Mark Pocan says Wisconsin was the first state to ban employment discrimination against all gay and lesbian people

When the White House announced that President Barack Obama would sign an order barring federal contractors from discriminating based on sexual orientation or gender identity, U.S. Rep. Mark Pocan hailed the move.

But Pocan, a Democrat from Madison, thinks a federal law is needed -- one that covers all workers.

"Only 21 states have made it illegal to fire or harass someone based on sexual orientation, or to deny a raise or refuse to hire on that same basis," Pocan wrote in a June 16, 2014 press statement.

He added: "Wisconsin has been a leader on this issue, becoming the first state to ban public and private sector employment discrimination based on sexual orientation in 1982."

In the wake of a decision  by U.S. District Court Judge Barbara Crabb declaring Wisconsin’s ban on same-sex marriage unconstitutional, we’ve seen that claim about the state’s pioneering role pop up a lot recently.

We wondered whether a state that voted in 2006 to ban gay marriages was the first to outlaw job discrimination against gays and lesbians.

A look at the history

Wisconsin has a history of "firsts" on fair employment and worker protection laws dating to early in the 20th century.

The state was first on injured worker’s compensation (1911), outlawing legal discrimination against women (1919), unemployment compensation (1932), and protections for handicapped persons (1965), according to the Wisconsin Legislative Reference Bureau.

Many cities in the 1970s and early ‘80s, including Milwaukee, enacted local bans on workplace discrimination against gay people at the municipal level.

In 1975, Pennsylvania Gov. Milton Shapp, a Democrat, issued the first statewide executive order banning discrimination on the basis of sexual orientation. It applied only to state employees.

In Wisconsin, Rep. David Clarenbach, a young Democrat from Madison, had spent several years pushing what even gay-rights advocates called a too-radical bill to legalize same-sex marriage, legalize prostitution, lower the age of consent to 14 and legalize consensual sex among unmarried adults.

It went nowhere.

Then in 1981, Clarenbach introduced an anti-discrimination measure. Unlike the municipal laws and the Pennsylvania statute, it applied to the private sector as well as public workers statewide.

Clarenbach framed it as fairness and human rights issue, as recounted in William B. Turner’s  "The Gay Rights State: Wisconsin’s Pioneering Legislation to Prohibit Discrimination Based on Sexual Orientation."

"The point is not whether homosexuality is admirable, but whether discrimination is tolerable," Clarenbach said during the debate.

The bill squeaked through the Assembly by four votes in 1981; Democrats dominated the majority, though it was Republican votes that helped put it over the top. Critics said it could lead to affirmative action advantages for lesbians and gay men.

Republican Gov. Lee Dreyfus and others insisted on language banning such affirmative action, and the bill cleared the Senate in early 1982. Many mainstream religious denominations backed the overall bill, Dreyfus noted at the time.

Fundamentalist Christian radio listeners mounted a campaign to pressure Dreyfus into a veto, but the governor signed what was termed Chapter 112 into law on Feb. 25, 1982.

"I have decided to sign this bill for one basic reason, to protect one's right to privacy," Dreyfus said in his signing statement.  "As one who believes in the fundamental Republican principle that government should have a very restricted involvement in people's private and personal lives, I feel strongly about governmentally sanctioned inquiry into an individual's thoughts, beliefs and feelings."

He added: "Discrimination on sexual preference, if allowed, clearly must allow inquiries into one's private life that go beyond reasonable inquiry and in fact invade one's privacy."

Republican Tommy Thompson, who later served as governor, was minority  leader in the state Assembly during the 1982 debate.

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Clarenbach later remarked that Thompson opposed the anti-discrimination bill but nonetheless kept it alive by declining to smother it in amendments, according to Turner.

States followed suit

The result was a law that banned discrimination against gays not only in employment but housing and public accommodations as well.

Wisconsin was first, and it would be seven years before Massachusetts followed suit.

Today, 21 states have such employment measures, according to the American Civil Liberties Union and other sources. Most were enacted from 1991 to 2002.

Those states are clustered in three regions: West (Washington, Oregon, California, Nevada, Colorado, New Mexico); the upper Midwest (Minnesota, Wisconsin, Iowa and Illinois); and East ( Vermont, New Hampshire, New York, Maine, Massachusetts, Rhode Island, Connecticut, New Jersey, Delaware and Maryland). Hawaii is the other.

Of the states on the list, Wisconsin is one of three that does not cover gender identity in its law.

That leaves transgender people out of the law, something Pocan and Wisconsin Senator Tammy Baldwin hope to remedy through the proposed Employer Non-Discrimination Act.

Pocan, who is gay, won the congressional seat formerly held by Baldwin, who became the Senate’s first openly gay member in 2012.

That bill would make discrimination based on sexual orientation or gender illegal in all 50 states. It passed the U.S. Senate in November 2013 on a 64-32 vote but has not cleared the Republican-controlled House.

Our rating

Pocan claimed Wisconsin was the "first state to ban public and private sector employment discrimination based on sexual orientation."

The history books say he is correct. While some municipalities did so earlier, and Pennsylvania did so for public workers only, Wisconsin’s 1982 law was statewide and  covered all employees.

We rate Pocan’s claim True.