Wisconsin Stat. 111.372: Genetic Testing Under the Fair Employment Act, and the Crime in 942.07

A Separate Wrong, Not a Protected Class

Wisconsin's genetic testing rules entered the statutes through 1991 Wisconsin Act 117, which originated as 1991 Assembly Bill 515. The act shows a date of enactment of March 5, 1992 and a date of publication of March 19, 1992. Its relating clause describes it as "prohibiting genetic testing by employers, labor organizations, employment agencies and licensing agencies and providing penalties," and it created four provisions: two definitions in s. 111.32, the operative s. 111.372, and a criminal statute, s. 942.07.

Where the act placed the rule matters. The Wisconsin Fair Employment Act's list of prohibited bases, s. 111.321, names age, race, creed, disability, sex, arrest and conviction record, use of lawful products off premises and other grounds. Genetic testing is not among them. Act 117 instead created s. 111.32 (13r), which defines "unfair genetic testing" as "any test or testing procedure that violates s. 111.372," next to the existing definition of "unfair honesty testing" for violations of the lie detector statute, s. 111.37. The act also amended the department's powers in s. 111.39, which now names "unfair genetic testing" alongside discrimination and unfair honesty testing in its filing, hearing and order provisions. A genetic testing claim therefore runs through the Fair Employment Act's procedure without being a claim of discrimination on a listed basis.

Wisconsin also wrote its own definition rather than borrowing a federal one. Under s. 111.32 (7m), genetic testing is "a test of a person's genes, gene products or chromosomes, for abnormalities or deficiencies, including carrier status," that are linked to disorders or impairments, that indicate a susceptibility to illness or disorders, "or that demonstrate genetic or chromosomal damage due to environmental factors." The current text of subsection (7m) reads the same as the 1992 act, and the history note for s. 111.372 lists 1991 a. 117 as its only act.

What Section 111.372 Bars

Section 111.372, "Use of genetic testing in employment situations," binds four kinds of body: employers, labor organizations, employment agencies and licensing agencies. Section 111.32 (6) (a) defines an employer as the state and its agencies and "any other person engaging in any activity, enterprise or business employing at least one individual," with a narrow exclusion for social clubs and fraternal societies hiring members for jobs advertised only within the membership. A licensing agency, under s. 111.32 (11), is any state or local board, commission, committee, department or officer, other than a judicial officer, "authorized to grant, deny, renew, revoke, suspend, annul, withdraw or amend any license."

The section contains four rules. Subsection (1) bars those bodies from acting "directly or indirectly" to solicit, require or administer a genetic test as a condition of employment, membership or licensure, or to change the terms of, or end, the employment, membership or licensure of a person "who obtains a genetic test." Subsection (2) turns to outside vendors: except under subsection (4), "no person may sell to or interpret for" one of the four bodies a genetic test of a current or prospective employee, member or licensee. Subsection (3) declares prohibited any agreement offering employment, membership, licensure "or any pay or benefit" in return for taking a test.

Subsection (2) is the reach beyond the employer: its subject is "no person," not one of the four bodies. The section does not speak to family medical history or to genetic information obtained other than through a test.

The Exceptions

Subsection (4) is the only exception. It covers "the genetic testing of an employee who requests a genetic test and who provides written and informed consent," and only for two purposes. One is "Investigating a worker's compensation claim under ch. 102." The other is determining the employee's susceptibility or level of exposure to potentially toxic chemicals or substances in the workplace, conditioned on the employer not terminating the employee or taking any other adverse action "as a result of the genetic test."

Three conditions stack. The employee must request the test, the consent must be written and informed, and the purpose must be one of the two listed. The exception names employees; it does not mention applicants, labor organization members or licensees. Subsection (2)'s vendor rule is the only one that says "Except as provided in sub. (4)"; subsections (1) and (3) carry no such cross-reference, and the text does not say how subsection (4) interacts with them beyond its opening words, "This section does not prohibit."

A Criminal Consent Rule in Section 942.07

The same act created s. 942.07, "Use of genetic tests," in chapter 942 of the criminal code. It borrows the Fair Employment Act's definitions of employer, employment agency, labor organization and licensing agency, and repeats the genetic test definition. Its two rules are framed around consent:

• Subsection (2): none of the four bodies may require or administer a genetic test "without the prior written and informed consent" of the current or prospective employee, member or licensee who is tested
• Subsection (3): no person may disclose to any of the four bodies that such a person has taken a genetic test, or disclose the results, without the prior written and informed consent of the test subject

Under subsection (4), a violation is a Class B misdemeanor. The general penalty statute, s. 939.51 (3) (b), sets a Class B misdemeanor at "a fine not to exceed $1,000 or imprisonment not to exceed 90 days, or both." The disclosure rule in subsection (3) applies to any person, not only to the four bodies. The two statutes differ in form: s. 111.372 (1) does not mention consent as a way around the condition-of-employment bar, while s. 942.07 (2) is satisfied by prior written and informed consent. Each is reported here as written.

Remedies Through the Fair Employment Act

Section 111.372 has no penalty clause of its own. Its remedies come from s. 111.39, which the Department of Workforce Development administers under s. 111.375. The steps the text sets out:

1. Filing: the department may receive a complaint charging unfair genetic testing "no more than 300 days after" it occurred (s. 111.39 (1))
2. Probable cause and conciliation: on probable cause the department "may endeavor to eliminate the practice by conference, conciliation or persuasion," and otherwise serves notice of a hearing before an examiner (s. 111.39 (4) (b))
3. Order: an examiner who finds unfair genetic testing orders "such action by the respondent as will effectuate the purpose of this subchapter, with or without back pay"; back pay may not accrue from more than two years before the complaint, and interim earnings reduce it (s. 111.39 (4) (c))
4. Review: either side may petition the Labor and Industry Review Commission within 21 days (s. 111.39 (5)), and commission orders are reviewable in court under ch. 227 (s. 111.395)

Section 111.375 (1), as Act 117 amended it, requires the department to keep anonymous an employee who complains of unfair genetic testing against a present employer until probable cause is determined, unless anonymity would substantially impede the investigation. An annotation to s. 111.375 cites Bachand v. Connecticut General Life Insurance Co., 101 Wis. 2d 617 (Ct. App. 1981), for the point that administrative remedies under the act "are the exclusive remedies for violations." That decision predates s. 111.372, and no decision applying it to a genetic testing claim was found.

On enforcement, nothing is reported. The annotations published with s. 111.372 list a single 2001 bar journal article and no court decision, a web search for Commission decisions on unfair genetic testing returned none, and a national court opinion database refused automated requests for this post.

How It Sits Beside GINA Title II

The federal Genetic Information Nondiscrimination Act takes a different object and a different threshold. 42 U.S.C. 2000ff-1(b) makes it unlawful "to request, require, or purchase genetic information with respect to an employee or a family member," a category wider than a test. Its employer definition in 42 U.S.C. 2000ff(2)(B) adopts Title VII's, which 42 U.S.C. 2000e(b) limits to employers with "fifteen or more employees." Wisconsin's s. 111.372 is narrower in subject, reaching tests, and wider in coverage, reaching one-employee employers and licensing agencies.

GINA's claims run through the EEOC, as the site's post on GINA Title II and employer genetic information describes; Wisconsin's run through the Equal Rights Division, and s. 942.07 adds a criminal layer GINA does not have. Federal law leaves the state rules in place: 42 U.S.C. 2000ff-8(a)(1) states that GINA does not limit rights under any state statute "that provides equal or greater protection."

Frequently Asked Questions