The Wisconsin Equal Rights (ER) Decision Digest -- Sections 134-155
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134Retaliation for attempts to enforce rights under certain laws other than the WFEA (s. 111.322(2m))
Pursuant to sec. 111.322(2m), it is unlawful to discharge or otherwise discriminate against an individual because he or she has filed a complaint under, attempted to enforce any right under, or testified or assisted in any action or proceeding held under a number of statutes other than the Wisconsin Fair Employment Act, or because the individual's employer believes that the individual engaged in or may engage in any such activity. The statutes covered by this provision are:
|66.0903 [Municipal Prevailing Wage And Hour]
101.58-101.599 [Employees' Right To Know]
103.02 [Hours of Labor]
103.10 [Family and Medical Leave Act]
103.13 [Records Open To Employee]
103.28 [Street Trades Regulation]
103.32 [Recovery of Arrears of Wages]
103.455 [Deductions for Faulty Workmanship, Loss, Theft or Damage]
103.49 [Wage Rate on State Work]
103.50 [Highway Contracts (Prevailing Wage)]
103.64-103.82 [Employment of Minors]
104.12 [Minimum Wage]
109.03 [Wage Claims]
109.07 [Plant Closing]
109.075 [Health Care Benefit Plan Cessation]
146.997 [Health Care Worker Protection]
229.8275 [Prevailing Wage - Local Football Stadium Districts]
For cases under sec. 111.322(3), involving retaliation for exercise of rights under the WFEA, refer to part 133.
134.1 Retaliation for attempts to enforce rights under certain laws other than the WFEA (s. 111.322(2m)) - Coverage
Section 111.322(2m), Wis. Stats., is referred to as the "omnibus" anti-retaliation provision of the Wisconsin Fair Employment Act because it prohibits retaliation by employers under a number of statutes other than the Wisconsin Fair Employment Act. The statutory term "attempts to enforce any right" in that statute was intended to refer solely to formal attempts to enforce a right by resort to the governmental agency charged with enforcement of that right. The Complainant's claim that he was "attempting to enforce his rights" to be paid vacation pay owed to him under the wage claim statutes by complaining to management was properly dismissed. Alarcon v. Avenue Bar (LIRC, 12/28/12).
The Complainant's allegation that he was discharged in violation of sec. 111.322(2m)(d), Wis. Stats., because his employer believed that he might file a wage complaint with the Equal Rights Division was dismissed for lack of proof. Evidence that an employer believed that a complainant planned to file a complaint or testify or assist in a proceeding to enforce a right to payment of wages does not have to include any "magic words" but can consist of other circumstantial evidence of an employee's intent to take formal action. The question is whether the employee has given some indication that he intends to file a wage claim, and whether the record establishes that the employer believed the employee intended to take such an action. Alarcon v. Avenue Bar (LIRC, 12/28/12).
The Wisconsin Family and Medical Leave Act specifies that an employee who believes his employer has interfered with the exercise of his rights or discriminated against him for opposing a practice prohibited under the Wisconsin Family and Medical Leave Act may file a complaint with the Department. An internal complaint or grievance is not a complaint filed under the FMLA; nor can it be considered an attempt to enforce a right under the FMLA. In this case the Complainant filed an internal complaint and a union grievance alleging that the Respondent had harassed her for invoking her right to take FMLA leave. This was not an attempt to enforce a right under the FMLA which would give rise to a complaint under sec. 111.322(2m), Stats. Swanson v. County of Chippewa (LIRC, 05/11/07).
Either an employer’s actual knowledge of an employee’s filing of a wage claim or the employer’s belief that the employee may file such a claim is equally sufficient to satisfy the knowledge prong of the requirements for establishing a prima facie case. Gunty v. City of Waukesha (LIRC, 03/29/07).
The Complainant was terminated for informally pursuing with his employer his contention that he had been improperly denied the prevailing wage rate for his work on a project. However, this type of activity is “oppositional” rather than “participatory.” Sec. 111.322(2m), Stats., by its terms, applies only to formal participatory activities, not informal oppositional ones. Domini v. Jason Schultz Trucking (LIRC, 02/24/05)
Sec. 111.322(2m)(d), Stats., makes it an act of employment discrimination for an employer to discharge or otherwise discriminate against an individual because the employer believes the individual may file a complaint or attempt to enforce a right under various referenced statutes. This statute is concerned with the motives of the employer. It does not require any "magic words" by the employee. The employee is simply required to present sufficient facts and circumstances that establish that an employer has taken unlawful action because it believes he or she might file a complaint or attempt to enforce a right under the referenced statute. An employee need not make an explicit threat to file a complaint before coming under the protection of the statute. Hephner v. Rohde Bros. (LIRC, 06/30/04).
A complaint that the Complainant was discharged by the Respondent in retaliation for having attached written comments to a personnel record is not cognizable under the Wisconsin Fair Employment Act. Section 103.13, Stats., affords employes the right to inspect and make copies of certain personnel records and to attach corrections and comments to personnel records with which they disagree. Section 103.13(7m), Stats., provides as follows: "Sec. 111.322(2m) [of the Wisconsin Fair Employment Act] applies to discharge or other discriminatory acts in connection with any proceeding under this section." The Labor and Industry Review Commission has consistently held that sec. 111.322(2m), Stats., recognizes only the "participation" form of protected activity. The Complainant in this case did not contend that she instituted or threatened to institute any type of proceeding aimed at enforcing her rights under the Personnel Record Law. The fact that the Personnel Record Law contains a civil forfeiture provision (sec. 103.13(8), Stats.) suggests that an employe can seek enforcement for her employer's failure to abide by the law by instituting a proceeding before the district attorney. If the Complainant in this case had attempted to institute a proceeding before the district attorney or any other appropriate forum and believed that she was discharged as a result, she would have been able to state a claim for which relief could be granted under the Wisconsin Fair Employment Act. The Complainant's concerns regarding the lack of protection afforded those employes who exercise the rights conferred by the Personnel Records Law are more appropriately addressed to the legislature, which has the authority to draft corrective legislation, should it deem this necessary. Corey v. Multiple Listing Service (LIRC, 07/21/95).
Section 101.055(8)(a), Stats., prohibits retaliation against a public employe who has exercised a right afforded by sec. 101.055, Stats., related to occupational safety and health. The method of analysis applied in Public Employe Health and Safety retaliation cases is similar to that applied in the context of retaliation claims filed under the Wisconsin Fair Employment Act. To establish a prime facie case of Public Employe Health and Safety retaliation, there must be evidence that (1) the Complainant engaged in a protected activity and the alleged retaliator was aware of this activity; (2) the Complainant was "discharged or otherwise discriminated" against (sec. 101.055(8)(b), Stats.); and (3) there is a causal connection between (1) and (2). McKibbins v. UWM (Wis. Personnel Comm., 04/04/95).
Unlike sec. 111.322(3), Wis. Stats., which protects both opposition and participation, the more recently enacted sec. 111.322 (2m), Wis. Stats., recognizes only the participation form of protected activity. It makes it unlawful to discharge or otherwise discriminate against an individual because that individual filed a complaint or attempted to enforce any right or testified or assisted in any action or proceeding held under or to enforce any right under the referenced statutes (or is believed by the employer to have engaged in such activity). The language "attempts to enforce a right" under the statute refers solely to formal attempts to enforce a right by resort to the governmental agency charged with enforcement of that right. In this case, there was no "action or proceeding" before the Equal Rights Division at any time prior to the allegedly retaliatory discharge. The Complainant had never filed a complaint with or otherwise attempted to invoke the authority of the Equal Rights Division at any time prior to the allegedly retaliatory discharge. The Complainant's complaint to a municipal building inspector and to OSHA cannot be viewed as attempts to enforce a right under the Employe's Right to Know Law because neither municipal building inspectors nor OSHA have any role in the enforcement of that law. Therefore, the Complainant's conduct was not protected under sec. 111.322(2m), Wis. Stats. Pampuch v. Bally's Vic Tanny Health and Racquetball Club (LIRC, 03/07/94).
Only retaliation because of acts of participation under the listed statutes is made unlawful under the omnibus anti- retaliation provision of the Wisconsin Fair Employment Act, sec. 111.322(2m), Stats. Roncaglione v. Peterson Builders (LIRC, 08/11/93), aff'd.sub nom. Roncaglione v. LIRC (Dane Co. Cir. Ct., 05/06/94).
The Wisconsin Family and Medical Leave Act prohibits discharging or discriminating against an individual for opposing a practice prohibited under the Act. Other kinds of retaliation relating to the Family and Medical Act are now defined as discrimination under the omnibus anti-retaliation provision of the Wisconsin Fair Employment Act, sec. 111.322(2m), Stats. These cases are appealable to the Labor and Industry Review Commission, rather than to Circuit Court. Roncaglione v. Peterson Builders (LIRC, 08/11/93), aff'd. sub nom. Roncaglione v. LIRC (Dane Co. Cir. Ct., 05/06/94).
The Public Employe Safety and Health Act does not have the same presumption of retaliation or the same definition of discipline found in the Whistleblower Law. Sadlier v. DHSS (Wis. Personnel Comm., 03/30/89).
134.2 Retaliation for attempts to enforce rights under certain laws other than the WFEA (s. 111.322(2m)); Standard of Proof
The Wisconsin Fair Employment Act prohibits the discharge of an employee because he has filed a wage claim under sec. 109.03, Stats., or because he has attempted to enforce any right under that statute or because the employer believes that he may do so. In those cases where an employee has not actually filed a wage claim or made a specific threat to do so, the question is whether the employee has given some indication that he intends to file a wage claim and whether the record establishes that the employer believed that the employee intended to take such action. In deciding that question, the decision-maker will consider not only the employee's words, but the entire context of the interactions between the employee and the employer. Brockmann v. Abacus Bertz Ins. (LIRC, 05/31/12).
The Respondent's motivation is the ultimate issue in a retaliation case. In order to establish a prima facie case of retaliation, the Complainant must show that: (1) he opposed an unlawful employment practice, (2) he suffered an adverse employment action, and (3) there was a causal connection between the opposition and the adverse action. The Respondent can rebut the prima facie case by showing a legitimate non-retaliatory reason for the adverse action. The Complainant can prevail by showing that the proffered reason is merely a pretext for retaliatory conduct. In order to establish a causal connection, it must be shown that the alleged retaliator was aware of, or had reason to be aware of, the Complainant's protected activity. The Complainant in this case failed to show that the Respondent had any reason to be aware of the wage claims the Complainant filed prior to the time that she became employed by the Respondent. Smith v. The Terrace at St. Francis (LIRC 12/08/06).
The Complainant's daughter filed a claim for unpaid vacation and overtime. The Respondent's owner was visibly upset upon receiving notice of that complaint, and she discharged the Complainant the same day. Given the timing of the events, and considering that the Respondent knew that the Complainant was also banking unpaid overtime, one could reasonably draw the inference that the Respondent believed that the Complainant might file a wage claim and discharged her for that reason. Klatt v. Hallie Chiropractic (LIRC 08/28/06).
134.3 Retaliation for attempts to enforce rights under certain laws other than the WFEA (s. 111.322(2m)); Cases
It is unlawful under the HCWPA to terminate the employment of a doctor because he complained about another doctor’s practices. The fact that the doctor being complained of was no longer employed by the Respondent at the time did not put the claim outside of the coverage of the HCWPA. Siegel v. Marshfield Clinic (LIRC, 10/31/13).
The respondent discharged the complainant and handed him a paycheck, from which $1,110 had been deducted to offset damages to the truck that the complainant had driven during his employment. The complainant immediately informed the respondent that he would be filing a wage complaint challenging the deduction, but the respondent had no belief prior to the discharge that the complainant might file a wage claim. The act of discharging the complainant was not a retaliatory act, because it occurred before a wage complaint was filed and before the possibility of the filing of a wage complaint was contemplated. When, a few weeks later, the respondent reversed course by issuing a check to the complainant in settlement of the wage claim that the complainant did in fact file, it was not retaliation by the employer to make payroll deductions from that check, even though it was incorrect to do so, because the mistake appeared to result from reliance by the respondent on the advice of the labor standards investigator. Sowle v. Somniak (LIRC, 10/14/13).
The statute prohibiting retaliation is concerned with the motives of the employer. While the law does not require any 'magic words' and an employee need not make an explicit threat to file a wage claim, she must nonetheless present some evidence that would warrant a conclusion that the Respondent formed the belief that she might do so. In this case, during an argument about the Complainant's unemployment insurance and worker's compensation claims, the Respondent told the Complainant that she would not receive 'a cent' and that she would 'never work again.' The Complainant responded that she was going to 'take it to Equal Rights' and 'take it downtown to [her] lawyer.' The Complainant maintained that the Respondent should have known that she was referring to filing a wage claim. However, the facts in this case fell short of warranting a finding that the Complainant had engaged in protected activity. Freeman v. Animal Motel (LIRC, 07/18/11).
The Administrative Law Judge determined that the Complainant had been unlawfully retaliated against because she had filed a complaint under the Wisconsin Family and Medical Leave Act. The Complainant was not entitled to back pay because she had already resigned prior to the retaliatory conduct, and had lost no wages or benefits as a result of the Respondent’s conduct. Subsequent to the hearing on the merits, the Complainant filed a motion for a continued hearing on damages, at which she wanted to present evidence establishing that the Respondent had publicized a poor separation report and that this had cost her other employment opportunities. This request was rejected because it was a separate claim occurring subsequent to the facts at issue in this case, rather than a question of damages. Swanson v. County of Chippewa (LIRC, 05/11/07).
The Complainant in this case established sufficient competent evidence to establish a prima facie case that he was discriminated against because he had filed, or the Respondent believed he would file, a wage claim under sec. 109.03, Stats. He presented evidence which included: (1) that an alderman had been overheard saying, “We’ll fire that motherfucker if he files that claim,” (2) that shortly after he filed his wage claim an alderman announced that he wanted to form a committee for the purpose of reducing the pension fund by eliminating staff, (3) that as a result of this, the Complainant was the only one who lost his position, (4) that, according to the mayor, the city did not save a significant amount of dollars by eliminating the Complainant’s position, and (5) that the Complainant was told by the council president that the elimination of his position “was nothing personal to him, although it may have been a factor with other aldermen.” This evidence was sufficient to cause the burden to shift to the Respondent to articulate through its witnesses a legitimate, non-discriminatory reason for the Complainant’s discharge. Gunty v. City of Waukesha (LIRC, 03/29/07).
The owner of the Respondent was unaware that minors were prohibited from operating equipment such as a meat slicer in the deli. He took immediate action to discontinue the practice before the Complainant was discharged. As a result, at the time of the discharge he was in compliance and he would have had no reason to believe that the Complainant (who had not initiated an enforcement action when the Respondent was out of compliance with the requirements of the laws relating to the employment of minors) would initiate or take part in a future enforcement action within the meaning of sec. 111.322(2m)(d), Stats. Therefore, there was no violation of sec. 111.322(2m)(d), Stats. Schulz v. Arms Corp. (LIRC, 06/14/05), aff’d. sub nom. Schulz v. LIRC (Waukesha Co. Cir Ct., 12/20/05).
It is true that the law does not require an employee to utter any “magic words,” and that an employee need not make an explicit threat to file a wage claim. However, a Complainant must nonetheless present some evidence which would warrant a conclusion that the employer formed the belief that she might do so and, further, that it discharged her for that reason. In this case, the Complainant did not tell the Respondent that she had been in contact with the Equal Rights Division or that she intended to do so. Nor is there any evidence to suggest that the Respondent formed the belief that the Complainant was planning to file a wage claim against it. The Complainant’s comment that another worker had gone to the Equal Rights Division with regard to a separate wage dispute, while possibly establishing that the Complainant was aware that she had recourse to the Equal Rights Division and could file a wage claim, does not in and of itself warrant a conclusion that the Complainant was planning to do so. Without more, this was insufficient to have put the Respondent on notice of any such intention. Jancik v. Advantage Learning Sys. (LIRC, 09/16/05)
In this case, the Complainant did not claim that she had filed a prevailing wage complaint with the Equal Rights Division or that she had otherwise invoked the authority of the Division, nor did she testify or assist in any prevailing wage action or proceeding. The Respondent’s owner believed that the Complainant intended to file a small claims action in regard to concerns she had about increases in group health insurance costs. The record did not establish that the Respondent’s owner believed, or had reason to believe, that the Complainant had filed a prevailing wage claim with the Equal Rights Division or intended to file such a claim, or that he was even aware that such a right or process existed. Smith v. Carpet Warehouse and Design Center (LIRC, 04/13/05).
The Respondent’s awareness that the work performed by the Complainant was a prevailing wage job, together with its familiarity of the Department of Transportation’s role in the enforcement of the prevailing wage law, and the fact that the Complainant was told he was trying to get the company in trouble with the DOT, all support the conclusion that the Respondent discharged the Complainant because it believed he might attempt to enforce his right to be paid the prevailing wage rate. Travis v. D.C. Nevels Trucking (LIRC, 10/07/02), aff'd sub nom. D.C. Nevels Trucking v. LIRC (Milwaukee Co. Cir. Ct., 06/12/03).
The employer illegally retaliated against the Complainant when it canceled the Complainant’s COBRA health insurance policy soon after it learned that the Complainant had filed a wage claim with the Equal Rights Division. Dreckman v. Henkel Transp. (LIRC, 02/16/01).
The Respondents practices with respect to calculation of overtime was the source of much confusion amongst employees. The Complainant informed her employer that she had checked with the Labor Standards Bureau to see what the correct procedure was for overtime pay. The employer became upset and told her that what she had done was undermining and underhanded. The Complainant was discharged the following day. The termination violated sec. 111.322(2m), Wis. Stats. which provides that it is an act of employment discrimination to discharge or otherwise discriminate against any individual because, among other things, the individual has filed a complaint or attempted to enforce any right under sec. 103.02, Wis. Stats., which deals with overtime pay. Hickman v. Milwaukee Immediate Care Center (LIRC, 02/16/00), affd sub nom. Milwaukee Immediate Care Center v. LIRC (Milw. Co. Cir. Ct., 11/02/00).
The Complainants failed to establish that the Respondents violated the Wisconsin Fair Employment Act by discharging them for filing a complaint or attempting to enforce a right under sec. 66.293, Wis. Stats., which is known as the Prevailing Wage Law. The Prevailing Wage Law contains a specific statutory procedure for monitoring and securing compliance with its requirements. Sec. 66.293(10)(c), Wis. Stats., provides that the Department of Workforce Development shall ensure compliance with that section. The statute contains no reference to any entity except the Department of Workforce Development as possessing the authority to monitor and secure compliance with the Prevailing Wage Law. The Complainants wage complaints filed with the City of Milwaukee did not constitute making a complaint or attempting to enforce a right they may have had under sec. 66.293, Wis. Stats., before the Department. Carter v. Dionne Constr. (LIRC, 05/24/99).
The Complainant failed to prove that she was discharged in retaliation for having filed a wage claim where the evidence failed to establish that the Respondent knew that she had filed a wage claim with the Equal Rights Division before it made the decision to discharge her. Hunt v. Point Publications (LIRC, 09/12/95).
The Complainant established that the Respondent discharged her because one of its agents believed that the Complainant might file a complaint with the State concerning her entitlement to minimum wage. Koll v. Hair Design (LIRC, 04/27/95).
Sec. 111.322(2m), Stats., does not protect informal "opposition" but only the types of protected activities that have generally been referred to in the retaliation area as "participation." In this case, the Complainant alleged that he was discharged because the Respondent had heard that he had contacted the Equal Rights Division concerning his dissatisfaction at not receiving his vacation pay. The Complainant asserted that this contact was an attempt to enforce a right under sec. 109.03, Stats. Such a contact would not have constituted an attempt to enforce a right within the meaning of sec. 111.322(2m), Stats. The Complainant did not identify himself or his employer during this contact, and there would have been no way that the Equal Rights Division could have exercised its authority in response to such a contact. Werth v. TMS Carriers (LIRC, 02/09/95).
In this case, the chief jailer of the Sheriff's Department communicated a threat to intentionally reduce the amount of work available to female jailers in retaliation for their prosecution of a wage discrimination claim. However, the fact that a threat was made is not determinative on the question of whether it was carried out. In this case, the evidence was inconclusive on the question of whether there was an intentional reduction in female prisoner population which led to a reduction in the hours worked by female jailers. While it is possible to look at the data on hours worked by female jailers and suspect that the reduction which occurred was engineered, more than a suspicion is required. The evidence considered as a whole simply does not establish this fact by a preponderance of the evidence. Blaser v. Oconto County Sheriff's Dept. (LIRC, 09/20/94).
The Complainant did not establish that he was retaliated against for having filed a wage claim. The Complainant did file a wage claim with the Department; however, he did not establish that the Respondent was made aware of the wage claim on or before the date the Complainant was allegedly discharged. Allen v. Robert Peeple Ass'n. (LIRC, 09/15/94)
134.9 Retaliation for attempts to enforce rights under certain laws other than the WFEA (s. 111.322(2m)); Miscellaneous
A causal connection between a Complainants contacting the Labor Standards Bureau about her right to overtime pay and her discharge may be inferred from the close proximity in time of those events. Hickman v. Milwaukee Immediate Care Center (LIRC, 02/16/00), affd sub nom. Milwaukee Immediate Care Center v. LIRC (Milw. Co. Cir. Ct., 11/02/00).
The Labor and Industry Review Commission declined to address the Complainants' argument that the mere making of a threat to retaliate constitutes an independent violation of the Wisconsin Fair Employment Act. This claim was not made in the complaint, nor was it addressed in the Initial Determination or the notice of hearing. Blaser v. Oconto County Sheriff's Dept. (LIRC, 09/20/94).
135 Genetic Testing (Sec. 111.372, Stats.)
140 Affirmative Action
141 Affirmative Action; Generally
An employer is not required to offer a position to a woman when it is underutilized for females. To impose such a requirement would convert an affirmative action goal into a quota, which is prohibited. Kelley v. Wis. Dept. of Revenue (LIRC, 09/23/05)
Although absolute racial preferences may be unlawful, race may be considered as one factor among others in making an employment decision where a bona fide affirmative action plan is involved. Byrne v. State Personnel Comm. (Dane Co. Cir. Ct., 08/15/94).
A public employer must ensure that it has convincing evidence that remedial action is warranted before it embarks on an affirmative action program. It must possess sufficient evidence to justify the conclusion that there has been prior discrimination. Here, there is nothing in the record to indicate that the affirmative action plan of the Respondent meets the criteria established in Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) and Johnson v. Transp. Agency, 480 U.S. 616 (1987). Therefore, the Complainant is entitled to a hearing on his claim that he was discriminated against on the basis of his race when he did not receive adjusted seniority as minority employes did by virtue of a consent decree. Samolinski v. LIRC and County of Milwaukee (Milw. Co. Cir. Ct., 06/27/91).
It was improper for LIRC to rely upon the factual findings made in a consent decree when that consent decree was not properly admitted in evidence. The Complainant had agreed to the admission of the consent decree for the limited purpose of (a) showing that a consent decree was issued, and (b) that the Respondent was abiding by the consent decree. LIRC inappropriately relied on factual findings in the consent decree to conclude that the consent decree was justified by an underutilization of minorities in the Respondent's workforce. Samolinski v. LIRC and County of Milwaukee (Milw. Co. Cir. Ct., 06/27/91).
An employer need not have been found guilty of past discrimination before it can make a sex-conscious hiring decision. It need only point to a conspicuous imbalance in traditionally segregated job categories. For jobs that require no special expertise, the percentage of minorities or women in the employer's work force may be compared with the percentage in the area labor market or general population, and where the job requires special training, the comparison should be with those in the labor force who possess relevant qualifications. Gordon v. City of Milwaukee (LIRC, 10/16/87).
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, he did not meet his burden of proving the invalidity of an affirmative action plan favoring women used by the Respondent. Gordon v. City of Milwaukee (LIRC, 10/16/87).
142 Affirmative action efforts found permissible
Pursuant to the terms of its affirmative action plan, an interview panel considered an applicant’s race in addition to a variety of different and relevant reasons other than race for its hiring decision. The Respondent did not violate the Wisconsin Fair Employment Act when the Complainant would still have been a less qualified candidate based on these other neutral factors. Race can be considered to have been merely “a factor”, and not a “determining factor”, in the hiring decision. Nelson v. State Historical Society of Wisconsin (LIRC, 03/31/05)
It was not sex discrimination to use expanded certification to increase the number of women who gained access to interviews where it was used in conjunction with an approved affirmative action plan which complied with the requirements of ch. 230, Stats., and ch. ER 43, Wis. Adm. Code. Gygax v. Dept. of Revenue & Dept. of Employment Relations (Wis. Personnel Commission, 90-0113-PC-ER, 12/14/94)
No discrimination was shown with respect to the employing agency’s letter directing the interview panelists to contact the affirmative action officer before making a hiring decision where the panelists understood there was no requirement to hire women. There was only a requirement, in the event a male was recommended for hire, to explain why a woman was not recommended. The affirmative action officer had approved the hire of non-targeted groups in other selection decisions when justified (for example, by the interviewer’s opinion that another person was the best candidate for the particular vacancy). Gygax v. Dept. of Revenue & Dept. of Employment Relations (Wis. Personnel Commission, 90-0113-PC-ER, 12/14/94)
Discrimination does not automatically occur where a member of an underutilized group identified in an approved affirmative action plan is hired even through the successful candidate has a post-interview rank below other candidates who are not a member of the underutilized group (citing Byrne v. DOT & DMRS). Gygax v. Dept. of Revenue & Dept. of Employment Relations (Wis. Personnel Commission, 90-0113-PC-ER, 12/14/94).
Expanded certification is permissible in civil service hiring if it is used in conjunction with an approved affirmative action plan. In this case, the employer did not violate the Wisconsin Fair Employment Act when it considered sex as a factor in the final selections it made from among those on the certification list. The female who was hired was a member of a group identified in an approved affirmative action plan as an underutilized group. The Respondent clearly showed that the individual who was hired was qualified for the job and that the interview process was otherwise free of discrimination. Gygax v. Dept. of Revenue & Dept. of Employment Relations (Wis. Personnel Comm., 12/14/94).
In differentiating among well-qualified candidates for a position, it is not evidence of discrimination to consider the goals of a proper affirmative action plan as a selection criterion. Byrne v. DOT & DMRS (Wis. Personnel Commission, 92-0152-PC-ER-69, 9/8/93); aff'd. sub nom. Byrne v. State Pers. Comm., (Dane Co. Cir. Ct., No 93-CV-3874, 8/15/94)
It was not a violation of the Wisconsin Fair Employment Act for an employer to implement an affirmative action plan that called for departure from strict seniority in layoff to allow black school psychologists and social workers who would otherwise be laid off due to their seniority to be retained while more senior, Caucasian, employees in the classification were laid off. Voluntary affirmative action programs which modify the seniority rights of majority members do not constitute unlawful discrimination when certain conditions are met. Those conditions include: (1) The lay-off plan seeks to prevent the loss of minority hiring gains achieved through affirmative action; (2) the plan is temporary; (3) the plan does not require the retention of unqualified employees; (4) the plan does not require the lay-off of only white employees; (5) the plan does not replace whites with newly hired minorities; and (6) the plan does not bar laid off white employees from re-employment with the employer. Piotrowski v. Milwaukee Bd. of Schools Div. (LIRC, 05/02/85).
A male employee had been hired to work as a bobcat operator and all the bobcat work had been completed. It was not unlawful sex discrimination for the Respondent to lay off the male employee and recall a female employee in order to fulfill its affirmative action goals, rather than transfer the male employee to laborer’s duties. In Steelworkers v. Weber, 443 U.S. 193, 61 L. Ed. 2d 480, 99 S. Ct. 2721 (1979), the U.S. Supreme Court recognized that in order to meet the purposes of Title VII, employees must be able to deal with the effects of past discrimination. That case held that an affirmative action plan is permissible if the plan: (1) was voluntary, (2) was designed to break down old patterns of discrimination, (3) did not unnecessarily trammel the interests of male workers, (4) did not require the discharge of males and their replacement by females, and (5) was temporary. The Respondent’s plan in this case met these requirements. Ott v. L.S. Lunder Constr. (LIRC, 04/16/81).
An employer created a special position in its Trades Training Program (TTP) for the most qualified female applicant. This position was created solely in an effort to fulfill the Respondent’s affirmative action obligations under a federal Executive Order. Male employees continued to be eligible for regular TTP positions as they became available. The male Complainant could not be said to have been unlawfully deprived of any promotional opportunities when he was denied this position because the position in question would not have existed but for the employer’s affirmative action obligations. Grenier v. Scott Paper (LIRC, 01/15/81).
An employer did not discriminate against a male in promoting a qualified female with 20 years less experience where affirmative action was required by Title VII, Executive Order 11246 and a consent decree filed in federal court. Maline v. Wisconsin Telephone (LIRC, 10/22/79).
143 Affirmative action efforts found impermissible
The Complainant, a non-minority, was certified for a position. The person who ultimately was appointed was a minority who became eligible on the basis of an expanded certification that the employer conceded was illegal because a valid workforce analysis had not been conducted in accordance with sec. 230.03(4m), Stats. The illegal use of expanded certification in this manner violated the Complainant’s rights under the Wisconsin Fair Employment Act to have been considered for this position without consideration of race except in the context of valid affirmative action considerations which were not present here. The Respondents may have been acting in good faith reliance on existing policies. They may not have had a specific intent to discriminate against the Complainant on the basis of his race. However, this is not a recognized defense in cases involving selection decisions made pursuant to illegal affirmative action plans. Paul v. DHSS & DMRS (Wis. Personnel Commission, 82-PC-ER-69, 3/30/93).
An affirmative action plan which compared utilization to percentages of various minorities in the state population was improper, where the statutory requirements for the affirmative action plan provided that utilization should be measured against various minority groups' representation "in that part of the State labor force qualified and available for employment" in the positions in question. Holmes v. DILHR (Wis. Personnel Comm., 04/15/87); Kesterson v. DILHR (Wis. Personnel Comm., 12/29/86).
There was probable cause to believe that the Respondent discriminated against the Complainant, who was white, in utilizing expanded certification pursuant to an affirmative action plan which was not legitimate because (1) it was based on state-wide minority population statistics rather than on statistics measuring the percentage of minorities in the qualified labor market for the position in question, (2) it did not meet statistical standards developed for proving disparate impact, and (3) it was inconsistent with applicable statutory requirements. Paul v. DHSS (Wis. Personnel Comm., 82-PC-ER-69, 06/19/86).
An affirmative action plan was improper when the plan measured utilization of minority employees by the employer against the general population statistics rather than against statistics measuring the percentage of minorities in the qualified labor market for the position in question. Paul v. DHSS (Wis. Personnel Comm., 82-PC-ER-69, 06/19/86).
An employer did not rebut a prima facie case of sex discrimination by showing that it hired a male over a female to balance the male-female teacher ratio in its business education department. Joint Dist. No. 1, City of Menomonie v. DILHR (Ricks) (Dane Co. Cir.Ct., 04/28/77).
The Respondent admitted that it hired a woman for a particular position because of her sex, pursuant to an affirmative action plan. The Respondent did not show that the work of the female employee selected for the job was as good as the work done by a more qualified male employee. While hiring females may have been a desirable goal, the method whereby the Respondent accomplished such an end was discrimination based upon sex. Absolute preferences, absent a showing of past discrimination, are unlawful. Kostroski v. American Can (DILHR, 04/28/77).
The authority to promulgate sec. PERS 27, Wis. Adm. Code, which provided for an absolute preference in hiring in favor of women and minority group members, was not fairly implied from a statute which authorized “exceptional methods” to employ the “disadvantaged.” Other statutes cast doubt on the view that the legislature impliedly authorized absolute preferences. Insofar as the rule authorized the establishment of employment lists that constituted absolute preferences based upon sex or race, it was void ab initio as not having been within the authority granted by the legislature. Finding the rule to be void on that basis, the court did not need reach the issues of whether the absolute preferences provided for in the rule violated the Wisconsin Fair Employment Act, Title VII, or the equal protection clause. State (Dept. of Administration) v. DILHR (Patzer), 77 Wis. 2d 126, 252 N.W.2d 353 (1977).
An administrative rule, promulgated pursuant to a governor's executive order which authorized exclusive consideration of minority and female applicants for certain state jobs, violated the state constitution. The statute which authorizes special consideration for handicapped persons was not authority for affirmative action on behalf of minorities and women. State (Dept. of Administration) v. DILHR (Patzer), 77 Wis. 2d 126, 252 N.W.2d 353 (1977).
A Wisconsin Department of Administration rule providing for absolute preferences based on sex and race in certain hiring situations for state employment violated the Wisconsin Fair Employment Act. Absolute preferences do not differ materially from unlawful hiring ratios, particularly where the employee presents no evidence to show that such preferences are the only viable alternative to reach its affirmative action goal. Patzer v. Department of Admin. (DILHR, 10/31/74); aff'd sub nom. State of Wisconsin v. DILHR (Dane Co. Cir. Ct., May 17, 1976), 12 Fair Emp. Cases 1447; aff'd, State (Dept. of Administration) v. DILHR, 77 Wis. 2d 126; 252 N.W.2d 353 (1977).
149 Affirmative Action; Miscellaneous
The Complainant's veiled references to an affirmative action plan and to a discrimination lawsuit against the Respondent were not enough to establish that the Respondent's reasons for hiring a female rather than a male were pretextual. Zurawski v. LIRC (Racine Co. Cir. Ct., 12/22/88).
It is not a defense to an employment discrimination complaint that the DILHR Division of Apprenticeship and Training had advised the employer to test exclusively minority applicants for a two-month period in order to augment certification lists and comply with federal contract requirements. However, the white applicants failed to establish a prima facie case where they did not show that the two-month testing of exclusively minority applicants kept them out of the apprenticeship programs. Brown v. AMC (DILHR, 12/18/75).
150 Wisconsin Fair Employment Act; Particular Employment Actions
151 WFEA; Particular Employment Actions; Constructive Discharge
In order to establish a constructive discharge under the Wisconsin Fair Employment Act, a complainant must demonstrate not only that his working conditions were intolerable, but that they were intolerable for a reason that violates the Act. Looper v. IHOP Restaurant (LIRC, 03/21/12).
A constructive discharge is not found in every sexual harassment case. A constructive discharge is only found where the conduct made working conditions so intolerable that a reasonable person would feel compelled to resign. A smattering of sexually-tinged comments made over the course of a year and a half, while certainly unpleasant and distasteful, is not sufficient to create a hostile working environment or to render working conditions so intolerable that a reasonable person would feel compelled to resign. Harper v. Menard, Inc. (LIRC, 09/18/09).
A finding of constructive discharge contemplates working conditions so difficult or unpleasant that a reasonable person confronted with them would feel compelled to resign. However, the question of whether certain conduct was severe enough to warrant a finding of constructive discharge is reached only when there is a finding that the conduct caused the quitting. In this case, the Complainant’s decision to quit was motivated by factors other than sexual harassment. Harper v. Menard, Inc. (LIRC, 09/18/09).
The sexual harassment in this case was not severe enough to drive a reasonable person to quit. The Complainant’s argument that the “in part” analysis should be applied because the sexual harassment was part of her reason for quitting was rejected. If working conditions were rendered so intolerable due to sexual harassment as to compel the employee to quit, she would not have waited to tender her resignation until other adverse, but non-discriminatory, incidents occurred. Harper v. Menard, Inc. (LIRC, 09/18/09).
To find a constructive discharge it must be established that, due to a discriminatory reason, working conditions are rendered so difficult or unpleasant that a reasonable person would feel compelled to resign. Where the Complainant’s "peace of mind" suffered after his supervisor commented to him during his performance evaluation that he was doing "just enough to get by" his loss of satisfaction and contentment in the job was not sufficient to trigger a finding of constructive discharge. Cole v. Northland College (LIRC, 03/19/01).
A constructive discharge occurs when an employer makes an employees working conditions so intolerable that the employee is forced into an involuntary resignation. Further, a finding of constructive discharge will not be made based upon the fact of discrimination alone. The individual must also present evidence of "aggravating" factors. In this case, the Complainant introduced medical records which she alleges established the extreme psychological pressure she was under. While the records did show that the Complainant was under psychological stress, there was no persuasive evidence that this was the result of the imposition of discriminatory or retaliatory working conditions attributed to the Respondent. Sarazin v. W & G Transport (LIRC, 03/09/99).
The question of whether certain conduct was severe enough to warrant a finding of constructive discharge is reached only when there is a finding that the conduct caused the quitting. Hager v. Gunderson Lutheran (LIRC, 03/10/98), affd., LaCrosse Co. Cir. Ct., 08/10/98.
A finding that there has been sexual harassment by the employer does not always establish a basis for finding that the Complainant was constructively discharged. The specific details and circumstances relative to the sexual harassment must always be looked to in deciding whether there was a constructive discharge. Furthermore, the question of whether certain conduct is severe to warrant a finding of constructive discharge is not even reached unless there is a finding that the objectionable conduct was actually the cause of the persons decision to quit. A Complainants failure to quit until some other cause intervened suggests that the discrimination was not so intolerable that the Complainant felt compelled to resign. Tobias v. Jim Walter Color Separations (LIRC, 08/13/97), aff'd. sub nom., Jim Walter Color Separations v. LIRC and Marcy Ann Tobias, 226 Wis. 2d 334, 595 N.W.2d 68 (Ct. App. 1999).
To find a constructive discharge it must be established that a reasonable person in the employes position would feel compelled to resign by the difficult or unpleasant working conditions imposed on the employe. The "in the employes position" element of this test requires consideration of context which goes beyond simply looking at the "difficult or unpleasant working conditions" imposed. In this case, the situation the Complainant was in was a result of his own course of conduct prior to that time. The question, thus, becomes how does a reasonable person respond to the adverse consequences of unreasonable conduct which they themselves engaged in? A reasonable person in the Complainants position would have appreciated the necessity and the appropriateness of the steps taken by the employers actions and would have accepted them as the painful consequences of their own actions. Therefore, there was no constructive discharge in this case. Musgrave v. Matthew (LIRC, 04/13/98).
A loss of prestige or supervisory duties does not, standing alone, constitute a basis for constructive discharge, particularly where the employes duties are changed with no reduction in pay. Dingeldein v. Village of Cecil (LIRC, 05/08/97), affd. sub nom. Dingeldein v. LIRC (Shawano Co. Cir. Ct., 11/12/97).
When termination is an issue in the complaint, constructive discharge need not be pled as a separate cause of action. Health Enter. of Wisconsin v. Leconte (Dane Co. Cir. Ct., 05/17/95).
A Complainant was constructively discharged when she quit during an argument with her supervisor. The argument occurred immediately after the supervisor made a crude remark about the Complainant's sexual activities. The Complainant's quitting was, therefore, directly related to the sexual harassment. Given the pervasiveness of the sexual harassment in this case and the Respondent's complete failure to take any remedial action, the Complainant reasonably concluded that she had no alternative but to quit her employment. Miller v. Oak-Dale Hardwood Products (LIRC, 12/13/94).
The Complainant did not establish that she was constructively discharged where there was no evidence showing that her working conditions were intolerable, difficult or unpleasant. The Complainant's exit interview suggested that she may have decided to pursue other alternatives, including part-time work and returning to school full time. Plaski v. Blue Cross/Blue Shield United of Wis. (LIRC, 05/21/93).
The policies underlying the Wisconsin Fair Employment Act will be best served if, wherever possible, unlawful discrimination is attacked within the context of the existing employment relationship. In cases where the employer has not treated the employe in such a manner that it amounts to a constructive discharge, the most efficient way to resolve an employment dispute is through a continuing employment relationship. If the discrimination takes such a form that it amounts to a constructive discharge, the employe is free to resign without forfeiting the right to reinstatement and back pay. Marten Transport v. DILHR, 176 Wis. 2d 1012, 501 N.W.2d 391 (1993).
The Complainant did not establish that her working conditions were so intolerable that she was forced to involuntarily resign where the Complainant, in part, contributed to the working conditions that she complained of and where her failure to complain about the working conditions suggests at least tacit approval on her part. Brettingen v. Dahl Ford Subaru (LIRC, 07/17/92).
Where the treatment of the Complainant consisted of nothing more onerous than that which many employes experience when a change in management brings some degree of change in their jobs, there was no constructive discharge. There having been no unlawful motive and no mistreatment, and the revision of the Complainant's job duties having been a matter of correcting the unwarranted modification which had occurred during the tenure of her previous supervisor, the situation was not an intolerable one that would have made a reasonable person in the Complainant's position feel compelled to resign. Forman v. Cardinal Stritch College (LIRC, 06/08/92).
The question of whether certain conduct was severe enough to warrant a finding of constructive discharge is reached only when there is a finding that the conduct caused the quitting. An employe is constructively discharged when the employer makes the employe's working conditions so intolerable that the employe is forced into an involuntary resignation. Persons alleging constructive discharge must show that action by the employer caused their departure. In this case, much of what the Complainant found intolerable in her workplace was caused not by the conduct of the employer, but by the extremely poor relationship between the Complainant and her co-workers. Riley v. American Family Mutual Ins. (LIRC, 03/30/92).
There are two lines of authority with respect to the facts necessary to establish a constructive discharge. The Department has adopted the line of authority which indicates that a constructive discharge occurs if working conditions are so difficult or unpleasant (for a discriminatory reason) that a reasonable person would feel compelled to resign. Proof of employer intent to cause the termination is not necessary. Jorgenson v. Ferrellgas, Inc. (LIRC, 01/10/92).
Constructive discharge requires that an individual resign involuntarily to escape working conditions so intolerable that a reasonable person in his position would have felt compelled to resign. The Complainant's desire for reinstatement to his former position belies his claim that intolerable conditions underlay his resignation. Here, the Complainant alleged that he was constructively discharged on February 8, 1987. Yet just two working days later, the Respondent asked him to resume his employment with the Respondent, and the Complainant agreed. The fact that the Respondent had actually sought to rehire the Complainant after the Complainant had terminated the employment relationship negated any claim that the Respondent had implemented a plan to get rid of the Complainant because of his sex. James v. Associated Schools, Inc. (LIRC, 11/27/91).
The Complainant's proposed amended complaint alleging that he was constructively discharged was dismissed as untimely because the constructive discharge allegation did not relate back to his original complaint alleging promotion and demotion discrimination. There were absolutely no facts in the original complaint from which it could be implied that such charge included a claim of constructive discharge. The record showed that the Respondent had actually sought to rehire the Complainant after the Complainant had terminated the employment relationship, thereby negating any claim that the Respondent had implemented a "design" or "overall plan" to get rid of the Complainant because of sex. James v. Associated Schools, Inc. (LIRC, 11/27/91).
A constructive discharge occurs when an employer makes an employe's working conditions so intolerable that the employe is forced into an involuntary resignation. To find a constructive discharge it must be established that the working conditions would have been so difficult or unpleasant that a reasonable person in the employe's shoes would have felt compelled to resign. A finding of constructive discharge will not be made based upon the fact of discrimination alone. An employe must seek legal redress while remaining in his job unless confronted with an aggravated situation beyond "ordinary" discrimination. The policies underlying the civil rights statutes will be best served if, whenever possible, unlawful discrimination is attacked within the context of existing employment relationships. Waedekin v. Marquette Univ. (LIRC, 03/05/91), aff'd., Milwaukee Co. Cir. Ct., 01/21/92; aff'd., Ct. App., Dist. I, unpublished decision, 04/26/94.
The burden of proof is on the employe to prove constructive discharge. Waedekin v. Marquette Univ. (LIRC, 03/05/91), aff'd., Milwaukee Co. Cir. Ct., 01/21/92; aff'd., Ct. App., Dist. I, unpublished decision, 04/26/94.
An employe is constructively discharged when the employer makes the working conditions so intolerable that the employe is forced into involuntary resignation. Bartman v. Allis-Chalmers Corp., 799 F. 2d 311 (7th Cir. 1986). The conditions of employment here, while considered intolerable by the Complainant, were not such that a reasonable and objective employe would consider them intolerable. Osteen v. LIRC (Milw. Co. Cir. Ct., 09/15/90), aff'd., Ct. App., Dist. I, unpublished decision, 01/15/91.
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 Ins. Co. (LIRC, 10/12/89).
The Complainant claimed that he was constructively discharged, arguing that on one occasion 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 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 employe is constructively discharged when she involuntarily resigns to escape intolerable and illegal employment requirements. Where an employe fails to establish that there was an underlying illegal motivation for an employment action, she fails to establish a constructive discharge. Jensen v. F. W. Woolworth (LIRC, 05/22/87).
In order to establish a constructive discharge, a Complainant must have voluntarily resigned in order to escape working conditions which a reasonable person would consider intolerable. In a case in which the Complainant was found to have welcomed the sexual conduct she complained of, such conduct cannot be considered so intolerable that it forced the Complainant to quit. Winter v. Madison Home Juice Co. (LIRC, 07/19/85).
In order to establish a constructive discharge, an employe's working conditions must have been made so difficult that a reasonable person in that position would have felt compelled to quit. Demro v. Packerland Packing Co. (LIRC, 08/31/84).
Where the owner of the Complainant's place of work continuously sexually harassed her, the Complainant's quitting constituted a constructive discharge. Dumas v. American Companies (LIRC, 07/13/83).
Although a female employe's demand for pay equal to that of male employes was made in good faith, her resignation in the face of the employer's refusal to meet her demand cannot be considered a constructive discharge. Laux v. Dixon (LIRC, 05/07/81), aff'd. sub nom. Laux v. LIRC (Winnebago Co. Cir. Ct., 10/15/82).
Where an employe showed that her quitting was partially in opposition to her employer's unequal wage practices, she was entitled to receive the pay difference between her job and the male's salary until she found a better paying job. Ferguson v. Greb Plastics (LIRC, 09/19/77).
152 WFEA; Particular Employment Actions; Harassment, hostile work environment
152.1 Harassment, hostile work environment; Generally
The Administrative Law Judge improperly denied the Complainant the right to present testimony regarding acts of alleged harassment which occurred outside of the 300-day period prior to the filing of his complaint. The complaint alleged that the Complainant had been subjected to a hostile working environment. Hostile environment claims by their very nature involve conduct which occurs over a series of days, or perhaps years. Such claims are based on the cumulative effect of individual acts. A Complainant may show a series of related acts, one or more of which are within the limitations period. A serial violation is established if the evidence indicates that the alleged acts of discrimination occurring prior to the limitations period are sufficiently related to those occurring within the limitations period. In this case, only one of the alleged incidents which the Complainant alleged created a hostile work environment occurred within the 300 days prior to the filing of his complaint. This did not, however, make his hostile work environment claim untimely. Bowen v. LIRC, 2007 WI App 45, 299 Wis. 2d 800, 730 N.W.2d 164.
The Complainant alleged that her supervisor criticized her in an angry and impatient manner, that the supervisor allegedly invited other co-workers out to lunch more frequently, that the supervisor interrupted the Complainant while she was speaking during a staff retreat; and that the supervisor did not initiate contact with the Complainant at a reception. These perceived slights, even if linked to the Complainant’s marital status, did not come close to the level of severity or pervasiveness necessary to establish harassment. Pluskota v. Alverno College (LIRC, 10/21/05)
The Complainant alleged that coworkers had been harassing him by calling him a "queer." In order for a violation with respect to the Complainant’s terms and conditions of employment to have occurred, the harassment must have been sufficiently severe or pervasive so as to have altered the conditions of his employment and created an abusive working environment. Whether or not a work environment is hostile or abusive can be determined only by looking at all of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or whether it is merely an offensive utterance; and whether it unreasonably interfered with the employee’s work performance. In this case, the alleged harassment occurred only twice. The harassment was not shown to have been physically threatening to the Complainant. Further, the alleged harassment was not shown to have been directly stated to the Complainant, but was instead merely overheard by the Complainant. Accordingly, there was no probable cause to believe that the Respondent discriminated against the Complainant on the basis of sexual orientation in regard to the terms or conditions of his employment. Thompson v. Ashley Furniture Indus. (LIRC, 07/16/03).
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), aff'd. sub nom. Clark v. LIRC (Milwaukee Co. Cir. Ct., 02/12/04).
As much as it is to be deplored, it is a fact that employers and their supervisors and managers sometimes act in disrespectful, insulting, hostile, or abusive ways towards employees in the workplace. With the exception of conduct which falls within the definition of sexual harassment, such conduct does not constitute a violation of the Wisconsin Fair Employment Act unless it is established that it occurred because of the protected status of the person who is being harassed. Wells v. Roadway Express (LIRC, 05/13/02).
A single incident can be sufficiently severe or pervasive to create a hostile work environment. Conduct constituting a tort claim for assault and battery is not synonymous with an actionable harassment claim, but it is a factor to consider. Further, actionable harassment may be established even though an incident did not have a significant impact on the Complainant’s work performance. The Complainant in this case established a hostile environment claim where the Complainant reasonably viewed that his physical safety was threatened by his coworker, and where the employer took no action against the coworker. Al Yasiri v. UW (Wis. Personnel Comm., 07/10/01).
Actionable harassment contemplates unwelcome verbal or physical conduct directed at an employee based on his or her protected status. The conduct must be pervasive and severe in order to constitute actionable harassment. Thompson v. DOC (Wis. Personnel Comm., 05/09/01).
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).
For harassment to be actionable, it must be so severe or pervasive as to alter the conditions of the Complainants employment and create an abusive working environment. The harassment also must be subjectively offensive; that is, the victim in fact must have perceived the environment to have been hostile and abusive. Where the Complainant did not take advantage of grievance procedures, and did not even indicate to the individuals making the remarks that they were offensive, it cannot be found that the Complainant in fact perceived the environment to be sufficiently hostile or abusive to be actionable. Garner v. Manpower Temp. Services (LIRC, 08/11/98).
A comment by the Respondent that the Complainant was a "fucking cripple" was insufficient to establish that the Respondent refused to hire the Complainant because of handicap. The comment is what is known as a "stray remark." Standing alone, and unrelated to the decisional process, such a remark is insufficient to demonstrate that the employer relied on illegitimate criteria, even when the statement was made by the decision-maker in issue. Steffen v. Phil Tolkan Pontiac (LIRC, 06/12/97).
A claim of hostile work environment is actionable when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. If the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment. Vegas v. Golden Guernsey Dairy (LIRC, 12/17/93).
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 cannot be found responsible for racial or religious harassment unless it is carried out directly by the employer or, if carried out by co-employees, the employer knows or should reasonably known of it and fails to take reasonable action to prevent it. It is also well established that the occasional and sporadic use of racial slurs, albeit deplorable, may still not rise to the level of a violation of the law. Valentin v. Clear Lake Ambulance Service (LIRC, 02/26/92).
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).
An employer has no legal liability for harassment of an employe by another employe unless the employer, its supervisors or managers knew or should have known of the harassment. Crear v. LIRC, 114 Wis. 2d 537, 339 N.W.2d 350 (Ct. App. 1983).
152.2 Harassment because of creed [See also sec. 126.5]
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 Commission does not have to address the issue of whether interpreting the Wisconsin Fair Employment Act as prohibiting harassment of employes because of religion would violate the first amendment free speech rights of the harasser because there was no unlawful harassment in this particular case. Catley v. Benjamin Air Rifle Co. (LIRC, 06/21/91).
An employer can violate the Wisconsin Fair Employment Act's prohibition on discrimination because of creed if it either engages directly in religious harassment of an employe (through its management or supervisory personnel) or if it tolerates religious harassment of an employe by co-workers. However, in order to constitute a violation of the Act, harassment must rise above the level of occasional and sporadic use of slurs or epithets. In this case there was some evidence of hostility directed toward the Complainant, whose creed is WICCA, by her co- workers. In some instances the Com-plainant's self- identification as a witch was referred to. However, the inconsistencies in the Complainant's evidence as to the extent of this type of conduct and her general lack of credibility left no basis for deciding how extensive that conduct may have been. The Complainant, therefore, failed to meet her burden of proving that she was subject to religious harassment that rose to a level of a violation of the Act. Catley v. Benjamin Air Rifle Co. (LIRC, 06/21/91).
152.3 Harassment because of national origin [See sec. 124.2]
152.4 Harassment because of race [See sec. 125.3]
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).
152.5 Sexual harassment [See sec. 127.3]
152.6 Harassment because of gender [See sec. 127.4]
152.7 Harassment because of sexual orientation [See sec. 128]
153 Printing or making an inquiry which expresses or implies discrimination.
The Respondent violated sec. 111.322(2), Stats., when it posted a job advertisement that expressed an intention to discriminate against individuals with conviction records. While instatement into the job and back pay are potential remedies for a violation of this statute, these remedies are only granted where the facts warrant a conclusion that, but for the Respondent's act of discrimination, the Complainant would have been hired for the job. In this case, the evidence established that the Respondent never actually filled the job. Therefore, the appropriate remedy was an order requiring the Respondent to cease and desist from printing or circulating such advertisements. No back pay or instatement was ordered. Jackson v. Dedicated Logistics (LIRC, 07/29/11).
By filing an action pursuant to sec. 111.322(1), Stats., a union had the burden of establishing that at least one of its members had been injured. That statute provides a cause of action for acts of discrimination which have already occurred. The union's reliance on cases filed under sec. 111.322(2), Stats., (which creates a cause of action for statements printed or circulated by the employer which proclaim its present or future intent to discriminate) was misplaced. That section applies to prospective harm. It does not require that an individual has actually been harmed. Milwaukee Teachers Educ. Assn. v. Milwaukee Bd. of School Directors (LIRC, 06/30/10).
The Wisconsin Fair Employment Act permits an employer to make employment decisions based upon an applicant’s conviction record if the circumstances of the offense are substantially related to the circumstances of the particular job. Therefore, it is not a violation of the Act to request conviction record information from a job applicant. A question about an applicant’s conviction record on an employer’s employment application would not, therefore, constitute prohibited discrimination within the meaning of sec. 111.322(2), Stats., which prohibits printing or circulating any statement, advertisement or publication or using any form of application for employment which implies or expresses any limitation or discrimination with respect to an individual. Lee v. LIRC (Ct. App., Dist. I, unpublished decision, 05/27/10). Lee v. D.J.’s Pizza (LIRC, 05/20/09); Lee v. Wendy’s (LIRC, 05/20/09); Lee v. Speedway Super America (LIRC, 05/20/09).
A question on an employment application asking if an applicant has been convicted of a felony in the preceding five years is not prohibited by the Wisconsin Fair Employment Act. The Act provides that it is not employment discrimination because of conviction record to refuse to employ any individual who has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job. The Act presupposes that an applicant’s criminal record is known to the employer and does not prohibit an employer from asking questions about criminal records. Also, nothing in the Act prohibits an employer from conducting background checks. Jackson v. Klemm Tank Lines (LIRC, 04/29/05).
The types of violations covered by sec. 111.322(2), Stats., are sufficiently distinct from those covered by sec. 111.322(1), Stats., that they need to be specifically alleged and noticed as an issue. Greco v. Snap-On Tools (LIRC, 05/27/04).
The Wisconsin Fair Employment Act provides that it is an act of employment discrimination to print or circulate a statement or publication implying or expressing any limitation, specification or discrimination based on a protected category. Section 111.322(2), Stats. The Complainant was offended by negative references to gypsies in the Respondent’s cashier manual and in a memo. In order to prove a violation of sec. 111.322(2), Stats. in these circumstances, the Complainant would have to prove: (1) that the cashiers’ handbook and the memo were statements or publications which had been printed or circulated by the Respondent; (2) that the handbook and memo were actionable statements or publications within the meaning of s. 111.322(2); and (3) that the handbook or the memo implied or expressed any limitation, specification or discrimination based on ancestry. In this case, the hearing record supports the conclusion that the term "gypsy" is used in the handbook section and in the memo to describe a type of criminal activity, not a person of Romany ancestry and, as a result, these writings do not express or imply an intent to target either customers, visitors or employees based on their ethnicity. From the context in which this word appears in the handbook section, which directs employees to take certain actions if customers or visitors engage in certain activities, it has to be concluded that the author’s intent was to identify and describe an individual who engages in a certain type of activity, not a person of a certain ethnicity. Therefore, the Complainant failed to prove a violation of sec. 111.322(2), Stats. Schramm v. Farm & Fleet (LIRC, 05/14/03).
An internal memo to the Respondent’s legal advisors cannot be considered a "publication" or an "advertisement" within the meaning of sec. 111.322(2), Stats. While it might be considered a "statement" within the broadest sense of that term, for purposes of the statute it was neither printed nor circulated. The "print" provision of the statute has been interpreted to mean "to publish in print," while the term "circulate" contemplates a wide degree of distribution. Valla v. Wal-Mart Distrib. Center (LIRC, 11/30/01).
An employers letter to an employee containing a last-chance warning is not a publication within the meaning of sec. 111.322(2), Stats. Moreover, a memo and letters regarding the Complainant in this case were copied to nine individuals who all had a "need to know" basis for reviewing the documents. This did not constitute "circulation" within the meaning of the statute. For a thing to be circulated, a relatively wide quantitative degree of distribution is required. Guthrie v. UW (Wis. Personnel Comm., 08/28/00).
Offending conduct under sec. 111.322 (2), Wis. Stats., is not the adoption of a discriminatory employment policy, but rather the publication or circulation of such a policy. The dictionary defines "circulate" as "to cause to pass from person to person and. . .to become widely known." Thus, for a thing to be circulated, a certain relatively wide quantitative degree of distribution is required. In this case, the Respondent distributed a letter regarding conditions placed on the Complainants future employment to nine individuals with a specific "need to know" basis. These individuals were in the supervisory chain over the Complainant, or were involved in personnel administration, which included the processing of disciplinary actions. This limited circulation of a specific warning to the Complainant cannot be considered to constitute circulation of that notice. Williams v. DOC (Wis. Personnel Comm., 11/03/99).
The Respondent asked the Complainant during her interview whether she was married and why she had changed her name. He indicated that he had problems in the past in connec-tion with an employe going through a divorce and stated that he could not let that happen again. He informed the Complainant that divorced women were not stable and that the interview was at an end. The Respondent's actions were in violation of sec. 111.322(2), Stats., because he made an inquiry in connection with prospective employment which implied or expressed a limitation, specification or discrimination because of marital status. Behm v. William Haasl, D.D.S., S.C. (LIRC, 10/21/91).
If an employer prints or circulates a discriminatory employment policy, this constitutes a violation of the Wisconsin Fair Employment Act and is actionable under sec. 111.322(2) Wis. Stats. This statutory provision requires an affirmative act of volition by the employer in publishing or circulating its discriminatory statements. Such is not demonstrated by media coverage of school board meetings. However, the inclusion of a discriminatory policy in a school board's compilation of official policies does constitute printing and circulating the policy in violation of the statute. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).
A case may be brought under sec. 111.322(2), Wis. Stats., even though no individual has suffered actual injury as a result of a printed statement which implies an intent to discriminate. This statute addresses the evil of employment discrimination on the two fronts where it obviously is practiced -- against existing employes and against prospective employes. The violation is complete when the policy is in place and then printed or circulated. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).
Where a union successfully prevented a school district from pursuing a published official policy of unlawful employment discrimination against certain of its members it was acting as a private attorney general to implement a public policy that the legislature considered to be of major importance. Even though the policy was never implemented, this was no mere "moral" or "technical" victory. The union was properly awarded attorney's fees. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).
154 Failure to post notices required by law
Where a Complainant argues that the statute of limitations should be equitably tolled because the Respondent did not have informational posters concerning applicable anti-discrimination laws posted at the workplace as required by the Age Discrimination in Employment Act, the Department will analyze the Complainant's arguments by reference to sec. Ind 88.21, Wis. Adm. Code, which is the posting requirement established by the Equal Rights Division. In this case, the Complainant's claim for equitable tolling was rejected, even if the Respondent did not post the required posters. The failure to post notices is only considered legally significant if the employe is genuinely ignorant of the illegality of discrimination which the notice, if it had been posted, could have informed him of. Olson v. Lilly Research Laboratories (LIRC, 06/25/92) (Ed. note: sec. Ind 88.21, Wis. Adm. Code, has been renumbered sec. DWD 218.23, Wis. Adm. Code).
155 Use of subjective criteria in hiring
The use of subjective criterion in the selection process is not unlawful per se, and in fact the validity of suggestive criteria increases in direct proportion to the level of employment sought. Larson v. Tomah Police Dept. (LIRC, 07/20/94).
The use of subjective criteria is not unlawful per se. The question is whether the selection criteria impermissibly burdens persons in a protected group. The validity of subjective devices increases in direct proportion to the level of employment sought. Gronning v. School Dist. of Viroqua Area (LIRC, 07/28/93).
Nothing in the Wisconsin Fair Employment Act prohibits the use of subjective criteria in the evaluation of an employe's performance. Many jobs involving managerial responsibilities require personal qualities that are not amenable to objective, standardized testing. However, subjective criteria must be closely scrutinized. Kemmerer v. City of Madison Police Dept. (LIRC, 06/30/93).
156 Discrimination by third parties
The complainant, making a “cat’s paw” argument, contended that the although the individual making the hiring decision had no perception that the complainant was disabled, the recruiter who collected his application materials perceived him to be disabled, and withheld certain application materials from the decision maker because of that perception. The complainant failed, however, to prove that the recruiter’s failure to send the materials to the decision maker was motivated by discriminatory animus, and failed to prove that the missing materials had any effect on the hiring decision. Ray v. Gordon Trucking (LIRC, 06/07/13).
If an employer acted as a conduit of a supervisor's prejudice (i.e., his 'cat's paw') the Respondent will be liable. In this case, the Complainant, a female, applied for a promotion within the police department. A detective captain on the selection committee recommended a male for this position, rather than the Complainant. Based upon the evidence at the hearing, it was reasonable to infer that the detective captain, as an agent for the Respondent, lied to cover up his discriminatory purpose. He fabricated deficiencies in the Complainant's performance to justify his choice of another candidate. He did this because he did not want a woman in the position of detective sergeant. The detective captain presented his choice of the male candidate to the selection committee (which was an unbiased decision-maker). The committee rubber-stamped his choice, as was their practice. This choice was then presented to the sheriff, who also accepted the choice of the captain of the division in which the promotion was occurring, as was his practice. In this way, the decision by the biased detective captain decisively influenced the selection committee and the sheriff. His discriminatory motive is attributed to the Respondent. Thobaben v. Waupaca Sheriff's Department (LIRC, 12/23/11).
The Seventh Circuit Court of Appeals has articulated a "cat’s paw" analysis that allows the finder of fact to impute a discriminatory motive to an unbiased decision maker who is decisively influenced by an employee who is prejudiced against the Complainant. In this case, the Complainant contended that the individual who made the decision to discharge him was unaware of his sexual orientation, but that she relied on information and recommendations provided by supervisors who were prejudiced against the Complainant because of his sexual orientation. The Complainant failed to establish that the decision maker relied exclusively or primarily on information she received from the supervisors in reaching the decision to terminate the Complainant. The Complainant also failed to establish that the supervisors were prejudiced against the Complainant because of his sexual orientation. Haecker v. Charter Steel (LIRC, 01/28/03).
The Complainant failed to establish that the Respondent violated the Act where the Respondent established that it believed in good faith that complaints made about the Complainant by other employees were true and that this is what motivated its decision to terminate the Complainant’s employment. Potts v. Magna Publications (LIRC, 02/27/01).
Where an employer asserts that it made an employment decision on the basis of adverse media publicity about a particular characteristic of an employee it is clearly relying on a supposition that it could be harmed by the responses of third parties who would be affected by that publicity (such as customers and clients). However, an employer may not avoid liability for a discriminatory decision by asserting that it was simply responding to the preferences of coworkers, customers, clients, or prospective partners in or purchasers of the business. An employer may not discriminate simply because it is urged or pressured by some third party to do so. That principle also requires the conclusion that an employer may not discriminate simply because adverse media publicity about an employee causes the employer to fear that there will be an adverse response by third parties if it does not do so. Murray v. Waukesha Memorial Hosp. (LIRC, 05/11/01).
An employer violates the law when it knowingly makes an employment decision because some third party who is in a position to coerce the employer insists on that decision out of a discriminatory motive. The source of the third party pressure is not relevant. Whether it is the unwillingness of biased customers to patronize a business, or the unwillingness of suppliers to sell to the business, or the unwillingness of biased investors or lenders to provide financial backing for the business, the extent of the pressures brought to bear on the business may be equally serious, but the law remains the same: the employer may not serve as a conduit for the discriminatory intent of the third party. Swanson v. State Street Stylists (LIRC, 11/26/97).
Where an employer acquiesced to pressure from another employe to fire the Complainant, it violated the Act. The motivation of the other employe was improper. In effect, by doing what the third party wanted, the employer itself acted because of an improper motive. Stanton v. Abbyland Processing (LIRC, 05/30/85), affd. sub nom. Abbyland Processing v. LIRC (Taylor Co. Cir. Ct., 02/14/86).
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).
160 Discrimination for declining to attend a meeting or participate in a communication about religious or political matters
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