113.5 Respondent’s responsibility for acts of agent

A staffing service forwarded the Complainant’s application to the employer, which opted not to hire him. Even if it could be determined that the employer discriminated against the Complainant based upon his conviction record, there would be no basis to impute liability to the staffing service which played no role in the selection process and was not the employer’s agent. Doughty v. Kelly Servs. (LIRC, 07/31/18).

The Complainant claimed that a corporation had printed or circulated a discriminatory policy. However, his claim was filed against a different entity, a subsidiary of that corporation. Where the named Respondent is a corporate subsidiary of another entity, there is no basis to conclude that actions taken by that entity can be imputed to its subsidiary such that the subsidiary bears legal responsibility for those actions. Jackson v. Klemm Tank Lines (LIRC, 03/26/15).

An employer cannot be found responsible for discriminatory conduct unless it is carried out by the employer or, if carried out by the Complainant’s co-employees, the employer knows or should reasonably know of it and fails to take reasonable action to prevent or address it.Wagner v. Superior Serv. (LIRC, 12/16/03).

Where a supervisor has acted under color of his or her authority as an agent of an employer, the employer is properly held liable for their conduct. The essential question is not whether the act in question was authorized by the employer, but whether it took place in the scope of the agent’s employment. Thus, for example, where an agent of an employer discharges an employee for an unlawful reason, it is not relevant that the owner of the business is unaware of the factors leading to the discharge; the manager is an agent of the employer and the employer is, therefore, liable for the manager’s conduct. However, if the individual who engaged in the discrimination was a coworker, rather than a supervisor, of the Complainant, the employer would not be responsible unless it knew or should reasonably have known of the discriminatory conduct and failed to take reasonable action to prevent it. Ferguson v. Buechel Stone Corp. (LIRC, 04/24/01).

In determining whether an employee’s coworkers are supervisors for purposes of imputing liability for alleged discriminatory acts, LIRC looks to the test for supervisory status as set forth in City Firefighters Union v. Madison, 48 Wis. 2d 262, 179 N.W.2d 800 (1970). The criteria for deciding whether supervisory capacity exists include: (1) the authority to effectively recommend the hiring, promotion, transfer, discipline or discharge of employees; (2) the authority to direct and assign the workforce; (3) the number of employees supervised and the number of other persons exercising greater, similar or lesser authority over the same employees; (4) the level of pay, including an evaluation of whether the supervisor is paid for his skill or for his supervision of employees; (5) whether the supervisor is primarily supervising an activity or is primarily supervising employees; (6) whether the supervisor is a working supervisor or whether he spends a substantial majority of his time supervising employees, and (7) the amount of independent judgment and discretion exercised in the supervision of employees. Ferguson v. Buechel Stone Corp. (LIRC, 04/24/01).

While it might be satisfying to hold the individual who committed the sexual harassment of the Complainant financially responsible for his actions, the law does not sanction such a result. In this case, that individual was the manager of the business; he acted as an agent and was not an employer in his own right. Therefore, there was no legal basis for making him financially liable. The employer is liable for any financial remedies ordered as a result of a violation of the law by an individual employed by that employer. (sec. 111.39(4)(c), Stats.). Powell v. Salter (LIRC, 07/11/97).

Where an individual person has acted under color of his or her authority as an agent of an employer, the employer rather than the individual person is properly held liable as the Respondent. Hoey v. County of Fond du Lac (LIRC, 07/09/97).

Where an individual person has acted under color of his authority as an agent of an employer, the employer (rather than the individual person) is properly held liable as the Respondent. The same reasoning applies to cases involving licensing agencies. In this case, where there was no evidence which would show that two individuals named as Respondents had acted outside of their authority as agents of the City of Madison’s Police Department, they could not be held liable to the Complainant even if unlawful discrimination were found. Liability would rest with the City. Rathbun v. City of Madison (LIRC, 12/19/96).

Individual supervisors should not be named separately as Respondents where the alleged violation arose out of actions taken by them as agents of the employer. The essential question in applying agency principles to cases where, for example, the Complainant has alleged sexual harassment by her supervisor, is not whether the act in question was authorized by the employer, but whether it took place in the scope of the agent’s employment. In this case, given that the alleged sexual harassment occurred at the work place, during work hours, and was perpetrated by a supervisor against a subordinate employee, there was no basis for finding that it was outside of the scope of the supervisor’s employment. Yaekel v. DRS Ltd. (LIRC, 11/22/96).

While secs. 111.321 and 111.325 of the Wisconsin Fair Employment Act provide that no “person” may engage in an act of employment discrimination, the Act also expressly provides for employer liability for any financial remedies ordered as a result of a violation of the law “by an individual employed by the employer.” Sec. 111.39(4)(c), Stats. Thus, individual supervisors acting as agents of the employer should not be named as separate Respondents in discrimination complaints. Yaekel v. DRS Ltd. (LIRC, 11/22/96).

The Complainant prevailed on her complaint that she had been sexually harassed by the Respondent (a company) and that the Respondent had terminated her employment because of her sex and because she had opposed a discriminatory practice under the Act. However, the Complainant’s supervisor and the owner of the Respondent were appropriately dismissed as Respondents. The Complainant argued that her supervisor should be held liable because he was acting as an agent of the company. However, sec. 111.39(4)(c), Stats., expressly provides that, “If the examiner awards any payment to an employee because of a violation of s.111.321 by an individual (i.e., agent) employed by the employer, under s.111.32(6), the employer of that individual is liable for the payment.” The Complainant argued that the owner of the company should be held liable; however, in this case there was no evidence which supported piercing the corporate veil and imposing personal liability on the owner of the Respondent. Burton v. Mktg. Technologies (LIRC, 05/10/96).

The Labor and Industry Review Commission’s decision in Sinclair v. Mike’s Towne & Country (LIRC 10/15/93), should be understood as having been concerned with the narrow question of whether individual persons who were employed by an employer should be separately named as Respondents in a discrimination complaint against that employer. Because the statute provides expressly for liability on the part of the principal (the employer) in such cases, having an individual employee-agent named as a party unnecessary complicates the proceeding (not to mention the case caption). Johnson v. Cent. Reg’l Dental Testing Serv. (LIRC, 02/29/96).

A supervisor who was found to have sexually harassed a Complainant is not liable for payment of the Complainant’s attorney’s fees and costs. Section 111.39(4)(c), Stats., provides that “If the examiner awards any payment to an employee because of a violation of s. 111.321 by an individual employed by the employer under s. 111.32(6), the employer of that individual is liable for the payment” (emphasis added). Olson v. Servpro of Beloit (LIRC, 08/04/95).

Where an agent of the employer discharged the Complainant for an unlawful reason, it was not relevant that the owner of the business establishment was unaware of the factors leading to the discharge. The manager was an agent of the employer and the employer is, therefore, liable for the manager’s conduct. Koll v. Hair Design (LIRC, 04/27/95).

It is not clear whether individuals who acted as agents of an employer can or should be made additional Respondents in a proceeding against the employer under the Wisconsin Fair Employment Act. Where the alleged violation by the agent was within the scope of their agency, they should not be separately named as a Respondent since sec. 111.39(4)(c), Stats., provides for employer liability for remedies ordered as the result of a violation of the Act by an employee (i.e., an agent) of the employer. It is not clear whether the Wisconsin Fair Employment Act would allow imposition of liability directly on an employer’s agent rather than on the employer where the employer’s agent had acted outside the scope of their agency. Sinclair v. Mike’s Towne & Country (LIRC, 10/15/93).

Where a person has acted under color of their authority as an agent of an employer, it is the employer rather than the individual that is properly viewed as the Respondent. Nelson v. Waybridge Manor (LIRC, 04/06/90).

The social workers who allegedly discriminated against the Complainant were not her supervisors. In determining whether an employee’s co-workers were supervisors, the court looks to the more restrictive definition of that term as set forth in City Firefighter’s Union v. Madison, 48 Wis. 2d 262, 179 N.W.2d 800 (1970). Because the social workers did not supervise the Complainant, the Respondent, which neither knew of nor should have known of any discrimination by them, was not liable for racial discrimination against the Complainant. Crear v. LIRC, 114 Wis. 2d 537, 339 N.W.2d 350 (Ct. App. 1983).

A county is responsible for the discriminatory conduct of a county judge by virtue of the theory of respondeat superior, and the judge waived his right to judicial immunity by failing to raise it earlier in the litigation. Drecktrah v. LIRC (Donaldson) (Jackson Co. Cir. Ct., 04/06/82).

A complaint charging an employer with retaliation was dismissed because the author of the alleged retaliatory job reference was not acting as an agent of the employer. Pedersen v. Cepek Constr. (LIRC, 01/17/80).