Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Research Products Corporation v. LIRC & Daniel M. Braxton, Case 00-CV-0010 (Wis. Cir. Ct., Dane Co., November 9, 2000)

Digest Codes:  MC 666.01   MC 668

The employee worked for approximately 11 months as an assembler for the employer, a manufacturer. He had received disciplinary action for instances of violating company rules, including failure to wear safety glasses, failure to stay at his work station, and extended breaks. He signed a Last Chance Agreement which included a seven-day disciplinary suspension and a warning that future violations of any work rule would result in discharge.

About two months after signing this agreement, the employee was at a meeting with about 30 other workers, 11 of whom were of Hispanic descent. The employee wondered why the employer had recently been hiring so many Hispanic workers, and also had encountered trouble communicating with one or more of them due to their limited English language skills. Towards the end of the meeting he raised his hand and asked the supervisor: “I don’t want to sound racist or offend anyone, but do you still hire Americans or people from this country?” The supervisor, who was also Hispanic, indicated that she was stunned and offended by this question, but she responded to the employee that the employer hires whomever is qualified for the job. Two Hispanic workers told the supervisor they were offended by the employee’s question. Thereafter, higher management met with the employee, who indicated that he had not intended the question to sound discriminatory, and offered to apologize to those who had been offended. The employer determined the employee’s question had been “abusive” towards other employees and discharged him.

The appeal tribunal found no misconduct and the commission affirmed. The employer appealed and argued that the question was intentionally discriminatory and placed the employer at risk of state or federal discrimination complaints.

Held: The finding of no misconduct is affirmed. Credible evidence supports the commission’s factual determination that the employee was guilty of insensitivity and of phrasing his question poorly, but that he did not intend to harass or discriminate against anyone.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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