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

LISA M. BEAUFEAUX, Employee

MEINNERT DELIVER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03200621RH


An administrative law judge (ALJ) for the Division of Unemployment Insurance 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 ALJ. Based on its review, and after having consulted with the ALJ concerning credibility of witnesses, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked about 14 months as the office administrator for the employer, a newspaper distributorship and freight business. The employee's supervisor was David Meinnert, the owner of the business. The employee's last day of work was February 26, 2003 (week 9), when she voluntarily terminated her employment.

The issue to be decided in this case is whether the employee's quitting was for any reason which would allow the immediate payment of unemployment insurance benefits.

In April 2002, Meinnert said to the employee, "How does it feel to get more beautiful every day?". In June, 2002, the employee asked Meinnert for cash to buy stamps for the office, and as he was taking money out of his wallet to give to her he said, "Just like being married, isn't it, honey?"

In November 2002, the employee was bending over a desk in the office in order to plug in an appliance, and Meinnert walked through and said to her, "What's the matter, are the boobs in the way?"

In February 2003, the employee was off work for 3 weeks in connection with breast augmentation and stomach reduction surgery. She had not told Meinnert what surgery was planned before she left work, although she had told two co-workers, Mike Stein, a manager for the employer, and Angie, a co-worker who did accounting. Stein then told Meinnert that the employee was having breast augmentation surgery. When the employee returned to work on February 25, 2003, Stein said to her, "Welcome back, how are you feeling?" Meinnert, on the other hand, said to the employee, "So, let's see them." The employee was emotionally upset by Meinnert's comment.

Following Meinnert's comment to her on February 25, 2003, the employee decided that she did not want to continue working for Meinnert because she believed that he would continue to make offensive and unwelcome comments to her such as the comments he had made about her breasts on that day and previously. She informed Meinnert that day that she intended to quit and that she would work through Friday of that week, which was February 28. The only thing that Meinnert asked her in response was whether she was quitting because she was getting married.

On the following day, Wednesday, February 26, 2003, the employee reported to work. As she was taking off her coat, Meinnert came in and asked her if she was "wearing anything sexy for [him]" that day.

After Meinnert's comment to her on February 26, the employee decided that she did not even want to continue working for him through the end of the week as she had planned, and she informed him that she was leaving that day. The employee told Meinnert that she was going to leave work that day because of the comments he had made to her. Meinnert asked her for an example, and the employee mentioned the comment he had made the day before when he said to her, "So, let's see them." Meinnert responded by saying that he was "just kidding" when he said such things.

Wisconsin Statutes § 108.04(7)(b) provides that the benefit disqualification applicable to employees who voluntarily terminate their employment:

does not apply if the department determines that the employee terminated his or her work with good cause attributable to the employing unit. In this paragraph, "good cause" includes, but is not limited to, a request, suggestion or directive by the employing unit that the employee violate federal or Wisconsin law, or sexual harassment, as defined in s. 111.32 (13), by an employing unit or employing unit's agent or a co-worker, of which the employer knew or should have known but failed to take timely and appropriate corrective action.

(emphasis added). The commission concludes that Meinnert's conduct towards the employee constituted sexual harassment as defined in s. 111.32 (13) and that this provision therefore applies to the employee's voluntary termination of her employment.

"Sexual harassment" is defined by Wis. Stat. § 111.32(13) as:

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.

Meinnert made repeated comments to the employee concerning her breasts, including referring to them as "boobs". He made comments to her concerning her physical attractivenesss, and about her wearing "sexy" clothing. Other aspects of Meinnert's comments and other comments he made, while themselves not necessarily falling within the scope of the definition of sexual harassment per se when viewed in isolation, are also relevant. Thus, Meinnert's use of the term of endearment "honey" towards the employee, his comment referring to it being "just like being married" when he gave her money, and his question of whether the employee was wearing something sexy "for him", contributed to an overall context in which his comments concerning the employee's breasts, "boobs", physical attractiveness, and "sexy" clothing could be understood to take on a more suggestive nature than they might otherwise. The commission therefore concludes that Meinnert engaged in "verbal conduct of a sexual nature", within the meaning of Wis. Stat. § 111.32(13), towards the employee.

The commission also concludes that Meinnert's conduct was "unwelcome" within the meaning of the relevant statutory definition. The employee credibly testified that Meinnert's comments to her were unwelcome and upsetting. Furthermore, the employee never said anything to Meinnert involving sexual innuendo, and she never said anything to Meinnert that would have led him to believe that it was acceptable to her for him to make comments to her about her breasts, her physical attractiveness, or wearing "sexy" clothing.

Because Meinnert's comments were unwelcome verbal conduct of a sexual nature, they constituted "sexual harassment" within the meaning of Wis. Stat. § 111.32(13). Under Wis. Stat. § 108.04(7)(b), "good cause attributable to the employing unit" therefore existed for the employee to voluntarily terminate her employment.

The commission therefore finds that, in week 9 of 2003, the employee voluntarily terminated employment with the employer, but did so with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed December 3, 2003
beaufli . urr : 110 :    VL 1005.01  VL 1080.20

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

Prior to 2000, the Unemployment Insurance Act contained a separate exception to the quit disqualification provision in Wis. Stat. § 108.04(7)(a), concerning sexual harassment. This exception, found in Wis. Stat. § 108.04(7)(i), provided:

[The disqualification provided for in p]aragraph (a) does not apply if the department determines that the employe terminated his or her work because the employer made work, compensation, promotion or job assignments contingent upon the employee's consent to sexual contact or sexual intercourse as defined in s. 940.225(5).

In 2000, the statute was amended (by 1999 Act 15) to remove this provision and to add language to Wis. Stat. § 108.04(7)(b), which defines "good cause attributable to the employing unit". That section was amended to provide that such "good cause" included:

sexual harassment as defined in s. 111.32(13), by an employing unit or employing unit's agent or a co-worker, of which the employer knew or should have known but failed to take timely and appropriate corrective action.

In the "Plain Language Summary" of the bill which made this change, it was explained that this change

"[r]epeals the narrow sexual harassment quit exception, 108.04(7)(i), and consolidates and broadens that exception within amended section 108.04(7)(b). Sexual harassment under amended sub. (7)(b) will be recognized as a form of good cause attributable to the employer for an employee to quit employment, without losing eligibility for UI benefits. The employer will be chargeable with resulting benefits. The amended section 108.04(7)(b) specifically applies the more expansive definition of sexual harassment from section 111.32(13) of the Wisconsin Fair Employment Act."

This amendment emphasizes the importance of the issue of sexual harassment, and reinforces the notion that quitting a job because of sexual harassment should not disqualify an employee from UI benefit eligibility.

As noted above, the definition of "sexual harassment" contained in Wis. Stat. § 111.32(13) is now expressly incorporated into the concept of "good cause attributable to the employing unit" contained in Wis. Stat. § 108.04(7)(b). For the reasons discussed above in the commission's Findings of Fact and Conclusions of Law, the commission is persuaded that the conduct engaged in by Meinnert in this case was sexual harassment which provided the employee with good cause attributable to the employing unit to voluntarily terminate her employment.

The commission does not believe that the fact that the employee did not object to Meinnert about his conduct until the time came when she told him she was quitting, warrants a different outcome here. The reason for this is, that Meinnert was himself the owner of, and the person ultimately in control of, the business.

In Jim Walter Color Separations v. LIRC and Marcy Ann Tobias, 226 Wis. 2d 334, 595 N.W.2d 68 (Ct. App. 1999), the Court of Appeals agreed with the commission that an act engaged in directly by an employer which falls within the initial description of this definition - "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" - is an act of "sexual harassment" within the meaning of the statute. The Court noted in that case that it was not unreasonable to interpret the definition of "sexual harassment" in Wis. Stat. § 111.32(13) as creating a stricter standard when the employer's own conduct is at issue. The reason for this, the Court noted, was that while employers do not necessarily know about conduct of their employees towards one another, they are aware of their own conduct toward their employees and they can control their own conduct in a way that they cannot necessarily control the conduct of employees towards one another. Jim Walter Color Separations, 226 Wis.2d at 345-46. Considering the Jim Walter Color Separations decision, the commission interprets the language of Wis. Stat. § 108.04(7)(b) to incorporate a similar analysis. In cases in which an employee is being sexually harassed by a co-worker, it is important for the employee to make the problem known to the employer so that it has the opportunity to take the "timely and appropriate corrective action" which (7)(b) now refers to. In cases like this one, however, in which it is the employer itself that is directly engaging in the harassing conduct, the employer is "aware of [its] own conduct toward [its] employees and . . . can control [its] own conduct". Jim Walter Color Separations, Id. It is for this reason, that the fact that the employee did not object to Meinnert about his offensive comments is not determinative here. Meinnert did not need the employee to tell him what he himself was saying to her.

In addition, the commission does not believe that Meinnert needed the employee to tell him that his conduct was unwelcome. As noted above, the employee never said anything to Meinnert that would have led him to believe that he was "welcome" to make repeated comments to her about her breasts (including referring to her "boobs"), about her physical attractiveness, or about her wearing "sexy" clothing for him. It has been well over 20 years since sexual harassment in the workplace was clearly identified as a form of sex discrimination. Any reasonable employer should recognize that conduct and comments of the kind involved here are, at the least, questionable. Furthermore, the idea that sexual harassment of this nature can be explained away as "just kidding", as Meinnert attempted to do here, belongs in an era which is long past. The commission would note that it emphatically disagrees with Meinnert's complaint at hearing, that it was "ridiculous" for Meinnert to be accused of sexual harassment by the employee.

For all of the reasons described above, the commission concludes that the conduct engaged in by Meinnert in this case was "sexual harassment" within the meaning of the statutory definition. For that reason, the employee had "good cause attributable to the employing unit" within the meaning of Wis. Stat. § 108.04(7)(b) to voluntarily terminate her employment with Meinnert.

NOTE: The commission consulted with the administrative law judge concerning the credibility of the witnesses who testified in this matter. The administrative law judge credited Meinnert's testimony that the employee had made comments of a sexual nature around the office. The administrative law judge also accepted the arguments that the employee had been performing unsatisfactorily and had been told that she was going to be held to stricter standards and may have decided to quit because of that. For the following reasons, the commission has arrived at a different assessment of the credibility issues in this case than the administrative law judge.

The testimony by Meinnert that the employee made "kidding comments of a sexual nature" were not credible, in the commission's view. The comments Meinnert alleged the employee made - that men were dirt and should be treated as dirt and taken for everything they had - were not "sexual" in nature, but at most "sexist" (in a "war-of-the-sexes" kind of way). Meinnert's testimony that the employee used the word "fuck" also did not establish that she was using it in a way any differently than Meinnert did, according to the employee's testimony - that is, use of the word in general cursing. As manager Michael Stein testified, Meinnert, the employee, and others at the workplace used the word as a slang term, not directed at anyone in particular as a sexual reference. The fact that the employee may have used coarse language in this fashion does not mean that she somehow forfeited her right to be free from the significantly different type of sexual harassment directed at her by Meinnert. See, Olson v. Servpro of Beloit (LIRC, Equal Rights Decision, Aug. 4, 1995) (employee's use of vulgar language in the company of other workers does not waive her legal protections against unwelcome harassment).

The commission was disinclined to credit Meinnert's testimony because he exhibited poor and inconsistent recollection. Thus, he did not remember if when the employee told him on February 25 that she was quitting he asked her whether she was quitting because she was getting married; he did not remember making the comment "let's see them" (referring to the employee's breasts) on February 25; and he did not remember what comment he made to the employee when she came in on February 26 (when, according to her testimony, his comment was to ask whether she had "worn something sexy for him"). Also, while he testified at one point that the employee at no time told him that she was quitting because of remarks he made, he testified at another point that when she told him she was leaving and he asked her why she told him it was because of the comments that were being made.

The commission credited the employee's testimony about Meinnert saying to her, "What's the matter, are the boobs in the way?" Meinnert never addressed that contention in his testimony, and the commission thus considers it to have been conceded.

The commission also credited the employee's testimony about Meinnert saying to her, upon her return to work following her breast augmentation surgery, "Let's see them". Meinnert did not deny having made this comment, testifying merely that he did not remember having made such a comment. It was not disputed, that he had been aware of the nature of the employee's surgery by virtue of having been told by Stein about it.

The commission also credited the employee's testimony about Meinnert asking her, upon her arrival at work on February 26, whether she was "wearing anything sexy for [him]" that day. The commission did not find Meinnert's denial of having made this comment credible in view of his acknowledgment that he did make some comment and his excuse that he could not remember what that comment was. 

cc: Andrew Louduha


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