121.4 Terms or Conditions of employment

The fact that some newly hired younger employees started at salary levels that were slightly higher than that of some older, existing employees was the result of external market forces and was not evidence of age discrimination. Kates v. State of Wis. Emp. Trust Fund (LIRC, 05/17/19).

Differing handling of disciplinary situations was warranted where, although younger employees engaged in more offensive conduct, they did so on only one occasion, while the Complainant’s unacceptable conduct was sustained and pervasive, and she was resistant to change. Waldvogel v. DC Everest Area Sch. Dist. (LIRC, 03/22/19).

Proof that the Complainant was called “Old Man” by co-workers on a regular basis, that he disliked it, and that he complained to management about it, and Respondent’s concession it knew about the problem but took no steps to resolve it, was sufficient to warrant a finding of probable cause regarding harassment based on age. Gallagher v. Blain Supply Inc. (LIRC, 03/28/14).

Even if the Complainant’s supervisor referred to the Complainant as an “old man” on one occasion, this would not be sufficiently severe or pervasive to support a conclusion that the Respondent engaged in illegal harassment on the basis of age. Josellis v. Pace Indus. (LIRC, 08/31/04), aff’d sub nom. Josellis v. LIRC (Sauk Co. Cir. Ct., 09/15/05).

A complaint was properly dismissed for failure to allege facts sufficient to support a claim for relief for age discrimination under the Wisconsin Fair Employment Act. The Complainant indicated in his complaint that he was forty-two years old. In correspondence to the Equal Rights Division, the Complainant asserted that he was at least twenty years older than individuals who called him “old man.” At his deposition, the Complainant testified that being called an old man made it hard for him to work or have a good attitude. The Complainant failed to establish a prima facie case of age-based hostile work environment because he did not allege the existence of some basis for liability on the part of the employer. At no time did he allege or assert that he had complained to the Respondent about his co-workers calling him an old man. Mroczkowski v. Belmark, Inc. (LIRC, 04/28/05).

The Complainant did not establish that she was discriminated against with respect to her terms and conditions of employment on the basis of age when the Respondent changed her teaching assignment from that of teaching fifth grade language arts and math to teaching seventh and eighth grade math. The school principal had made several comments to the Complainant inquiring about when she was going to retire. The principal’s asking the Complainant about her retirement plans on the last day of school, without more, was not evidence of age discrimination because the employer had a legitimate interest in learning of its employees’ plans for the future in order that the employer itself might plan for the future. In addition, the Complainant had herself initiated several conversations with management staff regarding retirement. Furthermore, the principal was a proponent of the benefits available under the retirement system, and he spoke to many teachers about the financial benefits available to them under the retirement system. The Complainant’s contention that her assignment change was an attempt to force her to resign was undermined by several factors. These included the school’s need for someone to teach eighth grade math, and the principal’s view that the Complainant was a good choice to fill the eighth-grade position. Post v. Mauston School Dist. (LIRC, 08/28/02), aff’d sub nom. Post v. LIRC (Juneau Co. Cir. Ct., 01/28/03).

In a case in which the Complainant alleged that he had been denied a promotion because of age, it was not significant that the Administrative Law Judge incorrectly found that the person hired instead of the Complainant was forty years old when the person was in fact thirty-nine years old when hired. Ryals v. Milwaukee County (LIRC, 02/5/88).

The Complainant established a prima facie case of age discrimination by showing that he was in a protected age class, that he had a reasonable expectation of promotion, and that the two persons promoted instead of him were in their twenties. Dreva v. Soo Line R.R. (LIRC, 09/24/82).

Where a professor claimed that the use of student evaluations for merit increases favored teachers under age 40, the employer met its burden of proof by demonstrating that the evaluations were not the sole criterion and that the overall process of determining merit increases did not involve consideration of age. Pollnow v. LIRC (UW-Oshkosh) (Winnebago Co. Cir. Ct., 02/05/81).

An employer discriminated against a 57-year-old assistant credit collection manager by hiring younger, less skilled people, putting them in a position to supervise him, requiring him to perform duties such as getting sandwiches for younger staff members, and discharging him without a legitimate reason. Pon v. Niss Furniture (DILHR, 09/14/76).