Wis.LIRC ER Decision: Lampinen - December 14, 1999 - Sex discrimination - sexual harassment - non-sexual harassment by co-worker engaged in because of gender bias distinguished from 'sexual harassment'

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

TAMMY E LAMPINEN, Complainant

CITY OF SHAWANO, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199601016, EEOC Case No. 26G961009

An administrative law judge 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 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. The last sentence in paragraph 9 of the administrative law judge's FINDINGS OF FACT is deleted and the following sentences are substituted therefor:

"On one occasion Mr. Erdmann called the complainant a `dumb bitch' and a `whore.' The complainant reported this to Mr. Schoenhofen, and Mr. Erdmann was given a verbal warning as a result."

2. The second sentence in paragraph 12 of the administrative law judge's FINDINGS OF FACT is deleted and the following is substituted therefor:

"Although the complainant did not specifically complain to Mr. Schoenhofen that she was being sexually harassed, she did notify him that on two occasions Mr. Erdmann deliberately left pornography in the cabinet where the complainant kept her purse. Mr. Schoenhofen was not responsive to this complaint, telling the complainant that if she objected to the magazines she should discard them."

DECISION

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

Dated and mailed December 14, 1999
lampita.rmd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In her petition for commission review the complainant argues that the administrative law judge should have concluded that the respondent permitted sexual harassment, which had the effect of substantially interfering with her work performance, to occur. The commission has considered this argument, but finds it unpersuasive. While the record does demonstrate that the complainant was subjected to harassment in the workplace by a co-worker based, at least in part, upon his negative feelings about her gender, the vast majority of the conduct complained of cannot be characterized as "sexual harassment," as that term is defined in Wis. Stat. � 111.32(13). Although the commission agrees with the complainant that a few incidents did cross the line from general harassment to sexual harassment, specifically Mr. Erdmann's conduct in calling her a "bitch" and a "whore" on one occasion and in placing pornographic magazines near her purse on two other occasions, it does not believe that those incidents, which occurred over the course of a year, were sufficiently severe or pervasive as to interfere substantially with the complainant's work performance or to create an intimidating, hostile or offensive work environment, the standard set forth in Wis. Stat. � 111.36(b).

Notwithstanding the foregoing, the commission does believe that the respondent should have taken more effective action to prevent Mr. Erdmann from harassing the complainant, regardless of whether his conduct could be described as sexual harassment creating a hostile work environment, within the meaning of the law. No employe should be expected to tolerate working conditions such as those described by the complainant, and the respondent was remiss in failing to remedy the situation once the complainant brought it to its attention. However, as the administrative law judge pointed out in his decision, the Fair Employment Act does not provide a remedy for poor management practices unless they are specifically shown to constitute a violation of the Act. Because the commission agrees with the administrative law judge that no violation of the Act was established, the dismissal of the complaint is affirmed.

NOTE: The commission has modified some of the administrative law judge's findings in order to more fully and accurately set forth the facts in this case. Specifically, paragraph 9 has been modified to include the fact that Mr. Erdmann also called the complainant a "whore," and that, in that instance, the respondent did address the situation appropriately. Paragraph 12 has also been modified to reflect the fact that at least one other of the complainant's complaints to Mr. Schoenhofen--her complaint that Mr. Erdmann was placing pornography in the area where she kept her purse--did center around allegations of sexual harassment and, further, that Mr. Schoenhofen failed to take appropriate remedial action. However, because the commission does not believe that the complainant was subjected to sexual harassment so severe or pervasive as to substantially interfere with her work performance or create a hostile environment, as contemplated by the statute, it is unable to conclude that the respondent's failure to take remedial action to address the situation amounted to a violation of the Act.

cc:
Robert Torgerson
Joseph J. Ferris

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