RICHARD E ΤΟLLΙVΕR, Complainant
MILWAUKEE CITY CENTER, Respondent
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 makes the following:
1. Richard Τоllіvеr (hereinafter "complainant"), is a male whose sexual orientation is homosexual.
2. The Milwaukee City Center, d/b/a Hilton Milwaukee City Center (hereinafter "respondent") is a business that operates a hotel.
3. The complainant began working for the respondent on July 22, 2002, as a cook. At all times relevant to this complaint, the complainant's supervisor was the Executive Chef, Јаmеѕ Νоwаk (hereinafter "Νоwаk").
4. On December 19, 2006, the complainant was at a local tavern for a company holiday party. During the party Νоwаk told the complainant that he wanted to have sexual contact with him. Νоwаk elaborated that he really liked the complainant and wanted them to go further in their relationship. The complainant said no because Νоwаk was married.
5. On December 22, 2006, while at the same tavern, Νоwаk told the complainant he wanted him to suck his penis. The complainant again said no because Νоwаk was married. Νоwаk told the complainant that if he did not do what he wanted Νоwаk would make the job hard for the complainant and would either fire him or make him quit.
6. A few weeks later, Νоwаk confronted the complainant in the elevator at work. Νоwаk apologized for coming on so strong, but told the complainant he still had feelings for him. The complainant told Νоwаk that he did not want to deal with this because Νоwаk was his boss. He further stated that he had no feelings for him.
7. Sometime in June of 2007, Νоwаk followed the complainant into a walk-in cooler and took out his penis. The complainant immediately walked out.
8. Starting in June of 2007, Νоwаk would "grab himself" while he was talking to the complainant. He would also pull his uniform top up and walk away so the complainant could see his rear end.
Based upon the above FINDINGS OF FACT the commission makes the following:
1. That there is probable cause to believe that the respondent discriminated against the complainant, in violation of the Wisconsin Fair Employment Act (hereinafter "Act"), by engaging in sexual harassment.
2. That there is no probable cause to believe that the respondent discriminated against the complainant with regard to the terms or conditions of his employment on the basis of sex, within the meaning of the Act.
3. That there is no probable cause to believe that the respondent discriminated against the complainant with regard to the terms or conditions of his employment on the basis of sexual orientation, within the meaning of the Act.
4. That there is no probable cause to believe that the respondent discriminated against the complainant with regard to the terms or conditions of his employment in retaliation for opposing a discriminatory practice, within the meaning of the Act.
Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW the commission issues the following:
The administrative law judge's decision is affirmed, in part, and reversed, in part. The complainant's allegations of discrimination with respect to the terms and conditions of his employment are dismissed. This matter is certified for a hearing on the merits of the complainant's sexual harassment complaint.
Dated and mailed February 26, 2010
tоllіrі . rrr : 164 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Sexual harassment
The Wisconsin Fair Employment Act provides, in relevant part:
(1) Employment discrimination because of sex includes but is not limited to, any of the following actions by any employer. . . :
(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 employe, other than an employment decision that is disciplinary action against an employe 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 employe's work performance or of creating an intimidating, hostile or offensive work environment. Under this paragraph, substantial interference with an employe'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 employe 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.
Wis. Stat. § 111.36(1)(b)(emphasis added).
The commission has interpreted the statute as providing for three categories of prohibited conduct: sexual harassment by an employer, quid pro quo sexual harassment, and hostile environment sexual harassment. The commission has specifically held, and the court of appeals has affirmed, that under the first category, which is italicized in the citation above, employment discrimination based on sex occurs if the employer -- meaning the owner or an agent in a position of responsibility such that it is appropriate to apply the rule of respondeat superior and treat the actions of the agent as being the actions of the employer -- engages in conduct that meets the definition of sexual harassment, whether or not that conduct creates a hostile work environment. Tobias v. Jim Walter Color Separations (LIRC, Aug. 13, 1997); aff'd. Jim Walter Color Separations v. LIRC and Marcy Ann Tobias, 226 Wis. 2d 334, 595 N.W. 2d 68 (Ct. App. 1999). Thus, where the employer or an agent of the employer is perpetrating the sexual harassment, a violation of the law may be established even if the harassment would not be considered sufficiently severe or pervasive as to create a hostile work environment. Harper v. Menard Inc. (LIRC, Sept. 18, 2009). Further, while in cases involving harassment by co-workers, an employer only becomes liable when it knows or should have known about the harassment and fails to take adequate measures to prevent or eradicate it, Krienke v. Ramada Inn Conference Center (LIRC, Oct. 29, 2002), harassment perpetrated by an agent of the employer violates the law without regard to whether the employer knew and took appropriate action.
In this case, the complainant's allegations fall within the first category of conduct prohibited by the statute: sexual harassment by the employer. The complainant has contended that the sexual harassment was perpetrated by the employer itself, in the person of a managerial or supervisory employee. James Νоwаk was the Executive Chef, and the complainant's supervisor. As such, he is appropriately viewed as an agent of the employer.
The next question is whether the complainant's allegations constitute sexual harassment. Sexual harassment is defined in the statute, as follows:
[U]nwelcome 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 employe's work performance or to create an intimidating, hostile or offensive work environment.
Wis. Stat. § 111.32 (13).
The complainant testified, without rebuttal, that his supervisor engaged in the following conduct:
The administrative law judge's decision appears to be premised on a conclusion that either the complainant did not notify the respondent of all the sexual harassment that was occurring or that the respondent satisfactorily addressed the complainant's complaints of sexual harassment. However, the question of whether or not the respondent was aware of the harassment and whether it took appropriate action to address the matter is only significant in a co-worker harassment case, where the complainant is seeking to establish that the respondent permitted sexual harassment to create an intimidating or hostile work environment. Where, as here, the complainant has presented evidence indicating that the harassment was directly perpetrated by his supervisor, an agent of the employer, no more is required to establish a violation of the law.
Terms and conditions
The complainant alleged that Νоwаk pushed him into the hot box, threatened that if he did not comply with Νоwаk's requests for sexual contact he would make the job hard for him and would fire him or make him quit, and cut his hours. The commission agrees with the administrative law judge that the complainant failed to demonstrate probable cause to believe he was subjected to discrimination in the terms and conditions of his employment. The hot box incident, assuming it was deliberate and not accidental, was not shown to relate to the complainant's sex or sexual orientation, and as it preceded any of his harassment complaints, (2) cannot be considered an act of retaliation. The threats to fire the complainant or make his job difficult if he did not do what Νоwаk wanted support a finding of quid quo pro sexual harassment, but do not demonstrate discriminatory terms and conditions of employment. Finally, the complainant's mere assertion that his hours were cut, made without elaboration and without supporting evidence, is insufficient to warrant a conclusion that the complainant was subjected to a retaliatory reduction in his hours. The commission notes, moreover, that the complainant offered inconsistent testimony with respect to whether Νоwаk was personally responsible for cutting his hours, and that he testified the assignment of hours was related to seniority.
NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of witness credibility, but is as a matter of law based upon the complainant's unrebutted testimony.
cc:
Attorney Michael P. Kohler
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