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The Wisconsin Equal Rights (ER) Decision Digest -- Sections 622.3-635     

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622.3 Respondent's burden to articulate a legitimate, non-discriminatory reason  

The Complainant argued that the Respondent did not provide a legitimate, non-discriminatory reason for her discharge since the Respondent's explanation that it discharged her for stealing from the Respondent was not credible. The evidence at hearing established that the Respondent's son saw the Complainant taking dog treats when he watched the security video at the Respondent's place of business. The Complainant contended that she had intended to purchase the dog treats and that she had asked another employee to write up a slip so that the cost could be deducted from her paycheck. However, the Respondent had reason to believe that the Complainant was stealing from it. That belief, even if mistaken, was a legitimate, non-discriminatory reason for terminating the Complainant's employment. Freeman v. Animal Motel (LIRC, 07/18/11).

The testimony given by a Complainant may establish the legitimate, non-discriminatory reason for the employer's actions and, thus, rebut a prima facie case of discrimination. The testimony and evidence presented by the Complainant in this case established the Respondent's legitimate, non-discriminatory reasons for the action it took against her. Traska v. Mid-States Express (LIRC, 01/22/09).

A Respondent's burden to articulate a non-discriminatory explanation for a challenged adverse action cannot be satisfied by assertions of its counsel in argument.  It must be made by the introduction of admissible evidence.  That evidence may be met by evidence which comes into the record as part of the Complainant's case in chief.  Dieterich v. Lindengrove (LIRC, 12/29/08).

The question of whether an employer's asserted non-discriminatory reason is objectively correct can be considered irrelevant if it appears that the employer genuinely believed it to be true.  The finder of fact need only determine that the employer in good faith believed in those reasons, and that the asserted reasons for the action were not a mere pretext for discrimination.  Deal v. D&S Manufacturing (LIRC, 06/20/08).

A Complainant cannot prevail if the Respondent honestly believed in the non-discriminatory reason it offered for the employment action, even if this reason was foolish, trivial, or even baseless. Fink v. Sears Roebuck & Co. (LIRC, 03/01/07).

The question of whether an employer’s asserted non-discriminatory reason is objectively correct is irrelevant if it appears that the employer genuinely believed it to be true.  The trier of fact need only determine that the employer in good faith believed in that reason and that the asserted reason for the action was not a mere pretext for discrimination.  Grell v. Bachmann Constr. (LIRC, 07/15/05)

The question of whether an employer’s asserted non-discriminatory reason is objectively correct may be considered irrelevant if it appears that the employer genuinely believed the reason to be true.  The trier of fact need only determine that the employer in good faith believed in those reasons and that the asserted reasons for the action were not a mere pretext for discrimination.  Ford v. Lynn’s Hallmark (LIRC, 06/27/05); Stichmann v. Valley Health Care Center (LIRC, 06/14/05).

"[T]he employer's burden is satisfied if he simply 'explains what he has done' or 'produc[es] evidence of legitimate non-discriminatory reasons.'" Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). A requirement that the Respondent introduce evidence which would persuade the trier of fact that the employment action was lawful exceeds what can be demanded to satisfy the Respondent's burden of production. The ultimate burden of persuading the trier of fact that the Respondent intentionally discriminated against the Complainant remains at all times with the Complainant. Booker v. NMT Corp. (LIRC, 08/27/04).

The Respondent’s burden of producing a legitimate, nondiscriminatory reason for its actions can be met by facts presented as part of the Complainant’s case-in-chief. Cortez v. City of Milwaukee (LIRC, 01/31/01).

The requirement that the employer articulate a non-discriminatory reason is rather minimal. The employer need not initially prove that the articulated reason was the actual reason for the discharge. Rather, the employer need only raise a genuine issue of fact as to whether it discriminated against the employee. To do this, the employer must at least "clearly set forth, through the introduction of admissible evidence, the reasons for the employee’s rejection." Kalsto v. Village of Somerset (LIRC, 10/03/00).

A finding in the Complainant’s favor will result when the prima facie case of discrimination is not rebutted by the articulation of a non-discriminatory reason. Foust v. City of Oshkosh Police Dept. (LIRC, 04/09/98).

Where no question of fact exists as to whether a Complainant has stated a prima facie case, a Respondent’s failure to present any legitimate non-discriminatory reason for its actions warrants a decision in favor of the Complainant as a matter of law. While there are cases where it has been found that there was no unlawful discrimination without the Respondent having offered any legitimate non-discriminatory reason for its actions, these are cases in which the evidence presented by the Complainant himself placed those reasons into the record. Rutherford v. J & L Oil (LIRC, 06/06/97).

Where a Respondent’s articulated reason is disbelieved, the trier of fact should not ignore other evidence which shows that the Respondent’s real reason was, nonetheless, one that did not violate the Act. Campbell v. Barch Communications (LIRC, 01/17/97).

The Labor and Industry Review Commission rejected the Complainant's argument that once he established a prima facie case the burden of persuasion shifted to the Respondent to rebut that presumption. The word "presumption," properly used, refers only to a device for allocating the production burden. The ultimate burden of proving discrimination remains at all times with the Complainant. Franklin v. Foxboro Co. (LIRC, 11/16/94).

The employer does not have the burden of proving or substantiating the reasons for its actions. The burden that shifts to the employer upon the establishment of a prima facie case is only that of producing evidence that its actions taken were for a legitimate, nondiscriminatory reason. The employer need not persuade the court that it was actually motivated by the proffered reason. It is sufficient that the employer's evidence raises a genuine issue of fact as to whether it discriminated against the Complainant. The ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the Complainant remains at all times with the Complainant. Nordin v. Goodwill Industries (LIRC, 09/28/94).

In some cases, the question of whether an employer's asserted nondiscriminatory reason is true can be considered irrelevant if it appears that the employer genuinely believed it to be true. Moncrief v. Gardner Baking (LIRC, 07/01/92).

An employer's reason for its actions may be a good reason, a bad reason, a mistaken reason or no reason at all so long as the decision was not based on race or other unlawful discriminatory criteria. The illegality of the Respondent's actions in not putting the Complainant on its payroll, standing alone, would not be enough to establish that unlawful discrimination had occurred. Salinas v. Crivello Properties (LIRC, 06/05/92).

An employer is not required to prove that its decision was correct. The trier of fact need only determine that the employer in good faith believed the Complainant's performance to be unsatisfactory and that the asserted reason for the action was not a mere pretext for discrimination. Salinas v. Crivello Properties (LIRC, 06/05/92).

Even where a Respondent's articulated reason is disbelieved, the trier of fact cannot ignore the fact that the evidence shows that the Respondent's real reason was nevertheless one that did not violate anti-discrimination laws. It is not true that if the articulated reason is disproved, there must be a finding of discrimination. Von Neumann v. West Bend Co. (LIRC, 03/30/92).

If a prima facie case is established, an employer must articulate a legitimate business reason for the discharge or the employe will prevail on the basis of the prima facie case. Where an employer takes the position that an employe has resigned and was not discharged, and therefore articulates no reason (even in the alternative) for a discharge, the employer runs the risk that the fact finder will decide that the employe really was discharged (or constructively discharged) and that the employe would then prevail on the basis of the prima facie case alone. Jorgenson v. Ferrellgas, Inc. (LIRC, 01/10/92).

In most cases, the question of whether the ultimate burden of proving discrimination has been carried is resolved by looking to the question of whether the articulated reason has been proven pretextual. However, a finding in the Complainant's favor will also be made when the prima facie case of discrimination, which raises the presumption that discrimination occurred, is not rebutted by the articulation of a non-discriminatory reason. Where the Respondent alleged that the Complainant had quit and had not been discharged, as the Complainant alleged, the Respondent failed to meet its minimal burden to articulate a non- discriminatory reason for its actions. The evidence established that the Complainant had been discharged, but the Respondent did not offer any explanation as to why it discharged her. The presumption that it did so because of the Complainant's race, which was created by the prima facie case established by the Complainant, stood unrebutted and called for a finding of discrimination in the Complainant's favor. Ray v. Ramada Inn- Sands West (LIRC, 03/05/91).

When the Respondent's decision to eliminate a position because of a decline in the amount of work was arrived at in good faith, the decision is not discriminatory even if the decision seems erroneous when viewed in hindsight. Gentilli v. Badger Coaches (LIRC, 07/12/90), aff'd. sub nom. Gentilli v. LIRC, Dane Co. Cir. Ct. 01/15/91.

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 reason for the action taken. Under U.S. Postal Service Board of Governors v. Aikens, the factual inquiry becomes whether the Respondent's action was discriminatory under the law. Gentilli v. Badger Coaches (LIRC, 07/12/90), aff'd. sub nom. Gentilli v. LIRC, Dane Co. Cir. Ct. 01/15/91.

A decision in the Complainant's favor need not be made where the Respondent presents no evidence at hearing. A Respondent is not obliged to prove that it did not discriminate; a Complainant bears the burden of proving that discrimination did occur. Duarte-Vestar v. Goodwill Industries (LIRC, 11/09/90).

The examiner erred in dismissing at the close of the Complainant's case his claim that he was discriminated against because of his race when the employer discharged him, supposedly for abetting a fraud in connection with his employment. The evidence offered at the hearing did not establish the Respondent's nondiscriminatory reason. The matter was remanded for further proceedings, to allow the Respondent to present its case in chief. Browder v. Best Food (LIRC, 01/09/87).

The employer must rebut the inference with a "clear and reasonably specific" explana-tion. Smith v. Bruckner Excavating Co. (LIRC, 06/29/84), aff'd. sub nom. Bruckner Excavating Co. v. LIRC (Milwaukee Co. Cir. Ct., 09/20/85).

An employer met its burden without introducing any witnesses of its own, where an applicant's own testimony on cross examination revealed her lack of experience in the position applied for. Evidence that an employer had marked an application with a "B" does not show that its stated reason for failing to hire a black applicant was a pretext for discrimination. Ewing v. James River-Dixie Northern (LIRC, 10/19/84).

Though a Respondent's reason may seem poor or erroneous to an outsider, the only relevant question is whether it is 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).

An employer's non-discriminatory reasons for its actions may be presented through the testimony of the Complainant's own witnesses. Davis v. Jos. Schlitz Brewing (LIRC, 09/14/82).

The employer's burden is to produce evidence that the employe was rejected, or someone else preferred, for a non-discriminatory reason. The employer need not prove that it was actually motivated by the preferred reasons. Bolden v. Wis. Telephone (LIRC, 08/04/81).

While it was credible that the selecting official could no longer remember the basis of his selection decision, such explanation does not meet the employer's burden to articulate a legitimate nondiscriminatory reason for its actions. 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).

Once a Complainant established a prima facie case, the employer's burden is to show a legitimate, nondiscriminatory reason for an applicant's rejection, not to prove that the individuals who were hired in place of the applicant were clearly more qualified. Zimmerman v. Milwaukee County Civil Serv. Comm. (LIRC, 04/12/79).

Subjectivity in the employer's decision making process is not, by itself, evidence of discrimination. Subjective reasons may be adequate to rebut a prima facie case where they are not discriminatory in application or pretextual. Waukesha Pub. Schools v. LIRC (Coulson) (Dane Co. Cir. Ct., 07/06/78).

Once a prima facie case is established, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the rejection. This burden may be met even where the reason articulated is based on a mistaken, but honestly held belief. Herslof Optical v. DILHR (Leonard) (Dane Co. Cir. Ct., 03/28/78).

Where the employe showed that he was handicapped and was discharged, and his employer did not prove another reason for the discharge, it can be assumed that the employe was discharged because of his handicap. Buyatt v. C. W. Transp. (LIRC, 07/25/77).

After an employe makes an initial showing of discrimination, the test under the McDonnell-Douglas analysis is whether the employer can articulate a "legitimate, nondiscriminatory reason" for its actions, not a "rational and neutral business justification." Mt. Sinai Med. Center v. DILHR (Preddy) (Dane Co. Cir. Ct., 06/17/77).

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622.4 Complainant's proof of pretext

A Complainant must show not only that the Respondent's asserted reasons were false, but that discrimination was the real reason for its action. The Complainant may be able to prove pretext even in the absence of any direct evidence of discriminatory intent by showing that the Respondent's explanation is unworthy of credence. If the Complainant offers specific evidence from which the finder of fact may reasonably infer that the Respondent's proffered reasons do not represent the truth, the case then turns on the credibility of the witnesses. On the other hand, if the Respondent genuinely believed its asserted, non-discriminatory reason to be true, even if it was mistaken, the Respondent cannot be found to have had discriminatory intent. Thobaben v. Waupaca Sheriff's Department (LIRC, 12/23/11).

Pretext means a dishonest explanation, a lie rather than an oddity or an error. The focus of a pretext inquiry is whether the Respondent's stated reason for an action is honest, not whether it is accurate, wise, or well-considered. Thobaben v. Waupaca Sheriff's Department (LIRC, 12/23/11).

The fact that a particular characteristic is not mentioned in a job announcement as being desirable does not necessarily mean that the employer's subsequent reliance on that characteristic as being important was pretextual. Wallis v. St. Paul's Evangelical Lutheran Church & School (LIRC, 08/25/10).

Pretext means a dishonest explanation, i.e., a lie rather than an oddity or an error. In this case, the Respondent mistakenly gave another employee a higher salary based upon experience which he did not have. This was done in error. This did not, however, constitute proof of pretext. Bialk v. Aurora Health Care (LIRC, 04/23/10).

The decision-maker in a discrimination case may not substitute its business judgment for that of the employer. The mere fact that the Respondent made a decision that may have been ill-advised is not evidence of pretext on its part. The focus of a pretext inquiry is whether the Respondent's stated reason was honest, not whether it was accurate, wise or well-considered. The issue is whether the legitimate reason provided by the employer is in fact the true one. Ebner v. Dura Tech (LIRC, 04/23/09).

A Complainant may demonstrate that the employer's asserted reason for an adverse action is pretextual by showing that the reason:  (1) had no basis in fact, (2) did not actually motivate the adverse employment action, or (3) was insufficient to motivate the adverse employment action.  In this case, the Administrative Law Judge properly determined that the Respondent's asserted reason for discharging the Complainant was insufficient to have motivated the decision, and that the actual motivation for the Respondent's decision was the Complainant's disability.  Sult v. Jerry's Enterprises (LIRC, 02/08/08).

Since intent is a pertinent and necessary inquiry in a discrimination or retaliation case, the question of whether a Respondent's asserted non-retaliatory reason is objectively correct can be considered irrelevant if it appears that the Respondent genuinely believed it to be true.  Engen v. Harbor Campus (LIRC, 02/22/08).

The demonstrated falsity of an employer’s asserted reason for an employment action may, in itself, be viewed as some evidence that an improper motivation was behind the decision.  Cole v. Greyhound Bus Lines (LIRC, 09/16/05)

Where the Complainant established that the entries in the Respondent's logs (which were offered by the Respondent as evidence of its complaints about the Complainant's performance) were probably not prepared contemporaneously with the dates associated with them, called into question the veracity of the complaints about the Complainant's performance. "The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. . . ." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). Kurtzweil v. GPI Corp. (LIRC, 08/27/04).

If an employer articulates a legitimate non-discriminatory reason for a discharge or other employment action, the issue of whether the Complainant has established a prima facie case becomes moot. Once an employer has articulated such a reason, the burden of proof reverts to the Complainant to show that this reason is a pretext for discrimination. Stern v. RF Technologies (LIRC, 02/06/04).

Proof that the Respondent’s explanation for the employment action taken against the Complainant is unworthy of credence is one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. Rodriguez v. Flash, Inc. (LIRC, 01/28/03).

The Respondent’s argument that it honestly believed its reason for discharging the Complainant was rejected. In Gordon v. United Airlines, 246 F.3d 878 (7th Cir. 2002), the court indicated that when determining whether an employer’s belief is honest, "we need not abandon good reason and common sense in assessing an employer’s actions." The court further found that if an employee offers specific evidence from which the trier of fact may reasonably infer that the Respondent’s asserted non-discriminatory reasons do not represent the truth, the case then turns on the credibility of the witnesses. The court stated, "[w]hen the sincerity of an employer’s asserted reasons for discharging an employee is cast into doubt, a fact finder may reasonably infer that unlawful discrimination was the true motivation." In this case, the Complainant offered specific evidence regarding the Respondent’s failure to discharge white employees who engaged in the same type of conduct that led to the Complainant’s discharge. Furthermore, the Administrative Law Judge determined that the Respondent’s witnesses were not credible. These facts allowed the ALJ to reasonably infer that unlawful race discrimination was the true motivation for the Respondent’s termination of the Complainant’s employment. Rodriguez v. Flash, Inc. (LIRC, 01/28/03).

If an employer articulates a legitimate non-discriminatory reason for a discharge, the issue of whether the employee has established a prima facie case becomes moot. Once such a reason is articulated, the burden of proof reverts to the Complainant to show that this reason is a pretext for discrimination. If the articulated, non-discriminatory reason is not credible or is unworthy of belief, this may simply prove a pretext (which by itself would not satisfy the Complainant’s burden), or it may serve double duty and prove a pretext for discrimination. In other words, a fact finder’s disbelief of an employer’s proffered non-discriminatory reason for an employment action permits the trier-of-fact to infer the ultimate fact of intentional discrimination without additional proof. Naill v. Western Wisconsin Technical College (LIRC, 02/12/99).

Where the Respondent’s explanation for its actions in treating the Complainant differently from a similarly situated employee was not credible, the question to decide was whether the Respondent’s explanation was a pretext for discrimination. The Complainant has the ultimate burden of persuasion on this point. Showing that an employer’s reason is a pretext permits, but does not compel, a finding of discrimination. While disbelief of an employer’s proffered non-discriminatory reason for an employment decision does not compel a conclusion of discrimination, it does permit the trier-of-fact to infer the ultimate fact of intentional discrimination without additional proof. Where there was nothing to set the Complainant and the similarly situated employee apart other than race, and where there was no evidence to suggest that the Respondent was motivated by a consideration of the sort that would be unfair but not discriminatory, the Department properly concluded that the Respondent’s explanation for its actions were a pretext for discrimination. Thompson v. Century Cable (LIRC, 06/07/99).

For purposes of the Wisconsin Fair Employment Act, a "pretext" refers to a neutral sounding reason offered for a discharge or other adverse employment decision in order to conceal discrimination of a type specifically prohibited by the Act. Newton v. St. Gregory Educ. and Christian Formation Comm. (LIRC, 12/10/97).

In some cases, the question of whether an employer's asserted non-discriminatory reason is objectively correct can be considered irrelevant, if it appears that the employer genuinely believed it to be true. The trier of fact need only determine that the employer in good faith believed in that reason and that the asserted reason was not a mere pretext for discrimination. The reasonableness of an employer's reasons for its decisions may be probative of whether they are pretextual. Atkins v. Pepsi Cola Gen. Bottlers (LIRC, 12/18/96).

There are three factors which bear on the question of pretext: (1) the employer's treatment of the employe during employment, (2) the employer's treatment of the protected class of which the employe is a member, and (3) the absence of minorities on the employment decision-making body. Bates v. Thomspon Newspapers (LIRC, 12/04/96).

A pretext determination is concerned with whether the employer honestly believes in the reasons it offers, not whether it made a bad decision, a mistake or a bad business judgment. In this case, the Respondent's manager reasonably believed that the Complainant was fabricating an illness in order to get off work. Even assuming that the Complainant had in fact been sick, the fact that the manager mistakenly believed that she was lying about being sick and recommended her discharge for that reason, does not constitute unlawful discrimination. Murphy v. Roundy's (LIRC, 04/25/96).

While a Respondent's failure to rebut a prima facie case of discrimination will permit the trier of fact to infer that prohibited discrimination occurred, the Complainant is not entitled to a judgment as a matter of law simply because she proves a prima facie and shows that the Respondent's proffered reasons for its actions are false. Where this is evidence that the Respondent's actions were taken for a non-discriminatory reason, and where it was not demonstrated that it is more likely that a discriminatory reason motivated the Respondent, the Complainant has failed to prove discrimination. Even where a Respondent's articulated reason is disbelieved, the trier of fact cannot ignore other evidence which shows that the Respondent's real reason was nonetheless one that did not violate the Act. 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).

When the Respondent has produced evidence which would allow the trier of fact to rationally conclude that its employment decision had not been motivated by discriminatory animus, the presumption raised by the Complainant's prima facie case falls away and the Complainant must then proceed to establish that the reasons offered by the employer were not its true reasons, but merely a pretext for discrimination. Essentially, the burden is on the Complainant to establish a causal link between the employer's pretext and a discriminatory motive. The Complainant's burden at the pretext stage is to prove that the Respondent's reasons are false and that 0the Respondent intentionally discriminated against the Complainant. The ultimate burden of persuading the trier of fact that the Respondent intentionally discriminated against the Complainant remains at all times with the Complainant. The Complainant may be well advised to present additional evidence of discrimination because the fact finder is not required to find in the Complainant's favor simply because she establishes a prima facie case and shows that the employer's proffered reasons are false. Spearman v. Beloit Convalescent Center (LIRC, 09/19/95).

The Complainant failed to show that an employer's reasons for failing to hire him were a pretext for age discrimination where (1) the employer notified the job applicant that the position available was for both a custodial and a maintenance person, and (2) the employer allowed all of the candidates an unrestricted opportunity to discuss their qualifications during the interview. An employer is not required to list all of its hiring criteria in a one-paragraph job announcement. Kurtz v. School Dist. of St. Croix Falls (LIRC, 06/10/93).

To prevail on a claim of discrimination, a Complainant must prove not only that an asserted reason for an employment action was a pretext, but that the asserted reason was a pretext for discrimination. Rangel v. City of Elkhorn (LIRC, 09/30/92).

Where the employer had previously warned the Complainant about taking finished product home and had told the Complainant previously to return finished product, the Respondent's subsequent failure to follow progressive disciplinary methods when the Complainant was discharged for taking product was not sufficient to show that its articulated reason was pretextual. Molinar v. Larsen Co. (LIRC, 02/04/92).

The Complainant must show that the Respondent's articulated reason is a pretext for discrimination, not merely that it is a pretext for some other reason which the employer wishes to hide or will not acknowledge. Kovalic v. DEC Int'l., 161 Wis. 2d 863, 469 N.W.2d 224 (Ct. App. 1991), motion for relief from final judgment denied, 186 Wis. 2d 162, 519 N.W.2d 351(Ct. App. 1994).

The Complainant failed to establish that he stopped making derogatory remarks about the Respondent and its president after being warned that continuing to make such comments would result in his discharge, or that his subsequent discharge for continuing to make such comments was pretext for age discrimination. Binder v. Nercon Eng. & Mfg. (LIRC, 12/18/90).

The fact that the Respondent did not indicate in its announcement for the position that an educational background in agronomy was desired does not establish that the Respondent subsequently altered its specifications for the position. Nothing requires an employer to list all of its hiring criteria in a one-paragraph job announcement. Walstrom v. Wisconsin Dairy Herd Improvement Coop. (LIRC, 11/29/90).

The Respondent's giving the Complainant untrue reasons for discharging the Complainant can constitute evidence that the reasons subsequently given by the Respondent as the true reason for the discharge were pretextual. However, in this case it was not conclusive evidence of pretext because it appeared that the long relationship between the parties made it difficult for the Respondent to honestly confront the Complainant about his performance. Hanson v. Culver Electric Supply Co. (LIRC, 11/19/90).

The Respondent's stated reason for discharging the Complainant, excessive absences, was not pretext despite the fact that the Complainant's absences did not exceed the ten days a year extended to her under her short-term disability allowance. Multiple absences are disruptive. The sick leave allowance was intended as a "bank" to prevent employes from loss of income in the event of serious illness or injury. Gehr v. Wausau Insurance (LIRC, 10/19/90).

An employer's assertion of several alternative, independent, non- discriminatory reasons for an employe's discharge does not necessarily justify a finding of pretext if one reason is shown to be untrue, but that does not mean that the false justification cannot constitute evidence of the presence of an illegal motivation. Donovan v. Graebel Van Lines (LIRC, 05/23/90, amended 06/08/90).

The Respondent's proferred non-discriminatory explanation for discharging the Complainant was pretext because there was direct evidence that a discriminatory reason more likely motivated the Respondent, including evidence that there were other ways to accomplish the desired results without discharging the Complainant. LaCrosse v. LIRC, (LaCrosse Co. Cir. Ct., 05/04/90).

Where the Respondent did not call any witnesses with firsthand knowledge of the Complainant's job performance, the statements of the reasons for the Complainant's discharge in the letter of termination were not strong enough, standing alone, to avoid a finding of pretext. Davis v. Braun- Hobar Corp. (LIRC, 04/18/90).

The reasonableness of the employer's reasons for its decisions may be probative of whether they are pretext. The more idiosyncratic or questionable the employer's reason, the easier it would be to expose it as a pretext, if indeed it is one. Leick v. Menasha Corp. (LIRC, 08/17/89).

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).

A Complainant who made out a prima facie case of race discrimination in 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 decision maker to a minority candidate. Howard v. City of Madison (LIRC, 02/24/87).

The fact that a particular characteristic was not mentioned in a job announcement as being desirable did not mean that the employer's subsequent reliance on that character-istic as being important was pretextual. Nothing requires an employer to list all its hiring criteria in a one paragraph job announcement. Phillips v. Green County Sheriff's Dept. (LIRC, 01/16/87).

A Complainant may establish pretext either directly by showing that a discriminatory reason more likely motivated the employer, or indirectly by showing that the employer's proffered explanation is unworthy of credence. That a reason is pretextual does not mean it is false, as the facts asserted may in fact be true but not be the actual reason for the action. Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985).

A female state trooper established sex discrimination by showing that she had been fired for conduct for which male troopers were only suspended, and this comparison was especially probative because at least some of the male troopers had the same district and local supervisors as the female and had been disciplined at approximately the same time. The employer's explanation was suspect because it was conceived long after the female was discharged. Krueger v. Department of Transp. (LIRC, 10/04/82).

Though the record raised a considerable question as to whether there was just cause for the Complainant's discharge, pretext was not established. Whether there is just cause is a different inquiry from whether the employer's asserted reasons are pretextual. Miller v. Manawa School Dist. (LIRC, 02/24/82).

Those reasons which are considered at the time an irrevocable decision is made to terminate an employe are the ones by which that decision will be judged. Pokrass v. LIRC (Applied Power) (Waukesha Co. Cir. Ct., 08/20/81).

Several factors may bear on a showing of pretextuality: the treatment of the employe by the employer during the course of employment; the employer's treatment of the protected class of which the employe is a member; and the absence of minorities on the decision-making body. Rubenstein v. LIRC (U.W.-Bd. of Regents) (Dane Co. Cir. Ct., 02/06/81).

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630 Proof of Disparate Impact

631 Proof of Disparate Impact; General considerations

A single employment decision, involving only one employee, does not constitute the type of facially-neutral policy or practice that can be the subject of disparate impact analysis. There is no such thing as an individual disparate impact case. Rather, for the purposes of disparate impact analysis, an employment practice consists of something in which an employer regularly or repeatedly engages. Thoma v. LJ's Bad Penny Bar and Cafe (LIRC, 08/27/09).

Disparate impact must be proved by statistical evidence, significant (in the statistical sense) to the confidence level required by law, comparing the effect of an employer’s selection device or standard on employees in the different groups being compared. The Complainant’s assertion that a female had never been appointed to the position for which she applied, and that males outnumber females in professional positions in the city government were not supported by necessary statistical evidence to establish a disparate impact. Kaczmarek v. City of Stevens Point (LIRC, 08/12/03).

Hiring statistics without corresponding information about the applicant pool are insufficient to establish a disparate impact. Workforce composition statistics without information regarding selection rates are insufficient to establish a disparate impact. Balele v. Dept. of Revenue (Wis. Personnel Comm., 01/25/02).

Statistical disparities must be sufficiently substantial and not of limited magnitude to give rise to a claim of disparate impact. The surrounding facts and circumstances are considered along with the statistics. Balele v. Dept. of Revenue (Wis. Personnel Comm., 01/25/02).

A disparate impact claim cannot be established without statistical proof. It is not enough to show that the Complainant was the sole adversely-affected individual. Balele v. DOC (Wis. Personnel Comm., 06/13/01).

There is no such thing as an individual disparate impact case. Abaunza v. Neenah Foundry (LIRC, 03/30/93), aff'd., Winnebago Co. Cir. Ct., 10/27/93.

Where an employer's use of a non-discriminatory, neutral factor has a statistically significant disparate impact on members of a protected group, the employer must prove a business necessity for its practice. A complainant cannot prove disparate impact by anecdotal evidence or by supposition based on expert testimony about the behavioral characteristics of members of a certain group. Disparate impact must be proved by statistical evidence which is significant "in the statistical sense" to the confidence level required by law, comparing the effect of an employer's selection device or standard on employes in the different groups being compared. Abaunza v. Neenah Foundry (LIRC, 03/30/93), aff'd. Winnebago Co. Cir. Ct., 10/27/93.

The disparate impact theory of discrimination set forth by the U.S. Supreme Court in Griggs v. Duke Power is applicable to the Wisconsin Fair Employment Act. Under the disparate impact theory, an employment practice which is neutral on its face can be found to be discriminatory if in practice it has an adverse impact on a protected group which is disproportionate to that group's level of involvement in the practice. Moncrief v. Gardner Baking (LIRC, 07/01/92).

The disparate impact theory is invoked to attack facially neutral policies which, although applied evenly, impact more heavily on a protected group. Under the disparate impact theory, a Complainant need not offer proof of discriminatory intent. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

Consideration of an applicant's recent gaps in teaching experience is not evidence of age or sex discrimination, unless it is shown that such a consideration actually has a disparate impact on women or people over the age of 40. Chandler v. UW- LaCrosse (Wis. Personnel Comm., 08/24/89).

The disparate impact theory of discrimination is used to attack employment practices which are neutral on their face but which fall harshly on a protected class of employes. To establish such a claim, it must be shown that a facially neutral employment practice has had a significant discriminatory impact on a protected class. If this is demonstrated, the employer is given an opportunity to defend the practice by showing that it is "job related" or is justified by "business necessity," and if the employer fails in that burden the practice is illegal. Turman v. W. H. Brady Co. (LIRC, 10/17/85).

An isolated decision not reflective of a regular employment practice or policy is not appropriately challenged under the disparate impact theory. Turman v. W. H. Brady Co. (LIRC, 10/17/85).

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632 Proof of Disparate Impact; Complainant's burden to show adverse impact

632.1 Proof of Disparate Impact; Complainant's burden; Complainant's prima facie case

To make out a prima facie case of disparate impact, a Complainant must show that an employment practice or selection device (for example, a passing score on a certain test, or a high school diploma requirement) selects employes or applicants in a pattern which is significantly different from the pattern of a particular minority in the applicant pool. Moncrief v. Gardner Baking (LIRC, 07/01/92).

In order to prove disparate impact, the Complainant must identify the specific employment practice that is challenged, especially where the employer has combined subjective criteria with more rigid rules or standardized rules or tests. Watson v. WPS (LIRC, 09/06/89).

Where the complaints alleged a disparate impact upon blacks, information on the effect of the challenged practice on Hispanic and American Indian persons should not have been considered in determining whether a disparate impact was demonstrated. Davis v. City of Milwaukee (LIRC, 09/05/86).

A female teacher with over two years experience failed to prove that combining an academic teaching position with coaching duties had a disparate impact on female teachers, or that the employer's interviewing for budgetary reasons of only persons with no more than two years experience was sex discrimination. Marcoux v. Mayville Pub. Schls. (DILHR, 10/29/76); Emling v. DILHR (Mt. Horeb High) (Dane Co. Cir. Ct., 03/27/78).

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632.2 Proof of Disparate Impact; Extent of disparity

A disparate impact analysis must include a conclusion as to whether the degree of disparity between the protected class and the non-protected class is of sufficient magnitude to establish a prima facie case for disparate impact, and a Complainant must prove that is disparity figures are statistically accurate to the degree (called a "confidence level") required by law. Where demonstration of statistically significant disparate impact is concerned, the Department is unwilling to intuit what ought to be demonstrated by expert opinion. Popp v. Rhinelander Paper Co. (LIRC, 07/28/95).

Disproportionality of a distribution of minorities in a particular employment setting is proven in disparate impact cases almost exclusively by some kind of expert statistical analysis. A Complainant's intuitive sense that a minority's distribution in a seniority system must have a negative impact on their opportunity for advancement cannot substitute for the kind of rigorous statistical analysis that is necessary to establish a claim of disparate impact in promotion. Moncrief v. Gardner Baking (LIRC, 07/01/92).

The 4/5ths Rule is not a sophisticated enough statistical test that it should be relied on to establish that there has been discrimination, but it is useful in identifying cases where the evidence is so weak that discrimination can be ruled out. Under the 4/5ths Rule, a disparate impact will ordinarily not be inferred unless the rate at which a protected group is successful in a given situation is less than 4/5ths of the rate at which others are successful. Helton v. Wesbar Corp. (LIRC, 03/19/92).

A disparate impact analysis must include a conclusion as to whether the degree of disparity between the protected class and the non-protected class is of sufficient magnitude to establish a prima facie case for disparate impact. In addition, the Complainant must prove its disparity figures are statistically accurate to the degree, called a "confidence level," required by law. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

The "4/5ths rule" in EEOC guidelines (i.e., that adverse impact will not be inferred unless the members of a protected class are selected at a rate less than 4/5ths of the rate at which the group with the highest rate is selected) is not a rule that presumes that discrimination has occurred where its conditions have been met. There are more reliable statistical tests than the 4/5ths rule. Watson v. WPS (LIRC, 09/06/89).

The fact that the percentage of a protected group in a particular job category is relatively small is not significant unless there is relevant statistical evidence concerning the qualified, available labor pool for that job and the percentage of employes in the protected group is less than the percentage of that group in the available labor pool. Chandler v. UW-LaCrosse (Wis. Personnel Comm., 08/24/89).

A company's hiring policies did not disproportionately impact on black applicants where statistics presented could not lead to a reasonable inference that they were not excluded at a rate substantially higher than white applicants and where the company hires blacks at a rate double their representation in the relevant labor market; Nickols v. LIRC (Milwaukee Co. Cir. Ct., 12/03/82).

A Complainant failed to establish disparate impact where, using a binomial model, the standard deviation arrived at did not show that women as a class were being hired or promoted at a significantly lower rate than men. Niles v. Delco Electronics (LIRC, 10/22/82).

To prove that a test or procedure has a disparate impact, a job applicant must show that it selects persons of a particular national origin in a pattern significantly different from the pool of applicants in general. A Hispanic applicant for a summer job program failed to meet this burden where she was the only Hispanic to apply and was one of 27 other applicants who were rejected in the initial screening process. Sanchez v. LIRC (Dane County) (Dane Co. Cir. Ct., 11/20/80).

A female applicant failed to establish a prima facie case that the employer's recruiting practice of advertising a math position combined with a wrestling coach position had a statistically significant adverse impact on women. Marcoux v. DeForest Joint School Dist. No. 10 (LIRC, 09/25/80).

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632.3 Proof of Disparate Impact; Adequacy of sample size

The Complainant's use of the employer's data regarding the ages of people who had been hired for a custodial maintenance position during a seven-year period was insufficient to establish age discrimination since the statistical sample was too small to be of any significance and the Complainant failed to provide evidence of the number and distribution of older persons in the applicant pool. Kurtz v. School Dist. of St. Croix Falls (LIRC, 06/10/93).

A Complainant's attempt to establish disparate impact based upon two promotional postings failed because the numbers involved were simply too small to allow a conclusion to be drawn with any degree of confidence in its statistical significance. Moncrief v. Gardner Baking (LIRC, 07/01/92).

Where the effect of a challenged practice on two blacks, or at most seven minorities, was compared to its effect on 82 whites, it was concluded that the sample size was too small to allow a meaningful conclusion that there was a disparate impact. Davis v. City of Milwaukee (LIRC, 09/05/86).

Although an employe presented evidence that, in one year, 9% of the work force was black (23 out of 253 hourly employes) and 57% of those discharged were black (eight out of 14), the actual number of black workers discharged is too small to draw any statistically significant conclusions. Story v. Massey-Ferguson (LIRC, 11/06/81).

To establish a prima facie case of disparate impact, a female job applicant must show that the hiring procedure has a substantial adverse impact on women, i.e., that the hiring process selects significantly more males than females when compared to the number that apply. However, the employer's lack of female police officers does not establish a prima facie case under a disparate impact theory where the size of the police force is small, the frequency of vacant positions is minimal and the number of female applicants is low. Tall v. City Council of Shullsburg (LIRC, 05/13/80).

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633 Proof of Disparate Impact; Respondent's burden to show job-relatedness

Once the Complainant has established a prima facie case, the employer may attempt to rebut the prima facie case by way of evidence that the employment practice or selection device has a manifest relationship to the employment in question. Moncrief v. Gardner Baking (LIRC, 07/01/92).

Unlike Title VII, which protects bona fide seniority systems, the Wisconsin Fair Employment Act has no specific protection for such systems, and if it is demonstrated that the application of such systems has a disparate impact on minorities, the employer must demonstrate the requisite business necessity or job related defense for the practice or be found to have engaged in illegal discrimination. Lopez v. Milwaukee County (LIRC, 11/04/86).

Once a Complainant establishes that an employer's policies have a disparate impact on blacks or other protected groups, the employer's burden is to prove that the policy is based on a legitimate business necessity. That burden is not one merely of articulation, but of proof. Nickols v. LIRC (A.O. Smith) (Milwaukee Co. Cir. Ct., 12/03/82).

If the Complainant can demonstrate that a practice has a disparate impact, the employer has the burden of showing that its selection process bears a demonstrable relationship to successful job performance. Tall v. City Council of Shullsburg (LIRC, 05/13/80).

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634 Proof of Disparate Impact; Complainant's burden to demonstrate availability of alternatives with lesser adverse impact

If an employer has attempted to rebut the Complainant's prima facie case by presenting evidence that the employment practice or selection device in question has a manifest relationship to the employment in question, the Complainant may still prevail by showing that there are alternative methods available which will meet the employer's goals but with less of an adverse impact. Moncrief v. Gardner Baking (LIRC, 07/01/92).

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635 Proof of Disparate Impact; Cases

The Complainant alleged that she had been discriminated against by the Respondent on the basis of sex and age when it did not hire her for a position as a librarian. The Complainant appeared to offer a disparate impact theory of sex discrimination by offering data regarding the sex and age of certain people who were hired within the Respondent's library system. However, disparate impact must be proved by statistical evidence, significant (in the statistical sense) to the competence level required by law, comparing the effect of an employer's selection device or standard on employees in the different groups being compared. The Complainant failed to offer this type of statistical evidence, and any claim of disparate impact discrimination failed as a result. Rosneck v. UW-Madison (LIRC 08/10/06).

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

The Complainant claimed that the Department of Corrections’ use of career executive reassignment had a significantly disproportionate effect on the opportunities of minorities to compete for open positions because the percentage of minorities in the DOC career executive program is less than the percentage of minorities available in the relevant labor pool. The Complainant’s claim rested upon his assertion that only 5.7% of the DOC career executives were minorities, as compared to 7.5% of qualified administrators in the general labor pool. The Complainant argued that the difference between 5.7% and 7.5% represents a significantly disparate impact because the federal government uses an "80% rule" in evaluating adverse impact for the purposes of affirmative action. The Wisconsin Personnel Commission was not required to adopt such a rule. Its conclusion that even the difference between 5.7% and 7.5% was not significant enough to establish a disparate impact in this case was a reasonable one. Oriedo v. Wis. Personnel Comm. (unpublished opinion, Ct. App., Dist. IV, 04/25/02).

In seniority based layoffs, 14 of the employer's 26 white fire fighters were laid off while all 7 of the Respondent's non-white fire fighters were laid off. This established that the use of seniority of a selection method in layoff had a disparate impact on minority fire fighters. Where the Respondent offered no evidence that its reliance on seniority was related to successful employment as a fire fighter, it was concluded that an illegal discriminatory impact had been shown. Lopez v. Milwaukee County (LIRC, 11/04/86).

A written exam had a discriminatory impact where none of the 10 blacks but 38 of 55 white applicants passed, and the test was not a valid predictor of job performance and had not been validated. Turner and Poindexter v. Racine Co. (LIRC, 05/25/83).

Rejection of a job applicant because she failed to meet minimum height (5 feet, 8 inches) and weight (148 lbs.) requirements had a disparate impact on females and could not be justified where the employer did not consider each applicant's ability to pass the physical agility tests. Ruffin v. Village of W. Milwaukee (DILHR, 02/02/77).

Nonvalidated tests and subjective promotion procedures are not per se discrimination and the employe failed to demonstrate that they had a statistically valid adverse impact on blacks. Greene v. Wisconsin Dept. of Admin. (DILHR, 09/21/76).

Where an employer had hired predominantly females into the custodial department, a requirement that only employes in that department forfeit seniority upon transferring perpetuated the effects of past discrimination by discouraging transfers and locking the females into lower paying, less desirable jobs; and the employer could not prove business necessity by reference to reduced training requirements or turnover. Haug v. Ohio Medical Products (DILHR, 08/05/75).

The prohibition in a union contract against the transfer out of janitress jobs had a disparate impact on females and constituted sex discrimination where the female employes showed that: no males have ever been employed in those jobs; although the employer could assign any employe to the jobs, it only assigned females; only females on layoff were informed of such job openings; and the title "janitress" has a female connotation and would foreseeably discourage more male than female applicants. Bruce v. Parker Pen (DILHR, 11/14/72).

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