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

SHERRI HARSH (nee GUNDERSON), Complainant

COUNTY OF WINNEBAGO, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199555514

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on February 27, 1998, dismissing the complainant's complaint of alleged discrimination. The complainant filed a timely petition for review by the commission.

Based upon its review of the matter, and for reasons set forth in the memorandum opinion portion of this decision, the Labor and Industry Review Commission issues the following:

ORDER

The decision of the administrative law judge is set aside and this matter is remanded to the Equal Rights Division for further proceedings.

Dated and mailed: November 6, 1998
harshsh.rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

BACKGROUND

The complainant, a female, is one-half Okinawan. She is a high school graduate and has had some computer training. The complainant completed an application for employment with the respondent in June 1986, (1) and in October 1986 she began employment as a word processor in the Social Services Department. While in this position, she was represented by a union.

In September 1987, the complainant began a new position as the office automation coordinator for the respondent's Information Systems Department. This was a non-union, administrative position. In either 1990 or 1991, the title of her position was changed to microcomputer specialist. The complainant's immediate supervisor at all times while employed in the Information Systems Department was David Henneman, the Director of the Information Systems Department. The complainant resigned from her employment with the respondent on December 5, 1995.

Henneman reported to the county executive, an elected official. Jack Steinhilber was county executive while the complainant was employed by the county. William Wagner was the director of personnel for Winnebago County. Elizabeth Davey was second in charge in the Personnel Department.

On December 15, 1995, the complainant filed a complaint of discrimination against the respondent with the Equal Rights Division, alleging that she had been sexually and racially harassed by David Henneman. Subsequently, on March 28, 1995, she filed an amended complaint with the division alleging retaliation by the respondent. An initial determination was issued in which an investigator found probable cause to believe the respondent violated the Wisconsin Fair Employment Law by engaging in or permitting sexual harassment, by discriminating against the complainant with respect to her terms or conditions of employment because of her sex and race, and by otherwise discriminating against the complainant because she opposed a discriminatory practice or made a complaint under the Act. The investigator found, however, no probable cause to believe the respondent violated the law by terminating the complainant's employment because of her sex, or because she had opposed a discriminatory practice or made a complaint under the Act.

The complainant did not appeal the no probable cause findings and those findings became the final determination of the department.

In response to a department certification to hearing notice the respondent filed an Answer and Affirmative Defenses to the complainant's complaint. Included as affirmative defenses were the following:

"That at all times material herein, the Respondent County maintained specific policies prohibiting discrimination in the workplace, including specific internal complaint procedures.

That at all times material herein, the Respondent County provided inservice training regarding sexual harassment and discrimination in the workplace, and that such training was attended by the Department Head against whom the allegations have been directed."

As the case was proceeding to a hearing on the merits with respect to the issues on which probable cause was found, the parties further narrowed the issues for hearing by entering into a number of stipulations, among which included the following: That matters of retaliation and constructive discharge are not at issue; that matters regarding the respondent's investigation of the complainant's complaint are not at issue; that matters following the filing of the complainant's complaint (i.e., the December 7 complaint she filed with the county) are not at issue; that the complaint filed by the complainant with the county was the first time she complained to the county regarding her allegations in this case; that there is no issue alleging that the county knew of the alleged harassment, but the complainant reserves the argument that the county should have known of the alleged harassment; and that matters of quid pro quo harassment are not at issue.

As a result of these stipulations, the only remaining issues for hearing were whether or not the respondent engaged in or permitted sexual harassment, and whether or not the respondent discriminated against the complainant with respect to her terms or conditions of employment because of her race and sex.

At the hearing on the merits of these issues the complainant testified that during 1989 she and her spouse, David Langkau, separated and that divorce proceedings commenced thereafter in 1989 or 1990. The complainant testified that beginning in 1989 and continuing through 1995, Henneman would put his arm tightly around her waist, at times on a weekly basis, that on a monthly basis he would come up behind her while she was seated at her desk and push his hips and thighs into the side of her shoulder, that he would also physically touch and lean into her while she was standing, that Henneman would frequently stand within an inch from her face when talking to her, that Henneman frequently screamed at her, that he frequently made jokes of a sexual nature that were demeaning to women and that on more than one occasion he remarked to her that she "should not worry about her lack of bust size, (she) probably inherited it." In addition, the complainant testified that while at a conference in Seattle in 1990 or 1991, Henneman constantly put his arm around her as if she were his date, that while seated for dinner at this conference he placed his hand on her knee under the table, and that previously he had grabbed her by the shoulders and kissed her after dropping her off at home following an earlier out-of- town conference. The complainant testified that she went to different events at the Seattle conference in order to avoid Henneman, that she moved away quickly when he placed his hand on her knee, and that when Henneman kissed her she pushed him away and said, "I don't need this, I can't handle this." The complainant also testified that Henneman would say that she had lint or dog hair on her clothing and pick it off with his fingers, usually towards her "backside," and that she stopped wearing knee length suits of a fitted nature to prevent Henneman from making comments about her legs. The complainant testified that Henneman would ask her to move to another chair, and then after she moved to the chair he would comment, "so I can see your legs better," and that he would comment on the position of the slit in her suit, stating that it should be higher, or up the side, "so that more leg would show." Further, the complainant testified that during 1988 her son was sick a lot causing her to lose sleep and when she would come into work exhausted, Henneman would remark, "did you have too much sex last night." She also testified that she had been in a physically abusive marriage and during the period after her separation and the divorce proceedings had begun, Henneman would comment about "seeing the urge to" while winding up his hand as if to strike her. The complainant also testified that upon overhearing her discussing child support with a coworker, Henneman would often comment that "Well, you don't deserve any more than that, I'm surprised they would make him pay at all." She also testified that Henneman would comment that maybe it was her fault that the men in her life would go wrong, "maybe (she) was frigid." She further testified that after becoming engaged to her present husband Henneman would comment that he would marry her, too, if he could find a woman who would support him, that he would marry her in a heartbeat, or Henneman would remark, "Are you sure it's going to work this time or is it going to be strike three, you're out."

The complainant testified that she disliked the physical contact and the comments made by Henneman, that it was demeaning to her, that it made her feel humiliated, uncomfortable, intimidated, embarrassed and upset. She testified that she was afraid to say anything to Henneman because she feared retaliation. She testified that if you made him angry, the next morning he was screaming your name to be in his office so that he could scream at you regarding whatever project he picked. The complainant testified that because of Henneman's conduct she tried to avoid him, and if there was any work that she could perform away from her desk or department, or at a different building, she would go there. Further, she testified that she wasted a lot of time trying to figure things out on her own rather than going to Henneman, that before coming to work in the morning she would get worked up wondering what type of mood Henneman would be in or what he was going to do today to the point that it made her sick, that his conduct made her unable to concentrate at work and that she took a lot of work home because she felt that she was not getting done work that should have been gotten done.

In addition to the above, the complainant testified that during the period from 1989 through 1995, Henneman frequently called her "slant eyes." She also testified that if they disagreed over a work related matter, Henneman would tell her, "If you don't like it, go home," whereas other employes would be told, "If you don't like it, you can leave," or "you know where the door is." On the subject of Henneman's view of a woman's place in Okinawa, the complainant testified that when she was being more vocal when they disagreed on what needed to be done, Henneman would comment, "Maybe they have it right in Okinawa, you would never make it there, you're too aggressive; I think they have it right where women are concerned," or "stay two steps behind the man." Further, the complainant testified that when she mistakenly stapled papers together in the right-hand corner as it is done in Japan, Henneman would sometimes comment, "She thinks she's still in Japan," or depending on his mood, he would angrily rip his hand through the sheets of paper and say, "You're not in Japan anymore, you staple on the left." Further, she testified that if she was having a problem with something Henneman had given her, he would take it, flip it around and say, "How about you try to read it from right to left and upside down, maybe you'll get it then."

The complainant testified that she could not recall for sure when first hired if she was given any material on the subject of employment discrimination, sexual harassment or anything like that. She testified that she thinks she typed and put together a handbook in 1993 which she believes contained information regarding the sexual harassment policy of the county, but she did not believe she was ever given a copy to read or keep once it was in final form. She testified that neither Henneman nor anyone else ever spoke at a staff meeting about employment discrimination. She testified that Henneman never said to her words to the effect that if she did not like what he was telling her or doing, to report it to his boss. She testified Henneman would make comments that would be just the opposite, "If you don't like it, go home, there's not much you can do about it, you don't have the union backing you; if you were to fight, I'm sure you know who would win." Further, the complainant testified that Henneman would comment that he and Wagner were very good friends, or he would make sure you knew he was going golfing with the county executive that day. She testified that at Christmas parties and picnics, Henneman and his wife were usually seated with Wagner and his wife, and that throughout the years Henneman had also commented that "We're going out to dinner with Bill," or that, "Bill's coming over," we're doing this. She also testified that she could not remember the Personnel Department ever giving a presentation on the subject of fair employment practices, sexual harassment, sex discrimination. The complainant testified that she had thought about reporting Henneman's conduct to other folks with power at the county but that she had the same fears that it would get back to Henneman and that she would really be retaliated against.

On cross-examination, the respondent elicited testimony from the complainant that she knew Elizabeth Davey on a first-name basis and was comfortable with her, that she knew Jeanette Diekoff, chairperson of the Personnel and Finance committee which oversaw the Information Systems Department, that Eugene Troxell, a county board supervisor, was her neighbor, that during 1995 she traveled to Kenosha with Sue Winninghoff, register of deeds for the county, and that she knew John Bodar, corporation counsel for the county.

The complainant also conceded that "from time to time" Henneman "teased some of the male employes," that he got real close to males, and that he physically touched males by putting a hand on their shoulder, but she testified that he never recalled seeing him put his arms around them.

Kathleen Auck, who had been employed by the respondent since 1985 and supervised by Henneman for at least 10 years, also testified that Henneman had made comments about her appearance and dress that she found personally offensive and inappropriate. Auck testified that she did not report Henneman's conduct because she knew that Henneman was friends with Wagner in personnel and was afraid that she would suffer because of it. Auck testified that she had not received any training on the subject of sexual harassment during her employment with the county. Auck also testified that she knew that Henneman had gone to a seminar on sexual harassment, that afterwards he did not talk about sexual harassment being prohibited in the workplace, the only thing she heard him say about it was, "He had better watch himself."

Also, Sharon Fleck, who became a good friend of the complainant's while working in the same department with the complainant, testified about conduct and comments made by Henneman that she found personally offensive. Fleck worked with the complainant from early 1990 until April 1994 when Fleck resigned. For example, Fleck testified that when she was pregnant Henneman would ask her how many times a week she was still able to have sex with her husband and comment, "I'm sure he's having an affair now since you can't have sex anymore." Fleck testified that with respect to her breast size before she was pregnant, Henneman would remark that she "must be able to use egg shells for bras," and that when she brought cookies to the department, Henneman would comment in front of everyone, "They must have used my bra as a mold for the cookies." Fleck testified that Henneman would put his arm around her, played with her hair, and put his hands on her shoulders when she was typing. Further, Fleck testified that Henneman also commented about the complainant's breast size, and that when they complained about the heat he would tell them not to wear panty hose. Fleck testified that she observed Henneman put his arm around the complainant's shoulders and waist, pick up her pony tail and brush things off her clothing while in her (Fleck's) presence. She also testified that she heard Henneman using racial names when referring to the complainant, and comment that, "It's not in her native tongue," if the complainant did not understand something. On cross- examination testimony by Fleck included statements that Henneman would get mad and yell at males, too, that the complainant spoke her mind sometimes, and that she considered the complainant assertive.

At the close of the complainant's case the respondent moved for dismissal, arguing basically that it had not been established that the respondent knew or should have known about the alleged harassment and that there were lots of people that the complainant knew that worked for the county that could deal with this. No document was entered into evidence which showed the respondent's harassment policies in effect at the time the complainant was employed by the respondent.

In written arguments subsequently submitted to the ALJ on the motion, the respondent argued that the complainant had failed to satisfy her necessary burden of proof in establishing that the alleged harassment affected a term or condition of employment and that the county knew or should have known of the harassment and failed to take prompt remedial measures, that the testimony and evidence of incidents of harassment occurring more than 300 days before the complainant filed her complaint must be excluded as beyond the statute of limitations period set forth in § 111.39 Stats., (2) and that the testimony of the complainant's two witnesses must be excluded because under § 904.04, Wis. Stats., evidence offered to show a person's proclivity for bad conduct or a bad character is not admissible.

On January 10, 1997, the ALJ issued an order denying the respondent's motion to dismiss for two reasons. First, the ALJ relied on the Wisconsin Fair Employment Act's prohibition against sexual harassment as provided under Wis. Stat., § 111.36(1)(b), the pronouncements by the United States Supreme court on what constituted sexual harassment in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (40 FEP Cases 1822) (1986) and Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367 (63 FEP Cases 225) (1993), and the existing state of the record. Second, addressing the respondent's argument that it could not be held liable for a hostile working environment because it had not been shown that the county knew or should have known about the harassment and failed to take appropriate remedial action, the ALJ stated that "it appears that Seventh Circuit law does not require a Complainant to prove knowledge on the part of an employer when the harassment is alleged to have been committed by a managerial employee." The ALJ noted that this position was most clearly expressed in Ellerth v. Burlington Industries, Inc., 102 F.3d 848, 72 FEP Cases 862 (7th Cir. 1996), where the court, examining the general rules under Restatement (Second) of Agency (1958) as to when a master was liable for the torts of his or her agents, reasoned:

"Under agency law, Burlington's liability for actions of its supervisor taken within the actual or apparent scope of his employment does not depend on whether someone else at the company knew or should have known that Slowik (the supervisor) was abusing the authority he had been given. The common law of agency places the responsibility on the employer to monitor the supervisory employees to whom it has entrusted special powers, to ensure that those powers are not misused."

(Order on Motion to Dismiss, p. 4)

The ALJ went on to note that in Ellerth, the court noted that on the other hand, if the acts of the servant were outside the scope of his or her employment, or the harassment was committed by a coworker, the employer would only be liable if its negligence or recklessness contributed to the tort (i.e., the employer knew or should have known about the harassment and failed to appropriately address it).

In a letter to the ALJ dated February 12, 1997, the respondent moved for a reconsideration of the denial of the motion to dismiss, noting in part that the Seventh Circuit had vacated the decision in Ellerth and scheduled the case for rehearing en banc. It was then decided that this case would be held in abeyance until an en banc decision was issued in Ellerth, after which the parties would be allowed to submit their further arguments.

On August 12, 1997, the Seventh Circuit issued its en banc decision in the consolidated cases of Jansen v. Packaging Corp. of America and Ellerth v. Burlington Industries, Inc., 123 F.3d 490, 74 FEP Cases 1138, (7th Cir. 1997). There were eight separate opinions issued, with the court unable to forge a majority on a single rationale for resolution of all of the issues. However, insofar as it pertains to the hostile work environment claim of the complainant in this case, the Seventh Circuit agreed that:

"...certain views do command a majority within our court: in particular, that the standard for employer liability in cases of hostile-environment sexual harassment by a supervisory employe is negligence, not strict liability..."

(74 FEP Cases at 1141)

The parties herein subsequently submitted written arguments on the motion to reconsider to the ALJ, and on March 5, 1998, the ALJ issued a decision dismissing the complainant's complaint. The ALJ concluded that:

"Ms. Harsh has failed to show by a preponderance of the evidence that Winnebago County violated the WFEA by engaging in or permitting sexual harassment or by discriminating in terms and conditions of employment because of race or sex. In particular, Ms. Harsh has failed to show that the County knew or should have known, at any time prior to December 7, 1995, that there was some probability that Mr. Henneman was harassing her. The County could not, then, be guilty of failing to take prompt remedial action prior to December 7, 1995. By stipulation, the County's actions after December 7, 1995 are not at issue."

(ALJ decision at p. 5)

In the memorandum opinion portion of the decision the ALJ commented:

"With the en banc decision in Jansen v. Packaging Corp. of America, 123 F.3d 490 (7th Cir. 1997), the Seventh Circuit has now ruled in favor of applying a negligence standard under Title VII....

In this case...factors that tend to support the conclusion that the County's lack of knowledge about possible sexual harassment was not due to its own negligence are: (1) Ms. Harsh's failure to notify management personnel even though she knew (a) of the existence of an employee handbook that, at least to her memory, contained a policy on sexual harassment, and (b) that the place to which she could take a complaint against Mr. Henneman was the Personnel Department; (2) her lack of any substantial information that the apparent friendship between the Personnel Director and Mr. Henneman would keep the Personnel Director from taking appropriate action on Ms. Harsh's complaint; (3) the lack of evidence that any supervisor was ever present when any alleged harassment took place; and (4) the fact that the County at some time allowed Mr. Henneman to attend a sexual harassment training.

An employer's publication and dissemination of a sexual harassment policy and a procedure for reporting complaints can be important to a determination of negligence, and an employer's failure to publish and disseminate a policy and procedure can be evidence of negligence (citing Vervoort v. Central Paper Company, (LIRC, 01/25/89) and Perry v. Harris Chernin, Inc., 126 F.3d 1010 (7th Cir. 1997)). Although the evidence presented in the Complainant's case did not show that the County did a good job of publishing and distributing a policy and procedure among the workforce, in this case the County's performance in this area was not the factor that kept Ms. Harsh from notifying the employer of her complaints, in view of the facts (sic) that Ms. Harsh had some knowledge about a sexual harassment policy, some knowledge about where to report the alleged harassment, and the ability to report it. In this case the failure to inform the employer prior to December 7, 1995, is attributable to Ms. Harsh, not the County."

(ALJ decision, pp. 6-7).

The complainant timely petitioned for commission review of the ALJ's decision and requested that a briefing schedule be issued. While the matter was pending before the commission, the United States Supreme Court held in two companion cases issued on June 26, 1998, Burlington Industries, Inc., v. Ellerth, 524 U.S. , 118 S.Ct. 2257, 77 FEP Cases 1 and Faragher v. Boca Raton, 524 U.S. , 118 S.Ct. 2275, 77 FEP Cases 14, as follows:

"An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence...The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." (3)

In the companion cases issued by the Court, it was made clear that the principles set forth in its earlier decisions in Meritor and Harris continued to operate as guidelines for establishing a sexual harassment claim. Burlington Industries, 77 FEP Cases at p. 5; Faragher, 77 FEP Cases at pp. 18,20.

In Harris, the Court stated:

"Title VII of the Civil Rights Act of 1964 (4) makes it `an unlawful employment practice for an employer...to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.' 42 U.S.C. § 2000e-2(a)(1). As we made clear in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), this language `is not limited to "economic" or "tangible" discrimination. The phrase "terms, conditions, or privileges of employment" evinces a congressional intent "to strike at the entire spectrum of disparate treatment of men and women" in employment,' which includes requiring people to work in a discriminatorily hostile or abusive environment. (citation omitted) When the workplace is permeated with `discriminatory intimidation, ridicule, and insult,' (citation omitted) that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment (citation omitted), Title VII is violated. (5)

...Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive--is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation....

...(W)hether an environment is `hostile' or `abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."

Harris, 63 FEP Cases at pp. 227-228.

In concluding that hostile environment sexual harassment claims violated Title VII, the Meritor and Harris Courts drew upon earlier cases which recognized liability for discriminatory harassment based on race and national origin. See, for example, Meritor, at 40 FEP Cases, p. 1826, which cited cases such as Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972) and Firefighters Institute for Racial Equality v. St. Louis, 549 F.2d 506 (8th Cir.), cert. denied sub nom. Banta v. United States, 434 U.S. 819 (1977), as applying the principle that under Title VII the phrase terms, conditions or privileges of employment is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination.

DISCUSSION

In her petition for commission review, the complainant argues that Burlington Industries requires that the ALJ's decision be set aside and remanded to the ALJ for the respondent to avail itself of the mandated opportunity to follow the affirmative defenses in order to avoid liability. She argues that the state of the record and the ALJ's discussion at pages 6 and 7 of his memorandum opinion does not satisfy the Supreme Court's requirement that the employer prove (a) it exercised reasonable care to prevent sexual harassing behavior, and (b) the complainant unreasonably failed to take advantage of any preventive or corrective opportunities.

The respondent disagrees, asserting that the complainant's argument that additional evidentiary proceedings are necessary ignores the stipulated facts of record and the evidence which was presented at hearing, that the stipulated facts and evidence affirmatively prove that Winnebago County is not liable for the alleged harassment of the complainant, and that the ALJ's dismissal of the case continues to be correct under the standards set forth in Burlington Industries.

As noted by the respondent, the complainant testified that the alleged harassment caused her to be upset, humiliated, embarrassed, angry, scared, overwhelmed and demeaned, but these matters described by the complainant do not rise to the level of a tangible employment action as defined by the Court in Burlington Industries. However, the Court also held that even though no tangible employment action is taken, an employer is still subject to vicarious liability to a victimized employe for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employe, unless the employer proved by a preponderance of the evidence an affirmative defense with two necessary elements:

(a) That the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and

(b) That the complainant employe unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Before determining whether the record supports a showing that the affirmative defense elements have been satisfied, however, it should first be determined whether or not the complainant has established an actionable hostile environment claim. Henson v. City of Dundee, 682 F.2d 897, 29 FEP Cases 787 (11th Cir. 1982), which was cited favorably by the Meritor Court, set forth the following five elements as establishing a prima facie case of hostile environment sexual harassment: (1) the complainant is a member of a protected group; (2) the complainant was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of affected a term, condition, or privilege of employment; and (5) respondeat superior. 29 FEP Cases at pp. 792-794.

The commission concludes that the state of the record at this stage of the case shows that the complainant has produced sufficient evidence to establish an actionable hostile environment claim. The complaint testified to numerous incidents of physical contact and comments of a sexual nature by her immediate supervisor, David Henneman. The complainant found the physical contact and comments demeaning, humiliating, intimidating, embarrassing and upsetting. The evidence that Henneman had "from time to time teased some of the male employes," that he got "real close" to male employe too, and that he placed a hand on their shoulders, alone, does not prove that she was not harassed based on her sex. The complainant testified that the incidents of unwelcome harassment began in 1988 and 1989, and continued through 1995 when she resigned. Even assuming for purposes of argument that Galloway, supra. fn. 2, is applicable such that the evidence of incidents occurring more than 300 days prior to the filing of her complaint must be excluded, the nature and frequency of the incidents of physical contact and the comments by Henneman occurring inside the statute of limitations time line was sufficiently severe and pervasive, such that it had the effect of substantially interfering with the complainant's work performance, and creating an intimidating, hostile and offensive work environment. The complainant testified that she tried to avoid Henneman, that she would avoid speaking to him for fear of his reaction, which caused her to take longer to perform her work, and that his conduct made her unable to concentrate, causing her to take a lot of work home because she felt that she was not getting done work that should have been gotten done. Moreover, in determining the pervasiveness of harassment, the trier of fact may aggregate evidence of racial hostility with evidence of sexual hostility. Hicks v. Gates Rubber Co., 833 F.2d 406, 45 FEP Cases 608 (10th Cir. 1987). The evidence shows that Henneman frequently made derogatory remarks about her race and national origin, such as calling her "slant eyes" throughout 1995. Further, a reasonable person under the same circumstances would have considered such conduct sufficiently severe and pervasive to interfere with the person's work performance and create an intimidating, hostile and offensive work environment. (6)

The commission also concludes that the state of the record at this stage of the case requires that this case be remanded for further proceedings to permit the respondent the opportunity to prove by a preponderance of the evidence, the two elements of the affirmative defense necessary in order to avoid liability.

The respondent apparently maintains that because the complainant had typed (apparently in 1993) a handbook for administrative employes which contained a policy against sexual harassment, because the application she completed in June 1986 contained a statement that the respondent did not discriminate in regard to race or sex, and because the respondent had sent David Henneman to sexual harassment training, the record shows that it has met the first element of the affirmative defense to avoid liability.

However, the respondent's anti-harassment policy was not produced at the hearing, nor is it known whether such policy contained a complaint procedure with alternative avenues for reporting harassment claims. Further, the record is devoid of any evidence such as, whether or not the respondent's anti-harassment policy assured its employes that it would vigorously enforce its anti- harassment policy, whether it advised employes that complaints of harassment would be kept confidential, or whether it advised employes that they would be protected from retaliation for reporting complaints of alleged harassment. The complainant could not recall ever having received any training on sexual harassment. She testified that she never received a copy of the respondent's sexual harassment policy. She testified that the subject of sexual harassment was not discussed at any department staff meetings, nor had this subject been discussed by the Personnel Department. Kathleen Auck similarly testified that she had not received any training on the subject of sexual harassment. Sharon Fleck also indicated that she was not aware of any anti-discrimination policy maintained by the respondent.

The nondiscrimination statement appearing on the employment application the complainant completed in 1986 was a generic nondiscrimination statement, which did not specifically mention sexual harassment and did not set forth a complaint procedure for reporting harassing conduct. Further, while the respondent may have sent Henneman to sexual harassment training, the message he conveyed after attending the training was not one which indicated the respondent was serious about eliminating sexual harassment from the workplace. The only thing Henneman was heard to say after the training was, "He had better watch himself." Moreover, the testimony by the complainant indicated that the tone Henneman set and the statements he made was one of discouraging, rather than encouraging the reporting of any sexual harassment:

Q Did Mr. Henneman ever say to you words to the effect, if you don't like what I'm telling you or you don't like what I'm doing, report on me to my boss?

A No. It was more the opposite.

Q And what would the opposite be?

A He would make comments such as again if you don't like it, go home, there's not much you can do about it, you don't have the union backing you; if we were to fight, I'm sure you know who would win. He would make comments that he and Mr. Wagner, who would be the one you would supposedly go to, were very good friends, or he would make sure you knew that he was golfing with the county exec. that day.

(Tr. p. 55).

The respondent also apparently maintains that the complainant unreasonably failed to take advantage of any preventive or corrective opportunities or to avoid harm otherwise, because if she had reservations about reporting the harassment to one of Henneman's friends, she could have reported it to Elizabeth Davey, whom she was comfortable with, or one of the other elected county officials she knew. Similarly, the ALJ, although acknowledging that the respondent had not done a good job of publishing and distributing a sexual harassment policy and procedure for reporting complaints, concluded that the county's performance in this area was not what kept the complainant from notifying the respondent of her complaints, since she "had some knowledge about a sexual harassment policy, some knowledge about where to report the alleged sexual harassment, and the ability to report it." (Mem. op. p. 7) However, the complainant testified she feared that if she reported the harassing conduct, it would get back to Henneman and that she "really would be retaliated on" by Henneman. (Tr. p.60) The complainant testified that she had the same fears about going to others, that she was "petrified that it was going to come back to David." (Tr. pp. 61-62) As noted above, the record is silent as to whether or not the respondent's anti-harassment policy provided that complaints of harassment would be kept confidential, and that employes would be protected from retaliation for reporting complaints of harassment.

The ALJ also concluded that the complainant lacked "any substantial information that the apparent friendship between the Personnel Director and Mr. Henneman would keep the Personnel Director from taking appropriate action" on her complaint. (Mem. op., pp. 6-7) However, based on the complainant's testimony in this record, the conduct and comments by Henneman alone were sufficient enough to have prevented her from reporting the alleged harassment to Wagner. Even Karen Auck, an employe with the respondent since 1985 and who alleged suffering sexual harassment from Henneman, testified that she had not reported the sexual harassment because she knew that Henneman was friends with Wagner and feared that she would suffer if she had reported such conduct.

The respondent has the burden of proving by a preponderance of the evidence, the two necessary elements of the affirmative defense to avoid vicarious liability for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employe. The existing record fails to establish that the respondent exercised reasonable care to prevent and correct promptly any sexually or racially harassing behavior. The existing record also fails to establish that the complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Accordingly, the commission has remanded this matter for further proceedings. On remand, the respondent may present evidence to rebut the actionable hostile environmental claim presented by the complainant. Should it fail to rebut the actionable hostile environmental claim presented by the complainant, however, it must prove by a preponderance of the evidence, the two elements of the affirmative defense necessary in order to avoid liability.

cc: 
Curry First
James R. Macy

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Footnotes:

(1)( Back ) Near the top front page of the employment application was the language, "Winnebago County does not discriminate in regard to race, color, religious or political beliefs or affiliation, national origin, marital or parental status, pregnancy, sex, sexual orientation, age, handicap or any other nonmerit factors except where age, sex or physical requirements constitute a demonstrable bona fide occupational qualification."

(2)( Back ) The respondent asserted that the Seventh Circuit clarified the law regarding the admission of evidence of prior incidents occurring before the applicable statute of limitations time line in Galloway v. General Motors Service Parts Operation, 78 F.3d 1164, 70 FEP Cases 341 (7th Cir. 1996), that in order to allow evidence of prior incidents the complainant must sue as soon as the harassment becomes sufficiently palpable that a reasonable person would realize she had a substantial claim under Title VII, and that failure to sue under these circumstances results in the exclusion of evidence of the prior incidents occurring outside the statute of limitations time period. The respondent cites Alvey v. Rayovac Corp. 922 F. Supp. 1315, 70 FEP Cases 1331 (W. D. Wis. 4/4/96), as additional support.

(3)( Back ) Elsewhere in the decisions, the Court defined a tangible employment action as "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Industries, 77 FEP Cases at p. 8, and involving matters "like hiring, firing, promotion, compensation and work assignment", Faragher, 77 FEP Cases at p. 19.

(4)( Back ) Wisconsin courts have at times looked to federal employment law for guidance in considering discrimination claims under the Wisconsin Fair Employment Act. The courts will refuse to interpret provisions of the WFEA in accordance with analogous federal laws where the statutory language differs from that of the federal legislation, however. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 586-587, 476 N.W.2d 707 (Ct. App. 1991).

(5)( Back ) Section 111.36(1)(b), Wis. Stat., prohibits an employer or other person from "Engaging in sexual harassment...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." This statute further provides that, "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."

(6)( Back ) While the testimony of the complainant's two witnesses may not be used to show Henneman's proclivity for bad conduct or bad character, this testimony is relevant and admissible for purposes of establishing a generally hostile work environment. Hicks, supra.