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



ERD Case No. CR200201194
ERD Case No. CR200202089

An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter.(1)  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. Paragraphs four through eight of the administrative law judge's CONCLUSIONS OF LAW are deleted.

2. Paragraphs nine and ten of the administrative law judge's CONCLUSIONS OF LAW are renumbered accordingly.


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

Dated and mailed March 31, 2005
sandero . rmd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


Credibility issues

In her petition for commission review the complainant argues that the respondent's owner, Brian Hopkins, was not a truthful witness and offered false testimony. The complainant asserts that Mr. Hopkins had to be interrupted from lying when he was fabricating his side of the story. The complainant has not explained what aspect of the respondent's testimony she believes was false, nor has she identified any portion of the hearing in which the respondent's witness had to be interrupted. The commission has conducted an independent review of the record, but sees no reason to doubt the general credibility of Mr. Hopkins' testimony. Moreover, the commission notes that the administrative law judge, who presided over the hearing and was in a good position to observe the demeanor of the witnesses, found the respondent's version of events to be credible. Lacking any compelling reason to do otherwise, the commission will defer to the credibility assessment made by the administrative law judge.

Next, the complainant states that the respondent's past and recent employees can verify that Mr. Hopkins does not handle things the way he made the administrative law judge believe. The complainant provides the names of several co-workers whom she contends would be very valuable witnesses. She states that she did not want to involve these individuals because of the way the respondent would act towards them. However, the complainant's opportunity to present her evidence was at the hearing before the administrative law judge. If the complainant had witnesses who could have testified on her behalf, she should have brought them at that time. Although the complainant may now regret her decision to appear without supporting witnesses, her change of heart about asking her former co-workers to testify on her behalf is not a circumstance that would justify reopening the record.

Finally, in her petition the complainant contends that the respondent knows it is guilty or it would not have offered to pay her attorney fees to close the hearing before it started. However, an offer of settlement is not tantamount to an admission of guilt, and any settlement negotiations that may have occurred between the parties have no bearing on the outcome of this matter.

Legal issues

Although the commission agrees with the administrative law judge's credibility determination, as well as with the ultimate conclusion that the respondent did not violate the statute as alleged, the commission has modified the administrative law judge's decision to reflect a differing interpretation of the law with respect to sexual harassment.

The Wisconsin Fair Employment Act (WFEA) 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 WFEA recognizes essentially three ways in which an employer may be liable for sexual harassment. The first is where the harassment is perpetrated by an owner or an agent of the employer who is 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; the second is where there has been quid pro quo sexual harassment; and the third is by permitting sexual harassment to create a hostile work environment. The third category applies to the actions of co-workers who are not considered to be agents of the employer. See, 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); Anderson v. MRM Elgin Corp. (LIRC, Jan. 28, 2004).

There is no allegation of quid pro quo sexual harassment in this case, and the respondent clearly did not permit Mr. Humm to engage in sexual harassment, as it is undisputed that after the complainant brought the matter to the respondent's attention, the owner talked to Mr. Humm and made him apologize, after which no further sexual harassment occurred. Thus, the respondent is only liable for Mr. Humm's conduct if the principle of respondeat superior applies.

In determining whether an employee's co-workers are supervisors for purposes of imputing liability for alleged discriminatory acts, the courts will look to the test for supervisory status set forth in City Firefighters Union Local No. 311 v. City of Madison, 48 Wis. 2d 262, 270-71, 179 N.W.2d 800 (1970). Crear v. LIRC, 114 Wis. 2d 537 (Wis. App. 1983); Ferguson v. Buechel Stone Corp. (LIRC, April 24, 2001). That test provides for consideration of the following criteria:

1. The authority to effectively recommend the hiring, promotion, transfer, discipline or discharge of employees;

2. The authority to direct and assign the work force;

3. The number of employees supervised and the number of other persons exercising greater, similar or lesser authority over the same employees;

4. The level of pay, including an evaluation of whether the supervisor is paid for his skill or for his supervision of employees;

5. Whether the supervisor is primarily supervising an activity or is primarily supervising employees;

6. Whether the supervisor is a working supervisor or whether he spends a substantial majority of his time supervising employees; and

7. The amount of independent judgment and discretion exercised in the supervision of employees.

Crear, supra, 114 Wis. 2d 537, 541-42. The factors are not to be considered in the disjunctive such that any one factor is determinative. Rather, the totality of the criteria must be considered. Id.

Mr. Humm was made lead machine operator about three months into the complainant's employment. While Mr. Humm had the authority to direct and assign work, he could not hire, fire or discipline employees, nor was it shown that he had the authority to recommend those types of personnel actions. It was Mr. Hopkins, the owner, to whom employees went with requests for time off or schedule changes. Mr. Humm's supervisory authority extended to only a small group of workers, and his level of pay was not increased to reflect his supervisory duties. Mr. Humm was a working supervisor, who was responsible for operating and setting up machines, and the evidence does not suggest that he spent the majority of his time supervising employees. Finally, it was not shown that Mr. Humm exercised independent judgment and discretion beyond that necessary to assign various work jobs during the day.

Based on the foregoing, the commission concludes that Mr. Humm is more accurately characterized as a lead worker than a supervisor. The commission agrees with the administrative law judge that Mr. Humm was not an agent of the employer such that his actions could be considered the actions of the employer, as well as with the conclusion that the respondent did not violate the WFEA by engaging in sexual harassment or permitting sexual harassment to have the purpose or effect of substantially interfering with the complainant's work performance, or of creating an intimidating, hostile or offensive work environment. However, the commission disagrees with the administrative law judge's finding that Mr. Humm, although not an owner or an agent of the respondent, was a supervisor of the complainant in that he had immediate authority over her and directed her day-to-day work activities. The commission also differs with his analysis that, when sexual harassment by a supervisor creates an unlawful hostile environment, but does not result in a tangible employment action, the employer to avoid liability must prove that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Regarding the finding that Mr. Humm was a supervisor, the law does not contemplate an interim status for supervisors who are not agents of the employer, but yet are more than mere co-workers. For the purposes of the WFEA, Mr. Humm is either an agent of the employer, such that any sexual harassment on his part is attributable to the employer, or he is considered a co-worker whose actions can only be imputed to the employer if the employer permitted the sexual harassment to occur. Moreover, the theory that there is an affirmative defense available to employers when sexual harassment is perpetrated by a supervisor is inapplicable in a proceeding under the WFEA. The decisions upon which the administrative law judge relied for this proposition, Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2268 (1998) and Faragher v. City of Boca Raton, 542 U.S. 775, 118 S.Ct. 2275 (1998), involve interpretations of Title VII of the Civil Rights Act of 1964, not the WFEA.  Because the statutory language contained in Wis. Stat. § 111.36(1)(b), with respect to sexual harassment is substantially different from that in Title VII, federal cases addressing the question of hostile work environment sexual harassment do not necessarily provide guidance in cases involving the WFEA. Jim Walter Color Separations v. LIRC and Marcy Ann Tobias, 226 Wis. 2d 334, 595 N.W. 2d 68 (Ct. App. 1999); Anderson v. MRM Elgin Corp. (LIRC, Jan. 28, 2004)(fn 1). In Burlington and Faragher, the court was concerned with balancing the fact that an employer has the ability to guard against misconduct by its supervisors with the principle articulated in other decisions that an employer should not be automatically liable for the tortious conduct of a supervisor. Therefore, the court established an affirmative defense which an employer could raise in order to avoid liability. However, under the WFEA, the employer is liable for sexual harassment by its agent whether or not it addressed the matter and without regard to whether the complainant availed herself of opportunities to complain. There is no affirmative defense available to the employer where the sexual harassment is perpetrated by its agent.

Finally, the commission notes that, although it did rely on the Burlington and Faragher analysis in Harsh v. County of Winnebago (LIRC, Nov. 6, 1998), cited by the administrative law judge in his decision in the instant case, the commission's decision in Harsh was issued prior to the published court of appeals decision in Jim Walter Color Separations. The commission no longer follows the Burlington and Faragher analysis. Any subsequent commission decision which may have relied upon an analysis of Title VII sexual harassment law that is contrary to the sexual harassment provisions in the WFEA, including Baier v. J&J Electric (Dec. 16, 2003), will no longer be followed.

The commission has modified the administrative law judge's decision in accordance with the above.

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(1)( Back ) The decision was inadvertently date-stamped June 30, 2002. The correct date of issuance of the decision was June 30, 2003.


uploaded 2005/04/18