HEATHER BAIER, Complainant

J & J ELECTRIC, Respondent

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, except that it makes the following modifications:

Finding of Fact 6. is modified to read as follows to more accurately reflect the evidence of record;

In early February of 2002, while Baier was discussing with other staff her plans to take photographs during her upcoming vacation to Florida, Mr. White suggested that she bring back a picture of girls with their butts in the air like they have on air fresheners. Baier was offended by the comment but said nothing.

The memorandum opinion in the ALJ's decision is deleted, and the Memorandum Opinion below is substituted in order that the decision more accurately reflect the commission's rationale.

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

Dated and mailed December 16, 2003
baierhe . rmd : 115 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

Sex discrimination in all its forms under the WFEA is governed by the following statutory provisions, as relevant here:

111.36 Sex, sexual orientation; exceptions and special cases.

(1) Employment discrimination because of sex includes, but is not limited to, any of the following actions by any employer, labor organization, employment agency, licensing agency or other person:

(a) Discriminating against any individual in promotion, compensation paid for equal or substantially similar work, or in terms, conditions or privileges of employment or licensing on the basis of sex where sex is not a bona fide occupational qualification.

(b) Engaging in sexual harassment; or implicitly or explicitly making or permitting acquiescence in or submission to sexual harassment a term or condition of employment; or making or permitting acquiescence in, submission to or rejection of sexual harassment the basis or any part of the basis for any employment decision affecting an employee, other than an employment decision that is disciplinary action against an employee for engaging in sexual harassment in violation of this paragraph; or permitting sexual harassment to have the purpose or effect of substantially interfering with an employee's work performance or of creating an intimidating, hostile or offensive work environment. Under this paragraph, substantial interference with an employee'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 employee 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.

(br) Engaging in harassment that consists of unwelcome verbal or physical conduct directed at another individual because of that individual's gender, other than the conduct described in par. (b), and that has the purpose or effect of creating an intimidating, hostile or offensive work environment or has the purpose or effect of substantially interfering with that individual's work performance. Under this paragraph, substantial interference with an employee'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 employee 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.

111.32 (13) "Sexual harassment" means 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.

The issue in Jim Walter, supra, was how sexual harassment is defined when the conduct at issue is carried out by an owner or agent of the employer, as we have here. The court points out that, if the employer itself carried out the alleged harassment, the first clause of Wis. Stat. § 111.36(1)(b), i.e., "engaging in sexual harassment" would apply. The court then looked to the definition of sexual harassment in Wis. Stat. § 111.32(13), and parsed the language therein, concluding as follows:

The first sentence contains a number of alternative definitions, one being "unwelcome physical contact of a sexual nature" and another being "unwelcome verbal or physical conduct of a sexual nature." It is true that the latter definition is further subdivided in the third sentence into alternatives, one being "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." But the third sentence plainly states that "unwelcome verbal or physical conduct of a sexual nature includes but is not limited to" those alternative definitions. Therefore, we conclude "unwelcome physical contact of a sexual nature" and "unwelcome verbal or physical conduct of a sexual nature" may constitute sexual harassment even though they do not create a hostile work environment. .

The court clarifies later in its decision that it was not deciding whether the statutory language creates a stricter standard when the allegedly harassing conduct is carried out by an employer than when it is carried out by a co-worker. The court went on to hold that it would, however, not be appropriate to rely upon the co-worker/hostile environment Title VII decisions it had relied on in Kannenburg v. LIRC 213 Wis.2d 373, 571 N.W.2d 165 (1997) to decide whether an owner or agent of an employer had engaged in sexual harassment.

Applying this standard, the court affirmed LIRC's conclusion that the following series of actions carried out by a part-owner/vice-president of the employer constituted sexual harassment: attempted to kiss the complainant on the lips (May 19, 1988); attempted to kiss her in a dark room, lips brushed her neck as she turned away (April or May 1989); called complainant's sweatshirt, which had zippers across the chest area, her "breast-feeding sweatshirt" (early 1991 and early 1992); said "I kind of like what's under it myself" when a client complimented the complainant's outfit (late 1991); slapped complainant's rear (summer 1992); questioned why complainant's "boobs" didn't get smaller after she lost weight as his wife's had; threw a kernel of popcorn down the front of the complainant's shirt and commented, "It's just so tempting (May 1994); and slapped her on the rear and laughed (1994).

The commission does not agree with the complainant that the principle to be drawn from the Jim Walters decision is that any comment of a sexual nature made by an owner or agent of an employer is sufficient to qualify as sexual harassment under the WFEA. It is true that the court held that verbal or physical conduct by an employer or its agent did not have to create a hostile working environment in order to constitute sexual harassment. However, applying the concept of ejusdem generis, (1)  the offending verbal or physical conduct would need to be similar to that which creates a hostile working environment in order to constitute sexual harassment. Moreover, taking into account the public policy goals of the WFEA as well as a common-sense approach to its interpretation, it is concluded that something more than what the complainant urges here must be present in order for an owner's conduct to constitute sexual harassment.

It is useful in this regard to review the type of conduct by a supervisor or manager that the commission has found to constitute sexual harassment:

Roden v. Federal Express, ERD Case Nos. 8802134, etc. (LIRC June 30, 1993) - over a 7-month period of time, the manager repeatedly commented to the complainant that no one had ever driven him as wild as she had; told her he had never had an affair with a redhead before; repeatedly asked her to meet him during breaks and after work so they could start their affair; asked whether the complainant and a male co-worker had done "the big ugly;' moved his hand up her leg at a party after work hours; commented in a suggestive tone that he wanted her to try on her new uniform pants before she started her route so that he could see her in them; and commented that the complainant would look good in shorts

Harsh v. County of Winnebago, ERD Case No. 199555514 (LIRC Nov. 6, 1998) - over a 6-year period of time, the complainant's immediate supervisor put his arm tightly around her waist on a weekly basis; would come up behind her on a monthly basis while she was seated at her desk and push his hips and thighs into the side of her shoulder; would physically touch and lean into her while she was standing; would frequently stand within an inch from her face when talking to complainant; would frequently make jokes of a sexual nature; on more than one occasion, commented about her bust size; while at a conference, constantly put his arm around her as if she were his date; while seated at this conference, placed his hand on her knee under the table; grabbed her shoulders and kissed her after dropping her off at home following a conference; would pick lint off the seat of her pants with his fingers; would frequently make comments about her legs when she wore dresses or skirts; on more than one occasion, asked her to move to a different chair and would then comment that he made the request so that he could see her legs better; commented that the slit in her skirt should be higher so that more of her leg would show; asked when she was tired at work whether she had too much sex the night before; commented that her troubles with men might be due to the fact that she was frigid; told her that he would marry her in a heartbeat.

Nelson v. Waybridge Manor, Inc., ERD Case No. 8651771 (LIRC April 6, 1990) - the complainant's supervisor, over a 6-month period, commented once or twice a week that he liked her legs and long hair, and that he considered long hair sexy; gave her a bra, bikini panties, and "professional thumbcuffs" for Christmas; during a car ride for work purposes, commented that he found "open marriages" and the freer attitudes of European women toward sexual matters desirable; asked the complainant during this car ride, "What do you think you have, gold in between your legs?", and told her that he was involved in a swingers' club; suggested during the return car ride that he and the complainant have sexual intercourse, and, when the complainant rebuffed his advances, told her she did not know how to live; directed complainant during a performance evaluation session to get professional counseling for the "sex problem" he claimed she had.

In addition, it is instructive to note the U.S. Supreme Court's caution in Oncale v. Sundowner Offshore Services, 523 U.S. 75, 118 S. Ct. 103 (1998) that sexual harassment laws must not become a "general civility code" for the workplace, i.e., that simple teasing, off-hand comments and isolated incidents, unless extremely serious, will not amount to discriminatory changes in terms and conditions of employment. The Court, in Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S. Ct. 367 (1993) held that, in assessing whether sexual harassment has been demonstrated, courts are to consider 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.

The commission concludes that the actions of Mr. White established here, considered as a whole, are not sufficient to constitute sexual harassment, taking into account the statutory definition as well as the conduct described in the above-cited cases. The conduct did not involve, for example, as the Jim Walters case and the other above-cited cases did, aggressive physical contact for a sexual purpose, comments evincing an interest in initiating a sexual relationship, repeated direct references to her breasts or legs, or other similar conduct.

The commission also concludes that, even if the complainant had sustained her burden to prove that Mr. White engaged in actionable sexual harassment, the employer would not be liable for it. In Harsh, supra, the commission recognized and applied the vicarious liability holding of the U.S. Supreme Court in Burlington Industries, Inc., v. Ellerth, 118 S. Ct. 2257, 77 FEP Cases 1 (1998) and Faragher v. Boca Raton, 118 S. Ct. 2275, 77 FEP Cases 14 (1998), i.e.:

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 mater of law, the need for a stated policy suitable to the employment circumstances may be appropriately 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.

It should first be noted that the complainant does not allege that her termination in February of 2002 was related to her sex or to the alleged sexual harassment.

It is undisputed that, during the time period relevant here, Baier never objected to Mr. White's conduct either to him or to Mrs. White. The record establishes that Mrs. White was frequently available in the work place and that the complainant had not been reluctant to bring other concerns to her attention. If a complainant has a reasonable opportunity to complain but chooses not to do so, this will operate against her in determining the respondent's liability. Rusniak v. Fagan Chevrolet-Cadillac, ERD Case No. CR200000027 (LIRC May 23, 2002)

The complainant points to respondent's failure to have a sexual harassment policy for its employees as relevant to the issue of liability. However, the circumstances present here are recognized in Faragher, supra, at page 808, as distinguishable from those involving a large employer or one with a decentralized operation. As the Court in Faragher noted, the lack of a formal sexual harassment policy may be reasonable for "the employer of a small workforce, who might expect that sufficient care to prevent tortious behavior could be exercised informally."

cc: 
Attorney Teresa E. O'Halloran
Attorney Victoria L. Seltun

[Ed. Note: In Sanderson v. Handi Gadgets Corp. (LIRC, 3/21/2005), the commission stated  that it would no longer follow this decision]

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(1)( Back ) The doctrine of ejusdem generis provides that when a general word is used in a statute, either preceded or followed by specific words in an enumeration, the general word is construed to embrace something similar to the specific word. When the enumeration is preceded with the phrase "including, but not limited to," any condition not listed must be similar to those which are listed in order to qualify for inclusion. State v. Engler, 80 Wis.2d 402, 259 N.W.2d 97 (1977) Applied here, any type of verbal or physical conduct not listed must be similar to that which is listed in order to qualify as sexual harassment.

uploaded 2003/12/22