The Wisconsin Equal Rights (ER) Decision Digest -- Sections 127.4-127.61
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127.4 Harassment because of Gender
Sec. 111.36(1)(br), Stats., prohibits engaging in harassment that consists of unwelcome verbal or physical conduct directed at another individual because of that individual's gender that has the purpose or effect of creating an intimidating, hostile or offensive work environment or has the purpose or effect of substantially interfering with the individual's work performance. The first requirement is that the conduct be directed at the individual claiming harassment. The evidence in this case shows that some of the comments the male Complainant complained of were directed in jest to another employee and had nothing to do with the Complainant. Another comment referred to the Complainant, but was not directed at him. The action of another employee (putting the employee's own name on a sign and placing it around a cut-out of a female athlete) was done as a humorous reference to that employee's own failure to attend an office Halloween party. A reasonable person similarly situated to the Complainant would not have considered this labeled cut-out to be offensive. The next question is whether the remaining conduct was directed at the Complainant because of his gender. The record established that the woman who made the comments which the Complainant objected to raised her voice and was antagonistic to males and females alike. As a result, her comments were not shown to be related to the Complainant's gender. The final two remarks the Complainant objected to, although at least arguably directed at the Complainant because of his gender, did not come close to establishing the level of severity or pervasiveness required for the creation of an intimidating, hostile or offensive work environment. Braunschweig v. SSG Corp. (LIRC 08/31/06).
127.5 Sex discrimination; Compensation, benefits, equal pay
When a Complainant's allegation of discrimination in compensation because of sex depends on a comparison to the compensation of a male coworker, proof of a disparity in compensation between the Complainant and comparator is crucial to the Complainant's prima facie case, and therefore must be made by more than uncorroborated hearsay evidence. Stephens v. Renaissance Place (LIRC, 12/12/13).The commission believes that its reliance on AMTRAK v. Morgan and other federal court decisions on the application of the statute of limitations to compensation discrimination, was misplaced. The commission will return to the interpretation reflected in the Wisconsin Court of Appeals’ 1996 Abbyland decision, that "[s]alary discrimination is an ongoing matter and can be challenged if the result of the discrimination occurs both within and outside the statute of limitations." Mack v. Rice Lake Harley Davidson (LIRC, 02/07/13), aff’d, Rice Lake Harley Davidson v. LIRC, November 12, 2013 (Barron Co. No. 13CV117) (appealed to court of appeals).
The complainant showed that she was paid differently from a male employee for equal work in a salesperson job the performance of which requires equal skill, effort and responsibility and which were performed under similar working conditions. She thus made out a prima facie case of pay discrimination under the Equal Pay Act analysis. The employer sought to rely on the "factor other than sex” defense, that factor being an explanation that the male was given a high initial rate of pay based on expectations that he would function as a sales manager, expectations which were not met. The employer’s explanations for maintaining the male’s higher pay when he ended up simply doing sales work, were inconsistent, and are rejected as a "factor other than sex.” Mack v. Rice Lake Harley Davidson (LIRC, 02/07/13), aff’d, Rice Lake Harley Davidson v. LIRC, November 12, 2013 (Barron Co. No. 13CV117) (appealed to court of appeals).
The parties in this case agreed that there were men and women in the materials attendant job position who received different pay for jobs which required the same skill, effort and responsibility and that work was performed under the same working conditions. The question presented under the equal pay analysis was whether the employer had carried its burden of establishing that the differences in pay were the result of: (a) a seniority system, (b) a merit system, (c) a system which measures earnings by quantity or quality of production or (d) any factor other than sex. The ?any factor other than sex? exception is a broad exception that embraces an almost limitless number of factors, so long as they do not involve sex. The factor need not be related to the requirements of the particular job in question, nor must it even be business-related. The only question is whether the factor is bona fide, whether it has been discriminatorily applied, and (in some circumstances) whether it may have a discriminatory effect. The question under this exception is whether the reason for the Respondent's determination of the Complainant's starting pay was gender-neutral The evidence in this case indicated that the determination of the Complainant's starting pay was gender-neutral because the Respondent awarded males and females alike credit for experience when determining their starting pay. This credit is determined based on their job application, r?um?and interview. The Complainant was not given experience credit in this case because she did not have experience which was relevant to the job. Bialk v. Aurora Health Care (LIRC, 04/23/10).
The Equal Pay Act specifies three separate elements that are to be considered in comparing job duties: skill, effort and responsibility. Each of these elements must be met individually to establish a prima facie case. In this case, the Complainant could establish a prima facie case of wage discrimination by showing that she (an elementary school principal) and a male junior/senior high school principal were paid different salaries for equal work on jobs the performance of which required equal skill, effort and responsibility, and which were performed under similar working conditions. There was evidence in the record that the junior/senior high school principal had several additional responsibilities that were not required of the elementary principal. With respect to the effort required to perform the job duties, there was evidence of how many eight-hour days the junior/senior high school principal typically worked each year; however, the record was silent with respect to the typical number of eight-hour days logged each year by the Complainant to perform the duties of elementary principal. The Complainant thus failed to meet each of the necessary elements to establish a prima facie case. Gaulke v. School Dist. of Stratford (LIRC 12/08/06).
In evaluating complaints of sex discrimination in compensation under the Wisconsin Fair Employment Act, it is appropriate to consider the analysis followed by the courts under the federal Equal Pay Act. Under the Equal Pay Act analysis, a complainant must show that the employer pays employees of different sexes differently for equal work on jobs, the performance of which requires equal skill, effort and responsibility and which are performed under similar working conditions. If that showing is made, an employer is liable unless it proves that the pay differential is the result of: (1) a seniority system, (2) a merit system, (3) a system which measures earnings by quantity or quality of production, or (4) any factor other than sex. The Equal Pay Act analysis has been described as a strict liability test, in which it is not necessary to prove intent to discriminate. An employer that pays men and women different wages for similar work is automatically liable unless it proves one of the defenses. Reddin v. Neenah Joint School Dist. (LIRC, 08/24/04).
The Complainant did not state a claim under the Wisconsin Fair Employment Act where she did not compare her wage to the wage of males who were in the same classification, or who were performing equal or substantially similar work. The Complainant was, in effect, raising a comparable worth claim that the positions in her job category lost salary gains as compared to jobs in another category which was primarily made up of male employees. This is not a viable theory of discrimination under the Wisconsin Fair Employment Act, although the door is still open for cases where the employee alleges that although the employer claims it was driven by market considerations, it in fact was motivated by an intent to discriminate against females. Henry v. DER (Wis. Personnel Comm., 09/10/02).
In order to establish a claim of sex discrimination with respect to compensation, a Complainant must prove either: (1) that the Respondent paid different wages to employees of the opposite sex for substantially equal work on jobs the performance of which required equal skill, effort, and responsibility, and which are performed under similar working conditions, or (2) that the Respondent was motivated by gender discrimination in setting her compensation or other terms and conditions of employment. Buran v. Menomonee Falls School Dist. (LIRC, 03/17/00).
In evaluating complaints of sex discrimination in compensation under the Wisconsin Fair Employment Act the Department may look to the analysis followed under the federal Equal Pay Act. However, it is also appropriate to apply the conventional analysis on the issue of discrimination, particularly where the wage differential is sequential rather than simultaneous. Under the conventional analysis, the Complainant must make a prima facie case by showing she was a qualified worker treated less favorably with respect to pay than workers of the other gender. The burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for the pay difference. If such a reason is articulated, the Complainant must prove by a preponderance of the evidence that the proffered nondiscriminatory reason was not the real reason for the discrimination in pay but merely a pretext for discrimination. The conventional and Equal Pay Act analyses differ not only in terms of allocation of proof, but also on the issue of employer intent, which is the central focus of the conventional analysis. (The Equal Pay Act analysis has been described as a strict liability test in which it is not necessary to prove intent to discriminate). Schwinn v. Dodge Co. Coop. (LIRC, 10/13/98).
The Complainant established that the Respondent discriminated against her because of her sex and her marital status in regard to compensation through testimony that the Respondent's owner made overtly discriminatory statements when approached about increasing the Complainant's pay to bring it more in line with the pay of male sales representatives. Comments made by the owner included the following: (1) that "between [the Complainant] and her husband, they made enough money"; (2) that "a 'snatch' didn't need to make that much money"; (3) that the Complainant had gotten good results from some accounts because "she was probably screwing the meat manager"; (4) that he was "paying her husband enough and she's a woman and she's compensated properly and she doesn't need any more, any additional compensation;" and (5) that the Complainant "was a good heifer or a good cow and she would produce but we don't have to give her any more." Forster v. Abbyland Processing (LIRC, 03/22/95), aff'd. sub nom. Abbyland Processing v. LIRC and Forster, 206 Wis. 2d 309, 557 N.W.2d 419 (Ct. App. 1996).
Where the higher wage payment that was given to a male employe was made pursuant to the Respondent's apprenticeship program, it fell within the meaning of the "other factor other than sex" exception for payment of unequal wages. Although the apprenticeship program was operated in an informal manner, the Complainant's suggestion at hearing that the program was a mere sham could not be sustained in this case. Hoffmann v. Scan Graphics, Inc. (LIRC, 02/25/94).
A part-time female employe could not prove sex discrimination in compensation by comparing herself to a male employe who worked full time and whose job duties were not substantially similar to her own duties. The appropriate comparison group for such a female employe was the other part-time employes who performed similar job duties. Meisner v. Gervasi (LIRC, 09/30/92).
The analysis of complaints of sex discrimination in pay under the Wisconsin Fair Employment Act involves the question of whether employes of different sexes are paid differently for equal work on jobs the performance of which requires equal skill, effort and responsibility and which are performed under similar working conditions. There are four defenses which will negate liability: that the differential payments are made pursuant to (1) a seniority system, (2) a merit system, (3) a system which measures earnings by quantity or quality of production, or (4) "any other factor other than sex." Foss v. P. A. Bergner & Co. (LIRC, 03/04/91).
In evaluating complaints of sex discrimination in pay under the Wisconsin Fair Employment Act, the Commission looks to the analysis which is followed under the federal Equal Pay Act. This analysis involves the question of whether employes of different sexes are paid differently for equal work on jobs the performance of which requires equal skill, effort, and responsibility and which are performed under similar working conditions. There are four defenses which will negate liability if proven by the employer: that the differential payments are made pursuant to a seniority system, a merit system, or a system which measures earnings by quantity or quality of production, or any other factor other than sex. This analytical method essentially establishes a type of strict liability in which there need not be proof of intent to discriminate. However, a conventional analysis is appropriate in a case in which the wage differential is sequential rather than simultaneous. A conventional analysis, which goes beyond the strict liability concept of the Equal Pay Act, is concerned at all times with the ultimate question of whether the Respondent intentionally discriminated against the Complainant. Under a conventional analysis, the discrimination does not occur when a subsequently employed male is paid more than a previously employed female. Rather, the discrimination occurs when sex is considered as a factor by the employer when it makes the decision on what to pay a female. Sahr v. Tastee Bakery (LIRC, 01/22/91).
A Respondent's statement that he paid females less because they had "someone at home to take care of them," demonstrates an unfortunately traditional attitude sometimes held towards working women which is essentially a matter of sex discrimination, not a matter of a distinction between persons because they are married, single, divorced or separated. Sahr v. Tastee Bakery (LIRC, 01/22/91).
While it is possible (given statements by the Respondent's owner that the Complainant didn't need more pay because she had a husband who was working) that the Respondent would have denied the Complainant health insurance benefits because of her sex had it been confronted with the necessity of making a decision on that point, no decision was ever made, and thus no discrimination ever occurred. Discriminatory attitudes are not unlawful unless they result in discriminatory treatment. Sahr v. Tastee Bakery (LIRC, 01/22/91).
The Complainant, a lesbian, failed to state a claim upon which relief could be granted when she alleged that the Wisconsin Fair Employment Act was violated when her companion was denied insurance benefits which would have been available to spouses of male heterosexual married individuals. Phillips v. DHSS (Wis. Personnel Comm., 03/15/89, 04/28/89, 09/08/89), aff'd., Phillips v. WPC (Dane Co. Cir. Ct. 11/08/90).
Sex discrimination was not shown where craft classifications were predominantly male and clerical classifications were predominantly female, and the Respondent paid employes promoted from craft positions more than employes promoted from clerical positions. The Respondent's use of market forces to pay craft employes, whether male or female, more initially in order to induce them to accept managerial positions was not discrimination in compensation because of sex. There was no showing that the Respondent paid women less merely because they were women and, therefore, willing to accept less compensation. Davis v. Wisconsin Bell (LIRC, 04/05/89).
In evaluating a complaint of wage discrimination because of sex, cases decided under the federal Equal Pay Act should be looked to for guidance because the Wisconsin Fair Employment Act's prohibition on sex discrimination in compensation is co-extensive with the EPA. Anderson v. LIRC (Dane Co. Cir. Ct., 02/12/88).
A prima facie case of wage discrimination because of sex may be established by showing that an employer pays different wages to employes of the opposite sex for equal work. The burden of proof then shifts to the employer to show that the wage differential falls within one of the four statutory exceptions to the ban on unequal compensation provided for in the Federal Equal Pay Act, one of which is "any other factor than sex." Where historical developments - specifically, the elimination of certain formerly distinguishing duties from one position as a result of a legislative change - led to two essentially similar positions having different wage rates, the "any factor other than sex" affirmative defense was demonstrated. The "factor other than sex" exception is a broad general category available as an affirmative defense; the "factor" in question does not have to be an acceptable business reason. Anderson v. LIRC (Dane Co. Cir. Ct., 02/12/88).
Wisconsin's wage discrimination statute is similar to the federal Equal Pay Act, and the same analysis is utilized under both enactments. Bradfish v. LIRC (Marathon Co. Cir. Ct., 10/17/87).
In a wage discrimination claim involving an allegation of unequal compensation for work that is substantially similar to work performed by someone of the opposite sex, the Wisconsin Fair Employment Act is properly construed by reference to the standards developed under the federal Equal Pay Act. One of those standards creates a type of strict liability. No intent to discriminate need be shown if the essential elements of an Equal Pay Act claim are made out. Anderson v. City of Sheboygan Health Dept. (LIRC, 08/20/87).
Even where the Complainant was performing the same work as higher paid males the dispositive question of fact on the equal pay issue was whether her sex was a motivating factor in the Respondent's decision to pay her less. Where the evidence showed that the employer was motivated by factors other than sex, there was no violation of the law, regardless of whether the pay arrangement was fair. Vollendorf v. Norco Windows (LIRC, 08/22/86).
Where the Complainant's duties as a Clerk-Typist and a male's duties as Administrative Clerk II did not involve equal work the performance of which required equal skill, effort and responsibility, and where the pay range of the newly created Clerk-Typist position was established before the position was filled and before the Respondent could have known that the Complainant, a female, would be in the position, there was no discrimination because of sex in regard to wages. Bresnehan v. City of Madison/Motor Equipment (LIRC, 01/22/86).
In determining the legality of pay differentials under the Act, DILHR looks to cases decided under the federal Equal Pay Act of 1963. Ealey v. Wis. Brick & Block (LIRC, 02/28/83), aff'd. sub nom. Ealey v. LIRC (Wis. Brick and Block) (Dane Co. Cir. Ct., 05/30/84).
In interpreting the exception for "any other factor other than sex," the employer must show a reasonable business purpose for use of such a factor. Ealey v. Wis. Brick & Block (Dane Co. Cir. Ct., 05/30/84).
The Act does not contemplate that the Department will engage in job evaluation for the purpose of deciding what is a proper wage differential for unequal work. Laux v. Dixon (LIRC, 05/07/81), aff'd. sub nom. Laux v. LIRC (Winnebago Co. Cir. Ct., 10/15/82).
In order for an employe to demonstrate sex discrimination in regard to payment of wages, she must show: 1) that a significant wage differential exists for men and women performing substantially similar jobs, and 2) that the work she performs is equal or substantially similar to that performed by higher paid males. To prove the latter, the employe must show that her work requires equal skill, effort and responsibility, and is performed under similar working conditions. Laux v. Dixon (LIRC, 05/07/81), aff'd. sub nom. Laux v. LIRC (Winnebago Co. Cir. Ct., 10/15/82).
"Equal effort" includes consideration of both mental and physical exertion. "Equal responsibility" is concerned with the degree of accountability required in the performance of the job. "Equal skill" involves such factors as training, education and ability, measured in terms of the performance requirements of the job. Laux v. Dixon (LIRC, 05/07/81), aff'd. sub nom. Laux v. LIRC (Winnebago Co. Cir. Ct., 10/15/82).
Even though the Complainant did not have the title of credit manager, she established wage discrimination by showing that: (1) she was considered by the store manager to be the replacement for the previous male credit manager who received a higher wage; (2) she performed substantially similar duties; and (3) the repossessions she did not perform were incidental to her primary responsibilities. Christensen v. Goodyear Tire & Rubber (LIRC, 10/07/82).
The employer could not justify a pay difference between female matrons/ custodial aides and male custodians who performed equal work on the basis of hours per month where it was responsible for restricting their hours. Krawcyk v. Greenfield School Dist., No. 6 (LIRC, 04/15/82).
Evidence of experience or training actually possessed by job incumbents is not directly relevant to the question of equal skill. The issue is the experience, training, education and ability which an employe needs to competently perform the particular job in question. Valen v. Mortgage Guarantee (LIRC, 03/24/81).
It is not enough to show a difference in time spent on particular tasks to justify a differentiation in pay. The employer must show that the higher paid job involves additional tasks which: 1) require extra effort, 2) consume a significant amount of time, and 3) are of an economic value commensurate with the pay differential. Valen v. Mortgage Guarantee (LIRC, 03/24/81).
It was sex discrimination to pay a female adjuster less than a male assistant manager where: 1) there was no evidence that his supervisory experience and college education were necessary to performance of his job, 2) the additional duties he performed did not consume a significant amount of time and effort or yield any greater financial recovery for the company, and 3) the company accepted a survey which recommended that his job be changed to adjuster. Moreover, although he was paid more at a previous job than was the female, there was no evidence that his present employer found it necessary to pay him at a certain level to induce him to change jobs. Valen v. Mortgage Guarantee (LIRC, 03/24/81).
Although a female employe was hired through the employer's special high school program, it was sex discrimination to continue to employ her at the same pay after the program was discontinued and she held duties and responsibilities substantially identical to male security guards. Harris v. Milwaukee Area Dist. (LIRC, 06/05/80).
Where a female bookkeeper had less educational training and work- related experience than males subsequently hired as office managers, and had fewer work-related responsibilities, the female failed to establish that she was discriminatorily paid less for equal or substantially equal work. Helgesen v. Sparta Oil (LIRC, 08/07/78).
Where a female bar manager was paid less but performed better than her higher paid male predecessor, and where her male successor was also given a higher salary, the denial of equal wages to her was discriminatory because the employer could show no business justification for her lower salary. Vick v. Appleton Labor Center (LIRC, 10/05/77).
Where a female machine operator was temporarily promoted but paid less than the male who later replaced her, the pay inequity was sex discrimination because the female proved that she and her male successor performed the same or substantially similar work. Ferguson v. Greb Plastics (LIRC, 09/19/77).
Equal does not mean "identical." Insubstantial or minor differences in the degree or amount of skill, effort or responsibility required for the performance of jobs will not render the law inapplicable. If the employe must have essentially the same skill in order to perform either of the two jobs, the jobs will qualify as requiring equal skill. Allison v. Jessen's Cleaners (DILHR, 06/14/74).
The occasional performance of incidental duties by male employes does not justify their higher wages. Biermann v. Larson Pallet (DILHR, 11/02/73).
If the Complainant meets her initial burden, the employer must then show that the pay differential was based on a factor other than sex, such as a seniority or merit system, or any other bona fide system for measuring earnings by quality or quantity of production. Nekoosa-Edwards Paper v. DILHR (Balogh) (Dane Co. Cir. Ct., 10/01/70).
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