121.9 Miscellaneous

The Complainant was in the protected age group and was subjected to disrespectful treatment by the Respondent’s superintendent. However, she did not demonstrate that her working conditions were so intolerable as to support a finding of constructive discharge. Further, because the superintendent harassed or bullied other employees without regard to age, the Complainant’s working conditions were not adverse due to a discriminatory reason. Walther v. Sch. Dist. of Altoona (LIRC 10/30/23).

The Complainant proved that he was called "Old Man" by his co-workers on a regular basis, that he disliked it, and that he complained to management about it. The Respondent conceded it knew about the problem but took no steps to resolve it. This evidence is sufficient to warrant a finding of probable cause on the issue of whether the Complainant was harassed based upon his age. Gallagher v. Blain Supply, Inc. (LIRC 03/28/14).

There is no absolute rule that a Complainant cannot prevail on an age discrimination claim where the age difference between the Complainant and his comparator is only five years. However, a five-year age difference is not so significant that, standing on its own, it gives rise to an inference of age discrimination. Ebner v. Dura Tech (LIRC, 04/23/09).

Complainant can establish a prima facie case of an age-based hostile work environment claim by showing that: (1) the Complainant is age 40 or over; (2) the Complainant was subjected to harassment, either through words or actions, based on age; (3) the harassment had the effect of unreasonably interfering with the Complainant's work performance and creating an objectively intimidating, hostile or offensive work environment; and (4) the existence of some basis for liability on the part of the employer. Mroczkowski v. Belmark, Inc. (LIRC, 04/28/05), citing Crawford v. Medina Gen.l Hosp., 96 F.3d 830, 834-835 (6th Cir. 1996).

Sec. 633(a) of the federal Age Discrimination in Employment Act (ADEA) provides that the commencement of an action under the ADEA “shall supercede any state action.” The language of the statute, as well as the legislative history of the Act, makes it clear that state judicial review proceedings, as well as state agency proceedings, are to be stayed. Maynard v. LIRC, Brown Co. Cir. Ct., 07/13/04.

The complaint was properly dismissed for failure to state a claim upon which relief could be granted where the Complainant alleged that his performance was criticized by the Respondent because the Respondent expected him to work as productively as younger employees. The Wisconsin Fair Employment Act guarantees the equality of opportunity to qualified workers over age forty, but nowhere does it suggest that individuals in the protected age group are entitled to more favorable treatment than younger workers. Dunn v. City of Burlington Eng’g Dept. (LIRC, 07/28/95).

The prohibition on discrimination because of age did not enact a statutory seniority-based layoff system with “bumping” rights. De Kalver v. Magna Graphics Corp. (LIRC, 03/20/90)

Anecdotal evidence provided by former employees as to their own situations and their allegations that they were discharged because of their age, offered to prove a pattern of age discrimination, can more convincingly be shown by statistics that show unexplained disparities in the treatment of classes of employees apparently distinguished by age. Erickson v. DEC Int’l (LIRC, 01/18/90).