(dissenting). I dissent on two grounds. First, the court is acting contrary to its own rules (sec. 809.62(6), Stats. 1983-84) in deciding this case on an issue that was not raised in the petition for review. Second, I disagree with the court's decision that the Federated rule does not violate the Madison ordinance.
I — I
Federated's petition sought this court's review on only one issue: "Should the 'in-part' test of Muskego-Norway be applied to discharges not involving union activity outlined in MERA or SELRA?" (Petition for Review, p. 5) The majority poses but does not answer this question. Page 192.
Section 809.62(2)(a), Stats. 1983-84, provides that a petition for review "must contain a statement of the issues presented for review." Section 809.62(6), adopted in 1982 (104 Wis. 2d xi, xxi), provides that "if the petition is granted, the petitioner cannot raise or argue issues not set forth in the petition unless ordered otherwise by the supreme court." This court's order granting the petition to review did not permit or require additional issues to be raised. The Rhone case, on which the majority relies (at page 205) to decide an issue not set forth in the petition to review, preceded the rule change.
*216The majority should decide the important legal issue posed in the petition to review, not a different issue.
II.
If the court is going to determine whether Federated's rule violates the Madison ordinance, the first step is to state what the Federated rule is. Federated's rule was unwritten, and Bockoven described the rule in somewhat different ways as he testified. The determination of what the Federated rule is and what conduct the Federated rule proscribes is, in this case, a question of fact. The Commission's findings of fact state the rule as follows:
"Federated 'prohibited employees from associating with married employees of the opposite sex outside of work-related matters.'"
The rule prohibits a married or single employee from associating with a married employee of the opposite sex outside of work-related matters. The only employees of opposite sexes who may associate with each other outside of work-related matters are single employees.
The rule prohibits any kind of "associating"&emdash; including casual social relations and contacts, such as sharing mealtime&emdash;because, as Bockoven testified, one-thing-can-lead-to-another. (See Bockoven's testimony quoted three times at pages 197-199, circuit court decision at page 203.) The Federated rule is thus not limited to prohibiting adultery between employees. The *217majority opinion blithely equates the terms "associate," "romance," and "extramarital affair."1
The majority opinion holds that the Federated rule does not discriminate on the basis of marital status: under the rule married and single employees are treated the same — both are prohibited from associating with a married employee. Thus whether Kessler was married or single is irrelevant, the majority says; he would have been fired regardless of his marital status. According to the majority, he was fired because of his conduct, namely, associating with a married employee of the opposite sex.
It is clear that the Federated rule classifies people into two groups. One group is off-limits; the other is not. Membership in each group is based on marital status. Thus, the Federated rule clearly creates a classification based on marital status. Imposing penalties on those who violate rules based on marital classification is the kind of discrimination that the ordinance prohibits.
The distinction between conduct and status upon which the majority relies is unpersuasive. The error in the majority's reasoning is clear if we restate the Federated rule as a work rule with respect to black and white employees. Suppose, for example, a work rule provides that all employees — black as well as white— are "prohibited from associating with black employees outside of work-related matters." Under this rule, the only employees who could associate outside of work-related activities are white employees. Then suppose that a white employee has three meals with a black em*218ployee and the white employee is fired for violating the work rule. Borrowing from the majority opinion in this case, the employer argues that the rule does not discriminate on the basis of race because the fired employee would have been treated the same way whether he was black or white. All employees, white and black, are treated the same — none can associate with a black employee. The rule, argues the employer, does not discriminate on the basis of race; it merely regulates conduct.
While the court here concludes that "the [Federated] rule is not facially discriminatory because it applies to all employees regardless of marital status," the majority finds the same kind of reasoning in the racial example unpersuasive. The majority concedes that the racial work rule is clearly discriminatory on the basis of race. Page 210.
The point is that the Federated rule (like the racial rule) is based on a prohibited classification. Whether the Federated rule is viewed as regulating conduct or status, a rule which classifies people and treats them differently with respect to a proscribed characteristic is not acceptable under the ordinance. The majority's characterizing the Federated rule as regulating conduct, not status, ignores the substance of the rule.
The majority's basic distinction between the racial example posed and the Federated rule is that the racial rule has no legitimate basis and the Federated rule does. In upholding the Federated rule this court's opinion rests heavily on the idea that the rule is valid because it furthers public policy. The majority reasons that the Federated rule is acceptable because it prevents adultery and stabilizes the institution of mar*219riage. (See trial court quoted at pages 201-203; see majority's reasoning at pages 211-215.)
If the Federated rule were limited to prohibiting extramarital sexual relations between employees of the opposite sex then this public policy argument may be made. But the rule prohibits even casual social contacts with married employees of the opposite sex.
I do not believe that prohibiting all single and married employees from associating with married employees of the opposite sex is necessary to protect marital stability. Indeed, such a rule might even discourage employees from getting married. Instead, I think an argument might be made that the Federated rule contravenes public policy by interfering with an employee's legitimate expectation of associating socially with whomever he or she pleases. A rule that seeks to preclude adultery by prohibiting a non-work-related social association with married employees of the opposite sex is too broad and too restrictive to be justified as good public policy which outweighs the discriminatory effect of the rule.
I conclude that the Federated rule violates the Madison ordinance, and I would apply the rule adopted in Muskego-Norway C.S.J.S.D. No. 9 v. WERB, 35 Wis. 2d 540, 151 N.W.2d 617 (1967). Accordingly, I would affirm the decision of the court of appeals.
For the reasons set forth, I dissent.
It reminds me of the cartoon in which a couple meets and has this exchange: "Hello there!" "Enough of this romantic chitchat— take off your clothes!"