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788 Sex discrimination
788.01 Generally
In terms of the Fair Employment Act's prohibition against discrimination in compensation on the basis of sex for equal or substantially equal work, Wisconsin courts look to the Equal Pay Act rather than to Title VII for guidance. The employe bears the burden of showing that the jobs being compared have equal skill, effort and responsibility, and that men and women were paid differently. If the jobs held by men required different skill, effort and responsibility than the job compared by the woman employe, there is no Equal Pay Act violation. Additional duties held by other employes may take them out of the Equal Pay Act analysis even if they share some duties in common with the petitioner. Where petitioner sought comparison with male employes who had significant different and additional job responsibilities, the Commission was justified in dismissing petitioner's Equal Pay Act claim. Meredith v. Wis. Pers. Comm., Dane County Circuit Court., 93CV3986, 8/29/94
The use of the term "bitch" to refer to complainant does not, in and of itself, lead to a finding of discrimination/retaliation. Stygar v. DHSS, 89-0033-PC-ER, etc., 4/17/95
It was not sex discrimination to use expanded certification to increase the number of women who gain access to interviews where it was used in conjunction with an approved affirmative action plan which complied with the requirements of ch. 230, Stats., and of ch. ER 43, Wis. Admin. Code. Gygax v. DOR & DER, 90-0113-PC-ER, 12/14/94
Probable cause to believe discrimination occurred was found where complainant, a 63 year old woman, was laid off from her teaching job, and where the institution had an underutilization of professional women, where her layoff contributed to that underutilization as well as to the institution's failure to meet established affirmative action goals, and where the male employe who was permitted to bump the appellant was essentially admittedly unqualified under the labor contract. Cowie & Decker v. DHSS, 80-PC-ER-115,114, 5/28/82
788.02(1) Finding of probable cause
There was probable cause with respect to the respondent's decision to terminate the complainant's employment rather than to permit him to resign where a female employe was permitted to resign and where there was no real basis to distinguish between the two employes other than that the other employe had filed an informal complaint. Bender v. DOC, 90-0049-PC-ER, 8/8/91
Probable cause was found with respect to the decision to terminate the complainant's probation where complainant, a male, had been asked out on four occasions by his female supervisor and his employment was terminated relatively shortly after he declined the invitations. Complainant's work performance was comparable in many respects to that of his peers and many of the specific points relied on by respondent in support of his termination were unfounded. Kloehn v. DHSS, 86-0009-PC-ER, 9/8/89
Probable cause was found where 12 of 13 intake and processing supervisors classified at the Job Service Supervisor 2 level were women and while the position standard also identified hearing office manager positions at that level, 3 of 4 hearing office manager positions were classified at the Job Service Supervisor 3 level and 2 of those 3 positions were filled by men. Conrady & Janowski v. DILHR & DP, 81-PC-ER-9, 81-PC-ER-19, 11/9/83
788.02(2) Finding of no probable cause
No probable cause was found with respect to the actions of denying complainant overtime on two occasions, where respondent's actions were consistent with the provisions of the correctional facility's BFOQ plan. Complainant, a male, did not attack the validity of the BFOQ plan. Schrubey v. DOC, 96-0048-PC-ER, 1/27/99
There was no probable cause to believe respondent discriminated against complainant based on sex or retaliated against complainant when respondent terminated his employment, citing 8 specific acts of patient abuse, abusing a co-worker, reading while in work status, demonstrating an undermining attitude, leaving the unit for a smoking break, shoving and screaming at a co-worker and leaving the work unit for an extended break without permission. Although complainant presented evidence that co-workers took unauthorized smoke breaks and read papers, books or magazines in unauthorized areas, complainant failed to show these incidents were seen by or reported to supervisors. Henebry v. DHSS, 96-0023-PC-ER, 7/29/98
No probable cause was found on the basis of sex or age as to respondent’s decision to use promotion rather than reallocation as a method for moving employes to a higher classification level in light of management’s understanding that the union opposed reallocation and the absence of any indication that the lengthy promotional procedure, which resulted in decisions to hire 1 of 2 female candidates and 7 of 8 candidates older than 40, was undertaken because of the complainant’s age or sex. Volovsek v. DATCP & DER, 93-0098-PC-ER, 6/19/97; affirmed by Washington County Circuit Court, Volovsek v. Pers. Comm., 97-CV-0287, 8/28/98
No probable cause was found on the basis of sex or age as to respondent’s decision not to select complainant, a female over the age of 40, where information beyond the raw scores from interviews was relied upon in making the final decisions whether to promote a particular candidate, this information related to a large extent to the performance or work record of the candidate, complainant’s performance was marginal and other employes who were promoted did not have similar performance problems as complainant. Volovsek v. DATCP & DER, 93-0098-PC-ER, 6/19/97; affirmed by Washington County Circuit Court, Volovsek v. Pers. Comm., 97-CV-0287, 8/28/98
No probable cause was found on the basis of sex or age as to respondent’s decision not to assign complainant, a female over the age of 40, to respond to a herbicide drift that occurred within complainant’s region of the state. Complainant lacked basic knowledge about the herbicide involved and the person selected by respondent to respond was the expert in the Division. The person selected was older than complainant, had expressed a desire to work alone and management had a goal of sending only one person in response to a complaint. Volovsek v. DATCP & DER, 93-0098-PC-ER, 6/19/97; affirmed by Washington County Circuit Court, Volovsek v. Pers. Comm., 97-CV-0287, 8/28/98
No probable cause was found with respect to the decisions not to select the complainant for either of two vacancies where the successful candidates were better qualified for the positions and one of the two persons hired was of the same sex as the complainant. Cozzens-Ellis v. UW-Madison, 87-0070-PC-ER, 2/26/91
No probable cause was found with respect to the decision not to select the complainant for a vacant position where the questions used by the interview panel were job-related, the questions were asked of all the candidates, the answers were scored using a pre-established benchmark rating system, the actual scores awarded were based on the candidates' responses, the panel members did their ratings individually and the scores were not altered. There was nothing in the record to show that the questions or ratings were biased towards males or females or were pretextual. Jahnke v. DHSS, 89-0094-PC-ER, 89-0098-PC, 12/13/90
No probable cause was found with respect to the decision not to create a new position for which the complainant would likely have been a candidate where, even though there were some anomalies, the respondent's staffing pattern did not provide for such a position. Harris v. DILHR, 86-0021, 0022-PC-ER, 2/22/90
No probable cause was found with respect to the decision not to promote the complainant, an Unemployment Benefit Specialist 2, for a vacant UBS 4 position where the appointing authority had, without exception since 1985, only promoted persons to the UBS 4 level who were already UBS 3's. Reclassification from UBS 2 to 3 was premised on passing a review of the quality of work performed while employed as a UBS 2. Others who were not in the same protected category as the complainant were similarly treated. Harris v. DILHR, 86-0021, 0022-PC-ER, 2/22/90
No probable cause was found with respect to two decisions not to hire complainant, a female. In the first transaction, two of the three interview panelists were female, the successful applicant was also female, the petitioner was not as qualified as other candidates based on the structured interviews conducted of all of the candidates and deficiencies in the selection process affected all of the candidates equally. In the second transaction, two of the three interview panelists were female and there was no evidence that complainant was better qualified than the successful candidates. Bloedow v. DHSS, 87-0014-PC-ER, etc., 8/24/89
No probable cause was found with respect to a decision not to hire the complainant, a 42 year old female, for assistant professorships where the selection process resulted in hiring four out of six females and three of the six selected candidates were in the protected age category. The successful candidates had more relevant degrees, had more recent experience teaching in the field, for the most part had more teaching experience, and had better recommendations than the complainant. Chandler v. UW-La Crosse, 87-0124-PC-ER, 88-0009-PC-ER, 8/24/89
No probable cause was found with respect to a decision not to hire the complainant, a male, where there was nothing in the record from which to conclude that the respondent's explanation was not legitimate, the explanation was clearly non-discriminatory on its face and the complainant failed to show a relationship between respondent's actions and complainant's sex. Ozanne v. DOT, 87-0107-PC-ER, 1/31/89
No probable cause was found with respect to a decision to deny the complainant, a male, a discretionary performance award where the agency head, also a male, had received reports that the complainant had improperly divulged confidential information and perceived two other incidents of poor judgment. Ruff v. Office of the Commissioner of Securities, 86-0141-PC-ER, 87-0005-PC-ER, 9/26/88
Despite evidence of pretext, no probable cause was found with respect to a decision by the agency head, a male, to transfer the complainant, also a male, to a position in another division in the agency where there was no suggestion that there was any affirmative action element involved in the transaction, due to the inherent improbability of a male discriminating against another male. However, probable cause was found as to the claim of FEA retaliation. Ruff v. Office of the Commissioner of Securities, 86-0141-PC-ER, 87-0005-PC-ER, 9/26/88
No probable cause was found as to the decision not to select the complainant for a vacant permanent position of English teacher, where the successful candidate had a higher score on the questionnaire and complainant, who had been filling the position as a limited term employe, had an inferior job reference based on respondent's first-hand knowledge of complainant's work performance. Browne v. DHSS, 85-0072-PC-ER, 8/5/87
No probable cause was found as to claims relating to discharge and providing negative job references where complainant's employment as a limited term employe ended when complainant used compensatory time to finish the 1044 hour maximum of his LTE appointment and respondent's references were based on complainant's poor work record. Browne v. DHSS, 85-0072-PC-ER, 8/5/87
No probable cause was found as to respondent's decision to reallocate the position filled by complainant, a female, where the statistical records showed that of all positions covered by the classification survey, a greater percentage of women went up one or more pay ranges than men and a smaller percentage of women went down one or more pay ranges than men. Schultz v. DER, 83-0119-PC, 84-0252-PCP 85-0029-PC-ER, Schultz v. DER & DILHR, 84-0015-PC-ER, 8/5/87
No probable cause was found as to respondent's decision to deny complainant's reclassification request. Schultz v. DER, 83-0119-PC, 84-0252-PC, 85-0029-PC-ER, Schultz v. DER & DILHR, 84-0015-PC-ER, 8/5/87
There was no probable cause with respect to the decision not to rehire the complainant to an LTE position where her last three supervisors independently believed her attitude and work performance had deteriorated over the last two years below the level of a good employe. Rose v. DNR, 83-0055-PC-ER, 84-0081-PC-ER, 4/15/87
Complainant's verbal complaint about "sexist cronyism" falls within the scope of a protected activity under the Fair Employment Act. However, there was no evidence that said complaint was causal with respect to the subsequent decision to place him on a leave of absence where there was strong evidence that that decision was motivated by respondent's perception of complainant's medical condition. Vallez v. UW-Madison, 84-0055-PC-ER, 2/5/87
No probable cause was found with respect to a decision not to select the complainant, a 41 year old male, for a position of Laboratory Animal Caretaker 2 which included both animal and plant care, where the successful candidate, a 32 year old female, was qualified for the position, had more current work experience, had experience involving both animal and plant care and was formally educated in both animal science and horticulture. Complainant ranked first on the written examination and had extensive work experience in animal care. Krause v. UW- La Crosse, 85-0026-PC-ER, 1/22/87
No probable cause was found as to complainant's resignation where she had been unable to work effectively with her staff where the complainant was treated in the same manner as other bureau administrators and where complainant's predecessor, also a woman, had effectuated good rapport with her staff during the nine months she had filled the position in an acting capacity. Lindas v. DHSS, 80-PC-ER-96, 1/3/85
No probable cause was found as to respondent's decision to assign state troopers in response to an inmate disturbance at a correctional facility where the procedure followed by respondent was reasonable in view of the circumstances, was neutral on its face and there was no evidence to demonstrate it was not followed uniformly. German v. DOT, 83-0034-PC-ER, 11/8/84
For a complaint arising out of a hiring decision, no probable cause was found where a successful candidate, a female, and the complainants, both males, had generally equivalent work experience and the content of their respective answers during the oral interview were approximately equal but where the successful candidate's manner of presentation was more "dynamic" and indicative of the supervisory traits necessary for the position. A prior designation of the successful candidate to fill the position on an acting basis did not indicate pretext. Meyett & Rabideaux v. DILHR, 80-PC-ER-140, 81-PC-ER-2, 4/15/83
No probable cause was found with respect to the probationary termination of a white female Institution Aide by a black male supervisor, where the record clearly supported the finding that the complainant's work was unsatisfactory, the record included the testimony of many of her white, female co-workers, and this testimony overshadowed the fact that her Performance Planning and Development Report reflected that she had met certain objectives. Shilts v. DHSS, 81-PC-ER-16, 2/9/83
No probable cause was found where the complainant was not appointed to fill a vacant Offset Press Operator 2 position, and although the complainant had not had recent experience with the press used for the performance test, it was the only press on which all 3 applicants had had some experience, and the complainant scored significantly lower on the performance test. McCrae v. UW-Milwaukee, 81-PC-ER-99, 2/7/83
Probable cause to believe discrimination occurred was not found where complainant, a 57 year old woman, was laid off from her teaching job, where, although the institution had an underutilization of professional women, and her layoff contributed to that underutilization as well as to the institution's failure to meet established affirmative action goals, the respondent relied on a plausible contract interpretation in determining that there was only one available exemption from layoff, and that was utilized for another older woman teacher. With respect to the argument that the institution failed to give the complainant as much information about alternative certification as a male teacher, this was consistent with the fact that institutional records showed that the complainant was only certified in one area and the male teacher in several. Cowie & Decker v. DHSS, 80-PC-ER-115,114, 5/28/82
No probable cause was found where the complainant was never certified for the vacancy in question so that the respondent could not have considered her for appointment. Hagengruber v. DHSS, 79-PC-ER-131, 4/29/82
The Commission found no probable cause to believe the complainant had been discriminated against on the basis of sex and retaliation with respect to her non-appointment to a faculty position, where she was not placed on the "short list" for further consideration, the record fully supported the new staff committee's opinion that she was not a historical geographer, the article that she had published was not considered that impressive or that material by the Committee members, and, with respect to alleged "contradictions" in the respondent's position, the Commission stated that it should not be considered unusual that a number of faculty members testifying as to their understanding as to the needs of the department, and their evaluations of candidates for a faculty position, would not speak with one voice, nor should it be considered unusual that the search process was not able to meet its goals at every step of the process. Rubin v. UW, 78-PC-ER-32, 2/18/82
No probable cause was found in decision not to hire complainant as an instructor in the geography department of UW-Oshkosh where an initial decision was made before complainant had filed a written application, the process was then reopened and complainant was still not hired. Four members of the department's faculty who were also members of the selection committee all had poor opinions of the complainant based on an earlier experience as a teacher there. In addition, nothing in the materials submitted to the selection committee indicated that complainant had been active in the geography profession during the previous 10 years. Evidence that 90% of those qualified to teach geography are men accounted for the absence of any tenured women on the department's faculty. Thalhofer v. UW-Oshkosh, 79-PC-ER-22, 9/23/81; affirmed by DILHR, 11/7/83; affirmed by LIRC, 2/16/84
No probable cause was found where a male was hired at the same rank at a higher salary, did not have a Ph.D. as did the complainant, but had fulfilled his Ph.D. course work and had broader experience than she did. Complainant's salary was in the mid range of the BAVI staff. Boyce v. UW, 79-PC-ER-33, 2/17/81
788.03(1) Finding of discrimination
Respondent's action of discharging the complainant, a black female, from her position as a correctional officer for engaging in disorderly or illegal conduct and failing to provide accurate or complete information when requested constituted discrimination where complainant worked in a sexually and racially hostile environment, respondent decided to discharge the complainant before it had conducted its fact-finding investigation and white male employes, disciplined under the same personnel policy, were treated less harshly than complainant. Bridges v. DHSS, 85-0170-PC-ER, 3/30/89
Respondent lacked a creditable reason for not selecting the complainant, a woman, for one of two Building Maintenance Helper 2 positions. Work experience was the main criterion for filling the positions and complainant's qualifications were better than one selectee and at least as good as the other selectee. In addition, one of the two persons who made the hiring decision was biased against hiring a female for the positions because he felt they could not handle the job. Wolfe v. UW-Stevens Point, 84-0021-PC-ER, 10/22/86
Discrimination was found where complainant, a female math teacher, was bumped (laid off) from her position by a male guidance counselor who was not certified to teach math nor was he eligible for provisional certification in math and where the same male guidance counselor who was also not certified to teach art was not allowed to bump a male art teacher. Respondent was found to not have followed the clear language of the applicable bargaining agreement requiring subject matter certification by the bumping employe and to have misrepresented the male guidance counselor's certification, resulting in the retention of two male teachers and the layoff of a female teacher. Cowie v. DHSS, 80-PC-ER-115, 4/15/83
Agency discriminated on the basis of sex by failing to hire the complainant as director of a district Job Service office where complainant had performed the duties as office director under a temporary interchange agreement for one year prior to decision not to hire, had been certified as number one for the position and where there was statistical evidence of under-utilization of females at or above the pay level in question. Anderson v. DILHR, 79-PC-ER-173, 79-320-PC, 7/2/81; affirmed and remanded for additional findings on issue of mitigation of damages by Dane County Circuit Court, DILHR v. Wis. Pers. Comm., 81-CV-4078, 6/7/82
Despite the failure to fill the disputed position for a number of years after the hiring decision in question and attempts to raise the position's salary level, the position remained "open" for purposes of the Fair Employment Act where the duties did not change and where the agency continued to look for someone other than the complainant to do a job for which the complainant was qualified. Anderson v. DILHR, 79-PC-ER-173, 79-320-PC, 7/2/81; affirmed and remanded for additional findings on issue of mitigation of damages by Dane County Circuit Court, DILHR v. Wis. Pers. Comm., 81-CV-4078, 6/7/82
788.03(2) Finding of no discrimination
No discrimination was found to exist where complainant, a male, was not selected for a typist position at a state correctional camp where question by member of selection panel asking complainant how he would handle "razzing" by 55 male camp residents for being in a "typically female position" was asked because complainant, who had a history of mental depression, might have difficulty handling verbal harassment. Commission's finding of discrimination based on sex was reversed, although finding of handicap discrimination was upheld. DHSS v. Pers. Comm. (Busch), Dane County Circuit Court, 81-CV-2997, 3/9/82
Complainant's separation from employment resulted directly and solely from her failure to show up for work, to call in her absences, to offer an explanation for her absences, or to appear at the last pre-disciplinary meeting, rather than from illegal retaliation. Complainant's attempt to link her attendance problems to an alleged mental health condition resulting from alleged sexual harassment was not credible. McCartney v. UWHCA, 96-0165-PC-ER, 3/24/99
Complainant failed to establish that he was qualified for a supervisory position where respondent was seeking applicants with experience exercising authority to hire, fire and evaluate subordinate employes, and complainant's supervisory experience occurred about 10 years prior to the interviews and did not include such authority. No sex discrimination was found. Hecht v. UWHCA, 97-0009-PC-ER, 3/17/99
Respondent did not discriminate against complainant, a supervisor, based on sex when it permitted him to substitute sick leave for 6 weeks, rather than 12 weeks, of paternity leave. Complainant was permitted to take leave without pay or to substitute vacation or other types of paid leave, except sick leave, for the second 6 week period. The complainant's only entitlement to the use of sick leave after the birth of his child derived from the Wisconsin Family Medical Leave Act which provides a maximum of 6 weeks of family leave. Complainant failed to show that he was similarly situated to comparison females who were granted more than 6 weeks of sick leave where the females underwent pregnancy and childbirth which could have qualified them for medical leave as well as family leave. Therefore, complainant failed to establish a prima facie case of sex discrimination. The different treatment cited by complainant as the basis for his claim resulted from the medical consequences of pregnancy and childbirth, not from gender. In order to prevail, complainant would have had to show that a similarly situated female, e.g., one who had adopted a child, was granted more than 6 weeks of sick leave as family leave in order to care for this child after the adoption. Enke v. DOT, 97-0202-PC-ER, 12/16/98
No sex discrimination was found with respect to respondent's decision to discharge the complainant from her food service worker position at a correctional facility for violating the fraternization policy where complainant gave a watch to an inmate, received a personal note from the inmate and sent a birthday card to the inmate, all without informing her supervisor. Complainant unsuccessfully sought to show pretext by comparing herself to males who had violated the fraternization policy yet were not discharged or had violated other work rules. Bentz v. DOC, 95-0080-PC-ER, 3/11/98
Complainant failed to show an objectively hostile environment where complainant was only assigned "from time to time" to the work location where she was subject to supervision by the alleged harasser, she "generally avoided" the supervisor at work and she listed only 6 statements, an unquantified number of requests to visit complainant at home and one invitation to attend a convention together as having occurred over a period of six months. In dicta, the Commission also found that complainant failed to demonstrate the existence of a subjectively hostile environment where she never complained about the supervisor's actions until management explicitly encouraged her to do so and where complainant was interested in moving from her utility position, where she only had periodic contact with the supervisor in question, into a permanent assignment that would have been directly subordinate to that supervisor. Also in dicta, the Commission found that respondent would not be liable for the acts of the supervisor because: 1) the complainant did not establish quid pro quo harassment, 2) respondent acted immediately after complainant and three other employes told management about the supervisor's actions, suspended the supervisor and then demoted him to a non-supervisory position, 3) the supervisor's conduct was clearly outside the scope of his employment and respondent was not negligent in supervising the supervisor, and 4) the supervisor did not have any significant, independent authority relating to complainant's termination, promotion, rate of pay or discipline. Butler v. DHSS, 95-0160-PC-ER, 1/14/98
No discrimination was found as to complainant’s claim of sex discrimination arising from the time it took for her position to be reclassified from Agrichemical Specialist-Entry to the Agrichemical Specialist-Developmental level, where complainant was the first and only person to have been reclassified between these two levels and, on balance, comparison to employes who were reclassified under the prior classification structure was of little value. Even if the 11 other employes reclassified under the previous structure were considered to be similarly situated, there was insufficient support for a finding of discrimination where the median reclass period for all 12 employes would be 18.5 months, appellant was reclassified in 23 months which was the same as one male and shorter than two other males and the only other female was reclassified after 18 months. In addition, at the time of her first evaluation, approximately 21 months after she began working, her supervisor identified performance difficulties and concluded that complainant needed a lot of additional training. Volovsek v. DATCP & DER, 93-0098-PC-ER, 6/19/97; affirmed by Washington County Circuit Court, Volovsek v. Pers. Comm., 97-CV-0287, 8/28/98
No discrimination based on sex, sexual orientation or race, violation of FMLA, nor retaliation based on FEA activities was found with respect to respondent’s decision to discharge the complainant where respondent concluded that complainant had violated various work rules when she gave a suggestive note to a coworker, telephoned the same coworker at home, admitted to using profanity towards various other coworkers and about a client. Mitchell v. DOC, 95-0048-PC-ER, 8/5/96
No discrimination based on creed, sex or sexual orientation was found with respect to respondent’s actions of removing complainant from his position as program leader and setting the level of his pay in his backup position of associate professor, where concerns about complainant’s managerial abilities were heightened by receipt of an affirmative action complaint against complainant from one of complainant’s colleagues, and where respondent concluded that complainant’s leadership was not meeting program needs. Complainant’s comparisons relating to his salary claim involved circumstances that were distinctly different from those of complainant. Kinzel v. UW (Extension), 92-0218-PC-ER, 8/21/96
Despite complainant’s contentions to the contrary, respondent did not have a policy which required pregnant police officers to go on light duty or to take leave. Complainant notified her supervisors of her desire to be placed on light duty and it was management’s clear understanding that she had made a request to be taken off patrol duty and placed on light duty for the duration of her pregnancy. Respondent’s policy of placing pregnant police officers on light duty only upon their request was not discriminatory. Bower v. UW-Madison, 95-0052-PC-ER, 8/15/96
No discrimination was found on the bases of age, national origin/ancestry or sex, nor was FEA retaliation found, relative to the decision not to retain complainant as a faculty member in respondent's Industrial Engineering Department where complainant did not complete her Ph.D. by the date to which she had contractually agreed and where respondent had concerns about complainant's teaching effectiveness, the evidence of which included routine student evaluations as well as a petition filed by a group of students with a dean. Nowaczyk-Pioro v. UW-Platteville, 93-0118-PC-ER, 4/16/96
No sex discrimination was found with respect to respondent's decision to terminate complainant's employment while she served a probationary period as a social worker where complainant, a female, was one of two social workers hired during the relevant time period, and the other hiree, a male, was also terminated, and there was no evidence to support complainant's claim that the misconduct was unsubstantiated. Krenzke-Morack v. DOC, 91-0020-PC-ER, 3/22/96
No sex discrimination was found with respect to respondent's decision to terminate complainant's employment while she served a probationary period as a correctional officer. Respondent applied its policy of terminating a probationary correctional officer who is involved in a work rule violation or violations that would be the basis of a suspension or greater penalty for a permanent employe. The record did not support complainant's contentions that 1) that she was not at fault as to some of the occasions she was late; 2) her supervisor held females to a different standard than males; and 3) the institution engaged in a pattern or practice in terms of uneven discipline of male and female correctional officers. Jaques v. DOC, 94-0124-PC-ER, 3/7/96
Petitioner failed to establish race or sex discrimination regarding a selection decision where the person selected possessed a greater amount of non-technical skills, such skills were related to the supervisory position and respondent determined to seek a candidate with these non-technical skills prior to knowing who the candidates were. Postler v. DOT, 94-0016-PC, 94-0024-PC-ER, 10/16/95; affirmed by Dane County Circuit Court, Postler v. Wis. Pers. Comm., et al, 95CV003178, 10/9/96; affirmed by Court of Appeals, Postler v. Wis. Pers. Comm., 96-3350, 1/27/98
The decision not to select the complainant was based upon his responses to the interview questions, rather than upon his sex. The successful candidate, a female, was selected because she was the top-rated candidate during the interviews and her references maintained that ranking. Complainant was ranked number 4, behind two other males. While complainant identified two selection criteria upon which he felt he should have been ranked higher than the successful candidate, it was not complainant's prerogative to choose the selection criteria for the position. The interview questions were used to fill a variety of vacancies, rather than just the one in question. Benchmark responses were developed well in advance of the interviews, all the interviewers participated in all of the interviews, all the interviews followed the same procedure, the panelists' notes and scores were reasonably consistent, questions were graded individually and each panelist denied that sex played a role in the analysis or was discussed. Although the supervisor of the vacant position told the complainant that the sex of the successful candidate was the basis for the decision not to select complainant, this statement was false and was a misguided effort to avoid telling complainant, in a very public setting, the true reasons for the decision. Dorf v. DOC, 93-0121-PC-ER, 6/9/95
Respondent did not discriminate on the basis of sex regarding its decision to initiate an investigation of complainant's conduct when a co-worker had informed management that complainant's attentions were unwelcome and there was no evidence that management would have acted differently if the sexes of the "stalker" and "victim" had been reversed. Erickson v. WGC, 92-0207-PC-ER, 92-0799-PC, 5/15/95
Complainant, a correctional officer, failed to sustain her burden of showing age or sex discrimination relating to the decision to terminate her probationary employment, where 8 witnesses testified that complainant's job performance was poor. Snee v. DHSS, 92-0030-PC-ER, 4/17/95
No sex discrimination or FEA retaliation existed as to a variety of conditions of employment, including relocation, removing a sign in complainant's office, discussing an internal complaint, denying complainant's request for an adjusted work schedule, declining to investigate the defacement of articles written by complainant, not including complainant in a meeting, the nature of working relationships with co-workers, disclosing to co-workers that complainant had been disciplined, requiring complainant to attend certain training, assignment of duties, responses to complainant's requests for changing her duties, scheduling meetings, use of a job performance improvement plan and union representation at weekly meetings. Stygar v. DHSS, 89-0033-PC-ER, etc., 4/17/95
No discrimination based on race or sex was shown in regard to complainant's performance evaluation where complainant, a Building Maintenance Helper, had failed to notify her supervisors of health and safety violations in her building, had failed to communicate effectively with her supervisors on various occasions, had failed to carry out a work assignment and had failed to wear proper safety equipment. McKibbins v. UW-Milwaukee, 94-0099-PC-ER, 4/4/95
No discrimination based on sex occurred with respect to the decision to discharge the complainant, a female correctional officer, who had been found to have engaged in the purchase and use of crack cocaine while off-duty and to have been untruthful to management about that conduct. Respondent had also discharged a male correctional employe who had been convicted for an off-duty battery incident, and respondent had suspended a second male employe for 10 days who had engaged in gambling with an inmate, had initially denied the conduct but then admitted the conduct of the following day. Complainant had not admitted her misconduct until an arbitration hearing more than one year after the incident. Bohl v. DOC, 93-0004-PC-ER, 2/20/95
No discrimination occurred when the female successful candidate was a member of a group identified in an approved affirmative action plan as an underutilized group for the particular job category, where the employing agency clearly showed she was qualified for the job and where the interview process otherwise was free of discrimination. Gygax v. DOR & DER, 90-0113-PC-ER, 12/14/94
Complainant failed to show sex discrimination regarding respondent's decision to reinstate a male employe rather than to hire complainant, where complainant failed to establish general underutilization of women, complainant was less qualified than the person appointed and respondent followed its normal practice of reinstating employes. Pennybacker v. DHSS, 91-0139-PC-ER, 7/7/94
Where respondent failed to offer complainant (female coach of the women's basketball team) a full-time appointment her second year of employment, as it had done with respect to her male predecessor and the male coach of the men's basketball team, the complainant failed to mount a successful challenge to respondent's rationale that it was due to budgetary constraints. Meredith v. UW-La Crosse, 90-0170-PC-ER, 9/15/93; affirmed, Meredith v. Wis. Pers. Comm., Dane County Circuit Court., 93CV3986, 8/29/94.
The rationale for the imposition of a requirement of a physician's verification for absences was not shown to be pretextual where this requirement was imposed in accordance with a collective bargaining agreement and other applicable requirements, and complainant was not treated differently than any other similarly situated employe. Miller v. DHSS, 91-0106-PC-ER, 5/27/94
The rationale for the extension of complainant's probation was not shown to be pretextual where the record did not support complainant's contention that he had not been worried about the possible results of his absenteeism. It was not necessary for respondent to demonstrate that complainant's absences had a negative impact on the operation of his unit in order to enforce its absenteeism policies. Miller v. DHSS, 91-0106-PC-ER, 5/27/94
Complainant failed to demonstrate sex discrimination or fair employment retaliation with respect to her performance evaluation where the statements in her evaluation were an accurate reflection of her failure to meet clearly established performance expectations. Stricker v. DOC, 92-0058-PC-ER, 92-0201-PC-ER, 3/31/94
Sexual harassment had not been shown where certain actions, e.g., placing nude photos and figurines on complainant's desk and placing soap in her desk drawers, were directed at one of complainant's male co-workers as well; where the other allegations concerned the circulation of rumors to which complainant contributed as well, and as to those two statements made to complainant which did constitute "unwelcome verbal conduct of a sexual nature;" respondent took immediate and appropriate action once made aware of complainant's concerns. Dahlberg v. UW-River Falls, 88-0166-PC-ER, 89-0048-PC-ER, 3/29/94
Respondent's failure to have awarded complainant a .25% additional merit increase did not constitute sex discrimination where respondent's articulated rationale for its decision--that such an award to a male employe was based on a special assignment, while complainant was not assigned equivalent responsibilities and did not meet the other criteria for such an award--was not shown to have been pretextual. Complainant's contention that since she and the male employe were in equivalent positions they should have received equivalent compensation is inconsistent with the legitimate, non-discriminatory criteria of the compensation plan. Complainant's contention that she performed duties at a higher level that were more complex and had more impact than was the case with similar jobs was not supported by the record. Mosby v. WGC, 91-0033-PC-ER, 1/11/94
Complainant failed to establish that respondent's decision not to select complainant for a Regulation Compliance Investigator position was based on age or sex where the successful candidate 1) had more persuasive and conciliatory communication and conflict resolution skills, 2) had superior interest in the position, regulatory program experience and initiative, and where complainant had not shown good judgment in comments he had made relating to his prospects for obtaining a position prior to the interviews. Hinze v. DATCP, 91-0085-PC-ER, 12/28/93
No sex discrimination was found as to respondent's decision to hire a female rather than complainant, a male, for a costume technology faculty position where the successful candidate was selected by a male committee, had more relevant qualifications than complainant, and was the only candidate who initiated contact with members of the selection committee. There was insufficient evidence to show that there is systemic discrimination against men in filling faculty level costume technology positions. Schmitt v. UW-Milwaukee, 90-0047-PC-ER, 9/24/93
A complaint of sex discrimination under the FEA fails to state a claim upon which relief can be granted where the complaint consists primarily of allegations of an unsatisfactory work environment involving specific problems complainant experienced with supervisors (most of whom were of the same gender), coworkers, and others. In responding to the motion to dismiss, complainant's attorney did not attempt to explain how these incidents involved sex discrimination, except to the extent it was alleged that the clerical staff were treated as "emotional punching bags" by their supervisors, who were frustrated and intimidated by treatment they were receiving at the hands of their supervisors. Assuming all of complainant's allegations to be true for the purpose of deciding this motion, the chain of causation--complainant's supervisors react to a sexist atmosphere created by their supervisors by using complainant as an "emotional punching bag"--is too extended for a conclusion that respondent discriminated against complainant because of sex in violation of §111.322(1), Stats. Also, management had no obligation to act where the conditions about which complainant was concerned did not involve sex discrimination but rather involved disagreements with her supervisor about her approach to supervision. Makl v. UW-Stevens Point, 92-0038-PC-ER, 4/30/93
Complainant did not establish that her probationary termination involved sex discrimination, where she failed to successfully challenge respondent's assertions that she was performing below normal expectations and that she was not provided any less training than any other new employe. She also failed to establish that any animosity which may have existed between complainant and her supervisor was due to her gender. Mongold v. UW-Madison, 89-0052-PC-ER, 12/17/92
Respondent's decision to terminate the complainant's employment rather than to permit him to resign was upheld. Complainant relied upon a comparison with a female employe who was permitted to resign but the complainant was involved in a security-related disciplinary situation (sleeping on his post) while the female employe's misconduct, excessive absenteeism and tardiness, was not security-related. Bender v. DOC, 90-0049-PC-ER, 8/8/91
Complainant was not discriminated against on the basis of marital status, sex or sexual orientation when she was denied family health insurance coverage for her homosexual non-spousal partner with whom complainant shared finances and maintained many attributes usually associated with the marital relationship. The failure of DETF to have promulgated a rule that would have included complainant's partner within the definition of a dependent, for purposes of family insurance coverage, is not discriminatory because precedent and legislative history establishes that the legislature did not intend that such coverage be provided, complainant was not similarly situated with respect to married employes whose relationships were legally recognized by Wisconsin family law, and DETF was not obligated by the Fair Employment Act to recognize relationships for the purpose of defining dependents that are not legally recognized by family law but which arguably are parallel to legally recognized relationships. Phillips v. DETF & DHSS, 87-0128-PC-ER, 3/15/89, 4/28/89, 9/8/89; affirmed by Dane County Circuit Court, Phillips v. Wis. Pers. Comm., 89 CV 5680, 11/8/90; affirmed by Court of Appeals, 167 Wis. 2d 205, 2/13/92
No discrimination was found as to respondent's decisions to select four males rather than complainant, a female, for vacant positions, where the candidates were ranked by interview panels and the complainant had not shown by a preponderance of the evidence that respondent's reasons for selecting the successful candidates were not the true reasons. The successful candidates all possessed supervisory or lead work experience, held higher level positions and had more technical experience than complainant, there was nothing irregular about the oral interview process and complainant's statistical evidence was insufficient for a finding that respondents practiced sex discrimination during the period in question. While one witness gave complainant an opinion as to who would be selected prior to the actual decision, there was no evidence of preselection. Stroud v. DOR, 82-PC-ER-97, 9/26/85
No discrimination was found where respondent reasonably discharged the complainant, a female who was employed at a correctional institution, where complainant acknowledged she had an affair with a male co-worker who had transferred to another institution five months prior to complainant's discharge, where respondent had reasonably concluded that complainant was also involved in a romantic relationship with an inmate at the institution and where there were no comparisons establishing that respondent imposed a different level of discipline against male employes who had been romantically involved with inmates. Winterhack v. DHSS, 82-PC-ER-89, 8/31/84
No discrimination was found as to respondent's decision to discharge the complainant, a male, where respondent's stated reasons for the discharge were credible and justified termination and where complainant failed to establish that female employes with similar or worse work records serving an original probation were retained while complainant was discharged. Berryman v. DHSS, 81-PC-ER-53, 8/1/84
No discrimination was found where no female troopers in the State Patrol were ordered to report to the Waupun Correctional Institution to quell an inmate disturbance, where respondent ordered troopers to the institution based on their already scheduled work shift for the day in question, where the procedure used was reasonable and neutral on its face and where no evidence was produced to show it was not followed uniformly. German v. DOT, 83-0034-PC-ER, 1/8/84
No discrimination was found on the issue of sex discrimination with respect to respondent's refusal to assign complainant to the misdemeanor unit of the adult criminal division rather than the juvenile unit, where the Commission was unconvinced that criminal law is generally considered to be a more worthy pursuit than juvenile law, where evidence indicated that respondent's decision was based on program needs and its evaluation of the complainant, and where respondent had a high percentage of women in its misdemeanor unit as well as in other units. Taylor v. State Public Defender, 79-PC-ER-136, 8/5/82
No discrimination was found in the respondent's failure to reinstate complainant where it was found that during the course of her prior employment with the agency she had caused friction because of her inability to get along with her co-employes, and that she bad failed to follow the chain of command. Austin v. DMA, 81-PC-ER-30, 2/9/82
The Commission found that the respondent's explanation for the termination of complainant's probationary employment was not pretextual where her prior performance had been unsatisfactory in some respects and where she was six hours late for work one day and failed to offer any explanation therefore. Glaser v. DHSS, 79-PC-ER-63, 79-66-PC, 7/27/81
No discrimination was found where the complainant's contract was not renewed. The evidence showed only that there was a dispute between her and other faculty members regarding a curriculum matter, the substantive reasons for non-renewal given by respondent were not challenged, five of the six instructors non-renewed were males, and the complainant was afforded all of her rights of appeal set forth in the statutes and administrative code. Cole v. UW, 79-PC-ER-50, 1/13/81
Complainant failed to show she was discriminated against in regard to her discharge where she had been advised that a state car should never be kept out overnight without management approval and one week later, without management approval, she parked a state car overnight in front of her home and it was damaged in an accident. Complainant had filed a charge of discrimination with the Commission approximately one month prior to the state car incident but there was no showing that respondent was aware of the existence of the complaint. Stonewall v. DILHR, 79-PC-ER-19, 5/30/80
788.04 Prima facie case
Complainant failed to establish a prima facie case of sex discrimination with respect to respondent's alleged failure to follow its internal complaint procedure where complainant failed to establish that he filed either an oral or a written complaint under respondent's harassment policy. Instead, complainant's supervisors took the initiative in ensuring that an investigation occurred. Hecht v. UWHCA, 97-0009-PC-ER, 3/17/99
Complainant failed to establish that he was qualified for a supervisory position where respondent was seeking applicants with experience exercising authority to hire, fire and evaluate subordinate employes, and complainant's supervisory experience occurred about 10 years prior to the interviews and did not include such authority. No sex discrimination was found. Hecht v. UWHCA, 97-0009-PC-ER, 3/17/99
Respondent did not discriminate against complainant, a supervisor, based on sex when it permitted him to substitute sick leave for 6 weeks, rather than 12 weeks, of paternity leave. Complainant was permitted to take leave without pay or to substitute vacation or other types of paid leave, except sick leave, for the second 6 week period. The complainant's only entitlement to the use of sick leave after the birth of his child derived from the Wisconsin Family Medical Leave Act which provides a maximum of 6 weeks of family leave. Complainant failed to show that he was similarly situated to comparison females who were granted more than 6 weeks of sick leave where the females underwent pregnancy and childbirth which could have qualified them for medical leave as well as family leave. Therefore, complainant failed to establish a prima facie case of sex discrimination. The different treatment cited by complainant as the basis for his claim resulted from the medical consequences of pregnancy and childbirth, not from gender. In order to prevail, complainant would have had to show that a similarly situated female, e.g., one who had adopted a child, was granted more than 6 weeks of sick leave as family leave in order to care for this child after the adoption. Enke v. DOT, 97-0202-PC-ER, 12/16/98
Complainant, a female, failed to state a claim of sex discrimination with respect to a non-selection decision where a female was hired and where complainant failed to argue any other type of prima facie case nor did one appear from complainant’s factual allegations. Olmanson v. UW (Green Bay) & DHFS, 98-0057-PC-ER, 10/21/98
No age or sex discrimination occurred with respect to the decision to discharge the complainant, who worked in a clerical capacity, where she failed to show she performed her job duties satisfactorily and the replacement employes were also in complainant's same protected category. Smith v. UW-Manitowoc County, 93-0173-PC-ER, 4/17/95
Discusing an internal complaint with shift supervisors is not an adverse employment action. Stygar v. DHSS, 89-0033-PC-ER, etc., 4/17/95
Complainant, who was terminated from her position as a house fellow at a campus dormitory, did not establish that she performed her job satisfactorily, where she had violated several requirements of the position by serving alcohol to underage house fellows in her room, using funds for improper purposes, accompanying underage residents to events where alcohol was served and failing to advise her superior of her absence. Jazdzewski v. UW-Madison, 92-0179-PC-ER, 2/20/95
In a case arising from a selection decision, complainant failed to establish a prima facie case of sex discrimination where the sole evidence he presented was that 3.6% of Program Assistant 2 positions are held by males. Durfee v. DATCP, 94-0042-PC-ER, 12/22/94
In a case arising from a selection decision, complainant failed to establish a prima facie case of sex discrimination where the main evidence he presented to raise an inference of discrimination was the fact that the positions at that classification level in respondent agency were filled almost exclusively by females. The makeup of respondent's workforce without comparison to the available labor force is insufficient to establish a prima facie case. Durfee v. DOJ, 94-0047-PC-ER, 12/14/94
Complainant (female coach of the women's basketball team) failed to establish a prima facie case with respect to an equal pay act type of claim where she failed to establish that she performed substantially the same work as her male predecessor or the male coach of the men's basketball team whose positions had other significant duties in addition to coaching. Meredith v. UW-La Crosse, 90-0170-PC-ER, 9/15/93; affirmed, Meredith v. Wis. Pers. Comm., Dane County Circuit Court., 93CV3986, 8/29/94.
Complainant failed to show a prima facie case of sex discrimination where the manner in which her supervisor communicated with her was consistent with the style by which he communicated with other male and female employes. Stricker v. DOC, 92-0058-PC-ER, 92-0201-PC-ER, 3/31/94
Complainant failed to establish prima facie case where he did not show that different wage-eligibility factors were used for him than were used for all other employes regardless of their race and/or sex and he did not show that the uniform wage-eligibility factors impacted less favorably on the group of employes with the same sex and/or race as complainant. Christensen v. DOC & DER, 90-0144-PC-ER, 2/3/94
Complainant failed to establish a prima facie case of sex discrimination with respect to a hiring decision where the appointing authority who made the decision was of the same gender as complainant and her question about complainant's pregnancy was not part of the interview but was asked to show interest in complainant as a person, and the percentages of men and women hired for these kinds of positions were about the same. Even if a prima facie case had been present, complainant failed to show that management's rationale for its decision was pretextual. Rosenbauer v. UW-Milwaukee, 91-0086-PC, 91-0071-PC-ER, 9/24/93
In a nonselection case, a complainant is not precluded from establishing a prima facie case because the successful candidate is in the same protected category as the complainant. Bloedow v. DHSS, 87-0014-PC-ER, etc., 8/24/89
Complainant failed to show that an inference of discrimination could be drawn from the subject hires where the sex of the successful candidates was not indicated in the record. Ozanne v. DOT, 87-0107-PC-ER, 1/31/89
Complainant failed to establish a prima facie case of sex discrimination in a hire case where the successful candidate was also female. Larson v. DILHR, 86-0019-PC-ER, 86-0013-PC, 1/12/89
Complainant, a male, failed to establish a prima facie case with respect to a decision by the agency head, also a male, to deny complainant a discretionary performance award, even though two females performing similar duties were granted DPA's. The Commission went on to analyze the case as if a prima facie case had been established. Ruff v. Office of the Commissioner of Securities, 86-0141-PC-ER, 87-0005-PC-ER, 9/26/88
Complainant, a woman, established a prima facie case in a claim arising from a non-selection decision, even though a woman was ultimately hired for one of the two positions where the top 4 candidates were males, two males were selected for the vacant positions, and no females were in consideration until after one of the males did not report to work. The hiring of the woman was technically a different hiring transaction. Wolfe v. UW-Stevens Point, 84-0021-PC-ER, 10/22/86
788.06 Statistical analysis
It was impossible to draw conclusions regarding the respondents hiring practice where the complainant failed to provide data showing the sex of the individuals who were considered for the positions. Ozanne v. DOT, 87-0107-PC-ER, 1/31/89
In analyzing whether there is probable cause as to respondent's decision to reallocate the complaint's position in order to determine if there is some pattern probative of gender bias, one should look at the statistics reflecting how the employer treated all the employes affected by the survey (in the absence of some showing that this would not produce an accurate picture of the employer's attitude) rather than the statistics relating to the particular classification series. Schultz v. DER, 83-0119-PC-ER, 84-0252-PC, 85-0029-PC-ER, Schultz v. DER & DILHR, 87-0015-PC-ER, 8/5/87
Complainant's statistical showing was weakened by failing to have controlled for certain variables, particularly seniority. Schultz v. DER, 83-0119-PC-ER, 84-0252-PC, 85-0029-PC-ER, Schultz v. DER & DILHR, 87-0015-PC-ER, 8/5/87
The Commission discounted the complainant's argument that once the department had reached "full utilization" for women, it stopped hiring them, since the department would not have had to have hired its third woman under this theory, and the percentage of women in the department compares favorably with other departments around the country. Rubin v. UW, 78-PC-ER-32, 2/18/82
788.10 Disparate impact
The disparate impact theory is only available with respect to practices, procedures or tests. A claim arising from a personnel survey and the development of new position standards followed by hundreds of reallocation decisions was ill-suited to the theory. Furthermore, complainant failed to demonstrate that some "employment practice, other than use of a personnel survey, could have been utilized that would not have had such an adverse impact on female employes. Schultz v. DER, 83-0119-PC-ER, 84-0252-PC, 85-0029-PC-ER, Schultz v. DER & DILHR, 87-0015-PC-ER, 8/5/87
788.15 Bonafide occupational qualification (BFOQ)
No probable cause was found with respect to the actions of denying complainant overtime on two occasions, where respondent's actions were consistent with the provisions of the correctional facility's BFOQ plan. Complainant, a male, did not attack the validity of the BFOQ plan. Schrubey v. DOC, 96-0048-PC-ER, 1/27/99
Where it was not disputed that the agency had an interest in having some patient care employes of the same sex as patients available for privacy and role modeling needs, and there were a limited number of positions subject to the BFOQ, it was held that the statutory requirements for a BFOQ were met. Chadwick v. DHSS, 81-PC-ER-14, 4/2/82
788.25 Sexual harassment
Where complainant's effort to prove that she had been sexually harassed rested entirely on her own description of the alleged incidents, there was no evidence in the record to otherwise corroborate her description, the only information solicited from the one individual complainant claimed to have viewed an incident failed to sustain complainant's version of events, and where there were numerous deficiencies in complainant's credibility, complainant failed to sustain her burden of establishing that she was sexually harassed as alleged. McCartney v. UWHCA, 96-0165-PC-ER, 3/24/99
In dicta, the Commission noted that when no tangible employment action was taken, the employer is vicariously liable for the supervisor's harassing conduct unless it can prove by a preponderance of the evidence that: (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) that the employe unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise, citing Burlington Industries, Inc., v. Ellerth, 188 S.Ct. 2257 (1998); and Faragher v. City of Boca Raton, 188 S.Ct. 2275 (1998). Promulgating an anti-harassment policy with a complaint procedure, and enforcing it may satisfy the first element of the affirmative defense. Failure on the part of an employe to use an existing complaint procedure may suffice to satisfy the employer's burden as to the second element. The Commission proceeded to address complainant's allegations that the respondent unreasonably delayed its investigation and that its remedial action after concluding the investigation was inadequate. The Commission also addressed facts relating to the second element. McCartney v. UWHCA, 96-0165-PC-ER, 3/24/99
In dicta, the Commission concluded that complainant did not effectively provide notice of the harassment to her employer until she disclosed the name of the alleged harasser. Respondent took appropriate action
within a reasonable time after that date, so complainant failed to show that the presumption of liability under §111.36(3), Stats., should apply. McCartney v. UWHCA, 96-0165-PC-ER, 3/24/99
Complainant's separation from employment resulted directly and solely from her failure to show up for work, to call in her absences, to offer an explanation for her absences, or to appear at the last pre-disciplinary meeting, rather than from illegal retaliation. Complainant's attempt to link her attendance problems to an alleged mental health condition resulting from alleged sexual harassment was not credible. McCartney v. UWHCA, 96-0165-PC-ER, 3/24/99
In determining whether various incidents constituted sexual harassment, the Commission considered the totality of the circumstances relating to the allegations, including, but not limited to, their number, severity and duration. Hecht v. UWHCA, 97-0009-PC-ER, 3/17/99
In concluding that various incidents, considered collectively, were not sufficiently severe or pervasive to interfere substantially with a reasonable person's work performance or to create an intimidating, hostile or offensive work environment under §111.36(1)(b), Stats., the Commission considered whether the conduct was directed at complainant, whether he complained about the conduct, whether respondent took appropriate corrective action regarding incidents of which it was aware, and whether respondent was aware of the conduct. Hecht v. UWHCA, 97-0009-PC-ER, 3/17/99
Exposure to sexually objectionable material, which complainant could avoid but which he instead ferrets out or dwells upon, is not covered under the Fair Employment Act. Hecht v. UWHCA, 97-0009-PC-ER, 3/17/99
In order for comments to be considered actionable under §111.36(1)(br), Stats., they must have been directed at complainant. Hecht v. UWHCA, 97-0009-PC-ER, 3/17/99
A co-worker's use of e-mail for non-business purposes and the alleged failure by the employer to correct that conduct were not shown to be actions based on complainant's sex and were not actionable under §111.36(1)(br), Stats. Hecht v. UWHCA, 97-0009-PC-ER, 3/17/99
The action of a group of employes of one sex to gather together outside of the workplace is not a condition of employment or other action prohibited under the Fair Employment Act. Hecht v. UWHCA, 97-0009-PC-ER, 3/17/99
In order for anti-male comments ("men are morons," "men are idiots," "men are pigs") to be considered actionable under §111.36(1)(br), Stats., they must have been directed at complainant. Hecht v. UWHCA, 97-0009-PC-ER, 3/17/99
Conduct of a co-worker, on more than one occasion, to make complainant, a male, feel excluded from "girls night out" social gatherings, and one comment, directed at complainant, that "men are pigs," was insufficient for a reasonable person under the same circumstances to 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 under §111.36(1)(br), Stats. Complainant contributed to the inappropriate comments at work and complainant did not tell respondent about the conduct involved in these allegations. Hecht v. UWHCA, 97-0009-PC-ER, 3/17/99
Two alleged references by a program manager to "choking this chicken" as well as hand gestures by the same program manager mimicking masturbation, all made during the same meeting with complainant and two others, were not sufficiently severe or pervasive to satisfy the statutory definition of sexual harassment. The statements were mere offensive utterances which occurred on the same day. Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
Summary judgment was granted with respect to a claim of sexual harassment based on two events occurring in the workplace, a correctional institution, on the same day. In one, a male supervising officer touched complainant's hair and asked, "Are you tight§" Complainant did not dispute that it was an ongoing joke at the institution that the tightness of her hair bun was an indicator of her mood for the day, that other co-workers had touched her hair and numerous co-workers asked about the "tightness" of her hair, and that complainant did not believe her co-workers' actions were sexually harassing. In the second incident, the same supervising officer asked, "Are you sure you want to go through with it§" in reference to complainant's upcoming marriage. Complainant did not show, or allege, that the two events interfered substantially with her work performance, nor were the events sufficiently pervasive, severe, threatening or humiliating that a reasonable person under the same circumstances would feel the working environment was intimidating, hostile or offensive. Winter v. DOC, 97-0149-PC-ER, 5/6/98
Complainant, a female food service worker at a correctional facility, did not establish that a reasonable person under the same circumstances would have considered two incidents of sex harassment, both occurring within her first 3 months of employment, as sufficiently severe or pervasive to interfere substantially with her work performance or to create an intimidating, hostile or offensive work environment. In one incident, a male correctional officer told complainant that a prison was not a place for a woman to work. In the second, another officer referred to complainant as a "bitch" and/or a "slut." Complainant did not report the first incident and failed to establish that the comment made in the second incident reflected an attitude that was pervasive at the institution. Bentz v. DOC, 95-0080-PC-ER, 3/11/98
Complainant failed to show an objectively hostile environment where complainant was only assigned "from time to time" to the work location where she was subject to supervision by the alleged harasser, she "generally avoided" the supervisor at work and she listed only 6 statements, an unquantified number of requests to visit complainant at home and one invitation to attend a convention together as having occurred over a period of six months. In dicta, the Commission also found that complainant failed to demonstrate the existence of a subjectively hostile environment where she never complained about the supervisor's actions until management explicitly encouraged her to do so and where complainant was interested in moving from her utility position, where she only had periodic contact with the supervisor in question, into a permanent assignment that would have been directly subordinate to that supervisor. Also in dicta, the Commission found that respondent would not be liable for the acts of the supervisor because: 1) the complainant did not establish quid pro quo harassment, 2) respondent acted immediately after complainant and three other employes told management about the supervisor's actions, suspended the supervisor and then demoted him to a non-supervisory position, 3) the supervisor's conduct was clearly outside the scope of his employment and respondent was not negligent in supervising the supervisor, and 4) the supervisor did not have any significant, independent authority relating to complainant's termination, promotion, rate of pay or discipline. Butler v. DHSS, 95-0160-PC-ER, 1/14/98
In order to establish liability for sexual harassment, complainant had to establish that the conduct by her occasional supervisor created a work environment that was objectively hostile or offensive and that complainant herself perceived the work environment that way. Butler v. DHSS, 95-0160-PC-ER, 1/14/98
Sexual harassment includes 1) conduct falling under §111.36(1)(b), Stats., i.e. either a) "quid pro quo" conduct or b) unwelcome conduct of a sexual nature, as defined in §111.32(13), Stats.; 2) disparate treatment on the basis of sex with respect to terms, conditions or privileges of employment, i.e. conduct under §111.36(1)(a), Stats.; or 3) harassment on the basis of gender of a non-sexual nature in violation of §111.36(1)(br). Nowaczyk-Pioro v. UW-Platteville, 93-0118-PC-ER, 4/16/96
There was no sexual harassment where either the alleged conduct did not occur or was not unwelcome. Even if the conduct had occurred and was unwelcome, liability would not attach to respondent where 1) the majority of the conduct allegedly occurred during the evaluation of complainant's practicum performance by a faculty member, 2) respondent had a clearly articulated and publicized policy which prohibited sexual harassment and provided for retaliation-free reporting to an individual (other than the alleged harasser) with the authority to remedy the problem, 3) complainant failed to utilize the reporting policy until after the employment relationship ended despite her knowledge of the policy and many opportunities to utilize it and 4) respondent took prompt action to investigate and took remedial action once the alleged harassment was reported in accordance with the policy. Rutland v. UW-Stout, 92-0221-PC-ER, 6/22/95; petition for rehearing denied, 8/14/95
Complainant, who worked in a clerical position, was not subjected to sexual harassment when her male supervisor took reasonable steps to correct complainant's telephone behavior in which she referred to business callers as "hon" or "honey." Smith v. UW-Manitowoc County, 93-0173-PC-ER, 4/17/95
Complainant failed to establish that her work environment was hostile, abusive or offensive where her supervisor's statements were gender neutral, were not sexually offensive or suggestive, were phrased and delivered in a manner consistent with addressing other employes, and were not intended to ridicule, insult or abuse her. Stricker v. DOC, 92-0058-PC-ER, 92-0201-PC-ER, 3/31/94
Sexual harassment had not been shown where certain actions, e.g., placing nude photos and figurines on complainant's desk and placing soap in her desk drawers, were directed at one of complainant's male co-workers as well; where the other allegations concerned the circulation of rumors to which complainant contributed as well, and as to those two statements made to complainant which did constitute "unwelcome verbal conduct of a sexual nature;" respondent took immediate and appropriate action once made aware of complainant's concerns. Dahlberg v. UW-River Falls, 88-0166-PC-ER, 89-0048-PC-ER, 3/29/94
Vague allegations relating to a "women-hating" atmosphere or to conversations in which others engaged relating to a third person's attitude toward women do not satisfy the statutory definition of sexual harassment stated in §111.32(13), Stats. Chelcun v. UW-Stevens Point, 91-0159-PC-ER, 3/9/94
A complaint of sex discrimination under the FEA fails to state a claim upon which relief can be granted where the complaint consists primarily of allegations of an unsatisfactory work environment involving specific problems complainant experienced with supervisors (most of whom were of the same gender), coworkers, and others. In responding to the motion to dismiss, complainant's attorney did not attempt to explain how these incidents involved sex discrimination, except to the extent it was alleged that the clerical staff were treated as "emotional punching bags" by their supervisors, who were frustrated and intimidated by treatment they were receiving at the hands of their supervisors. Assuming all of complainant's allegations to be true for the purpose of deciding this motion, the chain of causation--complainant's supervisors react to a sexist atmosphere created by their supervisors by using complainant as an "emotional punching bag"--is too extended for a conclusion that respondent discriminated against complainant because of sex in violation of §111.322(1), Stats. Also, management had no obligation to act where the conditions about which complainant was concerned did not involve sex discrimination but rather involved disagreements with her supervisor about her approach to supervision. Makl v. UW-Stevens Point, 92-0038-PC-ER, 4/30/93
Complainant's complaint of sex discrimination was dismissed for failure to state a claim upon which relief can be granted because complainant did not allege quid pro quo harassment or that she was subjected to conduct of a sexual nature that amounted to a claim of sexual harassment nor did she identify any specific term and/or condition of her employment that was affected by the allegedly sexist atmosphere of the office in which she worked. Complainant's failure to allege any acts of sex discrimination against her could not be attributed to a generalized pleading because complainant provided ample details regarding her dissatisfaction with her working conditions and relationships with fellow employes. Weeks v. UW-Stevens Point, 92-0036-PC-ER, 4/30/93
Complainant's assignment to open the Chancellor's personal mail which contained two arguably "offensive sexually graphic materials" held not to satisfy the statutory definition of sexual harassment as "deliberate, repeated display" of such materials. The complaint was dismissed for failure to sate a claim. Erdmann v. UW-Stevens Point, 92-0104-PC-ER, 4/23/93
Probable cause was found with respect to the decision to terminate the complainant's probation where complainant, a male, had been asked out on four occasions by his female supervisor and his employment was terminated relatively shortly after he declined the invitations. Complainant's work performance was comparable in many respects to that of his peers and many of the specific points relied on by respondent in support of his termination were unfounded. Kloehn v. DHSS, 86-0009-PC-ER, 9/8/89
While complainant, a female, suffered isolated incidents of sexual harassment, respondent, upon notice of such conduct, took immediate action to remedy the matter. Complainant was not subjected to continuous sexual harassment which caused her to fail probation but was terminated when respondent concluded she could not master the necessary job skills within the probationary period. No probable cause was found. Bender v. DOR, 87-0032-PC-ER, 8/24/89
An employer has a duty, when it knows or should know of sexual harassment between fellow employes, to take appropriate action to deal with the problem, and acquiescence to such conduct by its employes constitutes discrimination on the basis of sex with respect to conditions of employment. Glaser v. DHSS, 79-PC-ER-63, 79-66-PC, 7/27/81
No sex discrimination was found where the respondent investigated complainant's allegation of sexual harassment against a co-employe and took certain steps to reduce the possibility of a re-occurrence, but took no disciplinary action against the co-employe because the investigation had not revealed objective evidence upon which to base disciplinary action. Glaser v. DHSS, 79-PC-ER-63, 79-66-PC, 7/27/81
While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.