125.3 Conditions of employment, harassment because of race

A supervisor comparing the work of an African American employee to something "an orangutan could do" was either intentionally degrading, or at the very least, callously disregarding the racist overtones of the comment. Comments like these could be part of a pattern of racist conduct, but in this case the single isolated comment that “an orangutan could do groups” did not establish a racially hostile work environment. King v. State of Wis. Dep't of Corr. (LIRC 11/19/20).

A single incident of racially offensive name-calling by a coworker, although inexcusable, does not alone constitute unlawful harassment based upon race, color, or national origin in violation of the WFEA. Omowaye v. Wis. Built (LIRC, 4/30/13), aff’d, Omowaye v. LIRC (Dane Co. Cir. Ct., 06/03/14).

The occasional and sporadic use of racial slurs, albeit deplorable, may not rise to the level of a violation of the Wisconsin Fair Employment Act. Acevedo v. Oshkosh Corp. (LIRC, 03/29/12).

An employer cannot be held responsible for racial or religious harassment unless the harassment is carried out directly by the employer or (if carried out by co-employees of the Complainant) the employer knew or should reasonably have known of the harassment and failed to take reasonable action to prevent it. Acevedo v. Oshkosh Corp. (LIRC, 03/29/12).

The Respondent unlawfully discriminated against the Complainant in his terms and conditions of employment on the basis of race where it maintained websites on a company computer of “skinheads” having violent sex with black women, and “white supremacy.” This created an intimidating, racially hostile work environment. The Respondent’s manager knew about this material on the company’s computer and did not either delete the material or discourage the viewing of such websites. Salley v. Nationwide Mortgage & Realty Corp. (LIRC, 12/13/07).

In order to prove a racially hostile work environment, an employee must show that: (1) he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment was severe or pervasive so as to alter the conditions of his environment and create a hostile or abusive work environment; and (4) there is a basis for employer liability. Clark v. Plastocon (LIRC, 04/11/03).

Occasional or sporadic instances of the use of racial slurs do not in and of themselves constitute a violation of the law. To prevail on a racially hostile environment claim, the employee must show that his work environment was both subjectively and objectively hostile. Whether a work environment is hostile or abusive can be determined only by looking at all of the circumstances, including the frequency of the conduct; its severity; whether it was physically threatening or humiliating; or whether it was merely an offensive utterance; and whether it unreasonably interfered with the employee’s work performance. Clark v. Plastocon (LIRC, 04/11/03).

The Complainant was called a “black ass” by a white coworker on three occasions. The infrequency of these utterances, the fact that these utterances were made by a single employee, and the fact that these racial remarks came in the context of a dispute over how the work they were performing was to be done all militate against a showing that the Complainant established the existence of a hostile work environment. Moreover, an employer is only liable for a hostile work environment created by an employee’s coworkers when the employee shows that the employer has been negligent in either discovering or remedying the harassment. In this case, the Respondent was unable to determine who was at fault in causing the verbal disputes between the Complainant and the white coworker. The Complainant had called the white coworker a “fat ass.” In spite of the inability to determine who was at fault during the verbal disputes, the supervisor verbally warned both of the employees that their conduct was inappropriate. Ultimately, the Respondent terminated both the Complainant and the white coworker. The evidence failed to establish a basis for employer liability. Clark v. Plastocon (LIRC, 04/11/03).

It is sometimes the case that the display of a noose is intended as – and is perceived as – a racially offensive provocation. This understanding of the object’s “message” grows directly out of its connection to this country’s long and horrendous history of racially-motivated lynching. However, when a noose is found to represent a racist intention, it is usually the case that it has been used in direct association with some other powerful and more directly racist symbol, such as the initials “KKK” or a KKK costume or something of that nature. In some cases, the meaning of a noose is by no means as clear cut and does not necessarily suffice to establish, or even evidence, racial animus. For a number of reasons, people sometimes make and display nooses in workplaces. Their motivations and intentions in such cases are generally crude, threatening, aggressive, juvenile, or some combination of these, in most cases, but they do not necessarily arise out of racial animus. In this case, it was not established that the fact that a full-sized noose was kept in the manager’s office was intended by the people who were involved to have any particular racial connotation. Wells v. Roadway Express (LIRC, 05/13/02).

In determining the pervasiveness of harassment, the trier of fact may aggregate evidence of racial hostility with evidence of sexual hostility. Harsh v. County of Winnebago (LIRC, 11/06/98

The term “nigger” is commonly understood to be racially derogatory, particularly when used by white people in reference to black people. The word is intimidating by its nature and shows an intent to discriminate on the basis of race. The use of the term cannot be excused on the ground that black employees sometimes use it themselves. In this public accommodation case, even if the Complainant (a black person) responded by calling someone a “honky bitch,” this would not neutralize the Respondent’s racially derogatory remarks or render them inoffensive to the Complainant. Bond v. Michael’s Family Rest. (LIRC, 03/30/94).

Occasional or sporadic instances of the use of racial slurs do not, in and of themselves, rise to the level of a violation of the Wisconsin Fair Employment Act. Rodgers v. Western Southern Life (LIRC, 10/12/89). [Ed. note: see, Rodgers v. Western Southern Life Ins., 12 F.3d 668 (7th Cir., 1993) for a contrary result].

Occasional or sporadic instances of the use of racial slurs by co-workers do not, in and of themselves, constitute unlawful discrimination. Saltarikos v. Charter Wire Corp. (LIRC, 07/31/89).

In order to establish racial harassment, the Complainant must establish that: (1) more than a few isolated incidents of harassment have occurred; and (2) the employer failed to take reasonable steps to prevent racial harassment. Sheridan v. UW-Madison (Wis. Pers. Comm’n, 02/22/89).

The Complainant argued that he was constructively discharged when, about ten days before his last day of work, a co-worker called him “boy” and “nigger,” and that on another occasion that employee told a derogatory joke about blacks. The evidence showed that the Complainant never complained to management about the joke. He did complain to management about the other incident, and the employee was counseled and cautioned by the employer. Occasional or sporadic instances of the use of racial slurs do not in and of themselves constitute discrimination. The two incidents cited by the Complainant would not be sufficient to establish that conditions were so intolerable that a reasonable person would be compelled to resign. Kennedy v. Pick ‘n Save (LIRC, 09/22/88).

An employer is not responsible for alleged racial comments made to an employee by her co-workers unless it knew or should have known about them. Crear v. LIRC, 114 Wis. 2d 537, 339 N.W.2d 350 (Ct. App. 1983).

The prohibition against racial discrimination in conditions of employment encompasses racial harassment by co-workers where an employer who is, or should be, aware of the harassment fails to take reasonable steps to prevent it. Hyde v. LIRC (Rock County) (Ct. App., Dist. IV, unpublished opinion, 09/15/81).