Racine Unified School Dist. v. Labor and Industry Review Com'n

Decision Date11 September 1991
Docket NumberNo. 90-1969,90-1969
Citation164 Wis.2d 567,476 N.W.2d 707
CourtWisconsin Court of Appeals
Parties, 70 Ed. Law Rep. 975, 2 A.D. Cases 788, 2 NDLR P 194 RACINE UNIFIED SCHOOL DISTRICT, Petitioner-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent, Racine Education Association, Intervenor-Respondent.

Gilbert J. Berthelsen and Rex Anderegg of Capwell and Berthelsen, Racine, for petitioner-appellant.

James E. Doyle, Atty. Gen., and Laura Dulski, Asst. Atty. Gen., for respondent.

Mark F. Nielsen of Schwartz, Tofte, Nielsen & Demark, Racine, for intervenor-respondent.


NETTESHEIM, Presiding Judge.

This appeal has its genesis in an employment policy adopted by the Racine Unified School District (the District) concerning employees with Acquired Immune Deficiency Syndrome (AIDS) or Aids-Related Complex (ARC). 1

The Racine Education Association (the Union), as the bargaining agent for the District's teachers, challenged the policy, contending that it discriminated on the basis of handicap and sexual orientation contrary to the Wisconsin Fair Employment Act, sec. 111.31, et seq., Stats. (WFEA). The Union further contended that the District caused the policy to be published or circulated within the meaning of sec. 111.322(2), Stats. Such activity constitutes a violation of the WFEA.

The Union prevailed before an Administrative Law Judge (ALJ) of the Department of Industry, Labor and Human Relations (DILHR). The ALJ awarded the Union, as the prevailing party, its attorney's fees and costs. The District sought administrative review and the Labor and Industry Review Commission (LIRC), after reducing the attorney's fees award, affirmed the ALJ's rulings. The District then sought judicial review. The circuit court affirmed LIRC's decision and awarded the Union additional attorney's fees related to the judicial review proceedings. The District further appeals

to us, raising a host of issues under the WFEA. We affirm.


The controlling facts in this case are not in dispute. In March of 1985, Don Woods, Superintendent of the Racine Unified School District, began formulating a policy concerning AIDS and genital herpes. On November 4, 1985, Woods submitted a draft of the proposed policy to members of the District's Board of Education for review. Copies of the policy were also forwarded to the Union. The policy was slated for consideration at the board's November 18, 1985 meeting.

On November 18, before the board meeting, a board committee known as the "Committee for the Whole" held a meeting at which members of the public gave their views concerning Woods' proposed policy. Following this meeting, the Board of Education debated the policy. After deleting all references to genital herpes, the board voted to adopt the policy as the District's official "Policy No. 5151" (hereafter Policy 5151).

The Committee of the Whole meeting and the board meeting were open to the popular press and the public. The press published accounts of the meeting. The minutes quoted the text of Policy 5151 in its entirety and the minutes were published in the press pursuant to sec. 120.11(4), Stats.

Policy 5151, as adopted by the Board of Education, provided in relevant part as follows:

1. Health (5151)


Students or district staff members who have acquired immune deficiency syndrome (AIDS) or AIDS related complex are excluded from regular school attendance or attendance at work.... District employees who are so afflicted will be placed on sick leave or leave of absence until a determination can be made about a further work assignment.

With Policy 5151 formally in place, Woods, on December 5, 1985, submitted proposed guidelines for implementation of the policy to the board. At the same time, Woods informed the board that in November 1985, the state legislature had enacted sec. 103.15, Stats., 2 which provides, inter alia, that no employer may require testing of employees or prospective employees for the presence of HIV--the virus which causes AIDS--infection as a condition of employment or to affect the terms of employment. 3 The board took no action on the proposed guidelines, and on December 11, 1985, Frank Johnson, in-house counsel for the District, requested that the attorney general give an opinion concerning the legality of Policy 5151 under the WFEA, sec. 111.31, et seq., Stats., and the District's exposure to civil liability under sec. 146.025(8), Stats., which penalizes violations of statutory restrictions on the use of HIV test data.

On February 6, 1986, the Union filed a complaint against the District with the Equal Rights Division of DILHR. The Union offered to settle the matter on a no-fault, no-cost basis if the District would withdraw the policy. The District did not respond.

In March of 1986, Johnson wrote the attorney general's office, requesting that it hasten, in light of the Union's pending action, to issue its opinion regarding Policy 5151. In a May 1986, response to Johnson, the attorney general wrote that because it Throughout the period encompassing the foregoing events, the Board of Education took no formal action regarding the proposed administrative guidelines for the implementation of Policy 5151. The board also took no action to rescind or suspend Policy 5151 and the policy remained "on the books" as an official employment policy of the District. However, the District never applied Policy 5151 against any employee.

was the practice of his office to avoid rendering opinions on matters in litigation, no opinion concerning the legality of Policy 5151 would be forthcoming.

Following its investigation, DILHR issued an "Initial Determination" that the District had violated the WFEA on grounds of handicap and sexual orientation. In response, the District requested a hearing before an ALJ. A nine-day hearing on various dates in March, April and May of 1987 ensued before the ALJ. On October 9, 1987, the ALJ ruled that, in adopting Policy 5151, the District had not violated sec. 111.322(1), Stats., which prohibits actual acts of employment discrimination. However, the ALJ also determined that the District had violated sec. 111.322(2) which bars the printing or circulating by an employer of statements which evince an intent to discriminate on any basis forbidden by the WFEA.

After a separate hearing, the ALJ ordered the District to pay the Union $150,957.00 in attorney's fees, together with $11,820.58 in costs. This award was based upon Watkins v. LIRC, 117 Wis.2d 753, 345 N.W.2d 482 (1984), which recognized the prevailing party's right to such fees and costs. The ALJ also ordered the District to withdraw Policy 5151 from its compilation of official district policies.

The District then petitioned LIRC for review of the ALJ's decision. LIRC upheld the ALJ's decision on the merits, but reduced the award of attorney's fees to $73,980 and increased the award of costs to $11,916.08.

The District next sought judicial review of the LIRC determination. The circuit court upheld LIRC's rulings. In addition, the court increased the attorney's fees award to the Union by $2400, representing the additional fees incurred by the Union in the circuit court review. From these judgments, the District appeals.


Our scope of review is identical to that of the trial court. Racine Educ. Ass'n v. Commissioner of Ins., 158 Wis.2d 175, 179, 462 N.W.2d 239, 241 (Ct.App.1990). Although this appeal is from the circuit court's judgments, we are substantively reviewing the decision of LIRC. See Drivers, Local 695 v. LIRC, 154 Wis.2d 75, 78 n. 3, 452 N.W.2d 368, 369 (1990). Ordinarily the agency's decisions on questions of law are accorded weight because of the agency's special expertise and experience. See id. at 84, 452 N.W.2d at 372. But where the legal question concerned is one of first impression, the agency's interpretation is to be afforded no weight at all. Id. Section 111.322(2), Stats., has never been construed. We therefore review this matter de novo. Id.

The construction and application of a statute to an established set of facts present questions of law. L & W Constr. Co. v. DOR, 149 Wis.2d 684, 688-89, 439 N.W.2d 619, 620 (Ct.App.1989). In construing a statute, we are to give effect to the intent of the legislature. Castle Corp. v. DOR, 142 Wis.2d 716, 720, 419 N.W.2d 709, 710 (Ct.App.1987). To ascertain legislative intent, we look first to the statute's language. McMullen v. LIRC, 148 Wis.2d 270, 274, 434 N.W.2d 830, 832 (Ct.App.1988). And, if the statute's meaning is clear, we will not look outside the statute; rather, we interpret the statute by the plain meaning of its terms. See State v. Darling, 143 Wis.2d 839, 842, 422 N.W.2d 886, 887-88 (Ct.App.1988).


Section 111.322, Stats., provides that:

Subject to ss. 111.33 to 111.36, it is an act of employment discrimination to do any of the following:


(2) To print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which implies or expresses any limitation, specification or discrimination with respect to an individual or any intent to make such limitation, specification or discrimination because of any basis enumerated in s. 111.321.

As we have noted, the controlling facts in this case are not in dispute. What the parties dispute is how the WFEA applies to the facts of this case and, in some instances, whether it applies.

1. Application of the Statute to Existing Employees

The District's first line of defense is that sec. 111.322(2), Stats., is inapplicable to its adoption of Policy 5151. The District contends that the legislative history of the statute reveals that it was intended to apply only to the act of advertising...

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