¶ 48.
(dissenting). I dissent because I disagree with the majority opinion's interpretation of the Wisconsin Fair Employment Act (WFEA), Wis. Stat. §§ 111.31-111.395 (1993-94), and Wis. Stat. §§ 40.52(l)(a) and 40.02(20) (1993-94).
¶ 49. The WFEA prohibits employers from discriminating "against any individual in promotion, compensation or in terms, conditions or privileges of employment" on the basis of marital status. Wis. Stat. § 111.322(1). The WFEA provides only one express exception to the prohibition against marital status discrimination, that is, "it is not employment discrimination because of marital status to prohibit an individual from directly supervising or being directly supervised by his or her spouse." Wis. Stat. § 111.345. *612Moreover, the declaration of policy to the WFEA mandates liberal construction of the statute:
In the interpretation and application of this sub-chapter, and otherwise, it is declared to be the public policy of the state to encourage and foster to the fullest extent practicable the employment of all properly qualified individuals regardless of.. .marital status.
Wis. Stat. § 111.31(3).
¶ 50. In this case the City of New Berlin's denial of Connie Motola's request for health insurance coverage under a policy in her name was discrimination based on her marital status. The Labor and Industry Review Commission (LIRC) concedes that by virtue of her loss of choice of health insurance coverage, Ms. Motola has suffered actual harm.
¶ 51. The question this court must address is whether the legislature exempted all public employers eligible to participate in a health insurance plan offered by the state group insurance board pursuant to Wis. Stat. § 40.52(l)(a) from the WFEA's prohibition against marital status discrimination whether or not they have elected to participate in a state health insurance plan. The City of New Berlin was not participating in such a plan at the time it denied Ms. Motola's request for health insurance coverage under a policy in her name.
¶ 52. Nothing in the text of the WFEA exempts public employers from complying with the prohibition against marital status discrimination. Accordingly this court has previously concluded that the marital status clause of the WFEA prohibits a school district from enforcing its health insurance non-duplication policy against a school district employee married to a person *613employed by a non-public employer. See Braatz v. LIRC, 174 Wis. 2d 286, 295, 496 N.W.2d 597 (1993).
¶ 53. However, in Kozich v. Employe Trust Funds Bd., 203 Wis. 2d 363, 374-76, 553 N.W.2d 830 (Ct. App. 1996), the court of appeals interpreted Wis. Stat. §§ 40.52(l)(a) and 40.02(20) as creating an implied exception to the WFEA prohibition for the state. Thus under Kozich the state may enforce its health insurance non-duplication policy when both spouses are employed by the state.
¶ 54. In this case LIRC seeks to read into the WFEA another implied exception allowing a municipality to enforce its health insurance non-duplication policy when both spouses are employed by the municipality, regardless of whether the municipality participates in a health insurance plan offered by the state group insurance board.
¶ 55. When a public employer elects to join a health insurance plan offered by the state group insurance board pursuant to Wis. Stat. § 40.52(l)(a), it is reasonable to conclude that the legislature intended the public employer to be treated the same as the state unless the statute provides otherwise. I thus agree with the majority opinion that the exception for the state should apply to all public employers who join a health insurance plan offered by the state group insurance board.
¶ 56. However, nothing in the WFEA or ch. 40 indicates that the legislature intended a public employer who does not join such a health insurance plan to be exempt from the WFEA prohibition against marital status discrimination. There is no public policy to support the conclusion that the legislature intended that public employers operating under non-state health insurance plans would be exempt from the *614WFEA prohibition. Indeed the public policy expressed in the WFEA is that public employers should not engage in discrimination on the basis of marital status.
¶ 57. The legislature has instructed the courts that the WFEA shall be "liberally construed" to accomplish its purpose of protecting all individuals "to enjoy privileges free from employment discrimination because of.. .marital status." Wis. Stat. § 111.31(2),(3). When the court adds exceptions to the WFEA prohibition against discrimination, it contravenes the legislature's instructions for interpreting and applying the WFEA. The decision whether to write in an exception to the WFEA for all public employers is more properly reserved for the legislature.
¶ 58. For the foregoing reasons, I dissent.