22. 230.01 (2) of the statutes is amended to read: 230.01 (2) It is the policy of the state and the responsibility of the secretary and the administrator to maintain a system of personnel management which fills positions in the classified service through methods which apply the merit principle, with adequate civil service safeguards. It is the policy of this state to provide for equal employment opportunity by ensuring that all personnel actions including hire, tenure or term, and condition or privilege of employment be 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, sexual orientation or political affiliation. 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 such groups in this state, it is the policy of this state to take affirmative action which is not in conflict with other provisions of this subchapter to correct the imbalances and to eliminate the present effects of past discrimination. Gender group does not include any group discriminated against because of sexual orientation. It is the policy of the state to ensure its employes opportunities for satisfying careers and fair treatment based on the value of each employe's services. SECTION 23. 230.18 of the statutes is amended to read: 230.18 Political or religious affiliations; no discrimination. No question in any form of application or in any examination may be so framed as to elicit information concerning the partisan political or religious opinions or affiliations of any applicant nor may any inquiry be made concerning such opinions or affiliations and all disclosures thereof shall be discountenanced except that the administrator may evaluate the competence and impartiality of applicants for positions such as clinical chaplain in a state institutional program. No discriminations may be exercised in the recruitment, application, examination or hiring process against or in favor of any person because of the person's political or religious opinions or affiliations or because of age, sex, handicap, race, color, sexual orientation national origin or ancestry except as otherwise provided. SECTION 24. 234.29 of the statutes is amended to read: 234.29 Equality of occupancy and employment. The authority shall require that occupancy of housing projects assisted under this chapter be open to all regardless of sex, race, religion, sexual orientation or creed, and that contractors and subcontractors engaged in the construction of housing projects, shall provide an equal opportunity for employment, without discrimination as to sex, race, religion, sexual orientation or creed. SECTION 25. 942.04 (1) (a) to (c) and (3) of the statutes are amended to read: 942.04 (1) Denies to another or charges another a higher price than the regular rate for the full and equal enjoyment of any public place of accommodation or amusement because of sex, race, color, creed, physical condition, developmental disability as defined in s. 51.01 (5), sexual orientation as defined in s. 111.32 (4s), national origin or ancestry; or (b) Gives preferential treatment to some classes of persons in providing services or facilities in any public place of accommodation or amusement because of sex, race, color, creed, sexual orientation, national origin or ancestry; or (c) Directly or indirectly publishes, circulates, displays or mails any written communication which the communicator knows is to the effect that any of the facilities of any public place of accommodation or amusement will be denied to any person by reason of sex, race, color, creed, physical condition, --- -6- 1981 Assembly Bill 70 developmental disability as defined in s. 51.01 (5), sexual orientation, national origin or ancestry or that the patronage of a person is unwelcome, objectionable or unacceptable for any of those reasons; or (3) No person, club or organization may refuse to rent, charge a higher price than the regular rate or give preferential treatment, because of sex, race, color, creed, sexual orientation, national origin or ancestry, regarding the use of any private facilities commonly rented to the public. Violators of this subsection are subject to the penalties imposed by sub. (1). --- MADISON The State of Wisconsin Department of Justice Madison 53702 For Release Tuesday April 5, 1983 Attorney General Bronson C. La Follette ruled today that the arrangement between the University of Wisconsin and the federal government pertaining to the Reserve Officer Training Corps (ROTC) does not violate state law prohibiting state contracts with organizations which discriminate on the basis of sexual orientation. State law prohibits the state from dealing with contractors who discriminate on various grounds against their employees or applicants for employment. During the last session of the legislature, those grounds were extended to cover discrimination on the basis of sexual orientation, which is defined to include homosexulaity. Although the federal government does not exclude homosexuals from enrollment in a university's ROTC program, it will not commission overt homosexuals as officers or cadets. Its assignment of officers to the instructional program is subject to University approval. La Follette held that the Legislature did not intend to include the federal government as a "contractor" within the meaning of the non- discrimination law. The Attorney General stated that the Wisconsin Supreme Court has repeatedly held that the state and federal governments are excluded from the coverage of a statute of general applicability, unless they are included by the express language of the statute. The federal government is not included expressly in the non-discrimina- tion statute, La Follette said, nor is it included expressly in the definition of "contractual services" in that statute. The new law did nothing to expand the contractors who are subject to the law, it merely added sexual orientation to the classes protected from discrimination. -more- --- -2- La Follette said that there are other indications that the Legislature did not intend to include the ROTC program with the ambit of the prohibition. Applying the prohibition to ROTC, thereby making the program ineligible for future state contracts, would be inconsistent with other state laws directing "maximum utilization of federal resources" for state and local governmental units. "Moreover, if the term 'contractor' encompasses the entire federal government, and not merely the Department of Defense or the armed forces, application of the statute could result in the termination of all state-federal contracts and the loss of several million dollars. It is unlikely that the Legislature intended such severe economic disruptions," La Follette stated. In addition, La Follette noted that the non-discrimination statute, which was initially enacted in 1959, has never been applied to the ROTC program. Thus, a court would give great weight to the long-standing administrative practice, especially where the statute has been repeatedly amended over the years. The "The weight to be accorded this administrative practice increases because the military long has discriminated on account of sex. statute was amended in 1975 to forbid dealing with contractors who discriminate on account of sex. Yet it has not been throught that the ROTC program was thereby voided. The notoriety of military classifications based on sex reinforces the conclusion that the Legislature has acquiesed in the administrative exclusion of ROTC from the non-discrimination statute," La Follette said. #### --- The State of Wisconsin Department of Justice 123 West Washington Avenue Malling Address: P.O. Box 7857 April 5, 1983 Madison, Wisconsin 53707 Bronson C. La Follette Attomey General F. Joseph Sensenbrenner, Jr. Deputy Attorney General The Honorable Barbara Ulichny State Representative 108 North, State Capitol Madison, Wisconsin 53702 Dear Representative Ulichny: You ask whether the arrangement between the University of Wisconsin System and the United States Government, through which a Reserve Officer Training Corps (ROTC) instructional program is provided, contravenes section 16.765, Stats., which forbids state with contractors contracts who discriminate against their employes or applicants for employment. In my opinion the answer is no. The question has arisen in the wake of chapter 112, Laws of 1981, which amended section 16.765 to add "sexual orientation" as a basis upon which discrimination by those who contract with the state is prohibited. The term "sexual orientation" is defined by section 111.32 (13m) as including homosexuality. Although the federal government does not exclude homosexuals it will not from enrollment in a university's ROTC program, homosexuals overt commission cadets. or Its assignment of officers to the instructional program is subject to University approval. 751 as officers I assume, for sake of discussion only, that the relationship between the federal government and its commissioned military officers is a simple employer-employe relationship as contemplated by our law. But cf. Parker v. Levy, 417 U.S. 733, unlike (1974) ("Indeed, the civilian situation, the Government is often employer, landlord, provisioner, and lawgiver rolled into one."). Moreover, I assume, again for the sake of discussion only, that the arrangement between the University and the federal government to provide instructional services in military science is a contract for materials or services covered by our statute. But cf. sec. 36.25 (15), Stats. (authorizing the Board of Regents to provide courses in military science), and sec. 36.09 (1) (k), Stats. (empowering the Board of Regents to appoint faculty and fix duties). And see generally, 65 Op. Att'y Gen. 251 (1976). Nevertheless, I conclude that the Legislature --- The Honorable Barbara Ulichny Page 2 did not intend to include the federal government as a "contractor" within the meaning of section 16.765. The Wisconsin Supreme Court repeatedly has held that the sovereign is excluded from the coverage of a statute of general applicability, unless included by express language. See State ex rel. Dept. of Pub. Instruction v. ILHR, 68 Wis. 2d 677, 681-83, 229 N.W.2d 591 (1975) (DPI Case), and cases cited in Wis. Vet. Home V. Div. Nurs. Forfeit. Appeals, 104 Wis. 2d 106, 110, 310 N.W.2d 646 (Ct. App. 1981). Although the formulation of this principle varies among jurisdictions, it applies to exclude the federal government as well as the state government. See 82 C.J.S. Statutes sec. 317 at 554-55. More specifically, it excludes one sovereign from the reach of another sovereign's. statute. State of California v. United States, 75 F.2d 41, 44 (9th Cir. 1935), reversed on other grounds, 297 U.S. 175 (1936). Thus, the federal government has been excluded from the operation of a state statute under this principle. See Kelly v. Knott, 120 Fla. 580, 163 So. 64, 70 (1935), cert. denied, sub nom., Withers v. Knott, 297 U.S. 706 (1936), reversed on other grounds sub nom. United States V. Knott, 298 U.S. 544 (1936); United States v. Hoar, 26 F. Cas. 329, 333 (C. C.D. Mass. 1821) (No. 15,373). Moreover, the express inclusion rule will prevent a federal statute from reaching the state. See Edelman v. Jordan, 415 U.S. 651, 675-77 (1974). The federal government is not included expressly in section 16.765, nor is it included expressly in the definition of "contractual services" in section 16.70 (1). Chapter 112, Laws of 1981, did nothing to expand the contractors who are subject to section 16.765. It merely added sexual orientation to the classes protected from discrimination. I am of course aware that legislation such as section 16.765 is to be liberally construed to advance its remedial purposes to secure equal opportunity for the protected classes. See Wisconsin Telephone Co. v. ILHR Dept., 68 Wis. 2d 345, 368, 228 N.W.2d 649 (1975). But these liberal, remedial purposes are insufficient to overcome the requirement that the sovereign be included expressly. Thus, while the Wisconsin Fair Employment Act also is to be "liberally construed," section 111.31(3), Stats., the court held in the DPI Case that the Act did not apply to the state because the state was not expressly included. The court reached its conclusion despite its belief that the "public policy as set forth in the Fair Employment Act should apply to all employees whether hired by the state or others," and despite its urgent suggestion "that the legislature reconsider the problem." 68 Wis. 2d at 684. ---