STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

CHRISTOPHER R BOWEN, Complainant

STROH DIE CASTING CO INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200301568


An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. The following is inserted after paragraph 3 of the administrative law judge's ORDER:

That the respondent shall pay to the complainant reasonable attorney fees and costs associated with replying to the respondent's petition for commission review in the amount of $10,300. A check in that amount shall be made payable jointly to the complainant and Arthur Heitzer or Brenda Lewison and delivered to Mr. Heitzer's law office.

2. Paragraph 4 of the administrative law judge's ORDER is renumbered to paragraph 5 and the following substituted therefor:

Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Jenny Koepp, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12).

DECISION

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed October 28, 2011
bowench . rmd : 164 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

Harassment

The complainant has alleged that he was sexually harassed and harassed based upon his sexual orientation, in violation of the Wisconsin Fair Employment Act (hereinafter "Act"). The commission agrees with the administrative law judge that the respondent violated the Act by permitting sexual harassment and/or harassment based on the complainant's sexual orientation to create a hostile working environment. (1)

The evidence establishes that between January and May of 2002 the following incidents took place:

The latter two remarks were made to other workers, and it was not established that the complainant overheard them.

In approximately November of 2002 the complainant was transferred to second shift, after which time the following incidents occurred:

In the brief in support of its petition for commission review the respondent argues that the pink donut incident is the only incident that took place within 300 days of filing the complaint, and that the complainant cannot establish a continuing violation based upon that incident because it was not an act of sexual harassment or harassment based on sexual orientation. The respondent contends that the offer of a pink donut may have signified that pink donuts are unappetizing, but that there is nothing about that comment pertaining to homosexuality. However, both the complainant and a co-worker who was present when the remark was made testified that they viewed the comment that the complainant should eat the pink donut as a comment on the complainant's homosexuality. The individual who made the remark had previously told other workers that he disliked the complainant because of his homosexuality, which he regarded as being against his religious beliefs. Given those facts, and when taken in the context of the ongoing harassment, much of it perpetrated by the co-worker in question, the commission believes that the pink donut incident did have a sexual connotation and was part of a pattern of harassment based on the complainant's sexual orientation.

The commission also notes that the repeated comments to the complainant by a second shift employee that the complainant was his "little bitch," were made within the 300-day time period. Consequently, the pink donut incident is not the only incident supporting a continuing violation theory. (2)   Where the record establishes that two or more acts contributing to the claim occurred within the 300-day filing period, the commission rejects the respondent's invitation to disregard the earlier allegations as time-barred and concludes that they may be considered in deciding whether the complainant was sexually harassed or harassed based on sexual orientation, in violation of the Act.

In order for harassment by co-workers to be actionable under the Fair Employment Act, it must be sufficiently severe or pervasive so as to have altered the conditions of the complainant's employment and created an abusive working environment. Thompson v. Ashley Furniture Industries, Inc., ERD Case No. CR199903292 (LIRC July 16, 2003). There can be no doubt but that this condition was satisfied in the instant case. The conduct at issue was not occasional or sporadic, but was frequent and occurred over an extended period of time. The commission agrees with the administrative law judge that the complainant was subjected to harassment that was so pervasive as to create a hostile working environment.

A respondent is liable for the harassing acts of a complainant's co-workers only if it knew or should have known about the harassment but failed to take adequate measures to prevent or eradicate it. Adams v. WB Bottle Supply Co. Inc., ERD Case No. 200600646 (LIRC May 30, 2008), citing Krienke v. Ramada Inn Conference Center, ERD Case No. CR200002246 (LIRC Oct. 29, 2002). In this case, the complainant established that the respondent knew or should have known that he was being sexually harassed and/or harassed based upon his sexual orientation. The respondent observed, or the complainant brought to the respondent's attention, the incidents in which the complainant was told to call his "boy toy lawyer," the "Honk If You're Gay" sticker on the complainant's toolbox, the "queer" or "queen" sign placed on the complainant's locker, and the fact that workers were chanting "Rudy, Rudy" in a high pitched voice in the complainant's presence. The complainant also told the respondent on at least two occasions that he was being harassed by his co-workers and that his complaints were not being addressed. While the complainant did not specify that he was complaining about sexual harassment or harassment based on sexual orientation, other than to tell the owner of the company that he was a "fag," the type of incidents that were taking place should have put the respondent on notice that this was the case. Moreover, other evidence in the record suggests that the respondent was, indeed, aware that harassment based on the complainant's sexual orientation was occurring. Notes taken by the human resources manager based on a discussion with one of the complainant's co-workers state that the worker denied having made remarks about the complainant's sexual preference; no such denial would have been issued had the respondent not been aware of the fact that the complainant was alleging he was being harassed based upon his sexual orientation and questioned the worker about those allegations.

In its brief to the commission the respondent argues that because the complainant never complained to the respondent about the other instances of sexual harassment, he denied the respondent an opportunity to investigate those incidents. The respondent contends that it cannot be held liable for those incidents about which the complainant did not specifically inform it. This argument fails. The commission initially notes that, once an employer has been put on notice that an employee is being harassed, it is obligated to take remedial action to improve the work environment, whether or not it is aware of each individual allegation. Further, the commission has consistently held that an employer is liable for harassment not only where the employee has specifically informed it about the harassment, but where it "knew or should have known" of the harassment and failed to take prompt remedial action. See, Roden v. Federal Express, ERD Case Nos. 8802134, 8802863, 8900131 (LIRC, June 30, 1993); Neldaughter v. Dickeyville Athletic Club, ERD Case No. 9132522 (LIRC May 24, 1994); Yaekel v. DRS Limited, ERD Case No. 9301087 (LIRC, Nov. 22, 1996); Krienke, cited above; and Adams, cited above. In this case, the complainant's complaints to the respondent that he was being harassed daily by his co-workers were invitations for the respondent to investigate further. Had the respondent met with the complainant to discuss his allegations at greater length and in greater detail, more instances of harassment would have undoubtedly been revealed.

This leads to the ultimate question of whether the respondent satisfied its obligation to address the problem. "The remedial obligation of an employer is two-fold: it must end harassment that is ongoing and must deter any future harassment." Larson, Employment Discrimination, Second Edition 1995, Vol. 3, § 46.07[5][b][ii], p. 46-118, cited in Krienke v. Ramada Inn Conference Center, ERD Case No. CR200002246 (LIRC Oct. 29, 2002). A respondent has fairly wide latitude to address allegations of sexual harassment as it sees fit, provided its actions are reasonably calculated to remedy the situation and prevent future harassment. Flanagan v. Wisconsin Bistros/Larson Management, ERD Case No. CR200202638 (LIRC Nov. 4, 2004); see, also, Rusniak v. Fagan Chevrolet-Cadillac, ERD Case No. CR200000027 (LIRC May 23, 2003), Abel v. Dunn County Health Care Center, ERD Case No. CR200601394 (LIRC April 21, 2009). The commission does not believe that the respondent in this case took adequate steps to address the complainant's complaints and to eradicate the harassment that was occurring in its workplace. While the respondent did investigate many of the allegations that were brought to its attention, and did generally caution the employees involved that they needed to stop fighting, it did not investigate, or conducted only a very cursory or partial investigation, in many instances, it took no disciplinary action against any of the individuals involved, and it did not provide its employees with training or retraining on its sexual harassment policy, choosing instead to treat the harassing conduct as mere horseplay or childishness that could be largely ignored. Moreover, the respondent did not provide the complainant with any assurances that his complaints would be dealt with, and made no attempt to follow up with him to find out whether the situation had improved.

The record indicates that one of the respondent's managers overheard the complainant being taunted about calling his "boy toy lawyer," but, although the manager construed the remark as a dig at the complainant's homosexuality, he said nothing about it. The record also indicates that, when the employee the complainant's supervisor suspected of having posted the "Honk If You're Gay" sticker on the complainant's toolbox denied doing so, the respondent simply let the matter drop. It did not investigate further and did not issue the employee a warning about future conduct. Similarly, when the complainant notified his supervisor about the "queer" or "queen" sign having been placed on his locker, he was told his supervisor would follow up, but that there was not much hope of finding who did it. The record contains no evidence to indicate what if any steps the complainant's supervisor took to investigate, but it is clear that no action was taken as a result. After the complainant submitted his written harassment complaint to the respondent, the respondent interviewed three of the workers mentioned by the complainant. However, when those individuals did not confirm that they were engaged in harassment, the respondent took no further action. It issued no warnings, conducted no further investigation, and did not meet with the complainant to discuss the outcome of its investigation. The respondent questioned a worker about the complainant's accusation that he was chanting "Rudy, Rudy" at him and, although the respondent did not find the worker's denial to be credible, it nonetheless chose to take no further action. When the same worker told the respondent that another employee was picking on the complainant, the respondent again took no action and did not even bother to ask what was meant by that comment. Finally, when the complainant reported to the owner of the company that he was being harassed, he was told that if he did not like working for the respondent he could move on. The owner of the company did not ask the complainant what type of harassment he was experiencing and, although he subsequently read the complainant's written complaint and decided that the matter had been adequately resolved, he did not follow up with the complainant to notify him of his determination or to provide any assurances that ongoing harassment would be dealt with.

Overall, the commission believes that the respondent's efforts to address the complaints of harassment were inadequate and ineffective, and it cannot be said that the respondent took any proactive role in ensuring that the atmosphere in its workplace was one where employees could work free from sexual harassment or harassment based upon sexual orientation. The commission, therefore, affirms the administrative law judge's finding that the respondent permitted sexual harassment to occur.

Discharge

The commission is troubled by the fact that the complainant was discharged during the period of time when he was experiencing sexual harassment in the workplace and had unresolved, ongoing complaints. It is not hard to see how the hostile working environment to which the complainant was subjected, and the frustrations he felt about the respondent's unwillingness to address it, may have caused the complainant to overreact to incidents that he would have otherwise been able to better withstand. Given those facts, the commission believes that the respondent should have considered imposing some lesser degree of discipline than discharge, and considers it regrettable that the respondent did not do so.

However, the fact remains that it is the respondent's state of mind that is at issue, and the commission does not believe the evidence warrants a conclusion that the respondent was motivated to discharge the complainant based upon his sexual orientation or in retaliation for having complained about harassment. The respondent's work rules clearly call for discharge after two Type B violations in a twelve-month period. The complainant had two Type B violations, the latter involving a physical altercation with a co-worker. The commission finds credible the testimony of the respondent's witnesses that they believed the complainant had anger management issues and that his conduct warranted discharge, and it does not doubt that the respondent discharged him for this reason. Moreover, given that the complainant had complained about harassment on several prior occasions without suffering adverse consequences, the commission considers it unlikely that the respondent was motivated to discharge him in retaliation for his protected activity. Finally, while there is certainly evidence to indicate that some of the complainant's co-workers harbored discriminatory animus against the complainant because of his sexual orientation, there is no reason to believe that the respondent shared this prejudice. Upon consideration of all the facts and circumstances, the commission agrees with the administrative law judge that the decision to discharge the complainant was not a pretext for discrimination.

In the brief in support of his petition for commission review the complainant argues that he and Tom Meier were not disciplined equally and that Meier could have been discharged based on his conduct in threatening the complainant. The complainant also points out that the respondent had the discretion to impose a lesser degree of discharge and had done so on other occasions. The commission has considered these arguments, but does not find them persuasive. It is clear from the record that the respondent did not regard the complainant and Meier as having engaged in the same conduct. Although Meier did threaten to take the matter "outside," it was the complainant who escalated the confrontation by grabbing Meier and refusing to let go, while Meier was attempting to walk away from the argument. Further, prior to this incident Meier had no Type B violations and was therefore not subject to discharge under the respondent's progressive discipline policy. While the facts do demonstrate that the respondent had the discretion to impose a lesser degree of discipline than discharge had it wished to do so, and that the respondent treats each situation individually, the record gives no reason to believe that the respondent handled the complainant's situation as it did based on a discriminatory motive. To the contrary, the evidence establishes that the respondent acted based on its belief that the complainant had anger problems such that discharge was appropriate. James Kaufman, the human resource manager, credibly testified that he believed the complainant provoked a potentially violent incident in the workplace that could not be tolerated. Similarly, the complainant's supervisor, Ron Howski, testified that he had seen the complainant blow up in the past and believed he had a violent temper. It was these concerns that led to the complainant's discharge, and not the complainant's sexual orientation or the fact that he had previously complained of harassment.

The complainant also makes an argument that the final incident involving the altercation with Tom Meier was "staged" and "set up" by Meier and other workers to get him fired. The record contains no evidence to support this. Moreover, even if there were some basis to conclude that Meier staged an incident in order to lure the complainant into an altercation, this would not warrant a finding of discrimination on the employer's part absent any evidence that the respondent was in on the set-up. The complainant's theory that Kaufman was Meier's "cat's paw," and that Kaufman relied on Meier's lies to discharge the complainant, is simply not persuasive. The evidence does not support a conclusion that Meier wanted to get the complainant fired because of his sexual orientation or in retaliation for having opposed a practice of discrimination, or that he deliberately and effectively manipulated Kaufman into doing so.

Attorney fees

In its petition for commission review the respondent argues that the amount of attorney fees awarded by the administrative law judge was excessive, while the complainant contends that the award should be increased. Since the parties have stipulated to the reasonableness of the complainant's attorneys' hourly rates, the only issue to decide is whether the number of hours requested was excessive and, further, how much, if at all, the fees should be reduced to reflect the fact that the complainant achieved only partial success.

The complainant's attorneys incurred fees associated with pursuing this matter in the amount of $331,520.50, of which they requested that the administrative law judge award 80%, or $276,127.10. The respondent has proposed reducing that amount by an additional 90% or more, for a total fee award of $28,213.72 or less. In support of this request, the respondent contends that it is unable to find a case in which the commission has awarded more than $18,000, that the complainant used litigation and discovery tactics that caused harm to it, in that it incurred over $264,000 in legal bills of its own, and that the complainant's degree of success was extremely limited.

The respondent's arguments are unpersuasive. There are numerous occasions in which the commission has awarded attorney fees well in excess of $18,000, as can be seen by a quick canvass of the decisions reported on the commission's web site (3)   or in the Equal Rights Decision Digest. For example, in Fields v. Cardinal TG, Co., ERD Case No. 199702574 (LIRC Feb. 16, 2001), the commission awarded the successful complainant a total of $35,319.29 in attorney fees and costs, in Geen v. Stoughton Trailers, ERD Case No. 199700618 (LIRC Aug. 8, 2008), the commission awarded $130,365.75 in attorney's fees and costs, and in Roytek v. Hutchinson Technology, ERD Case No. 199903917 (LIRC Feb. 15, 2005), the commission awarded $41,535, in addition to $20,401.73 already awarded by the administrative law judge. There is clearly precedent for an award of attorney fees well in excess of that contemplated by the respondent, and the determination as to what amount of fees is reasonable will depend on the specific circumstances of the case.

The complainant attorneys have documented their fees, and nothing on the face of that fee request appears to be excessive or unreasonable. The mere fact that the respondent incurred costs defending the litigation is not a basis to deny the complainant's request for attorney fees, and the respondent has not identified any discovery or litigation tactic that it considers abusive, frivolous, or even unnecessary. While the respondent generally contends that the length of the hearing was excessive, it has not pointed to any portion of the testimony that it believes could have been omitted, nor has it explained how much time it believes would have been warranted. Not only has the respondent failed to demonstrate that the fees requested are unreasonable or excessive, but the respondent's own alternative proposal of $28,213.78 or less is so arbitrary and unreasonable as to be unworthy of serious consideration.

Finally, the commission has considered the respondent's argument that the fee award should be further reduced because of the complainant's partial success, but finds this similarly unpersuasive. The administrative law judge already reduced the complainant's attorney fees by 60% of the total amount of fees incurred to reflect the complainant's partial success, and the respondent has not made any compelling argument for an additional reduction. There is no formula to apply in deciding what portion of the fees requested to award where the complainant has prevailed on only some of his or her claims, and the fee award can vary greatly depending upon the individual case. See, for example, Mateski v. Nuto Farm Supply, ERD Case No. CF200200727 (LIRC Feb. 15, 2005)(fee request reduced by 20% where complainant did not prevail on her claim that the respondent refused to accommodate a disability, but obtained significant success since she prevailed on her claim that she was refused rehire and discharged based on disability); Roden v. Federal Express, ERD Case No. 8802134 (LIRC June 30, 1993)(fee request reduced by 75% where complainant prevailed on her claim of retaliation for having opposed a discriminatory practice with respect to the terms and conditions of employment, but did not prevail on her claims of discrimination because of sex and because of retaliation with respect to compensation, and discharge). There is certainly no rule or precedent for limiting the attorney fees to 10% of the amount requested for an employee who prevails on only a sexual harassment claim but not on an accompanying discharge claim. See, for example, Harper v. Menard Inc., ERD Case No. CR200602401 (LIRC Sept. 18, 2009)(fee request reduced by one-third where the complainant prevailed on her sexual harassment complaint, but not on her constructive discharge complaint); Anderson v. MRM Elgin Corp., ERD Case No. 199804070 (LIRC Jan. 28, 2004)(fee request reduced by one-fourth where the complainant prevailed on a sexual harassment claim, but not on allegations related to discharge or failure to hire).

The commission finds the complainant's arguments in support of increasing the fee award to be similarly unpersuasive. The complainant argues that he achieved excellent results and should receive a fully compensatory fee award on that basis. The complainant asserts that this was the first case in which the Division issued a decision finding harassment based on the sexual orientation of the complainant and that the decision contributes significantly to both the enforcement and development of Wisconsin's law against sexual orientation discrimination. The complainant also contends that, based on the efforts of complainant's counsel, he helped to establish and clarify the proper approach to admission of evidence where a continuing violation has been asserted. However, the opinions of the dissenting commissioner notwithstanding, the complainant's case does not represent a new legal theory or right. To the contrary, there was never any doubt that harassment based on sexual orientation was prohibited by the statute. See, Haecker v. Charter Steel, ERC Case No. CR200002629 (LIRC Jan. 28, 2003); Thompson v. Ashley Furniture Industries Inc., ERD Case No. CR199903292 (LIRC July 16, 2003); Starck v. Midwest Airlines, Inc., ERD Case No. CR200202357 (LIRC June 18, 2004). Further, while a published court of appeals decision clarifying the law on continuing violations may be said to constitute a success, the commission is aware of no authority allowing it to enhance the complainant's fee request to reflect success before a higher court.

Because the commission agrees with the administrative law judge that the amount of attorney fees awarded is reasonable and appropriate, the attorney fee award is affirmed.

Attorney fees for petition for commission review

The complainant has requested a total of $18,215.75 in additional attorney fees and $68.57 in costs associated with filing his petition for review and responding to the respondent's petition. Because the complainant did not prevail on his petition for review, the commission considers it appropriate to limit his fees to those reasonably expended responding to the respondent's unsuccessful petition.

The complainant's attorneys received the respondent's brief in support of its petition for review on or about June 21, 2011, and began reviewing it and preparing its response that day. The fee petition indicates that Attorney Lewison spent 21.6 hours researching issues for the responsive brief, drafting the brief, and drafting the supplemental request for attorney fees, at an hourly rate of $275, and that Attorney Heitzer spent 14.5 on similar tasks at an hourly rate of $300, for a total of $10,290. The respondent has not argued that the time expended was excessive, and the commission sees no reason to believe this was the case. It, therefore, orders the respondent to reimburse the complainant's attorneys $10,290 for the time spent responding to the respondent's petition for review and preparing its supplemental fee request. The commission also orders the respondent to pay $10 in costs to compensate the complainant for the amounts spent in postage submitting the complainant's reply brief.

 

 

LAURIE R. McCALLUM, Commissioner, (dissenting):

I respectfully dissent from the majority's decision that the respondent engaged in harassment on the basis of the complainant's sexual orientation or sex in violation of the Wisconsin Fair Employment Act (WFEA).

Sexual orientation harassment

The WFEA provides as follows, in pertinent part:

111.321 Prohibited bases of discrimination. Subject to ss. 111.33 to 111.365, no employer, labor organization, employment agency, licensing agency, or other person may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of age, race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, military service, use or nonuse of lawful products off the employer's premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters.

111.322 Discriminatory actions prohibited. Subject to ss. 111.33 to 111.365, it is an act of employment discrimination to do any of the following:

(1) To refuse to hire, employ, admit or license any individual, to bar or terminate from employment or labor organization membership any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment or labor organization membership because of any basis enumerated in s. 111.321.

111.32 Definitions. When used in this subchapter:

(13) "Sexual harassment" means unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. "Sexual harassment" includes conduct directed by a person at another person of the same or opposite gender. "Unwelcome verbal or physical conduct of a sexual nature" includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments of a sexual nature; the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes; or deliberate verbal or physical conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employee's work performance or to create an intimidating, hostile or offensive work environment.

(13m) "Sexual orientation" means having a preference for heterosexuality, homosexuality or bisexuality, having a history of such a preference or being identified with such a preference.

111.36 Sex, sexual orientation; exceptions and special cases.

(1) Employment discrimination because of sex includes, but is not limited to, any of the following actions by any employer, labor organization, employment agency, licensing agency or other person:

(a) Discriminating against any individual in promotion, compensation paid for equal or substantially similar work, or in terms, conditions or privileges of employment or licensing on the basis of sex where sex is not a bona fide occupational qualification.

(b) Engaging in sexual harassment; or implicitly or explicitly making or permitting acquiescence in or submission to sexual harassment a term or condition of employment; or making or permitting acquiescence in, submission to or rejection of sexual harassment the basis or any part of the basis for any employment decision affecting an employee, other than an employment decision that is disciplinary action against an employee for engaging in sexual harassment in violation of this paragraph; or permitting sexual harassment to have the purpose or effect of substantially interfering with an employee's work performance or of creating an intimidating, hostile or offensive work environment. Under this paragraph, substantial interference with an employee's work performance or creation of an intimidating, hostile or offensive work environment is established when the conduct is such that a reasonable person under the same circumstances as the employee would consider the conduct sufficiently severe or pervasive to interfere substantially with the person's work performance or to create an intimidating, hostile or offensive work environment.
111.36(1)(br) (br) Engaging in harassment that consists of unwelcome verbal or physical conduct directed at another individual because of that individual's gender, other than the conduct described in par. (b), and that has the purpose or effect of creating an intimidating, hostile or offensive work environment or has the purpose or effect of substantially interfering with that individual's work performance. Under this paragraph, substantial interference with an employee's work performance or creation of an intimidating, hostile or offensive work environment is established when the conduct is such that a reasonable person under the same circumstances as the employee would consider the conduct sufficiently severe or pervasive to interfere substantially with the person's work performance or to create an intimidating, hostile or offensive work environment.

(c) Discriminating against any woman on the basis of pregnancy, childbirth, maternity leave or related medical conditions by engaging in any of the actions prohibited under s. 111.322, including, but not limited to, actions concerning fringe benefit programs covering illnesses and disability.

(d) 1. For any employer, labor organization, licensing agency or employment agency or other person to refuse to hire, employ, admit or license, or to bar or terminate from employment, membership or licensure any individual, or to discriminate against an individual in promotion, compensation or in terms, conditions or privileges of employment because of the individual's sexual orientation; or

     2. For any employer, labor organization, licensing agency or employment agency or other person to discharge or otherwise discriminate against any person because he or she has opposed any discriminatory practices under this paragraph or because he or she has made a complaint, testified or assisted in any proceeding under this paragraph.

 (2) For the purposes of this subchapter, sex is a bona fide occupational qualification if all of the members of one sex are physically incapable of performing the essential duties required by a job, or if the essence of the employer's business operation would be undermined if employees were not hired exclusively from one sex.

(3) For purposes of sexual harassment claims under sub. (1) (b), an employer, labor organization, employment agency or licensing agency is presumed liable for an act of sexual harassment by that employer, labor organization, employment agency or licensing agency or by any of its employees or members, if the act occurs while the complaining employee is at his or her place of employment or is performing duties relating to his or her employment, if the complaining employee informs the employer, labor organization, employment agency or licensing agency of the act, and if the employer, labor organization, employment agency or licensing agency fails to take appropriate action within a reasonable time.

The complainant alleges that he was harassed based upon sex/sexual orientation in violation of the WFEA.

The first question is whether the language of the WFEA provides a cause of action for harassment based upon sexual orientation.

The prohibition against discrimination based upon sexual orientation is stated in Wis. Stat. § 111.36(d)1. This provision prohibits an employer, because of an individual's sexual orientation, from refusing to hire, employ, admit or license, or from barring or terminating from employment, that individual; or from discriminating against that individual in promotion, compensation, or in terms, conditions, or privileges of employment.

It could be argued that the "terms, conditions, or privileges" language of Wis. Stat. � 111.36(1)(d) is sufficiently broad to encompass acts of harassment, and, in fact, that is an approach that has been taken by federal courts in interpreting the language of Title VII.  (4)   These federal decisions were relied upon by the commission to, for example, find acts of racial harassment actionable under the WFEA. (5)

However, the fact that Wis. Stat. § 111.36 specifically sets forth a prohibition against harassment based upon sex, separate and apart from its prohibition against discrimination in terms, conditions, or privileges of employment based upon sex, tends to establish that the authors of 111.36, of which the sexual orientation provision is a part, did not intend the "terms, conditions, or privileges" language to encompass acts of harassment. It is a necessary corollary that the authors' failure to include a parallel prohibition against harassment based upon sexual orientation was purposeful.

Moreover, Wisconsin courts have looked to federal decisions in Title VII cases for guidance only when the language of the WFEA and Title VII are closely parallel. Although both include the "terms, conditions, or privileges" language, it is not apparent that the remainder of their statutory schemes, including the presence of separate harassment language, are so closely parallel as to justify reliance upon these Title VII decisions here.

It has been suggested that the general language of Wis. Stat. § 111.322 could be interpreted to support a separate cause of action for sexual orientation harassment under the WFEA. First of all, this provision only prohibits discrimination "because of any basis enumerated in s. 111.321." Wisconsin Statutes § 111.321, although listing numerous protected categories, does not include sexual orientation among them. It is apparent that the mention of "sex" in Wis. Stat. § 111.321 was not intended to encompass sexual orientation as well, given their separate parallel treatment in Wis. Stat. § 111.36. In addition, Wis. Stat. § § 111.321 and 111.322 both state that they are "subject to ss. 111.33 to 111.365." Consequently, the more specific language of Wis. Stat. § 111.36, discussed above, would govern.

In my opinion, the WFEA does not provide a separate cause of action for harassment based upon sexual orientation.

However, even if such a separate cause of action exists, in my opinion, the evidence of record does not support a conclusion that the respondent failed to act reasonably to address the acts of sexual orientation harassment alleged by the complainant of which the respondent had reason to be aware.

These acts consist of::

(a) the "boy toy lawyer" comment by Rose McGee (McGee)-although the record shows that Jerald Davidson (Davidson), the production scheduler and a member of management, heard this comment, it does not establish that the complainant raised a concern about it or that it was sufficiently egregious to have merited further action by Davidson

(b) the "honk if you're gay" sticker placed on the complainant's toolbox by coworker Rick Hafemeister (Hafemeister)-Jim Kaufman (Kaufman), the human resources manager, told Ron Howski (Howski), the complainant's supervisor, to let Hafemeister know that if anything like that happened again, there would be consequences.

(c) the "queer" or "queen" name tag placed on the complainant's toolbox- the record indicates that Howski told the complainant that he would try to follow up but there was not much hope of finding out who had done it. This characterization of the situation at the time was apt. In addition, the respondent convened a department-wide meeting in April 2002 in which the CEO told everyone in the department that the conflicts had to stop or there would be consequences, and after which McGee and Hafemeister, two individuals about whom the complainant had complained, were pulled aside and told that this "was the last straw."

(d) accusation that the complainant stole all of the "gravy jobs"-this was disclosed by the complainant to the respondent in a written complaint he filed on February 11, 2002. In this complaint, the complainant did not attribute the accusation to his sexual orientation and did not reference any sexual component. Without such a link, the respondent's failure to further investigate such a minor matter was reasonably justified.

(e) an "onslaught of cat calls and jabs"-this was also disclosed by the complainant to the respondent in the written complainant of February 11, 2002, which did not link the actions to the complainant's sexual orientation and did not reference any sexual component. It is implicit that this was the type of action which led the respondent to convene the department-wide meeting in April 2002 referenced above.

(f) chanting "Rudy, Rudy"-this was investigated by Kaufman who discussed the matter with complainant's coworker Dave Lepke (Lepke). Lepke denied chanting "Rudy" but admitted chanting "guru," based upon the complainant's former work as a yoga instructor. Given Lepke's denial, and the minor nature of the allegation, Kaufman's failure to pursue the matter further was reasonably justified.

(g) coworker Jesse Manhardt (Manhardt) repeatedly disconnecting the complainant's air hose-Manhardt was given a three-day disciplinary suspension.

In addition, on May 9, 2002, the complainant approached Michael Stroh (Stroh), the respondent's president, and angrily told him that he was being harassed and intended to sue the respondent and Stroh, and that he was a "fag." The complainant provided no details to Stroh as to any incidents of harassment. Stroh followed up by reviewing the complainant's sole written complaint, the February 11 letter, in which he mentioned only the accusation that he took all of the "gravy jobs," and the "onslaught of cat calls and jabs." This letter did not mention the complainant's sexual orientation. Given the lack of any link provided by the complainant to his sexual orientation, the trivial nature of the "gravy jobs" allegation, and the fact that the respondent had addressed the type of actions implicated by the "onslaught of cat calls and jabs" allegation through its April 2002 department-wide meeting, Stroh was reasonably justified in not pursuing the matter further.

If the WFEA provides a cause of action for sexual orientation harassment, the standard for respondent liability would presumably be that set forth in Wis. Stat. § 111.36(3), i.e., the failure to take appropriate action within a reasonable time. In my opinion, as described above, the record does not support a finding that the respondent failed to take appropriate action to address the acts of alleged harassment of which it had reason to be aware, and, as a result, liability would not attach.


Sexual harassment

If, as I have opined above, the WFEA does not provide a separate cause of action for sexual orientation harassment, what would remain here then would be the complainant's allegation that he was subjected to prohibited sexual harassment.

Since the complainant is not alleging that unwelcome verbal or physical conduct was directed at him because of his gender, within the meaning of Wis. Stat. § 111.36(br), the remaining inquiry would be whether the respondent permitted the sexual harassment of the complainant within the meaning of Wis. Stat. § 111.36(b).

As applicable here, and applying the definition of sexual harassment in Wis. Stat. § 111.32(13), this would include those acts of alleged harassment which could be considered "unwelcome verbal or physical conduct of a sexual nature." Giving this language its broadest interpretation, it could include the "honk if you're gay" sticker placed on the complainant's toolbox; the AIDS joke placed on the complainant's toolbox; the "butt buddies" comment; the fellatio gesture; the "maricon" language; and the "little bitch" comments on second shift.

Of these acts, the only one of which respondent had reason to be aware was the "honk if you're gay" sticker. The record shows that Kaufman, the respondent's human resources manager, told Howski, the employee's supervisor, to tell Hafemeister, who had left the sticker on the complainant's toolbox, that this type of horseplay would not be tolerated. This response by the respondent was appropriate and sufficient.

In arguing that the respondent's response to the sexual harassment to which he was subjected was inadequate, the complainant relies upon a written complaint he made in February 2002. However, this letter was vague as to any specific acts of harassment, and made no reference to anything sexual in nature.

In addition, as discussed above, the respondent convened a meeting in April 2002 in which the CEO told everyone in the department that the workplace conflicts had to stop or there would be consequences, and after which Hafemeister, the coworker responsible for the "honk if you're gay" sticker, was pulled aside for individual warning.

In advancing the argument that respondent's response was inadequate, the complainant also relies upon a statement he made to Stroh, respondent's president, in May 2002. Again, the complainant provided no details as to any specific acts of harassment, indicating to Stroh only that he was being harassed and that he was a "fag." In response, Stroh reviewed complainant's February 2002 complaint, the only written one that he had made, and concluded that nothing further was required. Given the vague nature of this complaint, Stroh's response was a reasonable one.

The record shows that the only action of a possibly sexual nature of which the respondent had reason to be aware was that relating to the "honk if you're gay" sticker, which it resolved by counseling the perpetrator. The complainant's other communications with the respondent were not sufficiently specific to place the respondent on notice that complainant was being subjected to unwelcome verbal or physical conduct of a sexual nature.

Consequently, the respondent's actions here to address acts of sexual harassment of which it had reason to be aware were appropriate within the meaning of Wis. Stat. § 111.36(3).

In my opinion, the complainant has failed to sustain his burden to prove that the respondent violated the WFEA by engaging in or permitting sexual orientation harassment or sexual harassment.

_________________________________
/s/ Laurie R. McCallum, Commissioner

 

cc:
Attorney Lawrence Lynch
Attorney Brenda Lewison



Appealed to Circuit Court.  Affirmed September 26, 2012.

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Footnotes:

(1)( Back ) While the majority of the commission would have thought it went without saying that harassment based upon sexual orientation is prohibited under the Act, and in spite of the fact that the respondent has not raised this issue, the dissenting commissioner has attempted to call that essential premise into question. The dissent argues that since the portion of the Act that specifically addresses harassment only makes reference to sexual harassment or harassment based upon sex, the legislature must not have intended harassment based upon sexual orientation to be covered. The majority rejects this interpretation. Pursuant to Wis. Stat. § 111.31(3), the provisions of the Act are to be liberally construed "to encourage and foster to the fullest extent praticable the employment of all properly qualified individuals regardless of. . . sexual orientation. . . ." In keeping with its stated purpose, the Act contains a broad prohibition against discriminating against any individual with respect to the terms, conditions and privileges of employment. Wis. Stat. §§ 111.322(1) and 111.36(1)(d). Working in an atmosphere free of harassment is unquestionably a "term and condition" of employment covered by the Act, and the commission has specifically found that the "terms and conditions" portions of the statute prohibits other types of harassment than sexual harassment:

The Wisconsin Fair Employment Act prohibits an employer from "discriminat(ing) against any individual in terms, conditions or privileges of employment [...] on the basis of race." (Wis. Stat. �� 111.321-111.322(1)). In interpreting the same phrase "terms, conditions, or privileges of employment" under Title VII, in Meritor Savings Bank v. Vinson, 477 U.S. 57, the United States Supreme Court made clear that this language included a protection against hostile environment harassment. The Court noted that "Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult." Id. at 65. The Court quoted with approval an earlier decision in Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), which stated in part that "[T]he phrase 'terms, conditions or privileges of employment' in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination." 477 U.S. at 66 (internal citation and footnote omitted).

Clark v. Plastocon, Inc., ERD Case No. CR199703063 (LIRC April 11, 2003).

The dissenting commissioner nonetheless argues that, because Wis. Stat. § 111.36(1)(b) contains a specific prohibition against sexual harassment, it is must be presumed that the legislature did not intend to cover harassment on any other basis. By that logic, however, it would be permissible to harass an employee based upon race, national origin, religion, age, or disability, simply because the word "harassment" does not specifically appear in the statute in reference to those otherwise protected classes. The commission has never found this to be the case and, in addition to Plastocon, cited above, has issued numerous decisions addressing harassment based upon race, see, for example, Salley v. Nationwide Mortgage & Realty Corp., ERD Case No. CR200502419 (LIRC Dec. 13, 2007), national origin, for example, Polasik v. Astronautics, Corp., ERD Case No. 8123357 (LIRC April 8, 1983), and creed, for example, Brye v. Brakebush Bros., ERD Case No. 8802413 (LIRC Jan. 11, 1993). Nor is the instant case the first time the commission has considered an allegation that an employee was harassed based on sexual orientation; the commission has routinely treated harassment based on sexual orientation as prohibited conduct. See, Haecker v. Charter Steel, ERC Case No. CR200002629 (LIRC Jan. 28, 2003); Thompson v. Ashley Furniture Industries Inc., ERD Case No. CR199903292 (LIRC July 16, 2003); Starck v. Midwest Airlines, Inc., ERD Case No. CR200202357 (LIRC June 18, 2004).

The dissent also suggests that, even if the statute could be construed to cover harassment on bases other than sex, it nonetheless does not cover harassment based on sexual orientation, as that is not one of the bases enumerated in Wis. Stat. § 111.321. This argument ignores the fact that sex is a basis enumerated in Wis. Stat. § 111.321, and that Wis. Stat. § 111.36, the portion of the statute that specifically pertains to sex and sexual orientation, clearly provides that discrimination based upon sex includes sexual harassment, harassment based upon gender, discrimination based upon pregnancy, and discrimination based upon sexual orientation. Finally, Wis. Stat. § 111.36(1)(d), which applies specifically to discrimination based upon sexual orientation, contains an identical prohibition against discriminating in "terms, conditions or privileges of employment" to that contained in Wis. Stat. § 111.322. There is no reason to assume that the identical language would have a different meaning in one part of the statute than it does in the other. To the contrary, the majority reads both Wis. Stat. § 111.322 and Wis. Stat. § 111.36(1)(d) as prohibiting harassment on the basis of sexual orientation.

(2)( Back ) Hostile environment claims are based on the cumulative effect of individual acts. Bowen v. LIRC and Stroh Die Casting, 299 Wis. 2d 800, 730 N.W.2d 164 (Ct. App. 2007), citing National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 115 (2002). "Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id., at 117.

(3)( Back ) Equal Rights decisions appearing on the commission's website can be found at http://dwd.wisconsin.gov/lirc/er_find.htm.

(4)( Back ) Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971).

(5)( Back ) See, Clark v. Plastocon, Inc., ERD Case No. CR199703063 (LIRC April 11, 2003).

 


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