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![handle is hein.sag/sagwi0002 and id is 1 raw text is: 114 East, State Capitol
PEGGY A. LAUTENSCHLAGER P.O. Box 7857
ATTORNEY GENERALP..Bx75
Madison, WI 53707-7857
Daniel P. Bach
Deputy Attorney General
August 16, 2004
OAG - 1- 04
Ms. Helene Nelson
Secretary
Wisconsin Department of Health and Family Services
1 W. Wilson St.
P.O. Box 7850
Madison, WI 53707-7850
Dear Secretary Nelson:
You have asked whether the exclusion of contraceptives from an employer or college or
university sponsored benefits program that otherwise provides prescription drug coverage
violates Wisconsin law prohibiting sex discrimination in employment and in higher education. It
is my opinion that such exclusion does violate Wisconsin law, specifically the Wisconsin Fair
Employment Act (WFEA), Wis. Stat. §§ 111.31-111.395, and Wis. Stat. §§ 36.12 and 38.23
relating to the University of Wisconsin System and the Wisconsin Technical College System,
respectively.
Section 11 1.36(1)(a) of the WFEA defines employment discrimination because of sex as
[d]iscriminating against any individual in . .. terms, conditions or privileges of employment ...
on the basis of sex where sex is not a bona fide occupational qualification. WFEA further
expressly forbids discrimination against any woman on the basis of pregnancy, childbirth,
maternity leave or related medical conditions by engaging in any of the actions prohibited under
s. 111.322, including, but not limited to, actions concerning fringe benefit programs covering
illnesses and disability. Wis. Stat. § 111.36(l)(c). The latter language was added to the WFEA
by ch. 334, s. 22, Laws of 1981. It was intended to codify existing Wisconsin case law. See
Rice, The Wisconsin Fair Employment Act and the 1982 Amendments. Wis. Bar. Bull. (Aug.
1982).
Wisconsin courts have held that the WFEA prohibits provisions in employer-sponsored
insurance plans from treating pregnancy-related leave differently from other short-term disability
leave. See Wisconsin Telephone Co. v. ILHR Dept., 68 Wis. 2d 345, 228 N.W.2d 649 (1975),
Ray-O-Vac v. ILHR Dept., 70 Wis. 2d 919, 236 N.W.2d 209 (1975) and Goodyear Tire v. ILHR
Dept., 87 Wis. 2d 56, 273 N.W.2d 786 (Ct. App. 1978). It is irrelevant whether the employer
intended to discriminate or not. See Wisconsin Telephone Co., 68 Wis. 2d at 368 (the broad
purpose of the [WFEA] is to eliminate practices that have a discriminatory impact as well as
practices which on their face amount to invidious discrimination); Ray-O- Vac, 70 Wis. 2d at](ViewImageLocal?handle=hein.sag/sagwi0002&div=1&collection=&method=preview&ext=.png&size=3)