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The Wisconsin Equal Rights (ER) Decision Digest -- Sections 600-622.2     

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600 PROOF - STANDARDS AND BURDENS  

610 General Considerations

611 Complainant's ultimate burden of proof

A prima facie case will trigger a burden of production for the employer, but, unless the employer remains silent in the face of that prima facie case, the Complainant continues to bear the burden of proof on the ultimate issue of discrimination. Currie v. DILHR, 210 Wis. 2d 381, 565 N.W.2d 253 (Ct. App. 1997).

In a discrimination case, the Complainant bears the ultimate burden of persuading the trier of fact that a factor such as pregnancy was a motivating factor in the employment decision.  There must be enough evidence to supply the necessary inference of discriminatory intent. Hoell v. Narada Productions (LIRC, 12/18/92), aff'd sub nom. Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App. 1994).

The Complainant bears the ultimate burden of proving that her protected status was a motivating factor in the Respondent's decision. The question of an employer's motivation presents a question of fact. Kemmerer v. City of Madison Police Dept. (LIRC, 06/30/93).

The ultimate burden of persuading the trier of fact that age was a determining factor in a hiring decision remains at all times with the Complainant. Kurtz v. School Dist. of St. Croix Falls (LIRC, 06/10/93).

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612 Burden of proof in mixed motive cases

The mixed motive test applies where the record contains evidence showing that an employer was motivated by both prohibited and non-prohibited factors in taking an adverse employment action against an employee. Discriminatory intent is not part of t he analytical paradigm of the mixed motive test. Stoughton Trailers v. LIRC, 2006 WI App 157, 295 Wis. 2d 750, 721 N.W.2d 102;  aff'd Stoughton Trailers v. LIRC & Geen, 2007 WI 105, 303 Wis. 2d 514, 735 N.W.2d 477.

In order to prove discrimination, a Complainant must prove that a protected characteristic was a “determining factor” in the decision.  A “determining factor” is more than “a factor.”  Nelson v. State Historical Society of Wisconsin (LIRC, 03/31/05).

The mixed motive test is applied in cases where an employer has made an employment decision in part due to a prohibited discriminatory reason and in part due to a legitimate business reason. An employer who has made such an employment decision is liable under the Wisconsin Fair Employment Act, but the remedy may be modified depending upon whether the termination would have taken place in the absence of the impermissible motivating factor. If the employer would have made the same employment decision in the absence of the impermissible discriminatory reason, the Complainant should be awarded only a cease and desist order and attorney’s fees. If, however, the employment decision would not have been made in the absence of the prohibited discriminatory reason, the Complainant can be awarded all of the remedies ordinarily allowed, such as back pay, reinstatement and attorney’s fees. Holman v. Empire Bucket and Mfg. (LIRC, 08/15/03).

The mixed motive test is applied in cases where an employer has made an employment decision in part due to a prohibited discriminatory reason and in part due to a legitimate business reason. If the employer would have made the same employment decision in the absence of the impermissible discriminatory reason, then the Complainant should be awarded only a cease and desist order and attorney’s fees. If, however, the employment decision would not have been made in the absence of the prohibited discriminatory reason, the Complainant can be awarded all of the remedies ordinarily allowed. Miles v. Regency Janitorial Service (LIRC, 09/26/02).

Although an employer cannot escape liability if a Complainant has been discriminated against "in part" on a prohibited basis, evidence that legitimate reasons also contributed to the employer's decision can be considered in fashioning an appropriate remedy. In this case, although the Complainant's marital status was a factor in the Respondent's decision not to hire him, the Respondent would not have hired the Complainant for the position even if his marital status had not been a factor considered in its selection. Accordingly, the Complainant's remedy is limited to a finding of discrimination, an order that the Respondent cease and desist from unlawfully discriminating against the Complainant because of his marital status, and an award of attorney's fees. Larson v. Tomah Police Dept. (LIRC, 07/20/94).

The "in part" test applied by the Supreme Court to mixed motive discharges under municipal and government employment laws also applies in private sector discrimination cases arising out of the Wisconsin Fair Employment Act. This test is also known as the "mixed motive" test. A mixed motive case is one in which the adverse employment decision resulted from a mixture of legitimate business reasons and a prohibited discriminatory motive. If an employe is terminated in part because of an impermissible motivating factor and in part because of other motivating factors, but the termination would not have occurred in the absence of the impermissible motivating factor, the Department has the discretion to award some or all of the remedies ordinarily awarded. However, if an employe is terminated in part because of an impermissible factor and in part because of other motivating factors, and the termination would have taken place in the absence of the impermissible motivating factor, the employe should be awarded only a cease and desist order and attorney's fees. Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App. 1994).

In a case where an impermissible motive, if present at all, was a minor factor in the employer's motivations, the appropriateness of finding liability on the Muskego-Norway "mixed motive"/"in part" analysis is questionable. In this case, if there was an impermissible motive, it was not significant. The distinction is between a motivation which is "a factor" in a decision, and one which is a "determining factor." Paxton v. Aurora Health Care (LIRC, 10/21/93).

In dual motive cases in which the "in part" test is applied, evidence that legitimate reasons contributed to the employer's decision can be considered by the Department in fashioning an appropriate remedy. Baumgartner v. Tolibia Holdings (LIRC, 03/30/93), aff'd., Fond du Lac Co. Cir. Ct., 10/11/93.

The Labor and Industry Review Commission has recently questioned the application of the "in part" test in mixed motive situations. Since the Wisconsin Supreme Court has specifically declined to rule on the question of whether that test should be applied in cases under the Wisconsin Fair Employment Act, the question is at best an open one. Notaro v. Kotecki & Radtke, S.C. (LIRC, 07/14/93).

In Wisconsin, the courts have adopted the "determining factor" standard under which, to prove discrimination in the first place, a Complainant must prove that a protected characteristic was a "determining factor" in the decision. A "determining factor" is more than "a factor." Notaro v. Kotecki & Radtke, S.C. (LIRC, 07/14/93).

In a dual motive case in which the "in part" test is applied, evidence that legitimate reasons contributed to the employer's decision can be considered by the Department in fashioning an appropriate remedy. Gee v. ASAA Technology (LIRC, 01/15/93).

In deciding cases under the Wisconsin Fair Employment Act, LIRC has relied on the "in-part" test adopted in municipal and state employment relations law cases. Although an employer cannot escape liability if a Complainant was terminated "in part" because of her pregnancy, evidence that legitimate reasons also contributed to the employer's decision can be considered in fashioning an appropriate remedy. Hoell v. Narada Productions (LIRC, 12/18/92).

The Labor and Industry Review Commission has consistently held that the "in part" test is the appropriate one under the Wisconsin Fair Employment Act. Horton v. Hopkins Chemical Co. (LIRC, 06/08/92).

In mixed motive cases the employer's actions are motivated by a mixture of discriminatory and legitimate reasons. The reference to case law involving mixed motive discharges under the Municipal Employment Relations Act (MERA) is questionable in a case brought under the Wisconsin Fair Employment Act, since MERA does not apply. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

In order to prove discrimination, a Complainant must prove that a protected characteristic was a “determining factor in the decision.  A “determining factor” is more than a “factor.”  Kovalic v. DEC Int’l, 161 Wis. 2d 863, 874, 469 N.W.2d 224 (Ct. App. 1991).

LIRC declines to follow the test set forth in Price Waterhouse v. Hopkins in mixed motive cases. The applicable causation standard in mixed motive cases in Wisconsin is the "in part" test, which requires the employe to demonstrate that the employer's action was based at least in part upon an impermissible consideration. The discriminatory reason must be a determining factor in the employer's decision, but it need not be the only determining factor. Maline v. Wisconsin Bell (LIRC, 10/30/89).

The Personnel Commission adopts the test set forth in Price Waterhouse v. Hopkins in mixed motive cases. Under this test, a Respondent who has considered an improper motive in an employment action can still avoid liability if it can establish that it would have reached the same result even in the absence of the improper motive. Jenkins v. DHSS (Wis. Personnel Comm., 06/14/89); see also, Kohl v. DOT (Wis. Personnel Comm., 05/01/91).

The "in part" causation standard is the appropriate standard to employ in mixed motive cases arising under the Wisconsin Fair Employment Act due to the weaknesses inherent in applying the "but for" standard. The "but for" standard appears to be based on two highly dubious assumptions: (1) that Title VII's only goal is compensating "victims" and (2) that the only concerned parties are the plaintiff and defendant at bar. On the contrary, the purpose of Title VII is to eliminate discrimination in employment opportunities. Title VII cases involve the vindication of a major public interest. Jones v. Dy-Dee Wash (LIRC, 11/04/88).

It does not matter if a decision to terminate an employe is based, in part, on economic or business reasons if it is also based in part on a protected characteristic such as sex. An employe may not be fired when one of the motivating factors is a protected activity or class, no matter how many other valid reasons exist for the discharge. The "in part" standard enunciated in Muskego-Norway Consolidated Joint School Dist. No. 9 v. WERB, 35 Wis. 2d 540, 556-57, 151 N.W.2d 617, 625 (1967) applies under the Wisconsin Fair Employment Act. Abbeyland Processing, Inc. v. LIRC (Ct. App., District III, unpublished decision, 02/03/87).

An employe may not be lawfully terminated if the termination was motivated in part by prohibited bias, even though valid reasons might exist for the discharge. Thus, after showing that a termination was caused at least in part by prohibited bias, the employer is not entitled to attempt to show that the Complainant would have been terminated in any event. Collins v. Madison Area Technical College (LIRC, 12/19/86).

The "but for" test for causation articulated in the Mount Healthy case is not applicable under the Wisconsin Fair Employment Act. The appropriate causation standard is the "in part" test, requiring the employe to demonstrate that the employer's action was based at least in part upon an impermissible basis. The discriminatory reason must be a determining factor in the employer's decision, but the Complainant need not prove that it was the sole determining factor or that the employer's articulated legitimate reason is false. Lohse v. Western Express (LIRC, 02/04/86).

The Complainant need not prove that the employer's articulated reason was false. Instead, the Complainant must prove that a protected characteristic was a determining factor in the employer's decision. The employer's articulated reason may in fact have been true, but if a protected characteristic was also a determining factor in the employer's decision, discrimination has been demonstrated. Conduct complained of may not be upheld when one of the motivating factors is a discriminatory reason, no matter how many other valid reasons exist for such conduct. Lyckberg v. First Realty Group (LIRC, 09/25/85).

Where the employer discharged a female employe because she declined to "get more serious" in her relationship with her boyfriend, also an employe of the employer, the discharge was based at least in part on the Complainant's gender, and was thus unlawful. The fact that the dispute between the two employes made the employer feel it had to terminate one of them, and that the male employe was a more valued employe because of his experience, skill and longevity, did not make the determination legal, since sex was at least one factor. Stanton v. Abbyland Meat Processing, Inc. (LIRC, 05/30/85), aff’d. sub nom. Abbyland Processing v. LIRC (Taylor Co. Cir. Ct., 02/14/86).

A termination is unlawful if age is a determining factor in the termination decision. Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985).

Retaliatory motives need be shown to play only a part in an adverse employment action to support a finding of discrimination. Smith v. UW (Wis. Personnel Comm., 06/21/82).

The holding of Muskego-Norway CSJSD No. 9 v. WERB, 35 Wis. 2d 540 (1967), that an employe may not be fired when any one of the motivating factors is a statutorily protected one, is applicable to issues arising under the WFEA. Pokrass v. LIRC (Applied Power) (Waukesha Co. Cir. Ct., 08/20/81).

The Complainant is entitled to a finding of discrimination where he can show that his handicap was one of the reasons for his non- hire, regardless of how legitimate the other reasons are. Wisconsin Dept. of Agr. v. LIRC (Anderson) (Dane Co. Cir. Ct., 05/25/78).

An employe need only show that sex was a factor in the employment decision to prove that the decision was discriminatory. Appleton Elec. v. DILHR (Kreider) (Dane Co. Cir. Ct., 11/07/77).

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619 Proof - Standards And Burdens; Miscellaneous

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).

An employer who has a past record of not discriminating against individuals in a protected class is not immune as a matter of law from a discrimination complaint.  Evidence of an employer’s favorable treatment of employees in a protected class may be relevant to rebut a claim of discrimination by showing a lack of discriminatory intent, but would not operate as a bar to the claim.  Monpas v. MRS Machining Co., Inc. (LIRC, 04/08/13).

The Complainant need not show that the Respondent’s actions resulted in tangible harm in order to establish unlawful retaliation.  The Respondent’s actions in telling the Complainant his chances for a promotion depended on withdrawal of his pending discrimination complaint amounted to unlawful retaliation.  Valyo v. St. Mary’s Dean Ventures Inc. (LIRC, 1/29/13).

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).

In a claim of retaliation under the Wisconsin Fair Employment Act, a complainant must show that a reasonable individual would have found the challenged action to be adverse. That is, the action might well have dissuaded a reasonable individual from opposing any discriminatory act under the Act or from making a complaint, testifying or assisting in any proceeding under the Act. There is no bright-line rule. Whether alleged discriminatory conduct is sufficiently adverse can only be determined upon careful examination of the facts and circumstances presented in each case. Kruschek v. Trane Co. (LIRC, 12/23/10).

The Labor and Industry Review Commission has not adopted the view that a complainant is required to prove that an employment action is 'material' in order to be actionable under the Wisconsin Fair Employment Act. The statutory language of neither the WFEA nor Title VII imposes this requirement. The imposition of a requirement that alleged discriminatory employment conduct be 'material' is a judicially-created requirement in cases brought under Title VII. While federal law may be looked to for guidance in considering discrimination claims under the WFEA, federal law is not binding. Wisconsin courts must construe Wisconsin statutes as it is believed the Wisconsin Legislature intended, regardless of how the U.S. Congress may have intended that comparable statutes be construed. By its terms, the Wisconsin Fair Employment Act is to be liberally construed for the purpose of deterring and remedying discriminatory conduct of employers which infringes employees' civil rights. It would be inconsistent to impose a requirement that discriminatory conduct be 'material' simply in an effort to separate what some might consider to be 'significant' claims from 'trivial' claims. Kruschek v. Trane Co. (LIRC, 12/23/10).

What is 'material' in an employment relationship may be quite subtle. In a close case, the imposition of a requirement that the alleged adverse employment action be 'material' would likely cause the trier of fact to apply his or her own subjective belief as to what is or is not a material adverse action. Kruschek v. Trane Co. (LIRC, 12/23/10).

Not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions would form the basis of a discrimination suit. In this case, the Complainant failed to establish that a memo that was sent to the security director by her lieutenant constituted an adverse employment action. The Complainant alleged that the memo falsely accused her of being the subject of a large number of inmate complaints and of being unprofessional and demonstrating a lack of tact when working with inmates. The evidence failed to show that the memo cause the security director to form an unfavorable impression of the Complainant. The memo was an internal memo that was not made a part of the Complainant?s personnel file. The memo had absolutely no effect on the Complainant?s terms or conditions of employment. Gephart v. Department of Corrections (LIRC, 11/18/09).

The Complainant failed to show that she suffered an adverse employment action when the Respondent reorganized part of its workforce and did not place her in an internal sales position as part of this reorganization. The Complainant failed to show that she requested placement in a particular position or classification, or that the consultant position in which she was placed was less desirable than others for which she was qualified, including the new internal sales positions. The Complainant’s new consultant position was at the same level and pay as her previous position and as the internal sales positions created as part of the reorganization, and actually involved higher level responsibilities than the internal sales positions. Vick v. Marshfield Door System (LIRC, 01/31/07).

The Labor and Industry Review Commission has not specified a minimum level of significance that an action is required to meet in order to be cognizable under the Wisconsin Fair Employment Act (other than an implicit de minimis level).  Pluskota v. Alverno College (LIRC, 10/21/05)

The Labor and Industry Review Commission has not adopted the approach of the Seventh Circuit Court of Appeals that in order to satisfy the second element of a prima facie case (i.e., that the Complainant suffered an adverse employment action), an action must have a materially adverse impact on a Complainant's employment status (such as that effected, for example, by a termination, demotion, a decrease in wages, a material loss of benefits, or significantly diminished responsibilities). Froh v. Briggs & Stratton (LIRC, 09/29/04); Post v. Mauston School Dist. (LIRC, 08/28/02).

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).

A negative performance evaluation may constitute an adverse employment action and may form the basis for a discrimination complaint. The harm to the Complainant was not limited to having received a poor evaluation. She also suffered the loss of a tangible job benefit in that she was denied a salary increase as a direct result of the evaluation. Muenzenberger v. County of Monroe (LIRC, 08/13/98).

Informal discipline, such as negative entries in a supervisor’s log, can constitute an actionable adverse employment action. Foust v. City of Oshkosh Police Dept. (LIRC, 04/09/98).

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).

A negative performance evaluation is not considered an adverse employment action unless it has a tangible adverse effect on an employee’s employment status with regard to such things as salary or promotion. Cunningham v. DOC (Wis. Personnel Comm., 01/19/01).

The applicable standard in determining whether an adverse employment action has been taken against the Complainant if the subject action is not one of those specified in sec. 111.322(1), Stats., is whether the action had any concrete, tangible effect on the Complainant’s employment status. Examples of situations that have been held to not constitute "adverse actions" include: (1) lower performance rating and work restrictions; (2) lateral transfer resulting in title change and employee reporting to former subordinate; (3) transfer to another school; (4) comment made to the Complainant by one of her supervisors during a meeting asking whether she had anything to add; (5) negative performance evaluation; (6) solicitation or acceptance of negative comments from an employee’s coworkers; (7) physical move to an equivalent nearby office, and (8) interference with the Complainant’s receipt of some work-related information through informal discussions. Olmanson v. DHFS (Wis. Personnel Comm., 01/19/01).

Not everything that makes an employee unhappy is a cognizable adverse action. The Wisconsin Fair Employment Act was not intended to create a cause of action for minor or trivial employment actions. Lincoln v. DHFS (Wis. Personnel Comm., 08/28/00).

In analyzing whether other candidates had qualifications equal or superior to those of the Complainant, the focus is not on how the Complainant or the Department views the candidate’s qualifications in comparison to the other candidates, but on how the Respondent perceived them. By the same token, courts generally decline to dictate what factors an employer may use to judge between employees or job applicants, so long as the factors are considered in good faith and are not discriminatory. Naill v. Western Wisconsin Technical College (LIRC, 02/12/99).

In order to prevail on a claim of discrimination or retaliation under the Wisconsin Fair Employment Act, a Complainant is required to show that he or she was subject to a cognizable adverse employment action. Sec. 111.322(1), Wis. Stats., makes it an act of employment discrimination to "refuse to hire, employ, admit or license any individual, to bar or terminate from employment. . .or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment." The applicable standard, if the subject action is not one of those specified in this statutory section, is whether the action had any concrete, tangible effect on the Complainant’s employment status. Dewane v. UW-Madison (Wis. Personnel Comm., 12/03/99).

Informal discipline, such as negative entries in a supervisor’s log, can constitute an actionable adverse employment action. Foust v. City of Oshkosh Police Dept. (LIRC, 04/09/98); Muenzenberger v. County of Monroe (LIRC, 8/13/98).

Stray remarks, when unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by the decision-maker in issue. In this case, the comment by a regional vice president of the Respondent that he couldn't "get rid of [the Complainant] because [he was] too damn old" was not persuasive evidence that the Complainant's age was a factor in his failure to be hired. The remark was made at some unspecified time five years earlier, and the Complainant himself conceded that no other comments were made which implicated his age. Jacobs v. Glenmore Distilleries (LIRC, 07/27/95).

Discriminatory attitudes are not unlawful unless they actually result in discriminatory treatment. In this case, there was evidence that the Respondent's operation's manager stated that he thought that men made better managers. However, no unlawful discrimination was established where the record indicated that the operation manager's selection of store managers was in fact not limited to males and that he retained a number of female store managers. Currie v. Garrow Oil Corp. (LIRC, 06/16/95), aff'd., Adams Co. Cir. Ct. May 6, 1996,  affirmed sub nom. Currie et al. v. DILHR Equal Rights Division, 210 Wis. 2d 380, 565 N.W.2d 253 (Ct. App. 1997).

Discriminatory attitudes are not unlawful unless they actually result in discriminatory treatment. In this case, the fact that an agent of the Respondent had certain biased views concerning women was irrelevant where the non-promotion of the Complainant resulted from non-discriminatory factors. Schiller v. City of Menasha Police Dept. (LIRC, 01/14/93).

The Respondent did not violate the Wisconsin Fair Employment Act, even though the owner of the Respondent said, with regard to hiring two Cuban job applicants, "If they are Cuban, no way." There were no job openings for which the Complainants could apply at the time that the Respondent's owner made this statement. As repugnant as the discriminatory attitude that was expressed by the Respondent may be, such discriminatory attitude must result in discriminatory treatment in order to constitute a violation of the Act. Dominguez v. Lawrence (LIRC, 01/30/91).

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).

It is not a function of the Wisconsin Fair Employment Act to dictate to employers, as a general matter, that hiring and other employment decisions must be made on the basis of particular, job-related, considerations. Legro v. County of Langlade (LIRC, 03/20/90).

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

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620 Proof of intentional discrimination

621 Proof of intentional discrimination; Direct evidence of discrimination

Direct evidence is evidence which, if believed by the trier of fact, would prove the particular fact in question without reliance on inference or presumption. Direct evidence must not only speak directly to the issue of intent; it must also relate to the specific employment decision in question. Wallis v. St. Paul's Evangelical Lutheran Church & School (LIRC, 08/25/10).

The EEOC has issued guidelines on the analysis of direct evidence. Direct evidence of discriminatory motive may be any written or verbal policy or statement made by a Respondent or Respondent official that on its face demonstrates a bias against a protected group and is linked to the complained of adverse action. Direct evidence of bias, standing alone, does not necessarily prove that a discriminatory motive was responsible for a particular employment action. A link must be shown between the employer’s proven bias and its adverse action. For example, evidence that the biased remarks were made by the individual responsible for the adverse employment decision, or by one who was involved in the decision, along with evidence that the remarks were related to the decision-making process, would be sufficient to establish this link. Balele v. DNR (Wis. Personnel Comm., 01/25/00).

The reliance on stereotypes about the characteristics of people in protected categories (such as, for example, the stereotype that old people are slow) is one of the evils which equal rights laws are intended to prevent. However, to carelessly accept the proposition that an otherwise category-neutral description of a person (for example, "slow") is automatically to be understood as a surrogate for a reference to their membership in the protected category for which that description is a stereotype (i.e., "old") would turn the principles of equal rights laws on their head, by acknowledging and relying on the very stereotypes which the law is intended to do away with. The Department does not accept the stereotype that old people are slow, and it will therefore not presume that a comment about someone being slow is a disguised reference to their being old. Connor v. Heckel’s, Inc. (LIRC, 09/27/99).

A gas station attendant proved she was discharged because of her back problems where the decision maker's written notes indicated that her back problems were a motivating factor for her discharge. Macara v. Consumer Co-op of Walworth County (LIRC, 02/14/92).

While a Complainant is not required to introduce direct evidence of the presence of discriminatory bias in order to prove a claim of discrimination, when a Complainant does introduce direct evidence of the presence of discriminatory bias on the part of a management-level employe of the Respondent, and the trier of fact concludes that the evidence is irrelevant because the management employe played no part in the challenged action, it is incumbent on the decision-maker to explain why it disregarded the evidence. Gentilli v. Badger Coaches (LIRC, 07/12/90), aff'd. sub. nom. Gentilli v. LIRC, Dane Co. Cir. Ct. 01/15/91.

The direct evidence that the persons involved in making the challenged decision were motivated by the Complainant's handicap was unpersuasive because the witnesses were not credible. The first witness had been fired by the Respondent and had tried to blackmail the Respondent. The second witness had left the Respondent's employ to start a competing business and she testified much differently at the hearing than she had at a prior deposition. The third witness had been fired after he had an extreme personality conflict with a co-worker. Albright v. Steenberg Homes (LIRC, 09/20/90).

The McDonnell-Douglas formula for establishing a prima facie case is inapplicable where the Complainant presents credible direct evidence of discriminatory animus. Willard v. Piggly-Wiggly (LIRC, 07/31/90).

Direct evidence is defined as "proof which speaks directly to the issue, requiring no support by other evidence." Racially repugnant remarks by an employer are circumstantial evidence. The Complainant must still show that the employer's racially offensive attitudes led him to discriminate against the Complainant. Mouncil v. Pepsi Cola (LIRC, 02/16/89).

Where there was direct evidence of a retaliatory motive, the finding of discrimination was affirmed notwithstanding the evidence which showed that the Complainant had not applied for the position in question because it had not been posted before the successful candidate was hired, and the evidence which also failed to demonstrate the Complainant's qualifications for the position. Milwaukee County v. LIRC (Milwaukee Co. Cir. Ct., 12/16/87).

Proof of a general atmosphere of discrimination is not direct proof of discrimination against an individual, but will be considered with other evidence to determine whether race discrimination occurred. Stonewall v. DILHR (Wis. Personnel Comm., 05/30/80).

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622 Proof of intent utilizing the McDonnell-Douglas v. Green framework

622.1 Proof of intent utilizing McDonnell-Douglas; General considerations

The McDonnell-Douglas method of proving discrimination was not meant to be inflexible. Sometimes a Complainant cannot identify similarly-situated employees. However, the Complainant may show that the circumstances surrounding the adverse action indicate that it is more likely than not that his protected status was the reason for it (rather than establishing that the Complainant was treated less favorably than a similarly-situated person not in the protected class). Williams v. All Saints Healthcare System (LIRC, 08/14/09).

The Complainant alleged that his discharge was based upon race and that, had he been a white employee, he would not have been discharged for engaging in the same conduct.  In support of this assertion, the Complainant attempted to present comparative evidence showing that white employees had engaged in serious misconduct with lesser disciplinary consequences.  Comparative evidence is relevant in a disparate treatment case, and the appropriate question is not whether such evidence is admissible, but how much weight it should be given.  The Respondent's belief that the workers to whom the Complainant compared himself were distinguishable from the Complainant went to the strength of the Complainant's pretext argument.  It was not, however, a proper basis for excluding the evidence from the record.  Arvin v. C&D Technologies (LIRC, 10/31/08).

In reviewing disparate treatment claims it is appropriate to utilize the burden-shifting method of analysis originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that analysis, first the Complainant has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. Second, if the Complainant succeeds in proving the prima facie case, the burden shifts to the Respondent to articulate some legitimate, non-discriminatory reason for the employee's rejection. Third, should the Respondent carry this burden, the Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Respondent were not its true reasons, but were a pretext for discrimination. (Citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981)). Josellis v. Pace Inds. (LIRC, 08/31/04).

It is not adequate for a Complainant to present evidence which simply raises the suggestion or the possibility that a prohibited motivation was at work. A Complainant bears the burden of demonstrating by a preponderance of the evidence that the Respondent’s actions were based upon prohibited factors. Connor v. Heckel’s, Inc. (LIRC, 09/27/99).

Discrimination cases are frequently based upon circumstantial evidence. Circumstantial evidence is often stronger and more satisfactory than direct evidence. Novick v. ABQC Corp. (LIRC, 02/26/97).

Discriminatory intent is an element of a disparate treatment case under the Wisconsin Fair Employment Act. Discriminatory intent can be inferred using the McDonnell-Douglas standard. Eleby v. Meriter Retirement Services (LIRC, 08/28/97).

While comparative evidence can be material in a discrimination case, the fact that a Respondent did not discharge everybody in the protected class does not mean it did not discriminate against a particular Complainant. Schneider v. Stoughton Trailers (LIRC, 02/24/95).

Irrespective of sec. 903.01, Stats., relating to presumptions, the Respondent's burden in a case arising under the Wisconsin Fair Employment Act is one of production, rather than persuasion. It is for the Complainant to establish by a preponderance of the evidence that the Respondent's actions were based upon prohibited factors. Lowe v. City of Appleton (LIRC, 01/11/95).

Where the employer has articulated a legitimate nondiscriminatory reason for failing to hire a Complainant, whether the Complainant made out a prima facie case is no longer relevant; the only issue that remains is the ultimate factual dispute of whether the employer intentionally discriminated against the Complainant. Kurtz v. School Dist. of St. Croix Falls (LIRC, 06/10/93).

The prima facie case method established in McDonnell-Douglas was never intended to be rigid, mechanized or ritualistic. Rather it is merely a sensible, orderly way to evaluate the evidence in light of common experience. Gentilli v. Badger Coaches (LIRC, 07/12/90), aff'd. sub nom. Gentilli v. LIRC, (Dane Co. Cir. Ct. 01/15/91).

Where the Respondent's asserted non-discriminatory reasons for its action are put into the record during the Complainant's case, the question of whether a prima facie case has been proven falls away and the inquiry proceeds to the ultimate issue of whether the Respondent has violated the Act. Duarte-Vestar v. Goodwill Industries (LIRC, 11/09/90).

The prima facie case method established in McDonnell-Douglas v. Green was not intended to be rigid, mechanized or ritualistic. The parties may develop their record without adhering to the prima facie case method. A Complainant can prove discrimination by direct or circumstantial evidence or by making the required showing under McDonnell-Douglas. Kumph v. LIRC (Ct. App., Dist. IV, unpublished decision, 02/23/89).

When the ultimate issue of whether the Act was violated is reached, the question of whether a prima facie case of discrimination has been established is no longer important. Mouncil v. Pepsi Cola (LIRC, 02/16/89).

Where the Respondent has done everything that would be required of it if the Complainant had properly made out a prima facie case, whether the Complainant really did so is no longer relevant. The question in such cases is whether or not the Complainant proved that the Respondent's proffered reasons were merely a pretext. Schenck v. Northwest Fabrics (LIRC, 02/20/87).

The Wisconsin Fair Employment Act does not provide a specific procedure by which a Complainant must prove a charge of discrimination. Accordingly, state courts have looked to federal court decisions involving Title VII for guidance in interpreting the Fair Employment Act; citing Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (1985). Wilbert v. City of Sheboygan (LIRC, 04/15/86).

Where the Respondent fails to persuade the examiner to dismiss the complaint for lack of a prima facie case at the close of the Complainant's case in chief, and then responds to the Complainant's proof by offering evidence of the reason for the Complainant's rejection, the prima facie case analysis is no longer relevant. The question then becomes whether the Complainant has proved by a preponderance of the evidence that the legitimate reasons offered by the Respondent were not its true reasons, but were a pretext for discrimination. Lyckberg v. First Realty Group (LIRC, 09/25/85).

The ultimate burden of persuading the trier of fact of sex discrimination remains at all times with the Complainant. The employer's burden is satisfied if it simply explains what has been done or produces evidence of legitimate, nondiscriminatory reasons. The employe must then show directly that a discriminatory reason is the more likely explanation, or show indirectly that the employer's explanation is unworthy of credence and therefore a pretext for discrimination. Warnke v. DHSS (Dane Co. Cir. Ct., 09/22/81); also, Miller v. School Dist. of Manawa (LIRC, 02/24/82).

The U.S. Supreme Court has clarified the burden and order of proof in discriminatory treatment cases in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). First, the employe has the burden of proving a prima facie case. Second, if the employe succeeds, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the employe's rejection. Third, the employe must then prove that those reasons were either not true or a pretext for discrimination. Henry v. Andrews Roofing & Siding (LIRC, 11/20/81), aff'd. sub nom. Henry v. LIRC (Fond du Lac Co. Cir. Ct., 11/11/82); Anderson v. U.W.-Whitewater (LIRC, 12/03/80), aff'd. sub nom. U.W.-Whitewater v. LIRC (Dane Co. Cir. Ct., 07/03/81).

Because the question of the order and nature of proof in sex discrimination cases has not been addressed by the Wisconsin Supreme Court, the Wisconsin courts generally, and DILHR consistently, have applied the standards developed by the federal courts in Title VII actions as set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). Waukesha Pub. Schools v. DILHR (Coulson) (Dane Co. Cir. Ct., 07/06/78).

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622.2 Proof of intent utilizing the McDonnell-Douglas v. Green framework; Complainant's prima facie case

A “similarly-situated” analysis calls for a flexible, common-sense examination of all relevant factors.  A similarly situated employee need not be identical to the employee in every conceivable way.  Binversie v. Manitowoc Tool & Manufacturing, Inc. (LIRC, 03/28/13).

The Complainant contended that he was treated differently than another employee who was not in the protected class of individuals aged forty and over. The Complainant failed to establish that he and the other employee were similarly situated such that they would be expected to receive the same level of discipline for similar conduct. A similarly-situated employee is one who is 'directly comparable to [the Complainant] in all material respects.' (Citing Grayson v. Oneill, 308 F.3d 808, 819 (7th Cir. 2002)). The Complainant and the other employee were not similarly situated where the Complainant was a manager and the other employee was not a manager, but was a technician and a member of the union. These factors alone warranted different treatment for reasons having nothing to do with age. Gruebling v. Wisconsin Bell (LIRC, 08/26/11).

The Complainant in this case did not establish disparate treatment because there was nothing in the evidence to suggest that the different treatment was not the result of different supervisors exercising their separate decision-making discretion. James v. Dane County Parent Council (LIRC, 02/02/09).

The question of whether two employees are ?similarly situated? must take into account all relevant factors in the context of the case. In order to be similarly situated, employees must normally have dealt with the same supervisor, have been subject to the same standards, and have engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer?s treatment of them. An identical supervisor is not an essential requirement for employees to be similarly situated. However, the existence of different supervisors can present a major obstacle to proving discrimination based on disparate treatment. Stern v. LIRC (Dane Co. Cir. Ct., 06/05/09).

The Labor and Industry Review Commission has not adopted the approach of the Seventh Circuit Court of Appeals that in order to satisfy the second element of a prima facie case (i.e., that the Complainant suffered an adverse employment action), an action must have a materially adverse impact on a Complainant's employment status (such as that effected, for example, by a termination, demotion, a decrease in wages, a material loss of benefits, or significantly diminished responsibilities). Post v. Mauston School Dist. (LIRC, 08/28/02); Froh v. Briggs & Stratton (LIRC, 09/29/04).

The burden of establishing a prima facie case of disparate treatment is not intended to be onerous. The policies served by the prima facie case are to eliminate the most common non-discriminatory reasons for the adverse employment action, and to provide an opportunity for the Complainant to prove discriminatory intent directly. In addition, the question of whether the Complainant has made out a prima facie case is no longer relevant once the Respondent responds to the Complainant's proof by offering evidence of the reasons for the action taken. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983). The Respondent's reasons for its actions, and defense to the claim, may be established through evidence presented as part of the Complainant's case in chief. Josellis v. Pace Inds.  (LIRC, 08/31/04).

In disciplinary cases in which a Complainant claims to have been disciplined more harshly, determining whether employees are similarly situated normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them. When different decision-makers are involved, the situations are rarely similarly situated in all respects. Different decision-makers may exercise their discretion differently. Castro v. Micro-Precision (LIRC, 06/25/04).

A Complainant is not required to show, as a part of the prima facie case, that she was more qualified than the successful candidates. An inference of discrimination can be drawn not only from circumstances in which the Complainant’s qualifications are greater than those of the successful candidate, but also from circumstances in which the Complainant’s qualifications are similar to those of the successful candidate. Martin v. Milwaukee Bd. of School Directors (LIRC, 02/26/03).

One element of a prima facie case is that the Complainant applied for and was qualified for a job for which the employer was seeking applicants. The Complainant in this case could not establish a prima facie case when he did not assert (nor could it reasonably be implied from the information that he provided) that the Respondent was seeking applicants for customer service positions in general, or for the customer service representative position from which the Complainant had been terminated specifically, at the time he applied. Ficken v. Harmon Solutions Group (LIRC, 02/07/03).

An employee alleging age discrimination in the context of a hiring decision makes a prima facie case by showing: (A) he is forty or older, (B) he was not hired, (C) he was qualified for the job, and (D) he was rejected under circumstances which give rise to an inference of unlawful discrimination. Kalsto v. Village of Somerset (LIRC, 10/03/00)

The burden of establishing a prima facie case of disparate treatment is not intended to be onerous. The policies served by the prima facie case are to eliminate the most common non-discriminatory reasons for the adverse employment decision and to provide an opportunity for the Complainant to prove discriminatory intent indirectly. Requiring proof of subjective qualifications at the prima facie phase of the analysis does not serve either of these policies. Rather, forcing the Complainant at the outset to prove subjective qualifications subverts the indirect method of proof by requiring proof of the subjective standards and motives of the employer, and has the effect of collapsing the three-step McDonnell Douglas analysis into a single step at which all issues would be resolved. Foust v. City of Oshkosh Police Dept. (LIRC, 04/09/98).

When a Complainant in a race discrimination case did not introduce specific evidence that she was replaced, this did not prevent a conclusion that she established a prima facie case of discrimination in discharge. The elements of a prima facie case are not fixed in stone, but can vary with the circumstances of the case. Proof of replacement can be substituted for by proof that others not in the protected class were treated more favorably. Ray v. Ramada Inn-Sands West (LIRC, 03/05/91).

In the context of a hiring decision, the elements of a prima facie case are that the Complainant: (1) is a member of a protected class, (2) applied for and is qualified for the position, and (3) was rejected under circumstances which gave rise to an inference of unlawful discrimination. Larson v. DILHR (Wis. Personnel Comm., 01/22/89).

The elements of a prima facie case vary with the circumstances of each case, but generally a prima facie case refers to evidence which is sufficient to support a finding in the Complainant's favor unless rebutted. Goldberg v. St. Joseph's Hospital (LIRC, 08/09/85).

In a claim of discriminatory discharge on the bases of age, the Complainant must show that he was 40 or older, that he was discharged, that he was qualified for the job, and either that he was replaced by someone not within the class or that others not in the protected class were treated more favorably. Here, however, the fact that the Complainant was not replaced by a younger employer is not dispositive, as the necessary elements of a prima facie case are not fixed in stone but vary with the facts of each case. It is enough that the Complainant established facts which raise an inference of age discrimination. The Complainant did so in this case by establishing that he was laid off while a much younger and less experienced employe was retained in a position for which the Complainant was fully qualified and which was in fact essentially a sub-set of the position the Complainant had held. Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985).

To support a prima facie case of discriminatory discharge, the discharged employe need not establish that his performance was excellent or even average, but only that it was of sufficient quality to merit continued employment. That the employe's work was inferior to that of other employes, making him a candidate for discharge when there was a reduction in available work, is instead properly raised by the employer as a nondiscriminatory reason for discharge. Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985).

Minority complainants may make out a prima facie case of discrimination, even if they were replaced by another minority, if they can demonstrate that the hiring of a minority replacement was a pretext to mask an actual discriminatory discharge. Davis v. University of Wisconsin System (Wis. Personnel Comm., 01/07/85).

A complainant's failure to enter his age and the age of his replacement into the hearing record prevented any finding that his layoff was age discrimination. Nelson v. Massey Furgeson (LIRC, 10/20/83).

A complainant establishes the element of satisfactory performance necessary to a prima facie case by proving that she was not criticized by her employer. Lenich v. Dana's Deli (LIRC, 03/29/83).

In failure to promote cases, the employe's initial burden is to show that: (1) he belongs to a protected group, (2) he was qualified and applied for a promotion, (3) he was considered for and denied a promotion, and (4) other employes of similar qualifications who were not in the protected group were promoted at the same time. He need not prove at the initial stage that he was the most qualified person for the promotion in order to make out a prima facie case, nor must he show that he applied where the promotion was not announced. Bolden v. Wisconsin Telephone Co. (LIRC, 08/04/81).

Under McDonnell-Douglas, an employe claiming individual discrimination must establish that: 1) she is a member of a protected class, 2) she applied and was qualified for a job for which the employe was seeking applicants, 3) she was rejected, and 4) after such rejection, the position remained open and the employer continued to seek applications from persons of the Complainant's qualifications. Rubenstein v. LIRC (U.W.-Bd. of Regents) (Dane Co. Cir. Ct., 02/06/81).

Even where it was not clear that an employe made out a prima facie case of sex discrimination, a minimal showing of analogous McDonnell-Douglas factors should justify some explanation on the part of the employer. Waukesha Public Schools v. DILHR (Coulson) (Dane Co. Cir. Ct., 07/06/78).

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