152.1 Generally

Harassment based on a protected category other than sex is made unlawful through the WFEA’s prohibition against discrimination in terms, conditions, and privileges of employment. Here, the owner’s age-related comments, while inappropriate, were not shown to be threatening or humiliating, objectively or subjectively, and were not shown to have interfered with the employee’s ability to do his job, or to have altered his conditions of employment. Dent v. RJ Wood Indus., Inc. (LIRC, 03/28/14).

The Administrative Law Judge improperly denied the Complainant the right to present testimony regarding acts of alleged harassment which occurred outside of the 300-day period prior to the filing of his complaint. The complaint alleged that the Complainant had been subjected to a hostile working environment. Hostile environment claims by their very nature involve conduct which occurs over a series of days, or perhaps years. Such claims are based on the cumulative effect of individual acts. A Complainant may show a series of related acts, one or more of which are within the limitations period. A serial violation is established if the evidence indicates that the alleged acts of discrimination occurring prior to the limitations period are sufficiently related to those occurring within the limitations period. In this case, only one of the alleged incidents which the Complainant alleged created a hostile work environment occurred within the 300 days prior to the filing of his complaint. This did not, however, make his hostile work environment claim untimely. Bowen v. LIRC, 2007 WI App 45, 299 Wis. 2d 800, 730 N.W.2d 164.

The Complainant alleged that her supervisor criticized her in an angry and impatient manner, that the supervisor allegedly invited other co-workers out to lunch more frequently, that the supervisor interrupted the Complainant while she was speaking during a staff retreat; and that the supervisor did not initiate contact with the Complainant at a reception. These perceived slights, even if linked to the Complainant’s marital status, did not come close to the level of severity or pervasiveness necessary to establish harassment. Pluskota v. Alverno Coll. (LIRC, 10/21/05).

The Complainant alleged that coworkers had been harassing him by calling him a “queer.” In order for a violation with respect to the Complainant’s terms and conditions of employment to have occurred, the harassment must have been sufficiently severe or pervasive so as to have altered the conditions of his employment and created an abusive working environment. Whether or not a work environment is hostile or abusive can be determined only by looking at all of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or whether it is merely an offensive utterance; and whether it unreasonably interfered with the employee’s work performance. In this case, the alleged harassment occurred only twice. The harassment was not shown to have been physically threatening to the Complainant. Further, the alleged harassment was not shown to have been directly stated to the Complainant but was instead merely overheard by the Complainant. Accordingly, there was no probable cause to believe that the Respondent discriminated against the Complainant on the basis of sexual orientation in regard to the terms or conditions of his employment. Thompson v. Ashley Furniture Indus. (LIRC, 07/16/03).

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), aff’d sub nom. Clark v. LIRC (Milwaukee Co. Cir. Ct., 02/12/04).

As much as it is to be deplored, it is a fact that employers and their supervisors and managers sometimes act in disrespectful, insulting, hostile, or abusive ways towards employees in the workplace. With the exception of conduct which falls within the definition of sexual harassment, such conduct does not constitute a violation of the Wisconsin Fair Employment Act unless it is established that it occurred because of the protected status of the person who is being harassed. Wells v. Roadway Express (LIRC, 05/13/02).

A single incident can be sufficiently severe or pervasive to create a hostile work environment. Conduct constituting a tort claim for assault and battery is not synonymous with an actionable harassment claim, but it is a factor to consider. Further, actionable harassment may be established even though an incident did not have a significant impact on the Complainant’s work performance. The Complainant in this case established a hostile environment claim where the Complainant reasonably viewed that his physical safety was threatened by his coworker, and where the employer took no action against the coworker. Al Yasiri v. UW (Wis. Pers. Comm’n, 07/10/01).

Actionable harassment contemplates unwelcome verbal or physical conduct directed at an employee based on his or her protected status. The conduct must be pervasive and severe in order to constitute actionable harassment. Thompson v. DOC (Wis. Pers. Comm’n, 05/09/01).

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).

For harassment to be actionable, it must be so severe or pervasive as to alter the conditions of the Complainant’s employment and create an abusive working environment. The harassment also must be subjectively offensive; that is, the victim in fact must have perceived the environment to have been hostile and abusive. Where the Complainant did not take advantage of grievance procedures, and did not even indicate to the individuals making the remarks that they were offensive, it cannot be found that the Complainant in fact perceived the environment to be sufficiently hostile or abusive to be actionable. Garner v. Manpower Temp. Serv. (LIRC, 08/11/98).

A comment by the Respondent that the Complainant was a “fucking cripple” was insufficient to establish that the Respondent refused to hire the Complainant because of handicap. The comment is what is known as a “stray remark.” Standing alone, and unrelated to the decisional process, such a remark is insufficient to demonstrate that the employer relied on illegitimate criteria, even when the statement was made by the decision-maker in issue. Steffen v. Phil Tolkan Pontiac (LIRC, 06/12/97).

A claim of hostile work environment is actionable when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. If the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment. Vegas v. Golden Guernsey Dairy (LIRC, 12/17/93).

The Complainant did not prevail on a claim of harassment where he told his supervisor of one occasion on which a co-worker told him that he did not want to have anything to do with Hispanics. A single instance of a statement of this type would not rise to the level of harassment. A finding of liability on the part of the employer could not be premised on its supposed failure to take adequate action in response to once being told of one such statement. Abaunza v. Neenah Foundry (LIRC, 03/30/93), aff’d (Winnebago Co. Cir. Ct., 10/27/93).

An employer cannot be found responsible for racial or religious discrimination unless it is carried out directly by the employer or, if carried out by co-employees, the employer knows or should reasonably know of it and fails to take reasonable action to prevent it. It is also well established that the occasional and sporadic use of racial slurs, albeit deplorable, may still not rise to a level of violation of the law. Valentin v. Clear Lake Ambulance Serv. (LIRC, 02/26/92).

Slurs about an employee’s national origin which continued for a period of years constituted discriminatory working conditions even where the employee did not notify other supervisors of the remarks because the remarks were made by a management official. Polasik v. Astronautics Corp. (LIRC, 04/08/83).

An employer has no legal liability for harassment of an employee by another employee unless the employer, its supervisors or managers knew or should have known of the harassment. Crear v. LIRC, 114 Wis. 2d 537, 339 N.W.2d 350 (Ct. App. 1983).