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In Wisconsin, an amalgam of federal, state, and sometimes municipal laws protect employees from employment discrimination. Unfortunately, individuals who are transgender often find themselves excluded from these protections. This blog post surveys the law of employment discrimination in Wisconsin and investigates their applicability to transgender people.

Title VII of the federal Civil Rights Act of 1964 is the touchstone employment discrimination law in the United States. While some federal courts have recognized discrimination against transgender employees as prohibited discrimination “because of sex,” such discriminatory conduct is largely unrecognized as a violation of Title VII. The Seventh Circuit Court of Appeals – a federal appeals court that hears appeals from the federal trial courts in Wisconsin, Illinois, and Indiana – has not yet overruled its 1984 decision in Ulane v. Eastern Airlines in which the court reversed a trial court decision in which an Illinois federal court found that Eastern Airlines violated Karen Ulane’s rights when it terminated her employment after her transition.

Wisconsin’s anti-discrimination law, the Wisconsin Fair Employment Act, does not explicitly prohibit discrimination on the basis of transgender status. Unlike Title VII, however, the WFEA prohibits employment discrimination on the basis of “sexual orientation.” Wis. Stat. § 111.31(1). For purposes of the state law, “sexual orientation” is defined as: “having a preference for heterosexuality, homosexuality or bisexuality, having a history of such a preference or being identified with such a preference.” Contrary to popular misconceptions, transgender is not a sexual orientation.

The Wisconsin Dept. of Workforce Development’s Equal Rights Division – the agency charged with investigating and adjudicating complaints under the WFEA – has taken the position that transgender people may pursue employment discrimination claims under the statute’s prohibition against discrimination on the basis of disability. Specifically, the agency accepted complaints from transgender complainants asserting that they suffered from a disability under the WFEA. Notably, the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) recognizes “gender dysphoria” as a mental health disorder. Understandably, most transgender people will find the pursuit of this legal claim undesirable.

The City of Madison, through its Equal Opportunities Ordinance, explicitly prohibits employment discrimination on the basis of gender identity and is likely the best avenue for transgender complainants subject to the jurisdiction of the Madison Equal Opportunities Division of the City’s Department of Civil Rights.

If you are concerned about your rights as a transgender employee, please contact one of the experienced attorneys at Hawks Quindel.

Nicholas Fairweather

Shareholder at Hawks Quindel, S.C.
Nicholas E. Fairweather is a Shareholder in our firm’s Madison office. He has represented labor unions and Wisconsin employees for fourteen years, focusing his practice on employment, labor, and consumer rights litigation.