133.22 Employer knowledge of oppositional activity

The Complainant’s statement to the Respondent that she believed she was being targeted for adverse treatment based upon her status as a specialist teacher was insufficient to put the Respondent on notice that the Complainant was alleging age discrimination. Walther v. Sch. Dist. of Altoona (LIRC 10/30/23).

The Complainant was not required to demonstrate exactly when the Respondent became aware of her prior discrimination complaint in order to show that the Respondent had knowledge of her protected activity. Krueger v. Cnty. of Waupaca (LIRC, 08/22/18).

It cannot be found that an employer retaliated against an employee for engaging in protected activities without a showing that the employer was aware of the employee’s prior discrimination complaints. Rosneck v. Univ. of Wis. Madison Gen. Library Sys. (LIRC 08/30/17), aff’d sub nom. Rosneck v. LIRC (Dane Co. Cir. Ct. 05/11/18), aff’d (Ct. App., Dist. IV, unpublished opinion, 07/3/2019).

The Complainant’s complaint to her supervisors that a co-worker told her she was “bipolar” and “should be checked for ADD” was not regarded by the Respondent as a complaint of sex discrimination, since the remark had nothing to do with her sex and the Complainant never told the Respondent that she believed it was. Holmes v. Manitowoc Cnty. Sheriff’s Dep’t (LIRC, 9/30/14).

In a retaliation case, the required causal connection between the employee’s conduct and the employer’s adverse action is not established unless it is proved that the employer was aware of employee’s conduct. Here, the only opposition to discrimination was communicated to an individual who was not an employee or agent of the Respondent and who did not relay the opposition to the Respondent. Nielsen v. Sports Clips (LIRC, 03/28/14).

Evidence of the employer’s awareness of a Complainant’s oppositional activity must be sufficient to support a finding that the individuals who decided to take action against the Complainant were aware of the oppositional activity, or that other employees who were aware of the activity induced the decision-makers to take action against the Complainant. Howard v. Lena’s Food Mkt. (LIRC, 01/30/14).

It is an essential element of a retaliation case that an employer be shown to have been aware of the protected activity the employee engaged in and that it understand the activity to be related to alleged discrimination. The Complainant’s statement that she was in contact with an attorney and with the State of Wisconsin and was planning legal action, without mention of an equal rights claim or sexual harassment, was not sufficient to put the Respondent on notice that the Complainant was engaging in protected conduct. Rhinehart v. A & M Plumbing & Pump, Servs., LLCM (LIRC, 6/7/13), aff’d, Rhinehart v. LIRC and A & M Plumbing* Pump Servs., LLC (Adams Co. Cir. Ct., 12/12/13).

If an employer does not know that an employee has made a complaint of discrimination, it obviously cannot be motivated by such knowledge in the conduct it undertakes. Crook v. County of Vernon. (LIRC, 02/23/04).

The Complainant complained to one of his supervisors that, although he had been required to wear dress shoes rather than tennis shoes, a female employee was allowed to dress inappropriately at work. Evidence in the record established that the Respondent was aware of the Complainant’s complaint that he was being treated differently than another employee, but the evidence did not establish that the Respondent was aware that the Complainant believed this different treatment was based on his sex. Therefore, there was no prohibited retaliation. Moller v. Metavante (LIRC, 11/13/03).

If an employer does not know that an employee has made a complaint of discrimination, it obviously cannot be motivated by such knowledge in the conduct it undertakes. Aken v. Blood Ctr. of S.E. Wis. (LIRC, 12/23/98).

To violate the prohibition against retaliation, the Respondent must have a belief that the Complainant is raising some kind of claim that discrimination is occurring. Where the Complainant in this case told management that he was getting tired about being teased about having sex with animals, this was insufficient to prove that he had made known to the Respondent that he was raising a claim of alleged sexual harassment. Matthews v. Bassett Bedding (LIRC, 10/27/93).

In order to violate the prohibition against retaliation, an employer must have a belief that the person retaliated against is raising some kind of claim that discrimination is occurring. If an employer does not have such a belief, it obviously cannot be motivated by such a belief in the conduct it undertakes. Thus, it is an essential element of a claim of retaliation that the Complainant prove that the employer was aware that the Complainant engaged in protected activities. Cangelosi v. Robert E. Larson & Assoc. (LIRC, 11/09/90).

Retaliation is conduct which the statute condemns solely because of the motivation which underlies it. The motive is anger or resentment against a person because the person has opposed a practice they believe to be discriminatory. In order to violate the prohibition against retaliation, the employer must have a belief that the person retaliated against is raising some kind of claim that discrimination is occurring. Cangelosi v. Robert E. Larson & Assoc. (LIRC, 11/09/90).

Although the Complainants were terminated at least in part for conduct in opposition to practices of their employer, they failed to prove that they had been retaliated against in violation of the Act where they failed to demonstrate that they had ever made it known that their opposition was based on their belief that the practices were discriminatory under the Act, and where the evidence demonstrated that the employer never understood the Complainants to be acting in opposition to perceived discrimination. Keller v. City of Brodhead (LIRC, 04/29/87).

A person alleging retaliation because of a previous complaint he had filed against the employer must show that he employer knew of the complaint. Acharya v. Univ. of Wisconsin (LIRC, 01/19/82).