127.3 Sexual harassment

Harassing conduct occurring outside of work time can be part of a hostile environment claim where the conduct is connected to a course of harassing conduct that affects the work environment. Lamont v. Nelson Glob. Prods. (LIRC, 06/10/19).

The employer’s isolated comment about wearing jeans “tight to your ass” was not considered “verbal conduct of a sexual nature” given the context of the conversation and was not repeated or severe enough to constitute sexual harassment under § 111.32(13). Hodge v. Brunner Wire Prods., Inc. (LIRC, 10/15/17), aff’d sub nom. Hodge v. LIRC (Juneau Co. Cir. Ct., 04/17/19).

The store manager where the Complainant worked was in a position of responsibility such that it was appropriate to apply the rule of respondeat superior and treat his actions as the actions of the employer. His comments toward the Complainant did not, however, amount to sexual harassment as defined in the WFEA. Some of his comments were not sexual in nature. For those that were, the Complainant did not establish that they were unwelcome. Whether conduct is unwelcome presents a question as to the state of mind of the person to whom the conduct is directed. The Complainant raised several complaints about the store owner’s conduct, but they were not predicated on his sexual conduct. If she had found any of his sexually related comments to be unwelcome it stands to reason she would have raised them as well. Weber v. Vapin USA-WI, LLC (LIRC, 05/05/17), rev’d sub nom. Weber v. LIRC and Vapin USA-WI, LLC (Marinette Co. Cir. Ct., 03/16/18). The Circuit Court reversed, finding that there is nothing in the statutes that requires the Complainant to offer a prior complaint about the conduct in order for conduct to be unwelcome. The Complainant's testimony was clear that she found it unwelcome and offensive.

After receiving a Complainant’s report of sexual harassment by a co-employee, the employer interviewed the alleged harasser, who denied the allegations. The employer, however, made efforts to keep the Complainant and co-employee separate by giving them different work assignments and then approved the co-employee’s transfer to a different shift from that of the Complainant. The Complainant experienced no further harassment from the co-employee. The employer’s actions met its obligation to take appropriate action within a reasonable time. Jedrzejewski v. Signicast, LLC (LIRC, 09/16/16), aff’d sub nom. Jedrzejewski v. LIRC and Signicast, LLC (Jefferson Co. Cir. Ct. 05/02/17).

A co-worker’s nearly daily greeting of the Complainant and other female workers with a hug and a kiss on the cheek was unwelcome to the Complainant but was not shown under the circumstances to be severe enough to create an intimidating, hostile, or offensive work environment. For a period of time, the Respondent did not have reason to know that the Complainant objected to the co-worker’s conduct; once it did, it acted promptly, within five days, to investigate and take appropriate action. Wilder v. Goodwill Indus. of Se. Wis. (LIRC, 01/30/14).

Sexual conduct by an employer towards an employee is not a “strict liability” offense. The conduct must be unwelcome to be considered unlawful. Whether conduct is “unwelcome” presents a question as to the subjective state of mind of the person to whom the conduct is directed. In this case, the Complainant did not object to the conduct and was a willing participant in much of what she alleges constituted sexual harassment. Rhinehart v. A & M Plumbing & Servs., LLC (LIRC 6/7/13), aff’d, Rhinehart v. LIRC (Adams Co. Cir. Ct., 12/12/13).

A Respondent has fairly wide latitude to address allegations of sexual harassment as it sees fit, provided that its actions are reasonably calculated to remedy the situation and to prevent further harassment. While the Respondent in this case did investigate many of the allegations of harassment that were brought to its attention, it did not investigate all of the allegations, and it took no disciplinary action against any of the individuals involved. It did not provide its employees with training or retraining on its sexual harassment policy. Instead, it chose to treat the harassing conduct as mere “horseplay” or “childishness.” Moreover, the Respondent did not provide the Complainant with any assurances that his complaints would be dealt with, and it made no attempt to follow up with him to find out whether the situation had improved. The Respondent’s response was insufficient. Bowen v. Stroh Die Casting Co. (LIRC, 10/28/11).

The Complainant contended that she had opposed sexual harassment in the workplace when she told one of the Respondent’s owners that he needed to “watch it with these girls,” and that he was making them “uncomfortable.” This statement was too vague to put the Respondent on notice that the Complainant believed that he was engaging in any conduct that violated the law. Freeman v. Animal Motel (LIRC, 07/18/11).

Where sexual harassment is engaged in by the employer itself (meaning the owner or an agent in a position of responsibility such that it is appropriate to apply the rule of respondeat superior and treat the actions of the agent as being the actions of the employer), the conduct of the employer need not be severe or pervasive in order to create a hostile work environment. Employment discrimination based on sex occurs if the employer engaged in conduct that meets the definition of sexual harassment, whether or not that conduct created a hostile work environment. Krushek v. Trane Co. (LIRC, 12/23/10).

An employer is obliged to take steps to prevent or terminate sexual harassment in the workplace, even if the employer is itself not engaging in the sexual harassment, if the harassment engaged in by other employees is such that it interferes with work or creates a hostile, intimidating environment. However, a Respondent is liable for the harassing acts of the Complainant’s co-worker only if it knew or should have known about the harassment but failed to take adequate measures to prevent or eradicate it. A Respondent has fairly wide latitude to address allegations of sexual harassment as it sees fit, provided that its actions are reasonably calculated to remedy the situation and prevent further harassment. Guerrero v. UW Hosp. & Clinics (LIRC, 06/04/10).

The Wisconsin Fair Employment Act recognizes two ways in which an employer may be liable for sexual harassment. The first is where the harassment is perpetrated by an owner or an agent of the employer who is in a position of responsibility such that it is appropriate to apply the rule of respondeat superior and treat the actions of the agent as the actions of the employer. The other category applies to the actions of co-workers who are not considered to be agents of the employer. Where the alleged sexual harasser is a co-worker, the co-worker’s actions can only be imputed to the employer if the employer permitted sexual harassment to occur. In other words, a Respondent is liable for the sexually-related acts engaged in by a co-worker only if the individual informs the Respondent of the harassment and the Respondent fails to take appropriate action within a reasonable time. Monroe v. Birdseye Foods (LIRC, 03/31/10).

Where the employer or an agent of the employer has perpetrated sexual harassment, it is actionable even if the harassment would not be considered sufficiently severe or pervasive as to create a hostile work environment. Harper v. Menard, Inc. (LIRC, 09/18/09).

A constructive discharge is not found in every sexual harassment case. A constructive discharge is only found where the conduct made working conditions so intolerable that a reasonable person would feel compelled to resign. A smattering of sexually-tinged comments made over the course of a year and a half, while certainly unpleasant and distasteful, is not sufficient to create a hostile working environment or to render working conditions so intolerable that a reasonable person would feel compelled to resign. Harper v. Menard, Inc. (LIRC, 09/18/09).

The sexual harassment in this case was not severe enough to drive a reasonable person to quit. The Complainant’s argument that the “in part” analysis should be applied because the sexual harassment was part of her reason for quitting was rejected. If working conditions were rendered so intolerable due to sexual harassment as to compel the employee to quit, she would not have waited to tender her resignation until other adverse, but non-discriminatory, incidents occurred. Harper v. Menard, Inc. (LIRC, 09/18/09).

Where the alleged sexual harasser is a co-worker, the co-worker’s actions can only be imputed to the employer if the employer permitted the sexual harassment to occur. That is, a Respondent is liable for the sexually-related acts engaged in by a co-worker only if the individual informs the Respondent of the harassment and the Respondent fails to take appropriate action within a reasonable time. Abel v. Dunn County Health Care Ctr. (LIRC, 04/21/09).

The Respondent took adequate remedial steps to ensure that the Complainant’s return to work would be free of sexual harassment. A remedial action is not inadequate simply because it does not accord with the Complainant’s expectations or desires. An employer is not required to discharge every worker accused of sexual harassment in order to avoid liability in the event that that individual should ever engage in further acts of harassment. Abel v. Dunn County Health Care Ctr. (LIRC, 04/21/09).

Although sexual harassment is a type of sex discrimination, it is distinct from sex discrimination as to terms and conditions of employment. Therefore, it was inappropriate for an investigator to specify the issues as sex discrimination as to terms and conditions of employment (and other issues) where the Complainant had alleged that she was harassed because she was a female. Matson v. Aurora Health Care (LIRC, 03/21/08).

The Complainant alleged that the Respondent constantly belittled her because she was female. This language conveyed an allegation of sexual harassment. Such harassment does not have to have a sexually offensive component but includes unwelcome verbal or physical conduct of any kind directed at an individual because of that individual’s gender. Sec. 111.36(1)(br), Stats. Matson v. Aurora Health Care (LIRC, 03/21/08).

It is not necessary that an action have a sexual component in order to be considered sexual harassment. Sec. 111.36(1)(br), Stats., prohibits engaging in harassment consisting of unwelcome verbal or physical conduct of any kind directed at an individual because of that individual’s gender. Engen v. Harbor Campus (LIRC, 02/22/08).

None of the conduct alleged by the Complainant in this case meets the definition of sexual harassment because none of the alleged conduct was sexual in nature. Although referring to the male Complainant as “a woman” might reasonably be perceived as offensive, the content of this reference was not sexual in nature. Further, although the Complainant referred to a cardboard figure of a well-known female athlete as a “girly cut-out,” the display was of a fully clothed woman in a neutral position in a soccer uniform advertising a sports drink. This would not qualify as sexually graphic material or be otherwise sexual in nature. Braunschweig v. SSG Corp. (LIRC, 08/31/06).

The Complainant failed to establish that the acts engaged in by a co-worker constituted prohibited sexual harassment within the meaning of the Wisconsin Fair Employment Act. Even if she had established that the acts of the co-worker constituted sexual harassment, she failed to prove that the Respondent was liable. The individual who engaged in these acts was not the Complainant’s supervisor. Therefore, the Respondent would be liable only if the Complainant had informed the Respondent of the harassment and the Respondent had failed to take appropriate action within a reasonable time. In this case, the Respondent acted immediately to separate the Complainant from the alleged harasser and to investigate the Complainant’s allegations. Upon completion of its investigation, the Respondent reprimanded the alleged harasser, required him to undergo additional sexual harassment training, and removed his eligibility to hire female drivers. This response by the Respondent was immediate and reasonably appropriate. Skilling-Vukich v. Swift Transp. (LIRC, 01/31/06).

A female employee could logically and rationally interpret repeated comments about the size of her buttocks and slaps on the buttocks by her male employer to be sexual in nature, whether or not they were accompanied by other overt sexual language or conduct. Whether or not the employer intended the conduct to be sexual in nature is not the controlling factor. The Complainant perceived his conduct as being sexual in nature, and this perception was reasonable. Therefore, there was probable cause to believe that the Complainant was subjected to sexual harassment. Miller v. Greenfield Veterinary Clinic (LIRC, 04/28/05).

Sexual harassment perpetrated by an employer or its agent is unlawful without regard to whether the Complainant has availed herself of an opportunity to complain. In this case, it is hard to imagine to whom the Complainant could have complained, where the person engaging in the harassment was both the owner of the business and her direct supervisor. Baron v. Darboy Family Chiropractic (LIRC, 04/13/05).

There are three ways in which an employer may be liable for sexual harassment under the Wisconsin Fair Employment Act. The first is where the harassment is perpetrated by an owner or an agent of the employer who is in a position of responsibility such that it is appropriate to apply the rule of respondeat superior and treat the actions of the agent as being the actions of the employer. The second is where there has been quid pro quo sexual harassment. The third is where sexual harassment is permitted to create a hostile work environment. The third category applies to the actions of co-workers who are not considered to be agents of the employer. Sanderson v. Handi Gadgets (LIRC, 03/31/05).

If a harasser is a co-worker, his actions can only be imputed to the employer if the employer permitted the sexual harassment to occur. On the other hand, if the harasser is an agent of the employer, any sexual harassment on his part is attributable to the employer. The theory that there is an affirmative defense available to employers when sexual harassment is perpetrated by a supervisor is inapplicable in a proceeding under the Wisconsin Fair Employment Act. Federal court decisions which so state, such as Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2268 (1998) and Faragher v. City of Boca Raton, 542 U.S. 775, 118 S. Ct. 2275 (1998), involve interpretations of Title VII of the Civil Rights Act of 1964, not the WFEA. The statutory language contained in sec. 111.36(1)(b), Stats., with respect to sexual harassment is substantially different from that in Title VII, and federal cases addressing the question of hostile work environment sexual harassment thus do not necessarily provide guidance in cases involving the WFEA. The Labor and Industry Review Commission will not follow the Burlington Indus. and Faragher decisions, or any previous commission decisions (including Baier v. J & J Elec. (LIRC, 12/16/03) and Harsh v. County of Winnebago (LIRC, 11/06/98)), which may have relied upon such an analysis. Sanderson v. Handi Gadgets (LIRC, 03/21/05).

The test for determining whether an employee’s co-workers are supervisors for purposes of imputing liability for alleged discriminatory acts to the employer was set forth in City Firefighters Union Local No. 311 v. City of Madison, 48 Wis. 2d 262, 270-71, 179 N.W.2d 800 (1970). That test provides for consideration of the following criteria: (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. These factors are not to be considered in the disjunctive such that any one factor is determinative. Rather, the totality of the criteria must be considered. Sanderson v. Handi Gadgets (LIRC, 03/31/05).

For purposes of the Wisconsin Fair Employment Act, an individual is either an agent of the employer, such that any sexual harassment on his part is attributed to the employer, or he is considered a co-worker, whose actions can only be imputed to the employer if the employer permitted the sexual harassment to occur. The law does not contemplate an interim status for supervisors who are not agents of the employer, but yet are more than mere co-workers. Sanderson v. Handi Gadgets (LIRC, 03/31/05).

A threshold question in the interpretation and application of the prohibition against sexual harassment is whether the alleged harassment was carried out by the employer or an agent of the employer, or whether it was carried out by a coworker. In this case, the alleged harasser was not acting as an agent of the employer at the time of the alleged harassment because he had no supervisory authority over the Complainant (i.e., he did not have the authority to effectively recommend her hire, promotion, transfer, discipline, discharge or to assign or direct her work activities). Flanagan v. Wis. Bistros (LIRC, 11/04/04).

A threshold question in determining whether the prohibition against sexual harassment has been violated is whether the allegedly harassing act was connected with the Complainant’s employment within the meaning of sec. 111.36(3), Stats. (i.e., whether the act occurred while the Complainant was at her place of employment or while the Complainant was performing duties related to her employment). In this case, one allegedly harassing act occurred during a dinner hosted by the employer; however, the other remaining acts, which the Complainant characterized as the more egregious acts, occurred after the dinner was concluded and the Complainant and two of her coworkers decided to go to a bar together. The actions which occurred at the bar and later had only a tenuous connection, if any, to the Complainant’s performance of duties related to her employment. Even assuming that a sufficient connection existed between the acts of sexual harassment and the Complainant’s employment, the Respondent would only be liable if it knew or should have known about the harassment but failed to take adequate measures to prevent or eradicate it. Flanagan v. Wis. Bistros (LIRC, 11/04/04).

The Respondent took actions that were reasonably calculated to remedy the situation and to prevent future harassment of the Complainant by a co-worker. It conducted an immediate investigation, counseled, and warned the Complainant’s co-worker about his offending conduct, and took reasonable action to assure that the Complainant would not come into contact with that co-worker in the future. Although the Complainant contended that the co-worker should have been terminated, a remedial action is not inadequate simply because it does not accord with the Complainant’s expectations or desires. Furthermore, an employer is not required to discharge every worker accused of sexual harassment in order to avoid liability in the event that that individual should ever engage in further acts of harassment. Flanagan v. Wis. Bistros (LIRC, 11/04/04).

Whether compliments on a Complainant’s looks are of a sexual nature depends upon the context in which they were made. Harper v. Menard, Inc. (LIRC, 09/18/09) (Anderson v. MRM Elgin Corp., 01/28/04).

Because Title VII does not contain any language similar to sec. 111.36(1)(b), Stats., federal cases addressing the question of hostile work environment sexual harassment are not helpful to an analysis of whether the Respondent has violated the Wisconsin Fair Employment Act. Anderson v. MRM Elgin (LIRC, 01/28/04). There are three categories of prohibited conduct under the Wisconsin Fair Employment Act: (1) sexual harassment by an employer, (2) quid pro quo sexual harassment, and (3) hostile environment sexual harassment. Under the first category, employment discrimination based on sex occurs if the employer (meaning the owner, or an agent in a position of responsibility such that it is appropriate to apply the rule of respondeat superior and treat the actions of the agent as being the actions of the employer) engages in conduct that meets the definition of sexual harassment, whether or not that conduct creates a hostile work environment. Thus, where the employer or an agent of the employer is perpetrating the sexual harassment, it will be actionable even if the harassment is not considered sufficiently severe or pervasive as to create a hostile work environment. Anderson v. MRM Elgin (LIRC, 01/28/04).

An agent of the Respondent engaged in physical conduct of a sexual nature when he swatted the Complainant on the backside with a paycheck. Unlike verbal contact, nothing in the statute prohibiting sexual harassment suggests that physical contact must be “repeated” in order to constitute prohibited sexual harassment. Even a single instance of unwelcome physical contact of a sexual nature is a violation of the Wisconsin Fair Employment Act. Anderson v. MRM Elgin (LIRC, 01/28/04).

Sexual harassment must be “unwelcome” to be unlawful. Conduct is unwelcome where the Complainant did not solicit or invite it, and where the Complainant regards the conduct as undesirable or offensive. Whether conduct is “unwelcome” presents a question as to the subjective state of mind of the person to whom the conduct is directed. In this case, the Complainant clearly did not solicit or incite the sexual harassment. The Complainant testified that the actions of the Respondent’s agent left her numb from fear. Her witness testified that the Complainant appeared to be an “emotional wreck” and was almost shaking after the employer’s agent shared his sexual fantasies with her. Such testimony supports a conclusion that the agent’s conduct was unwelcome to the Complainant. Anderson v. MRM Elgin (LIRC, 01/28/04).

Any suggestion that, because the Complainant tolerated physical and verbal conduct of a sexual nature for some time, the conduct was not “unwelcome” is meritless. A failure to object might, depending upon the circumstances, be indicative of welcomeness. However, once it has been determined that the sexual contact or comments were unwelcome, the fact that the Complainant failed to object to such conduct has no effect on the employer’s liability under the statute. The statute makes it unlawful for an employer to engage in sexual harassment, without regard to whether the Complainant has objected. Anderson v. MRM Elgin (LIRC, 01/28/04).

The Labor and Industry Review Commission has recognized and applied the vicarious liability holding of the U.S. Supreme Court in Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257, 77 F.E.P. Cases 1 (1998) and Faragher v. Boca Raton, 118 S. Ct. 2275, 77 F.E.P. Cases 14 (1998). An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (1) that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an anti-harassment policy with a complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may be appropriately addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use the complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense. No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion or undesirable reassignment. Baier v. J & J Elec. (LIRC, 12/16/03). [Ed. note: In Sanderson v. Handi Gadgets (LIRC, 03/21/05), LIRC stated that it would no longer follow this decision].

If a Complainant has a reasonable opportunity to complain but chooses not to do so, this will operate against her in determining the Respondent’s liability. Baier v. J & J Elec. (LIRC, 12/16/03). [Ed. note: In Sanderson v. Handi Gadgets (LIRC, 03/21/05), LIRC stated that it would no longer follow this decision].

The lack of a formal sexual harassment policy may be reasonable for an employer of a small workforce, as distinguished from a larger employer or one with a decentralized operation. Baier v. J & J Elec. (LIRC, 12/16/03). [Ed. note: In Sanderson v. Handi Gadgets (LIRC, 03/21/05), LIRC stated that it would no longer follow this decision].

There was no probable cause to believe that a male Complainant was unlawfully discharged on the basis of sex when the Respondent terminated his employment because he retaliated against a female subordinate who had filed a complaint of sexual harassment against him. Meisinger v. Perfecseal (LIRC, 07/16/03).

The Wisconsin Fair Employment Act does not impose an affirmative reporting requirement on employees who believe they are being sexually harassed; however, this does not mean that the employee never has any duty to report harassment. The circumstances of each case must be evaluated individually. To do otherwise would result in dismissal in situations where the reason the employee failed to complain was because the employer completely lacked a procedure to do so, where a grievance procedure existed but was inadequate to deal with sexual harassment problems, or where an adequate reporting procedure existed but was not sufficiently published by the employer. However, if the Complainant had a reasonable opportunity to complain but chose not to do so, this would operate against her in determining the Respondent’s liability. Rusniak v. Fagan Chevrolet-Cadillac (LIRC, 05/23/02).

An employer is not expected to be omniscient and to foresee that a particular individual who has been disciplined for sexual harassment will offend again. Nor is it expected to discharge every worker accused of sexual harassment in order to avoid liability in the event that individual should ever engage in further acts of harassment. In this case, the Respondent did not violate the Wisconsin Fair Employment Act because once the Complainant notified the Respondent that an individual had once again engaged in sexual harassment, that individual was immediately discharged. Rusniak v. Fagan Chevrolet-Cadillac (LIRC, 05/23/02).

In cases involving sexual harassment by coworkers, an employer only becomes liable when it knows or should have known about the harassment and fails to take adequate measures to prevent it. An employer has fairly wide latitude to address allegations of sexual harassment as it sees fit, provided its actions are reasonably calculated to remedy the situation and prevent future harassment. In this case, the action of the coworker constituted a sexual assault for which the harasser ultimately pleaded guilty to a criminal charge. This is a serious matter warranting a serious response on the part of the Respondent. The Respondent only gave the harasser a three-day suspension. It did nothing to counsel the harasser about his behavior or to receive any assurances from him that he would not engage in such conduct again. Nor did the Respondent do anything to address the Complainant’s reasonable concerns about working with the harasser in the future. The Respondent did not meet its obligation of undertaking appropriate remedial action. Krienke v. Ramada Inn Conference Ctr. (LIRC, 10/29/02).

While the Respondent may have believed that the Complainant consented to his actions, the Complainant never solicited or invited his sexual contact or remarks, nor indicated by word or deed that she liked them. The fact that the Respondent made his advances openly has no bearing on their welcomeness to the Complainant, nor was her failure to run away tantamount to consent. The burden is not on the employee to run away, but on the employer not to subject her to harassment in the first place. The Respondent violated the Act by engaging in a pattern of unwelcome sexual harassment which ultimately led the Complainant to quit her job. Mackey v. ICR, Ltd. (LIRC, 01/31/02).

The terms “sexual harassment,” and “unwelcome verbal or physical conduct of a sexual nature,” are expressly defined in the Wisconsin Fair Employment Act. The Act does not make it necessary for a Complainant to show that conduct “actually harassed” her. The prohibition relating to sexual harassment is straight forward. It defines “sexual harassment” and makes it unlawful for an employer to engage in it. Osell v. Schedulesoft (LIRC, 10/27/00).

Sec. 111.32(1)(b), Stats., provides three separate categories of prohibited conduct: (1) an employer engaging in sexual harassment; (2) an employer explicitly or implicitly making or permitting acquiescence in or submission to sexual harassment a term or condition of employment or the basis of any part of a decision affecting the employee (“quid pro quo”); and (3) permitting sexual harassment to substantially interfere with an employee’s work performance or to create an intimidating, hostile or offensive work environment (collectively, “hostile environment”). The first category is directed to conduct the employer itself engages in. The second category is directed to conduct the employer either engages in or permits. The third category is directed to conduct the employer permits. Jim Walter Color Separations v. LIRC, 226 Wis. 2d 334, 595 N.W.2d 68 (Ct. App. 1999).

Unwelcome physical contact of a sexual nature and unwelcome verbal or physical conduct of a sexual nature may constitute sexual harassment without regard to whether they meet the “hostile work environment” standard, when they are engaged in by a business owner. Haas v. Sark (LIRC, 12/29/99).

The Complainant, a male, alleged that he had been sexually harassed by his lead worker, another male, when the lead worker hit him in the groin on several occasions. This conduct did not amount to sexual harassment. The alleged assault on the Complainant lacked sexual implications. Indeed, the Complainant testified that the lead worker never made any sexual advances or comments towards him, and that he was a bully. Markgren v. Hartzell Mfg. (LIRC, 09/02/99).

Conduct is considered unwelcome where the employee did not solicit or invite it, and regards it as undesirable or offensive. The Complainant failed to establish that the Respondent’s actions (which consisted primarily of kissing, hugging, hand holding and “occasional statements of passion”) were unwelcome, although it appeared from the record that the Respondent initiated the majority of the touching and was the party most interested in maintaining the personal relationship. The Respondent testified that the Complainant occasionally hugged him in the workplace and that she sometimes kissed him “good morning” or “good night” at the beginning and end of the day. This conduct on her part belied any notion that she found the Respondent’s advances undesirable or offensive, regardless of whether she occasionally told him to “stop it.” Fluhr v. James Magestro, DDS (LIRC, 04/01/99).

While the fact of a prior consensual relationship does not excuse future unwelcome harassment, common sense dictates that allegations of sexual harassment based upon conduct which was once acceptable must be subjected to closer scrutiny than ordinary allegations of sexual harassment. When a consensual relationship has existed between the parties, but then comes to an end, the “unwelcomeness” issue assumes special importance. Courts may well impose a greater duty upon the employee feeling harassed to signal that sexual conduct and attention, once a part of the relationship, is no longer welcome. Fluhr v. James Magestro, DDS (LIRC, 04/01/99).

In determining whether conduct is “unwelcome” it is appropriate to consider the subjective state of mind of the person to whom the conduct is directed. Fluhr v. James Magestro, DDS (LIRC, 04/01/99).

When no tangible employment action was taken against an employee, the employer is vicariously liable for the supervisor’s harassing conduct unless it can prove by a preponderance of the evidence that: (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. McCartney v. UW Hosp. & Clinics (Wis. Pers. Comm’n, 03/24/99).

Determination of whether conduct was or was not unwelcome can be a difficult and sensitive undertaking. Whether conduct is “unwelcome” presents a question as to the subjective state of mind of the person to whom the conduct is directed. Sexual conduct by an employer towards an employee is not a “strict liability” offense. It is explicit in the applicable statutory prohibitions that the conduct must be “unwelcome” to be considered unlawful. Where an employer directs conduct with sexual overtones at an employee, and that employee does not expressly object to or attempt to avoid that conduct, it may be that the conduct was not “unwelcome.” On the other hand, it may be that the employee’s toleration of sexual overtures reflects that the employee feels coerced into accepting them in order to retain the benefits to which her employment relationship entitles her. All of the circumstances of the relationship must be considered in determining whether the conduct was “unwelcome.” Lass v. Sawyer (LIRC, 12/28/98).

In a sexual harassment case, testimony by the Complainant’s coworkers that their supervisor, who was accused of sexual harassment, had acted inappropriately towards them could not be used to show the supervisor’s proclivity for bad conduct or bad character. However, this testimony was relevant and admissible for purposes of establishing a generally hostile work environment. Harsh v. County of Winnebago (LIRC, 11/09/98). [Ed. note: In Sanderson v. Handi Gadgets (LIRC, 03/21/05), LIRC stated that it would no longer follow this decision].

Even though no tangible employment action is taken, an employer is still subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employee, unless the employer can prove by a preponderance of the evidence an affirmative defense with two necessary elements: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the Complainant unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. However, it should first be determined whether or not the Complainant has established an actionable hostile environment claim. Harsh v. County of Winnebago (LIRC, 11/06/98). [Ed. note: In Sanderson v. Handi Gadgets (LIRC, 03/21/05), LIRC stated that it would no longer follow this decision].

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). [Ed. note: In Sanderson v. Handi Gadgets (LIRC, 03/21/05), LIRC stated that it would no longer follow this decision].

The exclusive remedy provision of the Worker’s Compensation Act does not bar a sexual harassment claim under the Wisconsin Fair Employment Act when the Complainant alleges a work injury stemming from the alleged sexual harassment. Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997).

In determining whether the evidence establishes a hostile work environment based on gender, the decision-maker must consider the alleged incidents in context, including incidents of violence and hostility that do not have a sexual expression. In this case, there was substantial evidence that the hostility of two male employees – expressed as it was in non-sexual terms – had origins in personality conflicts rather than in their attitudes towards the Complainant because of her gender. Kannenberg v. LIRC, 213 Wis. 2d 373, 571 N.W.2d 165 (Ct. App. 1997).

An employer’s liability for sexual harassment by its supervisors or agents will hinge on the particular circumstances of the case. Where a Complainant seeks to hold the employer responsible for a hostile environment created by her supervisor or co-worker, she must show that the employer knew or should have known of the harassment and failed to take prompt remedial action. Yaekel v. DRS Ltd. (LIRC, 11/22/96).

A Complainant does not need to establish that sexual harassment seriously affected her psychological well-being in order to prevail on a claim of hostile environment sexual harassment. Baker v. Dadco Divers. (LIRC, 01/18/96).

It is not unreasonable for a Complainant to feel disturbed by sexually offensive comments or other actions by persons with supervisory authority over her even while tolerating or not being offended by similar comments by co-employees who did not have supervisory authority. A Complainant’s use of vulgar language or sexual innuendo in the company of other workers does not waive her legal protections against unwelcome harassment. Olson v. Servpro of Beloit (LIRC, 08/4/95).

A Complainant who has been harassed on only a few occasions may be allowed to offer evidence of harassment suffered by other employees in order to show that harassment was pervasive. An employee can be intimidated or oppressed by witnessing an employer harass her co-workers, or by hearing about such behavior. Olson v. Servpro of Beloit (LIRC, 08/4/95).

An employee who laughs at the occasional off-color joke does not waive her legal protections against unwelcome sexual harassment. Miller v. Oak-Dale Hardwood Products (LIRC, 12/13/94), aff’d sub nom. Oak-Dale Hardwood Products v. LIRC (Pierce Co. Cir. Ct., 02/16/96).

A Complainant was constructively discharged when she quit during an argument with her supervisor. The argument occurred immediately after the supervisor made a crude remark about the Complainant’s sexual activities. The Complainant’s quitting was, therefore, directly related to the sexual harassment. Given the pervasiveness of the sexual harassment in this case and the Respondent’s complete failure to take any remedial action, the Complainant reasonably concluded that she had no alternative but to quit her employment. Miller v. Oak-Dale Hardwood Prod. (LIRC, 12/13/94) ), aff’d sub nom. Oak-Dale Hardwood Prod v. LIRC (Pierce Co. Cir. Ct., 02/16/96).

The Complainant failed to establish a case of quid pro quo sexual harassment where the son of the owner of the car wash where she worked (who also worked at the car wash and had some supervisory responsibilities) engaged in a single instance of sexual touching. The Complainant’s refusal to submit to the sexual advance resulted in no tangible job detriment. Although the Complainant did not return to work after the incident of sexual harassment occurred, this was not a result of any threat by the harasser, but was a voluntary decision on the Complainant’s part. Riegert v. Novy’s Car Wash (LIRC, 04/26/94).

The fact that a Complainant’s discharge closely followed a letter to her supervisor rejecting his sexual advances permits the drawing of an inference of quid pro quo sexual harassment. The Complainant’s testimony that the supervisor referred to her letter stating that he had been reading it over and over immediately prior to her discharge was direct evidence of a causal connection between her rejection of his sexual advances and her discharge. Biggers v. Isaac’s Lounge (LIRC, 10/21/93), aff’d sub nom. Isaac’s Lounge v. DILHR (Milwaukee Co. Cir. Ct.), aff’d (Ct. App., Dist. I, unpublished opinion, 04/25/95).

Even if it was true that the Complainant had a single sexual encounter with the Respondent prior to the beginning of her employment in 1983, this does not mean that the Respondent’s sexual advances to her in 1990 were welcome. This was especially true in view of the Complainant’s testimony that when the Respondent touched her in 1984, she made it known that she did not appreciate his action. Biggers v. Isaac’s Lounge (LIRC, 10/21/93), aff’d sub nom. Isaac’s Lounge v. DILHR (Milwaukee Co. Cir. Ct.), aff’d (Ct. App., Dist. I, unpublished opinion, 04/25/95).

To establish a case of hostile environment sexual harassment, the following elements must be proved: (1) the employee belongs to a protected group; (2) the employee was subject to unwelcome sexual harassment; (3) the harassment was based on the employee’s sex; (4) the harassment affected a term, condition or a privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial measures. Roden v. Federal Express (LIRC, 06/30/93).

To prove that sexual harassment created a hostile environment, the Complainant must prove that sexual harassment was so pervasive as to alter the conditions of employment and create an abusive working environment. In assessing this two-pronged element, one must employ a dual standard which considers (1) the likely effect of the defendant’s conduct upon a reasonable person’s ability to perform his or her work and upon his or her well-being and (2) the actual effect upon the particular employee bringing the claim. The determination of the existence of sexual harassment must be made in light of the record as a whole and the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. Roden v. Federal Express (LIRC, 06/30/93).

The mere existence of a grievance procedure and a policy against sex discrimination coupled with the Complainant’s failure to invoke that procedure will not automatically insulate an employer from liability for sexual harassment, since valid reasons may exist to explain a Complainant’s failure to invoke the employer’s procedure. Some valid reasons for an employee’s failure to inform the employer of sexual harassment may be that the employer does not have a procedure to address sexual harassment, the employer’s procedure is inadequate, or the employer’s procedure has not been sufficiently publicized. Roden v. Federal Express (LIRC, 06/30/93).

To establish a case of quid pro quo sexual harassment, the Complainant must establish four factors: (1) the Complainant is a member of a protected group; (2) the Complainant was subjected to unwelcome sexual harassment; (3) the harassment was based on the Complainant’s sex; and (4) the acceptance or rejection of sexual harassment by Complainant was an express or implied condition to the receipt of a job benefit, or the cause of a tangible job detriment. Roden v. Federal Express (LIRC, 06/30/93).

In a quid pro quo sexual harassment case, an employer is strictly liable for sexual harassment by a supervisor that causes a tangible job detriment. Roden v. Federal Express (LIRC, 06/30/93).

An employee who failed to establish a claim of sexual harassment still established a claim of retaliation where she opposed conduct she reasonably believed to be unlawful sexual harassment. Roden v. Federal Express (LIRC, 06/30/93).

In sexual harassment hostile working environment cases, federal case law suggests that before an employer can be held liable for sexual harassment by a supervisor, the employer must have actual or constructive knowledge of the sexual harassment and must have failed to remedy the situation. Roden v. Federal Express (LIRC, 06/30/93).

There is a distinction between discrimination based on gender, and actions by one person towards another person with whom they have had an intimate personal relationship and which occur because of that relationship (or the failure of that relationship). The same principles and observations relevant to negative treatment by a former lover are relevant to preferential treatment by a present lover. The hostility or preference in some cases may be presumed to arise not from the categorical status of gender (“male” or “female”), but from the singular, individual status of lover or former lover. This presumption cannot be considered to have been rebutted where the records show that the relationship is consensual and, thus, non-coercive. Crosby v. Intertractor Am. Corp. (LIRC, 05/21/93).

A Complainant did not present a claim of sexual harassment where she alleged that she had to open mail for her boss, and that the mail sometimes included cards from his lover. Exposure to a few offensive documents when opening the employer’s personal mail falls far short of a “deliberate, repeated, display of offensive sexually graphic materials” which is required to state a claim for sexual harassment. Erdmann v. UW Sys. (Stevens Point) (Wis. Pers. Comm’n, 04/23/93).

Where employment opportunities are granted because a person has a sexual relationship with a supervisor, the employer is liable for unlawful discrimination against others who were qualified but denied the opportunity if there was an element of coercion in the sexual relationship between the employer and the employee who was granted favoritism. Podemski v. St. Francis Home (LIRC, 05/22/90).

The Complainant established a successful claim of sexual harassment under the “hostile environment” theory by establishing that she was a woman and that she was subjected to unwelcome sexual advances by her supervisor which were sufficiently pervasive to create an offensive and hostile working environment, considering the totality of the circumstances. Whether the supervisor’s conduct and the Complainant’s reaction are gauged subjectively (the effect upon this particular Complainant) or objectively (the effect upon a reasonable person other than the Complainant in the same situation) the result in this case is the same. Nelson v. Waybridge Manor, Inc. (LIRC, 04/06/90).

The Complainant established a successful claim of sexual harassment under the “quid pro quo” theory by establishing that she was subjected to harassment by a supervisor based upon her sex, and that she suffered tangible job detriments (unfair comments, unusually frequent evaluations of her job performance, and pressure to obtain professional help for what her supervisor mischaracterized as her “sex problem”) when she rebuffed her supervisor’s advances. Nelson v. Waybridge Manor, Inc. (LIRC, 04/06/90).

There was probable cause to believe that the Respondent had violated the Act by sexually harassing the Complainant despite a finding that the Complainant had not complained to the Respondent until after it was decided that the Complainant would be laid off, because: (1) the person who allegedly sexually harassed the Complainant was the Complainant’s supervisor, and (2) the Complainant was a Manpower employee and it was not clear whether the Respondent’s policy prohibiting sexual harassment and setting forth procedures for reporting incidents of sexual harassment applied to her. Even without prior notice, employers may be liable for sexual harassment in some hostile environment cases. Mahoney v. S.C. Johnson & Son (LIRC, 03/21/89).

In some cases, prior notice to the employer of a supervisor’s sexual harassment may not be necessary to hold the employer liable. Here, a line chief who had the authority to recommend the transfer and discharge of employees, who regularly rated employees, who directed and assigned the workforce under him, who was paid more because of his responsibility for running the line, and who did not have any specific job assignment other than overseeing the line was a supervisor. Mahoney v. S.C. Johnson & Son (LIRC, 03/21/89).

The Complainant was not sexually harassed or discharged from her employment because of sex where, despite proof that a manager subjected her to verbal sexual harassment, she was found not to have told management about the harassment before she was discharged and where there was evidence that she was discharged for performance problems. Schoenhofen v. LIRC (Ct. App., Dist IV, unpublished opinion, 01/26/89).

The dismissal of the Complainant’s sexual harassment claim was affirmed when the Complainant was found not to have told the Respondent about the harassment until after her termination, since the employer cannot be found liable unless it authorized, knew or should have known of the harassment. Schoenhofen v. LIRC (Ct. App., Dist. IV, unpublished opinion, 01/26/89).

A Complainant must prove five elements to establish a “hostile work environment” case: (1) that she belongs to a protected group; (2) that she was subjected to unwelcome sexual harassment; (3) that the harassment was based on sex; (4) that the harassment affected a term, condition or privilege of employment; and (5) that the employer knew or should have known of the harassment in question and failed to take appropriate remedial action within a reasonable time. Vervoort v. Central Paper (LIRC, 01/25/89).

The Complainant’s use of sexually neutral expletives, such as “damn” and “shit,” does not indicate that sexually derogatory expletives, such as “whore” or “cunt,” are welcome. Vervoort v. Central Paper (LIRC, 01/25/89).

The Respondent did not act within a reasonable time when it failed to take appropriate action in response to the Complainant’s allegations of sexual harassment for more than a year before the Complainant filed her complaint. Vervoort v. Central Paper (LIRC, 01/25/89).

The existence of a grievance procedure and a policy against discrimination, coupled with a Complainant’s failure to invoke that procedure, does not insulate employers from liability for sexual harassment. Vervoort v. Central Paper (LIRC, 01/25/89).

In order to establish the existence of sexual harassment under the Wisconsin Fair Employment Act, a Complainant must show that she was a member of a protected group, was subjected to unwelcome harassment, that the harassment was based upon her sex, that the harassment was sufficiently pervasive so as to alter conditions of employment and create an abusive working environment, and that the Respondent knew or should have known about the harassment. Carlson v. Three Star (LIRC, 08/27/86).

There is no absolute requirement that an employee must report incidents of sexual harassment to his or her employer before the employer may be held liable for such harassment. The statute merely creates a presumption of liability in situations in which the employee has informed the employer. San Filipo v. N. Cent. Sec. Agency (LIRC, 08/15/86).

In light of the decision in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Commission rejects both the notion that the employers are strictly liable for sexual harassment by their supervisors regardless of notice, and the notion that employers cannot be liable for sexual harassment by their supervisors absent actual notice. The circumstances of each case must be evaluated. One element of the circumstances that must be evaluated is whether the situation is such that a Respondent should have known of the harassment. San Filipo v. N. Cent. Sec. Agency (LIRC, 08/15/86).

Sec. 904.04, Stats., does not preclude the admission, in a proceeding concerning allegations of sexual harassment, of evidence that the accused harasser engaged in sexual harassment towards others on other occasions. Schwantes v. Orbit Resort (LIRC, 05/22/86).

Sexual harassment may be found to have occurred, based on the facts of a particular case, even absent the aid of the statutory presumption allowed by the second sentence of sec. 111.36(1)(b), Stats. Giessel v. Glaze Dental Lab (LIRC, 11/20/85).

Sexual harassment within the meaning of the Act must be “unwelcome” to the Complainant. Such conduct is not unwelcome where a Complainant is found to have encouraged or participated in sexual conduct at work. Winter v. Madison Home Juice Co. (LIRC, 07/19/85).

An employer convincingly asserted that an employee’s dismissal was a result of unsatisfactory job performance, despite the employee receiving at her work place a package of sexual material a few days prior to her dismissal, where she was unable to establish either who sent the package or that her employer had any reason to know of her receipt of that package of sexual material. Stock v. Clark Lift of Northern Wis. (LIRC, 02/08/85).

There was no violation of the Act where a supervisor flirted with an employee without conditioning the terms of his employment upon his response to her advances, and where the employer took appropriate action to halt the objectionable conduct within a reasonable amount of time after hearing of it. Demro v. Packerland Packing Co. (LIRC, 08/31/84).

Where a female security guard transferred shifts because of sexual harassment by her co-worker, but failed to put her complaints about him in writing on the employer’s forms and failed to inform her employer of the reason for her transfer, her quitting when asked to return to the original shift was not a constructive discharge. Orgill v. Guardsmark (LIRC, 08/05/83).

Where the owner of the Complainant’s place of work continuously sexually harassed her, the Complainant’s quitting constituted a constructive discharge. Dumas v. American Companies (LIRC, 07/13/83).

Comments with sexual overtones made to a female employee were not enough, by themselves, to constitute sexual harassment. Where all alleged incidents of harassment stopped after a company investigation, no finding of sex discrimination was warranted. Arenas v. Ladish (LIRC, 03/30/83).

An employer that knows or should know of sexual harassment by its employees and takes no corrective action discriminates against the affected employees. Glasser v. DHSS (Wis. Pers. Comm’n, 07/21/81).