133.1 Coverage

There is no requirement that an employee’s protected opposition take the form of a written complaint or that it contain any specific information. All that is necessary is that the employee convey to the employer that he or she believes discrimination has occurred. Castle v. St. Charles Youth & Family Servs. (LIRC, 04/17/15).

In a retaliation case, the employer’s motivation is the ultimate issue. To make a prima facie case, it is necessary for the Complainant to show that he or she engaged in some statutorily protected act, suffered a subsequent adverse employment action, and that the former was a motivating factor for the latter. Here, the Complainant alleged a discharge in retaliation for his filing of prior discrimination complaints. There was a lack of evidence, however, that the person responsible for deciding to discharge the Complainant knew of the existence of the prior complaints or was unwittingly influenced by someone who harbored animus against the Complainant because of his prior complaints. Lueck v. Cnty. of La Crosse (LIRC, 11/13/14).

The Complainant alleged disability discrimination due to reduction in her pay for home care services she provided for her disabled son. The Complaint failed to state a cause of action under the WFEA because the Complainant is not an individual with a disability, and the WFEA does not cover allegations of discrimination based on a Complainant’s association with an individual with a disability. The Complainant’s retaliation claim for having filed a federal lawsuit fails to state a claim because the lawsuit did not allege any violation recognized by the WFEA as a basis for a retaliation complaint. Bach v. Easter Seals of Se. Wis. (LIRC, 10/09/14), dismissed on procedural grounds (Milwaukee Co. Cir. Ct. 04/20/15), dismissal aff’d (Ct. App., Dist. IV, summary disposition, 01/28/2016).

A complaint to human resources that the Complainant’s supervisor was subjecting him to discriminatory terms and conditions of employment based upon race by not allowing him to bring a black girlfriend to a company party is considered statutorily protected opposition for purposes of a retaliation claim. Much v. Les Stumpf Ford, Inc. (LIRC, 07/31/14).

The mere fact that an employer has taken an adverse action against an employee does not warrant an inference that the employer knows the employee engaged in a protected activity. Rather, the Complainant must affirmatively show that the employer was aware or had reason to be aware of his protected conduct. Sabol v. State of Wis. (LIRC, 04/24/14), aff’d Sabol v. LIRC (Racine County Cir. Ct., 6/12/15).

A different legal standard governs allegations of retaliation because of “opposition” and retaliation because of “participation.” In order to be protected, “opposition” must actually be engaged in good faith, while “participation” is always protected, whether done in good faith or not. In addition, it is an essential element of either kind of retaliation case that an employer be shown to have been aware of the protected activity the employee engaged in, and that it understood that the activity was related to alleged discrimination. For this reason, a fair opportunity to defend against a claim of retaliation requires that an employer be put on notice of the specific protected conduct of the employee which is alleged to have been the reason that it retaliated against the employee. Hanson v. DOT (LIRC, 06/14/05).

The Complainant alleged that the Respondent took certain action against him because it believed that he would file a complaint with the Equal Rights Division. Such a complaint clearly fails to state a claim for relief under the Wisconsin Fair Employment Act. Sec. 111.322(3), Stats., provides that it is an act of discrimination “to discharge or otherwise discriminate against any individual because he or she has opposed any discriminatory practice under this subchapter or because he or she has made a complaint, testified or assisted in any proceeding under this subchapter.” The Complainant had not made a complaint, testified or assisted in any proceeding under the Act prior to the action he believed the Respondent took against him. Therefore, any alleged action could not have been taken because he had made a complaint, testified or assisted in any proceeding under the Act. Thornton v. Omni Glass & Paint (LIRC, 07/16/04).

The Complainant alleged that he was retaliated against by his coworkers after he reported that they had made comments which he considered to be racially hostile towards him. Allegations of coworker retaliation which are not alleged to have been directed by or encouraged by the Respondent cannot support a finding of unlawful retaliation on the part of the Respondent. Bessolo v. Stock Lumber Components (LIRC, 07/30/03).

Retaliation is conduct which the statute condemns solely because of the motivation which underlies it. In order to violate the prohibition against retaliation, an action or decision must have been made because of an actual, subjective belief that the person retaliated against was raising some kind of claim that discrimination was occurring, or was otherwise engaging in protected activity. Fauteck v. Sinai Samaritan Med. Ctr. (LIRC, 11/09/00).

The protections of sec. 111.322(3), Stats., for “oppos[ing] any discriminatory practice under this subchapter” are broad enough to cover a complaint by an employee that she believes that the employer is engaging in discrimination, even if it is not discrimination which adversely affects that particular employee. Osell v. Schedulesoft (LIRC, 10/27/00).

While the Wisconsin Fair Employment Act protects conduct in opposition to what an employee believes to be a discriminatory practice, such conduct is only protected if it is supported by a good faith belief that discrimination in fact occurred. It is not necessary that the employee have been objectively “right” about a belief that an action opposed was prohibited discrimination, but it is necessary that the employee have had a good faith belief that the action they opposed was prohibited discrimination. Where an employee makes allegations of discrimination without believing in the truth of those allegations, the “opposition” is not protected under the Act. Osell v. Schedulesoft (LIRC, 10/27/00).

An employee’s support of a worker’s compensation claim filed by another employee is not one of the protected activities cited in sec. 111.322, Wis. Stats. Lutze v. DOT (Wis. Pers. Comm’n, 07/28/99).

The Complainant’s refusal to sign a severance or termination agreement containing a release of any claims against the employer did not constitute “opposition” to a discriminatory practice. Nor did the Complainant’s contacting an attorney demonstrate that he opposed a discriminatory practice since the employer had encouraged him to do so before signing the release. Accordingly, the Complainant failed to establish that the employer had retaliated against him by refusing to enter into an independent contractual relationship with him because he had opposed a discriminatory practice under the Act. Weier v. Heiden, Inc. (LIRC, 02/05/98).

To show unlawful retaliation under the Wisconsin Fair Employment Act, the employee must show that he or she engaged in protected activity, was subject to adverse employment decisions, and that there was a causal connection between the two facts. If the employee makes this showing, the employer may rebut the claim of retaliation by articulating a legitimate, non-discriminatory reason for its action. If the employer meets that burden, the employee may prevail by presenting evidence that the proffered reason was a pretext. Kannenberg v. LIRC, 213 Wis. 2d 373, 571 N.W.2d 165 (Ct. App. 1997).

The closeness in time of a complaint and the adverse discipline of the Complainant does not in itself establish retaliation. In this case, the employer had a legitimate, non-discriminatory reason for the written warning that it gave to the Complainant. Kannenberg v. LIRC, 213 Wis. 2d 373, 571 N.W.2d 165 (Ct. App. 1997).

A claim of retaliation because of the Complainant’s relationship to another person who filed a discrimination complaint is not cognizable under the Wisconsin Fair Employment Act. Paul v. Fox Point Sportswear (LIRC, 07/18/95).

The anti-retaliation provision of the Wisconsin Fair Employment Act extends to former employees. In this case, the Respondent filed an unfair labor practice charge before the Wisconsin Employment Relations Commission (WERC) against the Complainant, who at the time was no longer employed by the Respondent but was proceeding to a hearing on a complaint of handicap discrimination against the Respondent. The Complainant alleged that the Respondent’s filing of the charge before the WERC constituted unlawful retaliation for protected activity under the Wisconsin Fair Employment Act. However, the Complainant’s claim of retaliation was not related to an employment relationship and, thus, fails to come within the scope of the Wisconsin Fair Employment Act. There was not a significant connection between the alleged adverse action by the Respondent and the Complainant’s employment opportunity. The gist of the WERC claim was that the Complainant should not be allowed to proceed with his handicap discrimination claim because the issues decided in that claim were already decided by an arbitrator. The WERC complaint did not have negative implications with respect to the Complainant’s activity at the workplace or his integrity as a human being. Thus, the Respondent’s action could not damage the Complainant’s reputation or impair his future employment opportunities. Seeman v. Universal Foods Corp. (LIRC, 09/22/94).

Discrimination because of protected “opposition” does not have to involve a formal complaint to the Equal Rights Divisio, but can take the form of informal opposition expressed directly to the employer. However, the opposition must have been recognized by the employer as involving a claim of employment discrimination. In this case, there was no violation of the Wisconsin Fair Employment Act because what the Complainant was opposing was what he believed to be a violation of a collective bargaining agreement. The Complainant had alleged that his refusal to drop a grievance under the collective bargaining agreement led to his being retaliated against by the Respondent. Yet the grievance involved no assertion that there had been employment discrimination. The Municipal Employment Relations Act, sec. 111.70, et seq., Stats., provides protection from retaliation motivated by the fact that a person has filed a grievance alleging a violation of a collective bargaining agreement. The anti-retaliation provision of the Wisconsin Fair Employment Act, found in sec. 111.322(3m), Stats., is not intended to serve as a catch-all protection for all manner of employee protests. Norton v. City of Kenosha (LIRC, 03/16/94).

Sec. 111.322(3), Stats. prohibits discrimination because a person has opposed a discriminatory practice, or because a person has made a complaint, testified, or assisted in a proceeding under the Wisconsin Fair Employment Act. This section protects both “opposition,” which involves that employee’s “self-help” actions to oppose what they believe to be a discriminatory practice, and which is only protected if it is supported by a good faith belief that discrimination in fact occurred; and “participation,” which involves actual proceedings before the Equal Rights Division (either filing a complaint or assisting in one) and which is absolutely privileged against retaliation. Roncaglione v. Peterson Builders (LIRC, 08/11/93), aff’d sub nom. Roncaglione v. LIRC (Dane Co. Cir. Ct., 05/06/94).

The anti-retaliation provision of the Wisconsin Fair Employment Act has two parts. The “opposition” element covers actions taken by an employee on their own to protest discrimination. The “participation” element relates directly and exclusively to the filing of charges with the agency or to assisting in or participating in the investigation of a filed complaint. Notaro v. Kotecki & Radtke, S.C. (LIRC, 07/14/93).

Retaliation may be found where an individual opposes conduct reasonably believed to be discriminatory, even if he or she is mistaken and there was no discrimination. Roden v. Federal Express (06/30/93).

There is nothing unique about retaliation issues, as opposed to conventional discrimination issues, that suggests that the “in part” test of causation articulated in Muskego-Norway Consol. Joint Sch. Dist. No. 9 v. WERB, 35 Wis. 2d 540, 151 N.W.2d 617 (1967), should not be applied in those types of cases. Horton v. Hopkins Chem. Co. (LIRC, 06/08/92), aff’d (Dane Co. Cir. Ct., 04/28/93).

Sec. 111.322(2m), Stats., prohibits an employer from discharging an employee who files a complaint under the Act. Thus, an employee is entitled to keep a job even if the employee files a complaint which is devoid of merit. In such cases, the employer must resolve the dispute with the employee within the context of the employment relationship even if the bogus claim causes great and irreparable damage to the company’s reputation. Marten Transport v. DILHR, 176 Wis. 2d 1012, 501 N.W.2d 391 (1993).

A Complainant need not show that he was harmed by the Respondent’s action in order to prevail on a claim of retaliation. Ninabuck v. Consol. Freightways (LIRC, 01/31/92).

The Complainant must be able to prove that the alleged retaliatory act impinged upon the Complainant’s work. This is an especially important point of proof where the alleged retaliatory treatment (in this case, the employer’s refusal to say “good morning” to the Complainant) is more subtle than, for example, a disciplinary demotion, loss of normal work assignments, extension of the probationary period, or denial of a customary letter of recommendation. Alexander v. Aldridge, Inc. (LIRC, 10/21/91).

An adverse action can, in some circumstances, be subject to the anti-retaliation provisions of the Wisconsin Fair Employment Act even though its relationship to an employment opportunity is only indirect. For example, anti-retaliation provisions cover the giving of bad references to an ex-employee in retaliation for a complaint of discrimination by that employee. Filing a lawsuit in tort against an Equal Rights Complainant seeking damages for defamation or malicious prosecution may also be retaliatory. Similarly, threatening an Equal Rights Complainant with criminal charges for allegedly making threatening phone calls to the employer could also be subject to anti-retaliation provisions. In each of these cases there is some effect upon future employment opportunities of the Complainant. In this case, however, the action which the Respondent is alleged to have engaged in because of a retaliatory motive-contacting the City Recreation Department to report that the Complainant was not a resident of the City in whose softball league she was participating--bears no conceivable relationship whatsoever to any employment opportunity, past, present, or future. While the motivation for the action arose in an employment-related context, the action itself had no relationship to employment and it was, therefore, not prohibited retaliation. Pufahl v. Niebuhr (LIRC, 08/16/91), aff’d sub nom. Pufahl v. LIRC (Dane Co. Cir. Ct., 06/16/92).

Discrimination because of a person’s membership in a protected classification, and retaliation because a person has opposed a discriminatory practice, are different things. Either one may exist without the other. An employer may be found to have illegally retaliated where it has taken adverse action against an employee because of that employee’s assertion that the employer has discriminated against the person because of some protected characteristic, even if it is later established that the employer is not guilty of the alleged underlying discrimination. Cangelosi v. Robert E. Larson & Assoc. (LIRC, 11/09/90).

A Complainant’s act of publishing a controversial article on prostitution in a professional journal is not protected by the Act from retaliation. Rubin v. UW (Wis. Pers. Comm’n, 02/18/83).

An employee’s opposition to discriminatory treatment of other employees is protected from retaliation. Krejci v. Jonathan Furniture Co. (LIRC, 11/06/81).

An employee’s good faith opposition to practices viewed as discriminatory is protected under the Act from retaliation even though the practices may not themselves be discriminatory. Informal opposition is entitled to the same protection as opposition which is expressed through a formal complaint filed with a federal or state agency. Herslof Optical v. DILHR (Leonard) (Dane Co. Cir. Ct., 03/28/78).