Phillips v. Wisconsin Personnel Com'n

Decision Date13 February 1992
Docket NumberNo. 90-2929,90-2929
Citation167 Wis.2d 205,482 N.W.2d 121
Parties, 67 Fair Empl.Prac.Cas. (BNA) 639 Jerri-Linn PHILLIPS, Petitioner-Appellant, v. WISCONSIN PERSONNEL COMMISSION, Respondent-Respondent.
CourtWisconsin Court of Appeals

For the petitioner-appellant the cause was submitted on the briefs of Shelley J. Gaylord of Gaylord & Schuett of Madison, Paul Di Donato and Andrea Palash of National Gay Rights Advocates of San Francisco, Cal., Warren Bittner of Miami Shores, Fla.

For the respondent-respondent, Wisconsin Personnel Com'n, the cause was submitted on the briefs of Michael H. Auen and Judith S. Neese of Foley & Lardner of Madison; for the respondent, Department of Health & Social Services, a brief was submitted by James E. Doyle, Atty. Gen., and Bruce A. Olsen, Asst. Atty. Gen.

For American Civil Liberties Union and American Civil Liberties Union of Wisconsin Foundation the cause was submitted on the brief of Marc E. Elovitz and Joseph Evall of Debevoise & Plimpton of New York City, and Jeff Scott Olson of Julian, Olson & Lasker, S.C., of Madison.

Of Counsel: Ruth E. Harlow and William B. Rubenstein of American Civil Liberties Union Foundation of New York, New York, and Gretchen E. Miller of ACLU of Wisconsin Foundation of Milwaukee.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

EICH, Chief Judge.

Jerri-Linn Phillips appeals from an order affirming the Wisconsin Personnel Commission's dismissal of her employment discrimination complaint against the Department of Health and Social Services (DHSS). Phillips alleged in her complaint to the commission that DHSS, her employer, and the Department of Employe Trust Funds, the administrator of the state employee health insurance program, discriminated against her on the bases of marital status, sexual orientation and gender within the meaning of the Wisconsin Fair Employment Act, secs. 111.31 to 111.395, Stats., by denying her application for family health insurance coverage for her lesbian companion, Lorri Tommerup.

In addition to her state-law discrimination claims, she argues on appeal that provisions in the statutes and administrative code limiting dependent health insurance coverage to an employee's spouse and children denies equal protection of the law to persons of her sexual orientation since same-sex couples may not legally marry. Finally, she contends that an "equal employment opportunity" policy statement issued by DHSS gave her a contractual right to secure health insurance benefits for Tommerup.

We conclude first that the commission, as the agency charged by the legislature with administration of the Fair Employment Act, could reasonably interpret the applicable statute and rule as legitimately limiting dependent health insurance coverage to employees' spouses and children without violating the marital status discrimination provisions of the act.

We also conclude that the commission and the trial court correctly dismissed Phillips's claims that such a limitation discriminates against her on the basis of sexual orientation and gender in violation of the act. We do so because the rule applies equally to hetero- and homosexual employees and thus does not discriminate against the latter group. Nor does the rule treat one gender differently than the other; it applies equally to males and females. It is keyed to marriage and, as we said, it does not illegally discriminate by doing so. 1 Finally--and for similar reasons--we conclude that Phillips's equal protection and "contract" arguments must also fail. We therefore affirm the trial court's order.

The commission found the following facts, and they do not appear to be in dispute. Phillips has a committed lesbian relationship with Tommerup which is recognized by their families, friends, neighbors and co-workers. They share their incomes, rent a home and own an automobile together. They carry joint renters and auto insurance and take their vacations together. Tommerup has been financially dependent on Phillips since 1986, when she returned to school to seek a graduate degree. If the option were legally available to them in Wisconsin, they would marry.

Phillips applied to her employing agency, DHSS, to change her health insurance from individual to family coverage so as to provide insurance for Tommerup as her "dependent." DHSS forwarded the application to the Department of Employe Trust Funds (DETF), the administrator of the state health insurance plan. Because sec. 40.02(20), Stats., and applicable DETF rules define "dependents" eligible for insurance coverage in terms of the employee's "spouse" or children, 2 her application was denied.

Phillips then filed a discrimination complaint with the personnel commission. The commission dismissed the complaint for failure to state a claim upon which relief could be granted and the circuit court affirmed.


The crux of Phillips's argument is that the DETF rule limiting family health insurance coverage to the employee's "spouse" and children discriminates against her on the basis of her marital status, sexual orientation and gender in violation of the act. We address each claim in turn.

Application of a statute or rule to a set of facts is a question of law; and the general rule is that we are not bound by an agency's conclusions of law. West Bend Educ. Ass'n v. WERC, 121 Wis.2d 1, 11, 357 N.W.2d 534, 539 (1984). In some instances, however, we defer to an agency's legal conclusions and interpretation of statutes. William Wrigley, Jr. Co. v. DOR, 160 Wis.2d 53, 69, 465 N.W.2d 800, 806 As indicated, Phillips's complaint asserts several claimed violations of the Fair Employment Act (WFEA), which generally prohibits discrimination in employment by reason of the employee's marital status, gender and sexual orientation. See secs. 111.321 and 111.36(1)(d)1, Stats. The personnel commission is charged by the legislature with the duty of hearing and deciding discrimination claims and applying the provisions of the act to particular cases. See sec. 111.375(2). We thus accord "great weight" to the commission's interpretation of the act and will uphold that interpretation unless it is clearly contrary to legislative intent. Lisney, 165 Wis.2d at 633, 478 N.W.2d at 56. Indeed, we are bound to affirm the commission's interpretation if it is reasonable, even if another conclusion is equally reasonable. DILHR, 161 Wis.2d at 245, 467 N.W.2d at 550. 3

cert. granted, 502 U.S. 807, 112 S.Ct. 49, 116 L.Ed.2d 27 (1991). Where, for example, the agency is charged by the legislature with the duty of applying the statute being interpreted, the agency's interpretation "is entitled to great weight." Lisney v. LIRC, 165 Wis.2d 628, 633, 478 N.W.2d 55, 56 (Ct.App.1991), citing DILHR v. LIRC, 161 Wis.2d 231, 243, 467 N.W.2d 545, 549 (1991).

Marital Status Discrimination

"[T]he 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." Wisconsin Tel. Co. v. DILHR, 68 Wis.2d 345, 368, 228 N.W.2d 649, 661-62 (1975). Among other things, the act prohibits employers from discriminating against individuals on the basis of their marital status. Sec. 111.321, Stats.

The legislature has established a standard health insurance plan which provides a "family coverage option" for "eligible dependents" of state employees and a "single coverage option" for other employees. Sec. 40.52(1)(a), Stats. As indicated above, the legislature and DETF have defined "dependent" in terms of the employee's spouse and certain of his or her children. Thus, to the degree it allows married employees to include their spouses and dependent children in their health insurance coverage, the state may be said to offer greater health insurance benefits to its married employees than to its single employees. The issue is whether the law and administrative rules implementing that dual coverage system conflict with the Fair Employment Act. We agree with the personnel commission and the trial court that they do not.

A basic rule of statutory construction is that the intent of the legislature should control the interpretation. Milwaukee County v. DILHR, 80 Wis.2d 445, 451, 259 N.W.2d 118, 121 (1977). This is especially true when two laws are claimed to be inconsistent: "Whenever a court is confronted with apparently inconsistent legislation, its goal is to ascertain the intent of the legislative body and construe the law accordingly." Cross v. Soderbeck, 94 Wis.2d 331, 343, 288 N.W.2d 779, 784 (1980). In such a situation, the aim is to reconcile the two laws, if at all possible; not to nullify one or the other. Mack v. Joint Sch. Dist. No. 3, 92 Wis.2d 476, 489, 285 N.W.2d 604, 610 (1979).

Although single and married employees are treated differently under the current benefits scheme in that dependent coverage is available to a married worker's spouse, 4 We note that the legislature added "marital status discrimination" as a form of discrimination prohibited by the WFEA at the same time it amended sec. 40.02(20) to adopt the current definition of "dependent." Sec. 22, ch. 334 and sec. 3, ch. 386, Laws of 1981. And "[w]hen the legislature enacts a statute, it is presumed to act with full knowledge of the existing laws, including statutes." Mack, 92 Wis.2d at 489, 285 N.W.2d at 610. See also Wisconsin Mut. Ins. Co. v. Duel, 241 Wis. 394, 412, 6 N.W.2d 330, 338 (1942) (legislature's adoption of general tax provision cannot override specific exemption enacted two weeks earlier). We agree with the trial court that the commission could reasonably conclude from the timing of these amendments that the legislature did not intend that one would nullify the other. 5

                we agree with the commission that "the legislature did not intend this kind of differentiation on the basis of marital status

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