Wis.LIRC ER Decision: Lass - December 28, 1998 - Sex discrimination - sexual harassment and constructive discharge because of sexual harassment

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

RAE-ANN LASS, Complainant

ROBERT SAWYER, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199603900

An administrative law judge (ALJ) for the Equal Rights Division 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, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

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

Dated and mailed: December 28, 1998
lassrae.rsd : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

This case concerns allegations of sexual harassment and constructive discharge because of sexual harassment.

In her Brief to the Administrative Law Judge, the Complainant argued that "[e]ssentially, this case rests on which parties' testimony is more believable, therefore credible." The Administrative Law Judge agreed with this, indicating in her decision that she "considered credibility to be of paramount importance." However, based on her consideration of all of the evidence the Administrative Law Judge clearly found the Complainant to lack credibility. The Complainant made claims about things supposedly done by the Respondent, which the Administrative Law Judge clearly did not believe. In addition, the Complainant made a number of claims that she had not done certain things, and it is clear that the Administrative Law Judge also did not believe these claims.

In her Brief in support of her Petition for Review, Complainant seems to back away from this focus on credibility, and she argues:

"Although Complainant disagrees with certain parts of the Findings of Fact found by the ALJ, Complainant believes that the Findings of Fact are sufficient upon which conclusions of law can be reached that Complainant has proved by a preponderance of the evidence that Respondent violated the Act by engaging in and/or permitting sexual harassment, and that such sexual harassment was the reason for Complainant terminating her employment with Respondent."

The commission does not agree with this argument. The Findings of Fact made by the Administrative Law Judge include the finding that Complainant was not subjected to unwelcome sexual advances or unwelcome verbal or physical contact of a sexual nature. This is a finding, with which the commission agrees, that the conduct which the Administrative Law Judge found Respondent to have engaged in was not unwelcome. That is a finding of fact, relating to the Complainant's subjective state of mind and intentions.

Actually, Complainant still relies, at least in part, on a challenge to the Administrative Law Judge's findings. She argues, that there was "no testimony" to support the finding that Complainant "cooperated" with Respondent kissing her lips or that Complainant did not "object" to Respondent's actions.

The commission also does not agree with this argument. There was testimony from Respondent that their kissing was "mutual" and that he "never heard" any objection from Complainant when they would kiss goodbye. Complainant did not credibly rebut this. Furthermore, the Administrative Law Judge found that Complainant's assertions about these kisses (that she never initiated any of them and that she always "pulled back") were not credible. Those things, combined with reasonable inferences from the length of time over which the conduct continued with no objection by Complainant, certainly constitute a basis for the Administrative Law Judge's findings. The question, as with the other issues in the case, is primarily one of credibility.

The commission has carefully reviewed the extensive record in this case, and it has also given due regard to the assessment of the Administrative Law Judge, who was in a position to observe the parties while they testified, as to the credibility of the witnesses. The commission agrees with the credibility assessment made by the Administrative Law Judge, as well as with her findings of fact. These include the finding, that the conduct now complained of by Complainant was not unwelcome to her at the time it occurred.

Determination of whether conduct was or was not unwelcome can be a difficult and sensitive undertaking, but it is undeniably necessary to a resolution of the types of issues presented by cases such as this. Sexual conduct by an employer towards an employe is not a "strict liability" offense; it is explicit in the applicable statutory prohibitions that the conduct must be "unwelcome" to be considered unlawful. Wis. Stat. � � 111.32 (13), 111.36 (1)(br).

Whether conduct is "unwelcome" presents a question as to the subjective state of mind of the person to whom the conduct is directed. Where an employer directs conduct with sexual overtones at an employe, and that employe does not expressly object to or attempt to avoid that conduct, it may be the conduct was not "unwelcome." On the other hand, it may be that the employe has accepted or tolerated that conduct because they fear that if they do not do so, they will suffer the loss of benefits which arise from their relationship as an employee -- benefits such as the opportunity to work unmolested in the working conditions which they were originally offered in the job, and the pay which they were told they would receive for that work. In that case, it can be appropriate to draw an inference that the conduct was, indeed, "unwelcome," notwithstanding that it was accepted and tolerated.

However, all of the circumstances of a relationship must be considered in determining whether an employe's toleration and acceptance of sexual overtures from the employer reflects the fact that the employe feels coerced into accepting them in order to retain the benefits to which her employment relationship entitles her. In this case, the relationship between Respondent and Complainant had elements which were typical of an employment situation, but it also had elements which were not typical of an employment situation. These included (but were not limited to) Respondent's extension to Complainant of large cash loans which were not evidenced by Notes, were unsecured, required no interest, and involved significant de facto flexibility as to how (or even whether) repayment would be made. Receipt of large loans on such terms is undoubtedly a significant benefit, but it is not a benefit which is an entitlement of any conventional employment relationship. Therefore, conduct or forbearance motivated by a desire to obtain or retain that kind of benefit (as opposed to a benefit arising from an employment relationship) presents a situation which does not fit well in the conventional analysis of quid pro quo sexual harassment in employment.

The commission's decision reflects its assessment of the role played by all of these circumstances. Based on that assessment, the commission does not believe that the conduct of Respondent towards Complainant which is established by the record, was "unwelcome" to her at the time in the sense contemplated by the Fair Employment Act.

cc:
Richard F. Rice, Attorney for Complainant
Jere W. Wiedenman, Attorney for Respondent

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