EUGENE E. KOSTROSKI, Complainant

AMERICAN CAN COMPANY, Respondent

The examiner in this matter issued his recommended decision on May 6, 1976. Complainant filed timely exceptions.

After review of the record and consultation with the examiner, the Commission of the Department enters the following:

1. Complainant, a male, has worked for Respondent since October, 1966;  between March, 1968 and May, 1975, Complainant worked as a relief quality control inspector.

2. On June 1, 1974, Respondent selected a female to fill a permanent position as a quality control inspector;  the female employee had worked for Respondent for 18 months and had 14 weeks of experience as a relief quality control inspector at the time of her selection;  she was specifically selected because she was a female.

3. Respondent selects permanent quality control inspectors from the spare status quality control inspectors based on their qualifications and sometimes their length of service.

4. One's ability to perform as a quality control inspector grows with increased experience on the job.

5. Complainant was more qualified for the permanent position than the female selected

6. Sex was a factor in Respondent's decision to select the female over Complainant.

1. Respondent is an employer within the meaning of the Wisconsin Fair Employment Act.

2. Respondent discriminated against Complainant on the basis of sex in failing to promote him to the position of quality control inspector.

1. That Respondent cease and desist failing to consider Complainant for the position of quality control inspector because of his sex.

2. That Respondent promote Complainant to the next quality control inspector position.

3. That Respondent pay to Complainant back pay representing the difference between the wages he received and what his earnings would have been as a quality control inspector less the deductions delineated in Section 111.36(3)(b); that this back pay accrue for a period ending when the female selected was laid off.

Two criteria for selecting permanent quality control inspectors from among the relief inspectors are delineated in Respondent's Exhibit Number 3: qualifications and length of service. Complainant testified at hearing that one's ability to perform as a quality control inspector improved with increased experience. He also noted that one became proficient at quality control inspecting only after 6 months of on the job experience and that the quality of his work was good. These statements were uncontroverted by witnesses testifying for Respondent. Nor did Respondent attempt to show that the work of Betty Langsdorf, the individual selected, was as good as Complainant's work. Therefore, given Complainant's significantly longer experience as a relief quality control inspector (7 years as compared to 14 weeks), one can reasonably conclude that Complainant was more qualified than Langsdorf.

Respondent readily admitted at hearing that Langsdorf was specifically selected because of her sex. Respondent had developed an affirmative action program whereby one female was to be selected as a permanent quality control inspector in 1975. Until Langsdorf's selection, all 19 employees in the quality control department were males. While hiring females into the department may be a desirable and equitable goal, the method whereby Respondent accomplished such an end was discrimination based on sex. Respondent gave an absolute preference to a less qualified female. Absolute preferences absent a showing of past discrimination are unlawful. Patzer vs. State of Wisconsin, Commission Decision 10/31/74, affirmed on other grounds, (Wis. Cir. Ct. Dane County 1976), 11 EPC Par. 10,938. There was no evidence presented at hearing that Respondent had in the past discriminated against women. For these reasons we reverse the examiner and find that sex discrimination did occur.

Dated and mailed April 28, 1977

/s/ John C. Zinos

/s/ William A. Johnson

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