124.3 Cases

Evidence of a single offensive comment made to another employee seven years earlier regarding that employee’s national origin does not warrant a conclusion that the Respondent’s owner made offensive comments to the Complainant about his national origin or that it discharged him for that reason. If offensive comments about the Complainant’s national origin were made to the Complainant, it stands to reason he would have told his supervisor about them when asked what transpired between himself and the Respondent’s owner. Robles v. Thomas Hribar Truck & Equip., Inc. (LIRC 11/30/18), rev’d (Racine Co. Cir. Ct. 06/20/19), rev’d sub nom. Robles v. Thomas Hribar Truck & Equip., Inc. and LIRC, 2020 WI App. 74, 394 Wis. 2d 761, 951 N.W.2d 853.

The commission held in Obasi v. Milwaukee Sch. of Eng'g (LIRC, 10/14/13) that an employer may make a decision based on an individual's foreign accent, "but only to the extent that the accent interferes materially with the ability to perform job duties, and when effective oral communication in English is a job requirement." However, a caller's inability to understand the Complainant's name is not a sufficient factual basis to support the conclusion that the Respondent made an accurate and honest assessment that the Complainant's accent materially interfered with her ability to perform her phone-answering duties. Richards v. Our House Senior Living (LIRC 03/24/16).

The Complainant failed to sustain his burden to establish a prima facie case of discrimination based on his race, color, or national origin. He did not prove that similarly situated workers (who the Respondent reasonably concluded had used excessive force with a patient) were not discharged, or that he had been replaced by an individual of a different race, color, or national origin. Ogbeide v. State of Wis. Dep't of Health & Family Servs. Mental Health Inst. (LIRC, 09/19/08).

The individual who discharged the Complainant was not aware that the Complainant was one-eighth Native American. Although she and the Complainant had discussions about Native American culture and customs, this did not establish that she had reason to be aware of the Complainant’s Native American ancestry. Furthermore, the record showed that the individual who discharged the Complainant did not hold any discriminatory animus toward Native Americans. On the contrary, she had devoted much of her career to working with Native Americans and, in fact, she had a deep appreciation and respect for their culture. Wucherpfennig v. Personal Dev. Ctr. (LIRC, 06/29/06).

The word “gypsy” is used in the United States to refer not only to an ethnic group, but also to a type of criminal activity. An expert witness at the hearing testified that it is not possible to identify Romanys or gypsies by any physical characteristics. “Gypsy crime” and “gypsy activity” are terms of art used in law enforcement to refer to certain types of retail theft activities carried out by groups who refer to themselves as “gypsy groups” or “gypsies” and who travel from community to community to carry out these activities. This terminology is used independent of the race or ethnicity of the members of these groups. Schramm v. Farm & Fleet (LIRC, 05/14/03).

The Complainant provided sufficient proof that Romany should be recognized as a separate ancestry/ethnic group for purposes of the Wisconsin Fair Employment Act. Schramm v. Farm & Fleet (LIRC, 05/14/03).

Federal court cases that have gone the furthest in recognizing Title VII claims concerning English-only rules are premised on the effects of such rules on Hispanic individuals whose primary language is not English. In this case, the Complainant was a non-Hispanic American-born individual whose first language is English. The Complainant did not have a viable national origin claim under the Wisconsin Fair Employment Act where he was threatened with discipline if he did not comply with the Respondent’s admonition to cease speaking Spanish in the work place. Wilson v. Wis. State Assembly (Wis. Pers. Comm’n, 02/20/03).

With the exception of the Complainant’s testimony that a co-worker stated, “Poland is bullshit,” there was no reason to believe that the Complainant’s national origin was a factor in any harassment that may have occurred. Although the Complainant testified that he told his supervisor that he was being harassed, he did not elaborate upon the substance of this conversation. Even if he had complained to his supervisor about harassment based upon his national origin, there was nothing in the record to suggest that the Respondent was ever made aware of this complaint. Pioterek v. Scott Worldwide Food Serv. (LIRC, 01/12/96).

A Hispanic employee was not treated differently than a white employee when the Hispanic employee was discharged for taking home more finished product than he had been authorized to take. Although a white co-employee took home finished product which he was given by the Complainant, the co-employee did not have a history of taking excessive product and it was reasonable to assume that the co-employee thought the Complainant had the employer’s permission to take the product home.Molinar v. Larsen Co. (LIRC, 02/04/92).

When an agency which provided employment services for Cubans contacted the owner of the Respondent and told him that they wanted to refer two qualified individuals to him, the owner responded, “If they are Cuban, no way.” The Respondent was prejudiced against Cubans; however, it did not violate the Act because when the attempt was made to refer the Complainants for assembly positions, those positions had already been filled and there were no longer any openings for which the Complainants could apply. Dominguez v. Lawrence (LIRC, 01/30/91).

The Personnel Commission declined to dismiss a complaint where it could not conclude as a matter of law that there was no possibility that the Respondent’s policy of denying faculty exchanges with the Republic of South Africa could be deemed an action taken on the basis of national origin. McFarland and Joubert v. UW-Whitewater (Wis. Pers. Comm’n, 09/04/86).

A well-qualified Mexican-American could not establish national origin discrimination in failing to be selected for four salaried positions with his union where the national origin of three of the persons selected was not in the record and the union’s rationale for his non-selection was not shown to be a pretext for discrimination. Sosa v. Distr. 10 (LIRC, 10/07/83).

Although the Complainant was discharged after only his first violation of a work rule, the employer showed that non-Hispanic employees were also discharged for similar violations and the union’s decision not to arbitrate the case was made in good faith after a thorough investigation. Agron v. Pioneer Container (LIRC, 06/17/83).

To establish a prima facie case of national origin discrimination in regard to discharge, an employee must show that: (1) he is a member of a protected class; (2) he was qualified for the job he was performing; and (3) he was satisfying the normal requirements of the job. A person of Cuban national origin who was discharged while in a training program for a position requiring accurate measurement of radiation failed to meet elements (2) and (3) where she could not grasp basic math concepts and refused to take a test designed to measure her level of math competency. Canto v. State of Wis. (LIRC, 05/19/81).

An employer offered no evidence other than student preference to demonstrate that a person of Latino extraction was necessary to teach a bilingual/bicultural program. It was national origin discrimination to fail to offer a qualified non-Latino teacher a full-time position where she had substituted for two months before being replaced by a person of Latino descent and later by a person whose spouse was of Latino descent. Richter v. Milwaukee Bd. of Sch. Dir. (LIRC, 10/14/77).