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The Wisconsin Equal Rights (ER) Decision Digest -- Sections 124-125     

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124 National origin and ancestry discrimination  

124.1 National origin and ancestry discrimination; Coverage; distinction between national origin and ancestry

It is not uncommon for people to identify themselves with one part, even a minor part, of their ethnic background. Further, the Wisconsin Fair Employment Act does not require a Complainant to prove ancestry through documentary evidence since, for many of us, no such documents exist. Schramm v. Farm & Fleet (LIRC, 05/14/03).

The term "ancestry" does not include the concept of kinship. Mazzari v. LIRC (Ozaukee Co. Cir. Ct., 09/09/97).

Ancestry is generally understood in the area of civil rights as referring to ethnic groups. It refers to the country, nation, tribe or other identifiable population from which one's forebears came or to which they belonged. Ancestry is not a matter of membership in a particular family or of having a particular person as a family member. Cook v. Therapy & Support Services (LIRC, 11/08/91).

An agency’s refusal to hire a person as a limited-term employee because her father was a state employee does not fall within the meaning of "ancestry" as that term is used in the Wisconsin Fair Employment Act. Kawczynski v. DOT (Wis. Personnel Comm., 11/04/80).

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124.2 National origin and ancestry discrimination; Harassment because of national origin

The Complainant did not prevail on a claim of harassment where he told his supervisor of one occasion on which a co-worker told him that he did not want to have anything to do with Hispanics. A single instance of a statement of this type would not rise to the level of harassment. A finding of liability on the part of the employer could not be premised on its supposed failure to take adequate action in response to once being told of one such statement. Abaunza v. Neenah Foundry (LIRC, 03/30/93), aff'd. Winnebago Co. Cir. Ct., 10/27/93.

An employer was not liable for national origin harassment which was sporadic, remote in time and which was carried out by persons who had little or no connection to the employer. Valentin v. Clear Lake Ambulance Service (LIRC, 02/26/92).

An employer cannot be found liable for national origin harassment unless the harassment is carried out directly by the employer or, if carried out by co-employes, the employer knows or should reasonably know about the harassment and fails to take reasonable action to prevent it. Valentin v. Clear Lake Ambulance Service (LIRC, 02/26/92).

Where the Complainant's foreman had referred to the Complainant's fiancee as a "hot tamale" some months before the Complainant was discharged and the Complainant never notified the Respondent that the remark was offensive, the remark was too remote in time and lacking in intent to establish that the Complainant's discharge was based on his national origin. Molinar v. Larsen Co. (LIRC, 02/04/92).

Slurs about an employe's national origin which continued for a period of years constituted discriminatory working conditions even where the employe did not notify other supervisors of the remarks because the remarks were made by a management official. Polasik v. Astronautics Corp. (LIRC, 04/08/83).

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124.3 National origin and ancestry discrimination; Cases

The individual who discharged the Complainant was not aware that the Complainant was one-eighth Native American. Although she and the Complainant had discussions about Native American culture and customs, this did not establish that she had reason to be aware of the Complainant's Native American ancestry. Furthermore, the record showed that the individual who discharged the Complainant did not hold any discriminatory animus toward Native Americans. On the contrary, she had devoted much of her career to working with Native Americans and she had a deep appreciation and respect for their culture. Wucherpfennig v. Personal Dev. Center (LIRC 06/29/06).

The word "gypsy" is used in the United States to refer not only to an ethnic group, but also to a type of criminal activity. An expert witness at the hearing testified that it is not possible to identify Romanys or gypsies by any physical characteristics. "Gypsy crime" and "gypsy activity" are terms of art used in law enforcement to refer to certain types of retail theft activities carried out by groups who refer to themselves as "gypsy groups" or "gypsies" and who travel from community to community to carry out these activities. This terminology is used independent of the race or ethnicity of the members of these groups. Schramm v. Farm & Fleet (LIRC, 05/14/03).

The Complainant provided sufficient proof that Romany should be recognized as a separate ancestry/ethnic group for purposes of the Wisconsin Fair Employment Act. Schramm v. Farm & Fleet (LIRC, 05/14/03).

Federal court cases that have gone the furthest in recognizing Title VII claims concerning English-only rules are premised on the effects of such rules on Hispanic individuals whose primary language is not English. In this case, the Complainant was a non-Hispanic American-born individual whose first language is English. The Complainant did not have a viable national origin claim under the Wisconsin Fair Employment Act where he was threatened with discipline if he did not comply with the Respondent’s admonition to cease speaking Spanish in the work place. Wilson v. Wisconsin State Assembly (Wis. Personnel Comm., 02/20/03).

With the exception of the Complainant's testimony that a co-worker stated, "Poland is bullshit," there was no reason to believe that the Complainant's national origin was a factor in any harassment that may have occurred. Although the Complainant testified that he told his supervisor that he was being harassed, he did not elaborate upon the substance of this conversation. Even if he had complained to his supervisor about harassment based upon his national origin, there was nothing in the record to suggest that the Respondent was ever made aware of this complaint. Pioterek v. Scott Worldwide Food Service (LIRC, 01/12/96).

An Hispanic employe was not treated differently than a white employe when the Hispanic employe was discharged for taking home more finished product than he had been authorized to take. Although a white co-employe took home finished product which he was given by the Complainant, the co-employe did not have a history of taking excessive product and it was reasonable to assume that the co-employe thought the Complainant had the employer's permission to take the product home. Molinar v. Larsen Co. (LIRC, 02/04/92).

When an agency which provided employment services for Cubans contacted the owner of the Respondent and told him that they wanted to refer two qualified individuals to him, the owner responded, "If they are Cuban, no way." The Respondent was prejudiced against Cubans; however, it did not violate the Act because when the attempt was made to refer the Complainants for assembly positions, those positions had already been filled and there were no longer any openings for which the Complainants could apply. Dominguez v. Lawrence (LIRC, 01/30/91).

The Personnel Commission declined to dismiss a complaint where it could not conclude as a matter of law that there was no possibility that the Respondent’s policy of denying faculty exchanges with the Republic of South Africa could be deemed an action taken on the basis of national origin. McFarland and Joubert v. UW (Whitewater) (Wis. Personnel Comm., 09/04/86).

A well-qualified Mexican-American could not establish national origin discrimination in failing to be selected for four salaried positions with his union where the national origin of three of the persons selected was not in the record and the union's rationale for his non-selection was not shown to be a pretext for discrimination. Sosa v. District 10 (LIRC, 10/07/83).

Although the Complainant was discharged after only his first violation of a work rule, the employer showed that non-Hispanic employes were also discharged for similar violations and the union's decision not to arbitrate the case was made in good faith after a thorough investigation. Agron v. Pioneer Container (LIRC, 06/17/83).

To establish a prima facie case of national origin discrimination in regard to discharge, an employe must show that: (1) he is a member of a protected class; (2) he was qualified for the job he was performing; and (3) he was satisfying the normal requirements of the job. A person of Cuban national origin who was discharged while in a training program for a position requiring accurate measurement of radiation failed to meet elements (2) and (3) where she could not grasp basic math concepts and refused to take a test designed to measure her level of math competency. Canto v. State of Wisconsin (LIRC, 05/19/81).

An employer offered no evidence other than student preference to demonstrate that a person of Latino extraction was necessary to teach a bilingual/bicultural program. It was national origin discrimination to fail to offer a qualified non-Latino teacher a full-time position where she had substituted for two months before being replaced by a person of Latino descent and later by a person whose spouse was of Latino descent. Richter v. Milwaukee Bd. of School Directors (LIRC, 10/14/77).

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125 Race And Color Discrimination

125.1 Race And Color Discrimination; Coverage; generally

The Complainant is a multiracial female. She is part black, part white, and part Native American. It was error for the Administrative Law Judge to require that the Complainant show what race the Respondent perceived her as being, or that she show that she was of a race that was obvious to others. Since the Complainant is multiracial, she could not possibly know what race the Respondent perceived her to be. The fact that she is multiracial was a possible basis for race discrimination. Raven v. Shopko Stores (LIRC 02/28/06).

Discrimination against a person because he is engaged in an interracial marriage is race discrimination. Miner v. Blunt, Ellis & Loewi (LIRC, 05/29/91).

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125.2 Race And Color Discrimination; Hire

The fact that two minority candidates were ranked first and second on a certification list, but were not selected for further consideration following the interview process, did not establish race discrimination. A candidate’s pre-certification ranking did not carry over into the post-certification process, i.e., all candidates on the certification list were considered to be competing on an equal basis. There was no showing of any bias in the interview process. In particular, the record showed that the interview panel was balanced as to race, that there was consistency among the interviewers as to the scoring of the interviews, that there was consensus among the panel members as to the ranking of the top two candidates, and that the interview questions and scoring criteria were reasonably job related. Martin v. Milwaukee Bd. of School Directors (LIRC, 02/26/03).

The Wisconsin Department of Corrections announced an opening for a Regional Chief position. It invited candidates with career executive status to submit applications, and it further indicated that candidates without career executive status could submit an application and examination materials. The Complainant, an African-American man who previously had been certified for other career executive positions in state service, submitted application materials. Another individual, a white male who held a career executive position in the Department of Corrections, also applied. He was the only career executive to apply. The supervisor of the Regional Chief position had known the white male candidate for over 20 years and was well acquainted with his work record. Upon learning of the white male candidate’s interest, the supervisor inquired whether he could be hired for the Regional Chief position. A human resources employee who (unlike the supervisor) was aware of the racial identity of all of the candidates, informed the supervisor that the reassignment of the white male candidate to the Regional Chief position would be acceptable. The supervisor then approved the career executive reassignment of the white male individual without reviewing the application materials of any of the non-career executive candidates. The Complainant argued that the Department of Corrections had a duty to examine all of the applicants before making a hiring decision, pursuant to its delegation agreement from the Division of Merit Recruitment and Selection. However, that delegation agreement applies only to competitive hiring processes, and the successful right candidate was hired through a career executive reassignment rather than through a competitive process. Moreover, even assuming that there was anything irregular about the cancellation of the competitive hiring process, the Complainant failed to show that the motive for canceling the hiring process was to discriminate against minority candidates. It was undisputed that the supervisor who made the hiring decision was African-American himself, and that he had no knowledge of the race of any of the non-executive candidates. Oriedo v. Wis. Personnel Comm. (unpublished opinion, Ct. App., Dist. IV, 04/25/02).

When an employer seeks to interpose a federal consent decree against claims of reverse discrimination, the employer must prove that consideration of race was: (1) justified by the existence of a manifest imbalance that reflected under-representation of minorities in traditionally segregated jobs; and (2) the decree did not unnecessarily trammel the rights of non-minority employes or create an absolute bar to their advancement. Samolinski v. Milwaukee County (LIRC, 01/05/90); rev'd on other grounds, sub nom. Samolinski v. LIRC and County of Milwaukee (Milw. Co. Cir. Ct., June 27, 1991)..

Asking a black applicant whether he is comfortable supervising white female workers when that question was not asked of other candidates established that the Com-plainant's race was a factor in his not being selected. Jenkins v. DHSS (Wis. Personnel Comm., 06/14/89).

The Respondent's hiring procedures were designed to maintain a segregated workforce. The Respondent deliberately screened blacks out of the application process by voice identification over the phone. Jones v. Dy-Dee Wash (LIRC, 11/04/88).

Where the Complainant, a white man, was not ranked among the top candidates by any of the interviewers, and where other white candidates were ranked higher than the Complainant by all the interviewers, the Complainant's point by point comparison of himself to the successful black candidate was not relevant. Whether or not the successful candidate's race was a factor in his being awarded the position (a question not dealt with in the decision) the evidence showed that the Complainant's race was not a factor in his failing to get the position. Strickland v. Milwaukee Bd. of School Directors (LIRC, 10/13/88).

Where the Administrative Law Judge concluded that the Respondent did not know of the Complainant's race at the time he failed to consider his application for employment, she also appropriately rejected the argument of the Complainant that official notice could be taken of the fact that the Complainant spoke with a recognizable "black dialect" and that therefore it could be inferred, based on his telephone conversation with the person who made the hiring decision, that the person must have known he was black. This was not a proper subject for official notice under sec. 227.45(3), Stats. Ealy v. Roundy's (LIRC, 03/12/87).

Where the Administrative Law Judge concluded that the Respondent did not know of the Complainant's race at the time he failed to consider his application for employment, she also appropriately rejected the argument of the Complainant that official notice could be taken of the fact that the Complainant spoke with a recognizable "black dialect" and that therefore it could be inferred, based on his telephone conversation with the person who made the hiring decision, that the person must have known he was black. This was not a proper subject for official notice under sec. 227.45(3), Stats. Ealy v. Roundy's (LIRC, 03/12/87).

A Complainant who made out a prima facie case of race discrimination and hire failed to prove that the Respondent's reason, that the hired candidate was most qualified, was pretextual, where the Complainant argued that the selection process utilized subjective criteria. Criteria of a subjective nature are sometimes necessary in hiring, especially in hiring supervisory personnel, and there is nothing discriminatory per se about the use of such criteria. However, the use of such criteria will be closely scrutinized where applied by a non- minority decisionmaker to a minority candidate. Howard v. City of Madison (LIRC, 02/24/87).

Evidence that an employer had marked an application with a "B" does not show that its stated reason for failing to hire a black applicant was a pretext for discrimination. Ewing v. James River-Dixie Northern (LIRC, 10/19/84).

Although a Complainant established a prima facie case, he did not prevail after the employer showed strong reasons for preferring another applicant, because the Complainant's own statistical evidence was weak and there was no evidence of race discrimination in the hire of three other white applicants. Long v. DILHR (Wis. Personnel Comm., 11/24/82).

A black applicant for a Bicentennial Aide position established a prima facie case of discrimination by showing better qualifications than the four white persons hired, and the employer's claim of her inferior writing ability was found to be a pretext for race discrimination. Kirck v. Bicentennial Comm. (LIRC, 11/23/77), aff'd. sub nom. City of Milwaukee v. LIRC (Dane Co. Cir. Ct., 02/06/79).

There was no race discrimination where the employer hired a white male who agreed to give a two year commitment to the job over a black male who refused to make such a commitment. Cooper v. LIRC (Youth Services Bureau), (Dane Co. Cir. Ct., 10/22/79).

Where a black person and a white person applied on the same day, at the same place and to the same person for a welding job, the black person established race discrimination in his failure to be hired by showing that the white person with less welding experience was hired with the promise to be trained later and was assigned to jobs for which he had no previous experience. Buchanan v. Barkow (DILHR, 03/11/77).

Although the practice of permitting appointment from among the top three candidates on a promotional exam without establishing selection criteria creates ample opportunity for subjective hiring decisions, discrimination must still be proven. Green v. Wisconsin Dept. of Admin. (DILHR, 09/21/76).

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125.3 Race And Color Discrimination; Conditions of employment, harassment because of race

The occasional and sporadic use of racial slurs, albeit deplorable, may not rise to the level of a violation of the Wisconsin Fair Employment Act. Acevedo v. Oshkosh Corp. (LIRC, 03/29/12).

An employer cannot be held responsible for racial or religious harassment unless the harassment is carried out directly by the employer or (if carried out by co-employees of the Complainant) the employer knew or should reasonably have known of the harassment and failed to take reasonable action to prevent it.Acevedo v. Oshkosh Corp. (LIRC, 03/29/12).

The Respondent unlawfully discriminated against the Complainant in his terms and conditions of employment on the basis of race where it maintained websites on a company computer of “skinheads” having violent sex with black women, and “white supremacy.” This created an intimidating, racially hostile work environment. The Respondent’s manager knew about this material on the company’s computer and did not either delete the material or discourage the viewing of such websites. Salley v. Nationwide Mortgage & Realty Corp. (LIRC, 12/13/07).

While the Complainant and her supervisor were on break together and were engaged in general conversation about their personal lives, the supervisor indicated that her children liked “jungle bunny” music. When the Complainant asked what she meant by that term, the supervisor replied, “hip hop and rap.” The following day the Complainant told the supervisor that she should find a better way to describe hip hop and rap music because the term “jungle bunny” was derogatory and some people might be offended by it. The supervisor indicated that she understood, and the incident was not mentioned again. The Complainant later filed a complaint alleging that she was discharged in retaliation for her opposition to a discriminatory practice. The Complainant was essentially alleging that the supervisor engaged in racial harassment when she made reference to “jungle bunny” music. Whether or not illegal harassment has occurred is evaluated on both (1) an objective basis (i.e., would a reasonable person find the conduct offensive and unwelcome?) and (2) a subjective basis (did the Complainant actually do so?). In this case, the Complainant conceded that she did not find the “jungle bunny” comment offensive. Although the result could have been different had another individual overheard the conversation between the Complainant and her supervisor and found it objectionable, that is not what occurred here. The Complainant failed to show that, at the time she engaged in the subject opposition activity by telling her supervisor she should find some other term for rap and hip hop music, she believed that discrimination in the form of racial harassment had occurred. As a result, although the supervisor’s comment could satisfy the objective reasonable person racial harassment test, it did not satisfy the subjective test. Therefore, the Complainant failed to prove that she engaged in a protected employment activity and, as a result, she failed to prove that she had been retaliated against in violation of the Wisconsin Fair Employment Act when she was discharged. Watson v. Once Upon A Child (LIRC, 06/29/07)

In order to prove a racially hostile work environment, an employee must show that: (1) he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment was severe or pervasive so as to alter the conditions of his environment and create a hostile or abusive work environment; and (4) there is a basis for employer liability. Clark v. Plastocon (LIRC, 04/11/03).

Occasional or sporadic instances of the use of racial slurs do not in and of themselves constitute a violation of the law. To prevail on a racially hostile environment claim, the employee must show that his work environment was both subjectively and objectively hostile. Whether a work environment is hostile or abusive can be determined only by looking at all of the circumstances, including the frequency of the conduct; its severity; whether it was physically threatening or humiliating; or whether it was merely an offensive utterance; and whether it unreasonably interfered with the employee’s work performance. Clark v. Plastocon (LIRC, 04/11/03).

The Complainant was called a "black ass" by a white coworker on three occasions. The infrequency of these utterances, the fact that these utterances were made by a single employee, and the fact that these racial remarks came in the context of a dispute over how the work they were performing was to be done all militate against a showing that the Complainant established the existence of a hostile work environment. Moreover, an employer is only liable for a hostile work environment created by an employee’s coworkers when the employee shows that the employer has been negligent in either discovering or remedying the harassment. In this case, the Respondent was unable to determine who was at fault in causing the verbal disputes between the Complainant and the white coworker. The Complainant had called the white coworker a "fat ass." In spite of the inability to determine who was at fault during the verbal disputes, the supervisor verbally warned both of the employees that their conduct was inappropriate. Ultimately, the Respondent terminated both the Complainant and the white coworker. The evidence failed to establish a basis for employer liability. Clark v. Plastocon (LIRC, 04/11/03).

It is sometimes the case that the display of a noose is intended as – and is perceived as – a racially offensive provocation. This understanding of the object’s "message" grows directly out of its connection to this country’s long and horrendous history of racially-motivated lynching. However, when a noose is found to represent a racist intention, it is usually the case that it has been used in direct association with some other powerful and more directly racist symbol, such as the initials "KKK" or a KKK costume or something of that nature. In some cases, the meaning of a noose is by no means as clear cut and does not necessarily suffice to establish, or even evidence, racial animus. For a number of reasons, people sometimes make and display nooses in workplaces. Their motivations and intentions in such cases are generally crude, threatening, aggressive, juvenile, or some combination of these, in most cases, but they do not necessarily arise out of racial animus. In this case, it was not established that the fact that a full-sized noose was kept in the manager’s office was intended by the people who were involved to have any particular racial connotation. Wells v. Roadway Express (LIRC, 05/13/02).

In determining the pervasiveness of harassment, the trier of fact may aggregate evidence of racial hostility with evidence of sexual hostility. Harsh v. County of Winnebago (LIRC, 11/06/98).

The term "nigger" is commonly understood to be racially derogatory, particularly when used by white people in reference to black people. The word is intimidating by its nature and shows an intent to discriminate on the basis of race. The use of the term cannot be excused on the ground that black employes sometimes use it themselves. In this public accommodation case, even if the Complainant (a black person) responded by calling someone a "honky bitch," this would not neutralize the Respondent's racially derogatory remarks or render them inoffensive to the Complainant. Bond v. Michael's Family Restaurant (LIRC, 03/30/94).

Occasional or sporadic instances of the use of racial slurs do not, in and of themselves, rise to the level of a violation of the Wisconsin Fair Employment Act. Rodgers v. Western Southern Life (LIRC, 10/12/89).

Occasional or sporadic instances of the use of racial slurs by co-workers do not, in and of themselves, constitute unlawful discrimination. Saltarikos v. Charter Wire Corp. (LIRC, 07/31/89).

In order to establish racial harassment, the Complainant must establish that: (1) more than a few isolated incidents of harassment have occurred; and (2) the employer failed to take reasonable steps to prevent racial harassment. Sheridan v. UW- Madison (Wis. Personnel Comm., 02/22/89).

The Complainant argued that he was constructively discharged when, about ten days before his last day of work, a co-worker called him "boy" and "nigger", and that on another occasion that employe told a derogatory joke about blacks. The evidence showed that the Complainant never complained to management about the joke. He did complain to management about the other incident, and the employe was counselled and cautioned by the employer. Occasional or sporadic instances of the use of racial slurs do not in and of themselves constitute discrimination. The two incidents cited by the Complainant would not be sufficient to establish that conditions were so intolerable that a reasonable person would be compelled to resign. Kennedy v. Pick 'N' Save (LIRC, 09/22/88).

An employer is not responsible for alleged racial comments made to an employe by her co-workers unless it knew or should have known about them. Crear v. LIRC, 114 Wis. 2d 537, 339 N.W.2d 350 (Ct. App. 1983).

The prohibition against racial discrimination in conditions of employment encompasses racial harassment by co-workers where an employer who is, or should be, aware of the harassment fails to take reasonable steps to prevent it. Hyde v. LIRC (Rock County) (Ct. App., Dist. IV, unpublished decision, 09/15/81).

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125.4 Race And Color Discrimination; Promotion, compensation, terms of employment

Where the selection device at issue was not pass/fail but involved the ranking of candidates, a balanced bottom line could be considered as a defense and a disproportionate distribution of blacks in the seniority rankings was not found to have a per se disparate impact. The Complainant did not establish unlawfully discriminatory disparate impact where he failed to present expert statistical evidence to demonstrate that the distribution of blacks (in terms of relative seniority) was different to a statistically significant degree from what might be expected to arise by chance. Moncrief v. Gardner Baking (LIRC, 07/01/92)

In a case alleging a failure to promote because of race, the Complainant's initial burden is to show that: (1) he belongs to a protected group, (2) he was qualified and applied for a promotion, (3) he was considered for and denied a promotion, and (4) other employes of similar qualifications who were not in the protected group were promoted. Krueser v. City of Madison (LIRC, 06/30/92).

Race discrimination was established when the supervisor's credibility as a witness was placed in doubt because he told the Respondent's employe relations manager that the Complainant did not want full-time hours when the supervisor knew the opposite to be the case and when it was shown that "concern about the Complainant's paperwork" was pretext. Smith v. Condere Corp. (LIRC, 03/27/90).

The Complainant was denied a promotion to route driver in part because of his race. However, even in the absence of discrimination, he would not have been promoted because of his work performance problems. Jones v. Dy-Dee Wash (LIRC, 11/04/88).

An employer's stated reason for not promoting a black employe, slow performance, was a pretext for race discrimination where his evaluations had been "completely satisfactory" and the employer's evaluation process overall was subjective and utilized an evaluation from one supervisor who was admittedly biased. Bolden v. Wisconsin Telephone (LIRC, 08/04/81).

The transfer of a less senior white employe who had heard of a job opening by word of mouth did not discriminate against a black employe where the employer did not customarily post job openings or have a transfer policy based on seniority. Harris v. Color Corp. of Am. (DILHR, 08/18/76).

It was a violation of the Act to transfer a white security guard from a position in Milwaukee's inner city because of a customer request based on the employe's race. Waldo v. Milwaukee Metro Security (DILHR, 04/08/76).

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125.5 Race And Color Discrimination; Termination

The Complainant alleged that she was the victim of race/color discrimination soon after her hire. However, it is unlikely that an employer (who was obviously aware of the Complainant's race and color when she was interviewed and then hired) would suddenly decide to discriminate against her on that basis and to discharge her three months after she was hired. Knight v. Schneider Family Dentistry (LIRC, 10/29/10).

The Complainant was discharged from his position as a correctional officer during his probationary period. The Respondent contended that the Complainant experienced significant performance issues, primarily by not interacting appropriately with inmates. The Complainant attempted to establish pretext for race discrimination by showing that most of the complaints about his performance were phony. However, even if the Respondent had been mistaken in the conclusion that the Complainant’s performance was problematic enough to warrant the termination of his probation, this does not mean that the Respondent discriminated against the Complainant on the basis of race, so long as the Respondent had a good faith belief in the conclusions it reached about the Complainant’s performance. Further, there was no indication that the Respondent treated the Complainant any different from white probationary officers. Hood v. Dept. of Corrections (Wis. Personnel Comm., 02/21/03).

The Complainant was not constructively discharged because of race where the racial epithets and racially offensive remarks, combined with the Complainant's supervisor's efforts to dissuade him from taking a voluntary demotion, were not such that a reasonable person in this situation would have felt that he had no other alternative but to quit his employment. Rodgers v. Western Southern Life (LIRC, 10/12/89).

The Respondent did not violate the Act by dismissing an employe after a finding of misconduct based on the observations of white co-workers involving the only black employe of a unit or by bypassing ordinary grievance channels by expediting her grievance to a top level administrative review where most matters are eventually received. Lathon v. Family Hospital (LIRC, 05/15/84).

A black saleswoman established that her discharge was racially motivated by showing that: (1) she had been given no warnings, (2) she had received several compliments from customers, (3) her employer did not have good cause for terminating her, and (4) her employer had asked her several questions about her race during her interview for the job. Johnson v. Tel-Page Corp. (LIRC, 09/26/83).

An employe established a prima facie case of race discrimination in his discharge by showing that he was a member of a protected group, qualified for the job he was performing, met the normal requirements of his work, was discharged and that his employer requested a replacement. Bowers v. Wisconsin Correctional Services (LIRC, 09/23/83).

A prima facie case may be established where a black employe, who is fired for fighting, shows that the white participant in the fight was merely suspended. Riley v. LIRC (General Electric) (Ct. App., Dist. I, unpublished decision, 12/28/82).

An employer's decision to lay off five of its seven black employes, but none of the five white workers, was not race discrimination where the employer showed that the five blacks were not as well qualified based on performance, attendance and seniority. McKee v. DILHR (Wis. Personnel Comm., 07/24/82).

It was race discrimination to terminate a black probationary employe who was experiencing discomfort on her new job and had asked for different work, where the employer usually attempted to find lighter work for probationary employes and the employer's determination that the employe's work was too slow was based on a subjective evaluation influenced by race. Briggs & Stratton v. LIRC (Collins) (Milwaukee Co. Cir. Ct., 12/18/81).

Although progressive discipline was the usual practice, it was not race discrimination to treat the employe's initial suspension and discharge, together with his reinstatement on probation, as progressive disciplinary steps leading to his discharge. Hyde v. LIRC (Rock County) (Ct. App., Dist. IV, unpublished decision, 09/15/81).

It was race discrimination for an employer's all white supervisory committee to suspend and then discharge a black employe for absenteeism where they were not guided by any formal guidelines or other objective criteria and where a white employe with a similar record of absenteeism was never suspended. James v. Giddings & Lewis (LIRC, 09/12/79).

Even though an inference of discrimination in the firing of a black employe could be drawn from the facts, a finding of no discrimination was supportable on the basis that hehad a bad relationship with his supervisor and fellow employes, had incurred a serious physical ailment and had often been accommodated in the past, and where the employer's work force was 10% black in a labor market of 2% black. Walker v. DILHR (Snap- on Tools) (Dane Co. Cir. Ct., 12/06/77).

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125.9 Race And Color Discrimination; Miscellaneous

When a Complainant has established a prima facie case that race or sex has been taken into account in an employment decision, the employer may meet its burden of articulating a non-discriminatory rationale for its decision by pointing to the existence of an affirmative action plan. That reliance on an affirmative action plan is not to be treated as an affirmative defense requiring the employer to carry the burden of proving the validity of the plan; the burden of proving its invalidity remains on the Complainant. Where the Complainant offered no evidence regarding the percentage of women in the labor market, the Commission concluded that the Complainant could not meet his burden of proving the invalidity of an affirmative action plan favoring women. Gordon v. City of Milwaukee (LIRC, 10/16/87).

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