P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




ERD Case No. 9132522 (formerly No. 8900539)

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on June 26, 1992. Complainant filed a timely petition for review by the commission and the parties submitted written arguments.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:


The decision of the administrative law judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed May 24, 1994

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


This case came before the commission in 1991 following a decision by an Administrative Law Judge that the complaint concerning Respondents' failure to stop harassment did not state a cause of action under the Wisconsin Fair Employment Act. The commission remanded for further hearing based on the following analysis:

It is well established in the context of employment discrimination law that an employer may be liable for discriminatory harassment committed by its employes if this harassment creates a hostile environment and the employer, after being placed on notice of the problem, does not take effective steps to resolve it. [Citations omitted]. The liability which can be imposed on employers in such cases is premised on the fact that they have the power to control the conduct of the offending employes. Because it is the power to control that is significant, it has been recognized that under some circumstances an employer may be liable for harassment of its employes even by non-employes. [Citation omitted]. The EEOC has promulgated guidelines . . . which provide that an employer may be held responsible for acts of harassment of its employes by non-employes when the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action. Under these regulations, the facts concerning the extent of the employer's control over the conduct of the non-employes are significant. An argument may be made by analogy, that an operator of a public place of accommodation or amusement may be held liable for the harassment of patrons by other patrons, where the harassment creates a hostile environment and has the effect of denying the full and fair enjoyment of the facilities, if the operator knew or should have known of the harassment yet fails to take steps to stop it. As in the case of harassment in employment situations, the facts concerning the extent of control over the harassing patrons would be significant.(emphasis added)

The commission thus made it clear that a critical question in this case, was the degree of control the respondents had over the persons engaging in the harassment. The commission continued by noting some of the types of control issues that would have to be addressed:

It is unclear . . . whether the Dickeyville Athletic Club actually owned the field where the alleged harassment occurred. There is a suggestion in correspondence in the file that it was in fact owned by a local church. This would, if true, be a complicating factor since it would raise questions about the club's authority to exclude persons from the premises. If the club is not the owner of the facilities, but uses them under some kind of permissive arrangement with the owner, the club's rights to control access to the premises must be clarified. Another area in which the record is unclear is that of the relationship between the club and the persons described in the complaint as "supervisors," as well as the umpires, who may or may not have been the same. Thus it may be the case that the club had agents present at the facility with the authority to keep order; alternatively, it could be that the club only provided staff for the concession stand and announcer's booth. It may be the case that the umpire had the authority to award defaults based on misconduct by team members, and thus was in a position to coerce persons on other teams into not engaging in harassment. However, it may also be the case that the club's relationship with the umpires was such that it had no right to dictate to them the application of the rules (such as designation of a forfeit) and that the club thus could not exercise this authority.

The commission now affirms the decision of the ALJ herein because, entirely apart from the matter of the degree of Respondents' knowledge of the harassment, the commission believes that it was not adequately demonstrated, that Respondents had sufficient power to control the behavior of the persons engaging in the harassment that they can be held legally responsible for it.

Complainant invokes the doctrine of respondeat superior in an effort to charge Respondents with responsibility for inaction by umpires. However, it is clear that the relationship between the Respondents and the umpires did not involve any significant degree of control of the latter by the former. They were simply paid a certain amount per game to act as umpires in enforcing the rules of softball. The relationship of umpire to Respondents was in the nature of independent contract rather than employment.

Although Complainant acknowledges the general rule that the doctrine of respondeat superior does not apply to the relationship of principal and independent contractor, she asserts that the situation here is within an exception under which principals may be held liable for failing to properly supervise a contract, citing U.S. Fidelity & Guaranty Corp. v. Frantl Enterprises, 72 Wis. 2d 478, 241 N.W.2d 421 (1976). She also asserts that liability could be found under the doctrine of "apparent authority," which concerns acts or omissions of an agent if the principal had knowledge of the acts and acquiesced in them, citing Pamperin v. Trinity Memorial, 144 Wis. 2d 188, 423 N.W.2d 848 (1988).

The commission disagrees. The cases Complainant cites to illustrate the "failure to properly supervise a contract" and "apparent authority" doctrines involve do not involve situations in which imputation of responsibility for violation of antidiscrimination laws is sought. The origin of the general rule, that respondeat superior does not apply to the relationship of principal and independent contractor, obviously has its origin in the fact that one characteristic looked at by the common-law test for determining independent contractor status is the extent to which the principal exercises control over the agent. Respondeat superior does not apply to the relationship of principal to independent contractor precisely because the essence of that relationship (as opposed to the relationship of employer and employe) is that the principal does not exercise any significant control. As noted above, the question of degree of control would be quite relevant to the question of whether responsibility would be visited on one party for not preventing the discriminatory conduct of another. Also, there is a flaw in Complainant's theory that "apparent authority" could be relied on here -- there is no evidence that Respondents were aware of and acquiesced in the acts of the agent (the umpire) which Complainant focuses on, i.e., the failure to try to stop the harassment. The question important to analyzing the situation under the doctrine of "apparent authority" is whether the Respondents knew that Complainant had gone to the umpire and asked him to do something about it and he had refused. The commission can not find that they did.

Whether or not the umpires might have been able to eject players from the game if they engaged in harassment, there is a real question about whether Respondents (whether acting through umpires or directly) could have ejected anyone -- either players or spectators -- from the property. The agreement between the church which owned the property and the respondents was oral. The uncontradicted testimony of Sharon Kaiser was that that agreement did not contain any instructions from the church concerning who could attend the games or play on the teams. In the absence of any specific grant of authority from the church to the Respondents to exclude persons from the church's property, there is simply no good basis for a conclusion that Respondent had a legal right to eject anyone.

The commission agrees with the view expressed by the administrative law judge, that the harassment that occurred in this case created a hostile environment which had the effect of denying the full and fair enjoyment of a public accommodation to Complainant, and that the harassment can not be condoned. However, considering the unique facts of this case, the commission concludes that Respondents did not exercise a degree of control over the persons engaging in the harassment sufficient to justify saddling Respondent with legal responsibility for those persons' actions.

Linda Monroe

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