The Wisconsin Equal Rights (ER) Decision Digest -- Sections 127.62-129
[Previous Sections] [Next Sections]
127.6 Sex discrimination; Promotion, job assignments
In this sex discrimination case, the employer�s asserted nondiscriminatory reasons for assigning female employee jobs as a loader/packer rather than a driver and for sending her to Class B truck driver training rather than Class A truck driver training were not shown to be a pretext.� Burt v. Skaleski Moving & Storage, Inc. (LIRC 4/8/13).
The Complainant, a female, was the first woman to hold the position of patrol officer in the sheriff's department. The Complainant was unlawfully discriminated against on the basis of her sex when she was denied a promotion to the position of patrol sergeant. One of the members on the selection committee was biased against the Complainant because he did not want a woman in a superior role to the male patrol officers. He recommended that a male candidate be selected. The selection committee accepted the recommendation of the detective captain, as was its practice. The sheriff also accepted the captain's selection, as was customary. The Respondent's subsequent attempt to use its anti-nepotism policy to justify not promoting the Complainant (who was married to a fellow police officer) was a pretext for unlawful discrimination. Thobaben v. Waupaca Sheriff's Department (LIRC, 12/23/11).
In a failure to promote case, the Complainant need not prove at the initial stage that she was the most qualified person for the promotion in order to make out a prima facie case. Foust v. City of Oshkosh Police Dept. (LIRC, 04/09/98).
Discriminatory attitudes are not unlawful unless they actually result in discriminatory treatment. In this case, there was evidence that the Respondent's operation's manager stated that he thought that men made better managers. However, no unlawful discrimination was established where the record indicated that the operation manager's selection of store managers was in fact not limited to males and that he retained a number of female store managers. Currie v. Garrow Oil Corp. (LIRC, 06/16/95).
A Complainant failed to prove that a police chief's decision to demote her back to police officer from sergeant was motivated by her sex or sexual orientation where (1) the police chief initially sought out the Complainant for promotion, knowing the Complainant's sex and sexual orientation; (2) the chief had a history of hiring and promoting females and lesbians; and (3) the chief had information which supported his conclusion that the Complainant lacked the interpersonal skills necessary to supervise other employes. Kemmerer v. City of Madison Police Dept. (LIRC, 06/30/93).
There was nothing inherently unfair or inequitable in the Respondent's practice of promoting candidates in rank order based on a composite score reflecting three factors: a written examination, performance ratings, and seniority. The Complainant in this case did not prove that the Respondent's method of weighting seniority was adopted with the purpose and intent of impairing the Complainant's promotional opportunities because she is female. Schiller v. City of Menasha Police Dept. (LIRC, 01/14/93).
A part-time female employe could not prove sex discrimination in job assignments by comparing herself to a male employe who worked full time and whose job duties were not substantially similar to her own duties. The appropriate comparison group for such a female employe was the other part-time employes who performed similar job duties. Meisner v. Gervasi (LIRC, 09/30/92).
A prima facie case of sex discrimination involving promotion includes the following elements: (1) that the Complainant is a woman, (2) that the Complainant was not selected for the promotion, and (3) that a male who was less qualified than the Complainant received the promotion. In this case, the Complainant did not establish that the male who was selected for the promotion was less qualified than she to receive the promotion. Sobkowiak v. Trane Corp. (LIRC, 09/06/91).
An employer discriminated by promoting a male with greater experience to a position in which a female employe had been performing favorably for three years. The male's engineering degree did not justify the selection because it was not required for the position. Gehrke v. 3M Co. (LIRC, 06/28/84).
Where a female was bypassed for several promotions and job opportunities, but failed to show that she met the qualifications for the positions, there was not probable cause to find sex discrimination. Although the woman's immediate supervisor did express negative attitudes toward women, she failed to show that these attitudes were ever a part of the employment decisions. Tomaszek v. Western Publishing (LIRC, 06/16/82).
A female hospital administrator was discriminatorily denied promotion where the negative performance evaluations she received were done by a male supervisor, were subjective in nature, were not shared by other hospital administrators, were inconsistent with her previous appraisals and were used to select a male who had already been informally chosen. Williams v. County of Milwaukee (LIRC, 04/15/81).
It was discrimination to deny female employes the opportunity to do jobs involving moving heavy objects and driving forklift trucks, where the employer made that decision on the basis of sex stereotypes unrelated to the actual ability of any one individual to perform the particular job. Veach v. WARF Vitamin Concentrates (LIRC, 04/01/80).
The job assignment of a female inspector to the heaviest and least desirable job constituted sex discrimination, where her supervisor assigned newly hired male inspectors to lighter jobs to discourage women from coming into, or remaining in, his department. Rau v. Mercury Marine (LIRC, 05/19/77).
An employer discriminated against a female employe where promotional opportunities were not posted in the building in which five of the seven female custodians worked and where no male custodians were similarly disadvantaged. Haug v. Ohio Medical Products (DILHR, 08/05/75).
An employer discriminated against a female employe where it removed the sexual connotation from job titles but did not discontinue its practice of placing women in the lowest paid positions. Haug v. Ohio Medical Products (DILHR, 08/05/74).
127.7 Sex discrimination; Termination
127.71 Termination because of sex, generally
It was sex discrimination to discharge a female employe where she was offered and accepted privileges from a male supervisor with whom she was having an affair, where the relationship caused a disruption in the workplace of which the supervisors of both individuals were aware, and the male employe was not discharged. Crosby v. Intertractor America Corp. (LIRC, 05/21/93).
A school district failed to establish that a bona fide occupational qualification justified its decision to reduce a male with more seniority to a forty percent position while allowing a female with less seniority to remain full time. The school district's contention that it was legally required to provide supervision in the girls' locker and shower rooms and that its concern for the invasion of privacy of female students justified assignment of a female teacher to supervise the girls' locker and shower rooms was unconvincing. Moore v. Cedar Grove-Belgium School Dist. (LIRC, 04/29/92).
The Respondent had a legitimate basis for terminating a female substitute teacher where she had a pattern of excessive discipline. The female teacher made 47 disciplinary referrals during a 16-month period while two other male substitute teachers together made only 15 disciplinary referrals during that period. Roberge v. School Dist. of Stanley-Boyd (LIRC, 02/05/92).
When an employer penalizes an employe after the termination of a consensual sexual relationship between the employer and the employe, a presumption arises that the employer acted not on the basis of gender, but on the basis of the failed interpersonal relationship. This presumption is rebuttable only if the employe can demonstrate that the employer demanded further sexual relationships before the decision to terminate was made. Podemski v. St. Francis Home (LIRC, 05/11/90).
There was no probable cause to believe that the Respondent discriminated against the Complainant by terminating his employment because of sex where the Complainant had acted in a fashion that led female employes to believe that he was exposing himself to them and where female employes had reported that he made obscene phone calls to them. Hammer v. G.E. Medical Systems (LIRC, 08/29/89).
The Complainant was not sexually harassed or discharged from her employment because of sex where, despite proof that a manager subjected her to verbal sexual harassment, she was found not to have told management about the harassment before she was discharged and where there was evidence that she was discharged for performance problems. Schoenhofen v. LIRC (Ct. App., Dist IV, unpublished decision, 01/26/89).
It was sex discrimination for an employer to discharge a female employe because a male employe insisted that he would not continue to work for the employer, as long as the female with whom the male employe had been having a relationship was allowed to work there after their relationship broke up. The discharge decision relied at least in part on the Complainant's gender, and was thus unlawful. Abbyland Processing v. LIRC (Ct. App., Dist. III, unpublished decision, 02/02/87).
A female employe was discriminated against when she was discharged several months earlier than a male employe with whom she was having an affair, where the two employes were equally responsible for the resulting disruption to the employer's business. Pike v. Pierson-Pelzman Sweetener Supply (LIRC, 01/16/85).
The discharge of a male employe for a rule infraction, for which female employes were only suspended, violated the Act and was based upon a belief that male employes should be held to a higher standard of conduct than females. Evidence that the employer refused to allow the male to transfer to a position where the employer believed females performed more efficiently supported the finding. Rathsack v. Crescent Woolen Mills (LIRC, 09/25/84).
It was sex discrimination to discharge a male because of an alleged anti- nepotism policy, where the employer retained a female who would have been similarly disqualified by such a policy. Scheidel v. American Council of the Blind (LIRC, 04/06/82).
A faculty committee's decision not to recommend tenure for a female professor because of her lack of published materials was not sex discrimination where she did not possess qualifications superior to a male who was tenured, where the only other persons rejected during the period were males and where the committee's vote was almost evenly split between members of each sex. Rubenstein v. LIRC (U.W. Bd. of Regents) (Dane Co. Cir. Ct., 02/06/81).
It was not discriminatory to discharge a female employe who, in violation of a notice rule, failed to notify the employer that she would not be returning to work. Hamilton v. DILHR, 94 Wis. 2d 611, 288 N.W.2d 857 (1980).
It was not sex discrimination to discharge the male but not the female employe who had become involved in an affair together because, unlike the female, the male caused management to become directly involved in the affair and had a poor work record. Peterson v. Central Paving (LIRC, 10/09/79).
Where two female employes violated a work rule by leaving the premises without permission during working hours, their discharge was not the result of sex discrimination. Cariganan v. Schlitz Container (LIRC, 06/22/79).
In a legitimate reduction of staff, minimal reasons such as physical stamina were sufficient to support an employer's decision to choose the male employe over the female where both were closely matched in terms of competence. Olson v. Community Memorial Hospital (DILHR, 07/23/76).
An employer's discharge of a female because of its aversion to women working in the auto service department was sex discrimination. Yanta v. Montgomery Ward (DILHR, 03/07/72), aff'd., Yanta v. Montgomery Ward, 66 Wis. 2d 53, 224 N.W.2d 389 (1974).
127.72 Termination because of pregnancy, childbirth, maternity leave or related medical condition [Also see Sec. 844 re: remedies]
The imposition of medical restrictions by the Complainant’s treating health care professional led to her lay-off. However, this would not constitute sex (pregnancy) discrimination unless it was shown that the Respondent either failed to follow its own policies regarding such restrictions, or that it treated the Complainant differently than it had treated employees with non-pregnancy related temporary medical restrictions. In this case, other employees were allowed to use accrued leave to cover a temporary absence for medical reasons. The Complainant failed to show that she had accrued leave sufficient to cover her absence for the duration of her pregnancy. Therefore, she failed to show that she was similarly situated to these employees. In addition, the Complainant failed to show that the Respondent did not follow its own policies in regard to her lay-off. Slife v. Mt. Morris Mutual Ins. Co. (LIRC, 11/03/05)
The Respondent failed to offer to place a fan or air conditioner in its vault in order to make the Complainant more comfortable while she was pregnant. Nor did it offer her the opportunity to temporarily trade duties with another employee. The record does not show that the Respondent accommodated other employees with temporary medical restrictions not related to pregnancy by physically modifying their work environments or by allowing them to temporarily trade duties with other employees. Therefore, the Respondent’s failure to accommodate the Complainant in this matter did not demonstrate sex (pregnancy) discrimination. Slife v. Mt. Morris Mutual Ins. Co. (LIRC, 11/03/05)
The Complainant failed to prove a prima facie case of sex discrimination with respect to discharge where she was unable to show that she was meeting the employer's legitimate job performance expectations at the time of her termination and where she was unable to show any direct or indirect evidence that the employer's termination decision was motivated by her pregnancy. Levenhagen v. Woodward Communications (LIRC, 09/30/92).
The Respondent, a school of dentistry, did not unlawfully discriminate against the Complainant on the basis of pregnancy when it did not allow her to take a few weeks off work at the beginning of the fall semester to have her baby. Instead, the Respondent gave the Complainant the option of taking a leave for the entire fall semester and then returning for the second semester, but as a junior clinic supervisor, rather than as a regular clinical faculty member. The Respondent established that appointing someone else as the clinical supervisor for only the first semester and then reappointing the Complainant as the supervisor for the second semester would present the problem of not providing for continuity in the students' development of clinical skills. Krause v. Marquette Univ. (LIRC, 06/30/92).
A salad bar employe failed to show that she was terminated because of her pregnancy where the employer showed that it had eliminated the salad bar for financial reasons. Although her supervisor had expressed concern over the employe's pregnancy, the Complainant failed to subpoena the manager to testify at the hearing. Without additional testimony, the manager's comments about her pregnancy were insufficient to demonstrate that they were connected to her termination. Yerke v. Wood River Inn (LIRC, 02/05/92).
There was no evidence of sex discrimination where a non-pregnant laid-off salad bar worker was rehired for a short time to do salad and computer work and a pregnant laid-off salad bar worker was not rehired since the pregnant laid-off employe could not perform the computer work required by the employer. Yerke v. Wood River Inn (LIRC, 02/05/92).
In order to establish a prima facie case of discrimination based on pregnancy, the Complainant must establish: (1) that she was pregnant, (2) that she was capable of doing the job, and (3) that she was discharged from the job. Although the Complainant established a prima facie case, she failed to offer sufficient evidence that the Respondent's reasons for discharge were pretextual. The individuals who discharged her did not know that she was pregnant at the time of the discharge. Further, the Respondent has employed several women who became pregnant while working for the Respondent. Martin v. Mars Cheese Castle (LIRC, 07/02/91).
The Respondent violated the Wisconsin Fair Employment Act when it laid the Complainant off because it anticipated that her pregnancy would cause future absenteeism. Frostman-Messier v. Nancy Lee Employment Agency (LIRC, 02/22/91).
The Respondent discharged the Complainant because of marital status and pregnancy where the employer displayed prejudgment that pregnancy would limit the Complainant's ability as a waitress and told her that termination would save her from embarrassment. Howard v. The Cloisters (LIRC, 08/24/90).
The Respondent's argument that a back pay award should not have extended until the date the Complainant (who was discharged because of pregnancy) delivered because it was not "logical" to believe she would have worked up to her delivery date embodies the same type of preconceptions about the effects of pregnancy on the employe's abilities as was found to have violated the Wisconsin Fair Employment Act. Howard v. The Cloisters (LIRC, 08/24/90).
The Administrative Law Judge erred in dismissing the complaint at the close of the Complainant's case where the Complainant had made out a prima facie case by proving that she had been pregnant, that she had been capable of performing her job as evidenced by having passed her probationary period less than two weeks before she was fired, that she had only been criticized for her performance by her foreman on one occasion and that after that occasion she performed her job as required, and that she was discharged about two weeks after she first informed the employer she was pregnant. Although evidence concerning the Respondent's asserted reasons for terminating the Complainant - that she was slow and bossy - apparently was received into the record during the Complainant's case in chief, the Complainant offered evidence to show that the reasons were pretextual. Matthes v. Schoeneck Containers (LIRC, 03/11/88).
Concerns about the safety of allowing a pregnant employe to work in certain situations may be a valid reason to transfer that employe to another position, but in each case an objective analysis of the Complainant's actual physical capabilities and the job requirements is necessary. An employer's good faith or subjective belief will not save an otherwise discriminatory decision. Bartelt v. Brakebush Brothers (LIRC, 10/20/87).
Discharging an employe for failing to disclose her pregnancy is not substantially different from discharging an employe because of her pregnant condition. City of Watertown Public Library v. LIRC (Jefferson Co. Cir. Ct., 04/14/86), aff'd. Ct. App., Dist. IV, unpublished decision, 04/02/87.
An employer had a valid business reason for filling the position of an employe during her maternity leave. Even though the pregnancy played a part in her subsequent termination when she declined the relief position offered to her, the employer's policy pertaining to medical and maternity leave treated similarly-situated temporarily disabled men and women equally. DeLisle v. LIRC (L'eggs Products/Hanes Corp.) (Milwaukee Co. Cir. Ct., 03/29/84), aff'd., Ct. App., Dist. I, unpublished decision, 12/11/84.
An employe failed to show discrimination where she had returned to work after her maternity leave, found that her old job had been eliminated, and was given a new job with the same responsibilities and pay as her old job. An employer's comment to the effect that "you are not really going to come back to work with those two babies" was not enough to show an unlawful motive. Luecking v. Winnebago Co. (LIRC, 03/12/84).
It was discrimination to terminate an employe on the basis of an unfounded expectation that her doctor would order her to quit work because of her pregnancy. Molitor v. Schauer Enterprises (LIRC, 02/21/84).
It was not discrimination to fail to reinstate a nursing assistant who had taken maternity leave where the employer did not guarantee reinstatement to any employe who took leaves for any reason, where others returning from maternity leave had been reinstated and the only position available upon her return required qualities she did not possess. Forseth v. St. Michael Hospital (LIRC, 12/14/83).
Discharge of a store manager for lateness and excess telephone charges which began after her announced pregnancy was not a pretext for sex discrimination where the Complainant was the only store employe and her employer endeavored to otherwise accommodate her pregnancy. Szczerbiak v. Forest Labs (LIRC, 07/06/83).
A waitress alleging that her discharge was due to her pregnancy established a prima facie case of discrimination by showing that her work was acceptable and that her employer told her she was being fired because she could no longer lift heavy weights. The employer's last-minute allegations of poor appearance and attitude were a pretext for its decision to fire her when she became pregnant. Lenich v. Dana's Deli (LIRC, 03/29/83), aff'd. sub nom. Dana's Deli v. LIRC (Lenich) (Waukesha Co. Cir. Ct., 01/20/84).
An employer's rule requiring an employe to terminate her employment at the end of her third month of pregnancy was discriminatory. Mill Fab v. LIRC (Knight) (Dane Co. Cir. Ct., 07/30/81).
Where an employe did not refute an employer's contentions that she was discharged for breach of confidentiality, failure to properly keep records and complaints from persons supervising the people she dealt with, she was not discriminated against on account of sex merely because the decision to discharge her took place while she was on maternity leave. N.W. Community Action v. DILHR (Foster) (Douglas Co. Cir. Ct., 04/25/78).
A rule requiring pregnant employes to take a leave in their fifth month regardless of their physical or medical condition was arbitrary and sex-biased where the employer could not demonstrate a compelling interest in the rule, and an employe discharged for violating the five month rule should be reinstated even where the employer could also have discharged her for unsatisfactory work performance. Nursing Homes v. DILHR (Dane Co. Cir. Ct., 01/22/74).
127.9 Termination because of pregnancy, childbirth, maternity leave or related medical condition; Miscellaneous
Differences in male and female uniforms are permitted if they have some justification in commonly accepted social norms and if the standards are reasonably related to business needs. It is a commonly accepted social norm that, for females, a skirt or dress is a more formal article of clothing than pants. In this case, the Respondent's requirement that females wear skirts was part of its marketing strategy to emphasize a more formal dining atmosphere than that offered in what are general characterized as "fast food" eateries. Furthermore, there was insufficient evidence that the job was made any more physically difficult by the requirement of wearing a skirt. Raczek v. Pizza Hut (LIRC, 05/11/94).
If a claim of sex discrimination is otherwise valid, it should not be rendered invalid because the discrimination does not run against the sex of the Complainant. In this case, the Complainant has stated a viable claim upon which relief could be granted when he alleged that his position was eliminated along with the position of a female friend when that female friend failed to "respond positively to sexual harassment" by the Respondent. The Complainant is alleging that his position was eliminated as a direct result of an illegal act of sexual harassment against his female friend. Christensen v. UW-Stevens Point (Wis. Personnel Comm., 01/24/92).
The employer was responsible for paying the Complainant's reasonable attorney's fees and costs because it responded inadequately when it learned of a supervisor's acts of sexual harassment against the Complainant and because the supervisor was acting under color of his authority. Nelson v. Waybridge Manor, Inc. (LIRC, 04/06/90).
Despite the fact that the evidence raised serious questions about the attitude of the Respondent towards women as employes, and raised the suggestion of discriminatory conduct in respects other than those raised by the complaint, the Complainant failed to demonstrate a causal connection between the apparent attitude of the department towards women as employes and the two day suspension she received for abuse of sick leave. Stephens v. City of Marinette Police Dept. (LIRC, 11/06/87).
An employer need not have been found guilty of past discrimination before it can make a sex-conscious hiring decision. It need only point to a conspicuous imbalance in traditionally segregated job categories. For jobs that require no special expertise, the percentage of minorities or women in the employer's work force may be compared with the percentage in the area labor market or general population, and where the job requires special training, the comparison should be with those in the labor force who possess relevant qualifications. Gordon v. City of Milwaukee (LIRC, 10/16/87).
128 Sexual Orientation Discrimination
The Wisconsin Court of Appeals, in Bowen v. LIRC, 2007 WI App 45, � 14, 299 Wis.2d 800, 812, 730 N.W.2d 164, implicitly recognized a cause of action under the Wisconsin Fair Employment Act for harassment on the basis of sexual orientation.� Harassment by a co-worker created a hostile work environment for the complainant, and the employer failed to take effective remedial action, but because the complainant did not prove termination due to sexual harassment or opposition to discrimination, remedy is limited to a cease-and-desist order and attorney�s fees.� Complainant�s attorney�s fees based on her brief to the commission were reduced in proportion to the number of pages in the brief devoted to the issue on which the complainant prevailed.� Cooper v. Options for Community Growth, Inc. (LIRC, 07/29/13).
The Respondent observed, or the Complainant brought to the Respondent's attention, incidents in which: (1) the Complainant was told to call his 'boy toy lawyer,' (2) a 'Honk If You're Gay' sticker was placed on the Complainant's toolbox, (3) a 'Queer' or 'Queen' sign was placed on the Complainant's locker, and (4) Worker's chanted 'Rudy, Rudy' in a high-pitched voice in the Complainant's presence (the Complainant's middle name is Rudolf). While the Complainant did not specify that he was complaining about sexual harassment or harassment based on sexual orientation (other than to tell the owner of the company that he was a 'fag,') the types of incidents that were taking place should have put the Respondent on notice that this was the case. A respondent is liable for the harassing acts of the Complainant's co-Worker's if it knew or should have known about the harassment and failed to take adequate measures to prevent or eradicate the harassment. Once an employer has been put on notice that an employee is being harassed, it is obliged to take remedial action to improve the work environment, whether or not it is aware of each and every allegation of harassment. The Complainant's complaints to the Respondent that he was being harassed daily by his co-Worker's were invitations for the Respondent to investigate further. Bowen v. Stroh Die Casting Co. (LIRC, 10/28/11). [Ed. Note: In a dissenting opinion, a LIRC Commissioner contended that the Wisconsin Fair Employment Act does not provide a cause of action for harassment based upon sexual orientation. This contention was rejected in the majority opinion in the case.]
In order for harassment by co-Worker's to be actionable under the Wisconsin Fair Employment Act, it must be sufficiently severe or pervasive so as to have altered the conditions of the Complainant's employment and created an abusive work environment. The conduct by co-Worker's at issue in this case was not occasional or sporadic. It was frequent, it occurred over an extended period of time, and it created an abusive environment. The harassment included the following incidents: (1) a co-worker commented to the Complainant during the course of an argument that he should go ahead and call his 'boy toy lawyer,' (2) someone propped a newspaper article with a picture of Liberace up against the Complainant's locker, (3) someone put a sticker on the Complainant's toolbox with a picture of a hunting bullseye that said, 'Honk If You're Gay,' (4) someone left a printed joke on the Complainant's toolbox that said, 'Medical authorities have announced that AIDS can be contracted through the ears by listening to assholes,' (5) someone left a sign on the Complainant's locker that said either 'Queer' or 'Queen,' (6) a co-worker commented that the Complainant and a member of management to whom the Complainant was talking were 'butt buddies,' (7) two or more co-Worker's made hand gestures imitating fellatio that were directed at the Complainant, (8) a co-worker repeatedly called the Complainant 'fag,' (9) a co-worker called the Complainant a 'maricon' (a Spanish word for 'fag'), (10) on one or more occasions several Worker's chanted, 'Rudy, Rudy,' in a high-pitched voice in the presence of the Complainant (the Complainant's middle name is Rudolph), (11) in response to a newspaper article about homosexuals, a co-worker stated that, 'All gays, queers and niggers should be put in a big pit and shot,' and (12) a co-worker commented to another worker that the Complainant was grumpy and that he wondered if it was because the Complainant did not get a 'piece of ass' at Pride Fest. Bowen v. Stroh Die Casting Co. (LIRC, 10/28/11). [Ed. Note: In a dissenting opinion, a LIRC Commissioner asserted that the Wisconsin Fair Employment Act does not provide a cause of action for harassment based upon sexual orientation. This contention was rejected by the majority opinion .]
The Complainant's theory was that she was discriminated against because her commanding officer, a female, was jealous of the Complainant's relationship with another female employee with whom she had a homosexual relationship. The Wisconsin Fair Employment Act would protect the Complainant from discrimination based upon her status as a homosexual individual; however, it does not protect her from an adverse employment action taken because of the identity of the Complainant's homosexual partner. Gustavus v. Dept. of Corrections (LIRC, 05/08/08).
The Complainant failed to establish that he was subjected to unlawful hostile environment sexual harassment. The evidence established that a co-worker offered the Complainant the only pink donut in a box of assorted donuts. The Complainant further testified that on one occasion the word “queer” or “queen” was written on his locker, and on another occasion a picture of Liberace was placed on his locker. However, the Complainant failed to demonstrate when these incidents took place. Assuming, without deciding, that the “pink donut” incident was in reference to the Complainant’s sexual orientation and that the other two incidents were timely, the Complainant’s evidence was not sufficient to warrant a conclusion that he was subjected to harassing conduct which was sufficiently severe or pervasive as to create an intimidating, hostile or offensive work environment. Moreover, the Complainant failed to demonstrate that he notified the Respondent that he was being sexually harassed, or that the Respondent had reason to believe that this was the case. Bowen v. Stroh Die Casting (LIRC, 06/30/05), remanded for new hearing, sub nom. Bowen v. LIRC (Milw. Co. Cir. Ct., 03/14/06); order of remand aff'd., Bowen v. LIRC and Stroh Die Casting, 2007 WI App 45; 299 Wis. 2d 800; 730 N.W.2d 164.
What is protected under the law is the employe’s general preference for heterosexuality, homosexuality, or bisexuality. The Act provides no protection for an individual who was discriminated against based upon his or her actions in maintaining a sexual relationship with a specific person. Bammert v. Don’s Super Valu (LIRC, 03/06/98), aff'd. sub nom. Bammert v. LIRC, 2000 WI App 28, 232 Wis. 2d 365, 606 N.W.2d 620.
In a case brought under the Wisconsin Public Accommodations and Amusements Act, the Complainant, a lesbian, alleged that she and the members of her baseball team, which played in games sponsored by the Respondent, experienced verbal harassment from both spectators at the game and players on other teams who shouted comments such as "fag," "dike," "queer," "go home," and "she's got AIDS." The heckling that occurred in this case created a hostile environment which had the effect of denying the full and fair enjoyment of a public accommodation to the Complainant. However, the Respondents were not liable in this case because they did not exercise a degree of control over the persons engaging in the harassment. Neldaughter v. Dickeyville Athletic Club (LIRC, 05/24/94, ERD No. 9132522).
A Complainant failed to prove that a police chief's decision to demote her back to police officer from sergeant was motivated by her sex or sexual orientation where (1) the police chief initially sought out the Complainant for promotion, knowing the Complainant's sex and sexual orientation; (2) the chief had a history of hiring and promoting females and lesbians; and (3) the chief had information which supported his conclusion that the Complainant lacked the interpersonal skills necessary to supervise other employes. Kemmerer v. City of Madison Police Dept. (LIRC, 06/30/93).
Where a Respondent asserted that it prevented the Complainant from being hired as a live-in attendant for a disabled woman because of reports of prior abuse and neglect of that women by the Complainant, the Department was not required to determine whether the Complainant had in fact been guilty of abuse and neglect in the past. The issue before the Department was whether the Respondent genuinely believed the reports of abuse and neglect and whether the Respondent acted on that belief rather than on an invidious prejudice against the Complainant because of her sexual orientation. Vandeveer v. Brown County (LIRC, 06/28/93).
The Complainant, a lesbian, failed to state a claim upon which relief could be granted when she alleged that the Respondent had violated the Wisconsin Fair Employment Act by denying her application for family health insurance coverage for her lesbian companion. The Respondent's policy distinguishes between married and unmarried employes, not between homosexual and heterosexual employes. Family coverage for the Complainant's companion would be denied even if the Complainant were an unmarried heterosexual. While the Complainant complains that she is not married to her companion only because she may not legally marry another woman, this is a claim that the marriage laws are unfair because of their failure to recognize same-sex marriages. Any change in that policy is for the legislature, not the courts. Phillips v. Wisconsin Personnel Comm., 167 Wis. 2d 205, 482 N.W.2d 121 (Ct. App. 1992).
A finding that seventy-three percent of individuals with AIDS/ARC are homosexual and bisexual men was insufficient to support a finding that a school district which adopted a policy prohibiting individuals with AIDS from the classroom constituted discrimination on the basis of sexual orientation. Furthermore, the public remark by a school board member that he voted in favor of the policy because he did not believe that homosexuals should be allowed to teach in the school district was insufficient to support a claim of discrimination on the basis of sexual orientation. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).
129 Marital Status Discrimination
129.1 Marital Status Discrimination; Coverage, Generally
The Complainant argued that her marital status was that of a divorced parent (as opposed to that of simply being divorced). The Wisconsin Fair Employment Act provides no special protections for divorced parents. Gersmehl v. Acuity Mutual Ins. Co. (LIRC, 07/29/11).
The proscription against discrimination on the basis of marital status does not prohibit employer action that is triggered by the employee’s conduct, rather than the employee’s status as a married individual. The Wisconsin Fair Employment Act is not intended to protect an employee’s right to engage in an extramarital affair. The evidence in this case overwhelmingly showed that the Respondent terminated the Complainant’s employment as a sales manager due to its concerns regarding the effect his relationship with a part-time employee was having on its employees and business, as well as a concern regarding the potential risk of a sexual harassment lawsuit against the Respondent. Dobberstein v. NSight Telservices (LIRC, 02/23/07).
Adverse actions which were taken not because the Complainant was married per se, but instead because of the identity of the person to whom he was married (i.e., a subordinate employee in the same facility) were not unlawful. Moreover, although the Complainant argued that the Respondent enforced its nepotism policy less favorably in regard to married persons than it did in regard to employees in other types of family relationships, he failed to present sufficient evidence to support this claim. Whiting v. County of Shawano (LIRC, 03/15/04).
The WFEA creates an exception to marital status discrimination by allowing anti-nepotism policies, despite their disparate impact on married people as a class. The prohibition against marital status discrimination under the Wisconsin Fair Employment Act is intended to protected the status of being married in general, rather than the status of being married to a particular person. Bammert v. LIRC, 2000 WI App 28, 232 Wis. 2d 365, 606 N.W.2d 620.
The Complainant failed to state a cause of action upon which relief could be granted where the basis of her claim was that the Respondent refused to pay her for providing personal and medical care to her husband, who was severely disabled. Mack v. Waushara County (LIRC, 05/08/96).
An employer who demands that an employe place work before his or her personal life does not discriminate on the basis of marital status. Perrett v. CPI Corp. (LIRC, 11/15/95).
It was not unlawful discrimination on the basis of marital status for the Respondent to object to the Complainant submitting medical excuses for absences which were signed by her husband, who was a physician. The Respondent's objection was premised not on the marital relationship per se, but on the inherent conflict of interest involved. Earnhart v. DHSS (Wis. Personnel Comm. 11/19/92).
Discrimination against a person because he is engaged in an interracial marriage is race discrimination. Miner v. Blunt, Ellis & Loewi (LIRC, 05/29/91), aff'd. sub nom. Miner v. LIRC (Rock Co. Cir. Ct., 04/07/92).
An anti-nepotism policy might be subject to attack as having a disparate impact on the employment opportunities of married persons as a class. A blanket anti-nepotism policy might also be considered a direct imposition on the right to marry and, thus, on the marital relationship, such as to constitute marital status discrimination under the Wisconsin Fair Employment Act. Miner v. Blunt, Ellis & Loewi (LIRC, 05/29/91), aff'd. sub nom. Miner v. LIRC (Rock Co. Cir. Ct., 04/07/92).
A company policy prohibiting employes from dating or living together does not constitute marital status discrimination because the policy applies equally to all employes, regardless of marital status, and attempts to regulate conduct rather than the status of being married or single. Vaisman v. Aldridge, Inc. (LIRC, 10/21/91).
"Going through a divorce" cannot be equated with the statutory definition of marital status, which is defined as "the status of being married, single, divorced, separated or widowed." The Complainant's act of filing for divorce did not change her marital status as being married. Therefore, in order to prevail on her claim of marital status discrimination, she would have had to establish that the Respondent treated married people differently. Scheife v. Apple Chevrolet (LIRC, 09/11/91).
A Respondent's statement that he paid females less because they had "someone at home to take care of them," demonstrates an unfortunately traditional attitude sometimes held towards working women which is essentially a matter of sex discrimination, not a matter of a distinction between persons because they are married, single, divorced or separated. Sahr v. Tastee Bakery (LIRC, 01/22/91).
The Respondent did not violate the Wisconsin Fair Employment Act when it discharged the Complainant because the Complainant's wife did not move with him to another state within a certain length of time after the Complainant was transferred there. The Wiscon-sin Fair Employment Act does not prohibit an employment act simply because it is unfair or arbitrary and involves the individual's spouse. Rather, it prohibits discrimination based on an individual's marital status. Birk v. Georgia-Pacific (LIRC, 08/03/90), aff'd. sub nom. Birk v. LIRC, Milw. Co. Cir. Ct. 01/04/91.
A rule prohibiting the romantic association of any employe with a married employe of the opposite sex does not discriminate on the basis of marital status. The rule prohibits single and married employes equally from forming romantic associations with married employes. Federated Elec. v. Kessler, 131 Wis. 2d 189, 388 N.W.2d 553 (1986).
129.2 Marital Status Discrimination; Spousal Identity
Discrimination based upon the identity of one’s spouse is not covered by the Wisconsin Fair Employment Act, which is meant to protect the status of being married in general rather than the status of being married to a particular person. Bammert v. LIRC, 2000 WI App 28, 232 Wis. 2d 365, 606 N.W.2d 620.
The Complainant did not establish that she was discriminated against because of marital status where what the Complainant complained of was not that she was discharged because she was married, but that she was discharged because she was married to a particular person. The prohibition on discrimination on the basis of marital status does not extend to the particular identity, personal characteristics or actions of one's spouse. Andree v. C.T. & I. Corp. of Wis. (LIRC, 08/29/91).
The prohibition against discrimination because of marital status does not extend to prohibiting actions by an employer that are based upon the identity or particular characteristics of an employe's spouse. Whether or not such employment actions might be deemed unfair, the fact remains that they do not discriminate against persons because they belong to the protected classification of persons who are married. Miner v. Blunt, Ellis & Loewi (LIRC, 05/29/91), aff'd. sub nom. Miner v. LIRC (Rock Co. Cir. Ct., 04/07/92).
DILHR has jurisdiction to hear a complaint alleging that an employer's policy against hiring the spouse of a current employe is discrimination. The Act should be interpreted to prohibit discrimination based on the particular identify of one's spouse. Arrowood v. H.G.C.C. of Wis. (Milwaukee Co. Cir. Ct., 01/29/85).
129.3 Marital Status Discrimination; Insurance coverage
A public employer, as defined by ch. 40, Stats., does not discriminate on the basis of marital status by limiting its married co-employes to one family health insurance policy. Connie J. Motola v. LIRC and City of New Berlin, 219 Wis. 2d 589, 580 N.W.2d 297 (1998).
The employer decided that employes with "family coverage/including spouse" insurance coverage would have to contribute toward the cost of their health insurance. This did not constitute unlawful discrimination with respect to compensation based on marital status. For budgetary reasons, the Respondent was only willing to allot a certain sum of money toward health insurance expenses. The Respondent was willing to pay up to a certain amount for all employes, whether single or married. It is a general fact of life that an insurance plan for family coverage will cost more than one for single coverage. The Complainant would be in the same situation if the Respondent provided no health insurance benefits at all and she was required to obtain it on her own. She would have to pay more to obtain family insurance coverage than a non-married person who only needed single coverage. Demet v. Homeward Bound (LIRC, 04/09/98).
It was not unlawful discrimination on the basis of marital status for the Respondent to prohibit employes from electing a health insurance plan which covered their spouse as a dependent if the spouse was also an employe of the Respondent. Employes of the Respondent who were married to one another were each entitled to their own insurance coverage. The limitations on the options allowed to the Respondent’s employes who were married to one another are designed to avoid a situation in which the employer actually purchases coverage twice for the same employe. Ohm v. Veltus (LIRC, 07/22/97).
It was not unlawful discrimination on the basis of marital status for the Group Insurance Board to deny a state employe's application for family coverage under the State Group Health Insurance Program on the ground that the employe's wife, also a State employe, already had family coverage under the State's Health Care Insurance Program. Kozich v. Employee Trust Funds Bd., 203 Wis. 2d 363, 553 N.W.2d 830 (Ct. App. 1996).
The Respondent's limitation on the selection criteria for its alternative health care plans to married couples when both spouses were city employes, did not constitute prohibited marital status discrimination. The Respondent, a municipality, prohibited the election of a single and/or family coverage plan by either husband or wife if he or she was covered as a dependent on their spouse's family coverage plan. Genther v. City of Kenosha (LIRC, 07/31/96).
The employer's policy was discrimination on the basis of marital status where married employes whose spouses had other insurance available to them through their employer had to either satisfy the Respondent that the other insurance provided significantly less coverage or that their spouses had dropped their insurance policy in order to be able to continue coverage with the Respondent's health insurance policy. The Respondent's policy discriminates against married employes by treating them differently with respect to health insurance than single employes who are not forced to choose between the district's coverage and other health insurance they may have from another source. Braatz v. LIRC, 174 Wis. 2d 286, 496 N.W.2d 597 (1993).
The Respondent did not discriminate against the Complainant on the basis of marital status when it denied her application for family health insurance coverage for her lesbian companion. Although single and married employes are treated differently under the health insurance benefits scheme in that dependent coverage is available to a married worker's spouse, this kind of differentiation on the basis of marital status does not violate the Wisconsin Fair Employment Act. Despite the fact that the Complainant regards her lesbian companion as her "spouse equivalent" this does not make her similarly situated to a married employe since the Complainant has no legal relationship to her companion. Phillips v. Wisconsin Personnel Comm., 167 Wis. 2d 205, 482 N.W.2d 121 (Ct. App. 1992).
The Respondent did not deny health insurance coverage to the Complainant because of her marital status. The Complainant did not receive the insurance coverage because she chose coverage under her spouse's insurance policy instead. Dacquisto v. Fred Knapp Engraving (LIRC, 11/30/90).
The employer did not violate the prohibition on discrimination because of marital status when it paid employes who received family (individual plus dependent) health insurance a higher gross wage rate than employes who received only individual health insurance. The legislature simply did not intend that the prohibition against marital status discrimi-nation would preclude an employer from providing additional or greater health insurance benefits to its employes with spouses and/or dependents than to its employes without dependents. Hartman v. Mueller Food Services (LIRC, 09/10/85), aff'd., Washington Co. Cir. Ct., 07/18/86.
The failure of an employer's insurance plan to extend coverage to a divorced employe's children does not constitute marital status discrimination. Bourque v. Wausau Medical Center (LIRC, 02/10/84).
129.4 Marital Status Discrimination; Cases
The Respondent had a policy which did not proscribe affairs by employees with married co-employees, but which did require that employees be discreet when they carry out an extramarital affair. This policy did not constitute marital status discrimination. Olmanson v. DHFS (Wis. Personnel Comm., 01/19/01).
The Complainant established that the Respondent discriminated against her because of her sex and her marital status in regard to compensation through testimony that the Respondent's owner made overtly discriminatory statements when approached about increasing the Complainant's pay to bring it more in line with the pay of male sales representatives. Comments made by the owner included the following: (1) that "between [the Complainant] and her husband, they made enough money"; (2) that "a 'snatch' didn't need to make that much money"; (3) that the Complainant had gotten good results from some accounts because "she was probably screwing the meat manager"; (4) that he was "paying her husband enough and she's a woman and she's compensated properly and she doesn't need any more, any additional compensation;" and (5) that the Complainant "was a good heifer or a good cow and she would produce but we don't have to give her any more." Forster v. Abbyland Processing (LIRC, 03/22/95), aff'd. sub nom. Abbyland Processing v. LIRC and Forster, 206 Wis. 2d 309, 557 N.W.2d 419 (Ct. App. 1996).
The Complainant was not discriminated against on the basis of marital status where the interviewer made remarks to her about her work and family responsibilities. Such remarks may have been precipitated by the Complainant's resume, which stated, "available for assignments involving some travel." Further, there was no evidence that the Complainant's response to the interviewer was considered in arriving at her score on the interview. Bell-White v. DHSS (Wis. Personnel Comm., 04/30/92).