128 SEXUAL ORIENTATION DISCRIMINATION

The Wisconsin Court of Appeals, in Bowen v. LIRC, 2007 WI App 45, ¶14, 299 Wis. 2d 800, 812, 730 N.W.2d 164, implicitly recognized a cause of action under the Wisconsin Fair Employment Act for harassment on the basis of sexual orientation. Harassment by a co-worker created a hostile work environment for the Complainant, and the employer failed to take effective remedial action, but because the Complainant did not prove termination due to sexual harassment or opposition to discrimination, remedy is limited to a cease-and-desist order and attorney’s fees. The Complainant’s attorney’s fees, based on her brief to the Commission, were reduced in proportion to the number of pages in the brief devoted to the issue on which the Complainant prevailed. Cooper v. Options for Cmty. Growth, Inc. (LIRC, 07/29/13).

The Respondent observed, or the Complainant brought to the Respondent’s attention, incidents in which: (1) the Complainant was told to call his “boy toy lawyer,” (2) a “Honk If You’re Gay” sticker was placed on the Complainant’s toolbox, (3) a “Queer” or “Queen” sign was placed on the Complainant’s locker, and (4) workers chanted “Rudy, Rudy” in a high-pitched voice in the Complainant’s presence (the Complainant’s middle name is Rudolf). While the Complainant did not specify that he was complaining about sexual harassment or harassment based on sexual orientation (other than to tell the owner of the company that he was a “fag,”) the types of incidents that were taking place should have put the Respondent on notice that this was the case. A Respondent is liable for the harassing acts of the Complainant’s co-workers if it knew or should have known about the harassment and failed to take adequate measures to prevent or eradicate the harassment. Once an employer has been put on notice that an employee is being harassed, it is obliged to take remedial action to improve the work environment, whether or not it is aware of each and every allegation of harassment. The Complainant’s complaints to the Respondent that he was being harassed daily by his co-workers were invitations for the Respondent to investigate further. Bowen v. Stroh Die Casting Co. (LIRC, 10/28/11). [Ed. Note: In a dissenting opinion, a LIRC Commissioner contended that the Wisconsin Fair Employment Act does not provide a cause of action for harassment based upon sexual orientation. This contention was rejected in the majority opinion in the case.]

In order for harassment by co-workers to be actionable under the Wisconsin Fair Employment Act, it must be sufficiently severe or pervasive so as to have altered the conditions of the Complainant’s employment and created an abusive work environment. The conduct by co-workers at issue in this case was not occasional or sporadic. It was frequent, it occurred over an extended period of time, and it created an abusive environment. The harassment included the following incidents: (1) a co-worker commented to the Complainant during the course of an argument that he should go ahead and call his “boy toy lawyer,” (2) someone propped a newspaper article with a picture of Liberace up against the Complainant’s locker, (3) someone put a sticker on the Complainant’s toolbox with a picture of a hunting bullseye that said, “Honk If You’re Gay,” (4) someone left a printed joke on the Complainant’s toolbox that said, “Medical authorities have announced that AIDS can be contracted through the ears by listening to assholes,” (5) someone left a sign on the Complainant’s locker that said either “Queer” or “Queen,” (6) a co-worker commented that the Complainant and a member of management to whom the Complainant was talking were “butt buddies,” (7) two or more co-workers made hand gestures imitating fellatio that were directed at the Complainant, (8) a co-worker repeatedly called the Complainant “fag,” (9) a co-worker called the Complainant a “maricon” (a Spanish word for “fag”), (10) on one or more occasions several workers chanted, “Rudy, Rudy,” in a high-pitched voice in the presence of the Complainant (the Complainant’s middle name is Rudolph), (11) in response to a newspaper article about homosexuals, a co-worker stated that, “All gays, queers and niggers should be put in a big pit and shot,” and (12) a co-worker commented to another worker that the Complainant was grumpy and that he wondered if it was because the Complainant did not get a “piece of ass” at Pride Fest. Bowen v. Stroh Die Casting Co. (LIRC, 10/28/11). [Ed. Note: In a dissenting opinion, a LIRC Commissioner contended that the Wisconsin Fair Employment Act does not provide a cause of action for harassment based upon sexual orientation. This contention was rejected in the majority opinion in the case.]

The Complainant’s theory was that she was discriminated against because her commanding officer, a female, was jealous of the Complainant’s relationship with another female employee with whom she had a homosexual relationship. The Wisconsin Fair Employment Act would protect the Complainant from discrimination based upon her status as a homosexual individual; however, it does not protect her from an adverse employment action taken because of the identity of the Complainant’s homosexual partner. Gustavus v. DOC (LIRC, 05/08/08).

The Complainant failed to establish that he was subjected to unlawful hostile environment sexual harassment. The evidence established that a co-worker offered the Complainant the only pink donut in a box of assorted donuts. The Complainant further testified that on one occasion the word “queer” or “queen” was written on his locker, and on another occasion a picture of Liberace was placed on his locker. However, the Complainant failed to demonstrate when these incidents took place. Assuming, without deciding, that the “pink donut” incident was in reference to the Complainant’s sexual orientation and that the other two incidents were timely, the Complainant’s evidence was not sufficient to warrant a conclusion that he was subjected to harassing conduct which was sufficiently severe or pervasive as to create an intimidating, hostile or offensive work environment. Moreover, the Complainant failed to demonstrate that he notified the Respondent that he was being sexually harassed, or that the Respondent had reason to believe that this was the case. Bowen v. Stroh Die Casting Co. (LIRC, 06/30/05), remanded for further hearing sub. nom Bowen v. LIRC (Milwaukee Co. Cir. Ct., 03/14/06). Order of remand affirmed, 2007 WI App 45, 299 Wis. 2d 800, 730 N.W.2d 164.

What is protected under the law is the employee’s general preference for heterosexuality, homosexuality, or bisexuality. The Act provides no protection for an individual who was discriminated against based upon his or her actions in maintaining a sexual relationship with a specific person. Bammert v. Don’s Super Valu (LIRC, 03/06/98), aff’d sub nom Bammert v. LIRC, 2000 WI App 28, 232 Wis. 2d 365, 606 N.W.2d 620.

In a case brought under the Wisconsin Public Accommodations and Amusements Act, the Complainant, a lesbian, alleged that she and the members of her baseball team, which played in games sponsored by the Respondent, experienced verbal harassment from both spectators at the game and players on other teams who shouted comments such as “fag,” “dike,” “queer,” “go home,” and “she’s got AIDS.” The heckling that occurred in this case created a hostile environment which had the effect of denying the full and fair enjoyment of a public accommodation to the Complainant. However, the Respondents were not liable in this case because they did not exercise a degree of control over the persons engaging in the harassment. Neldaughter v. Dickeyville Athletic Club (LIRC, 05/24/94).

A Complainant failed to prove that a police chief’s decision to demote her back to police officer from sergeant was motivated by her sex or sexual orientation where (1) the police chief initially sought out the Complainant for promotion, knowing the Complainant’s sex and sexual orientation; (2) the chief had a history of hiring and promoting females and lesbians; and (3) the chief had information which supported his conclusion that the Complainant lacked the interpersonal skills necessary to supervise other employees. Kemmerer v. City of Madison Police Dep’t (LIRC, 06/30/93).

Where a Respondent asserted that it prevented the Complainant from being hired as a live-in attendant for a disabled woman because of reports of prior abuse and neglect of that women by the Complainant, the Department was not required to determine whether the Complainant had in fact been guilty of abuse and neglect in the past. The issue before the Department was whether the Respondent genuinely believed the reports of abuse and neglect and whether the Respondent acted on that belief rather than on an invidious prejudice against the Complainant because of her sexual orientation. Vandeveer v. Brown County (LIRC, 06/28/93).

The Complainant, a lesbian, failed to state a claim upon which relief could be granted when she alleged that the Respondent had violated the Wisconsin Fair Employment Act by denying her application for family health insurance coverage for her lesbian companion. The Respondent’s policy distinguishes between married and unmarried employees, not between homosexual and heterosexual employees. Family coverage for the Complainant’s companion would be denied even if the Complainant were an unmarried heterosexual. While the Complainant complains that she is not married to her companion only because she may not legally marry another woman, this is a claim that the marriage laws are unfair because of their failure to recognize same-sex marriages. Any change in that policy is for the legislature, not the courts. Phillips v. Wis. Pers. Comm’n, 167 Wis. 2d 205, 482 N.W.2d 121 (Ct. App. 1992).

A finding that seventy-three percent of individuals with AIDS/ARC are homosexual and bisexual men was insufficient to support a finding that a school district which adopted a policy prohibiting individuals with AIDS from the classroom constituted discrimination on the basis of sexual orientation. Furthermore, the public remark by a school board member that he voted in favor of the policy because he did not believe homosexuals should be allowed to teach in the school district was insufficient to support a claim of discrimination on the basis of sexual orientation. Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).