152.2 Harassment because of creed

[See also sec. 126.5]

An employer cannot be held responsible for racial or religious harassment unless the harassment is carried out directly by the employer or (if carried out by co-employees of the Complainant) the employer knew or should reasonably have known of the harassment and failed to take reasonable action to prevent it. Acevedo v. Oshkosh Corp. (LIRC, 03/29/12).

The Commission does not have to address the issue of whether interpreting the Wisconsin Fair Employment Act as prohibiting harassment of employees because of religion would violate the first amendment free speech rights of the harasser because there was no unlawful harassment in this particular case. Catley v. Benjamin Air Rifle Co. (LIRC, 06/21/91).

An employer can violate the Wisconsin Fair Employment Act’s prohibition on discrimination because of creed if it either engages directly in religious harassment of an employee (through its management or supervisory personnel) or if it tolerates religious harassment of an employee by co-workers. However, in order to constitute a violation of the Act, harassment must rise above the level of occasional and sporadic use of slurs or epithets. In this case there was some evidence of hostility directed toward the Complainant, whose creed is WICCA, by her co-workers. In some instances, the Complainant’s self-identification as a witch was referred to. However, the inconsistencies in the Complainant’s evidence as to the extent of this type of conduct and her general lack of credibility left no basis for deciding how extensive that conduct may have been. The Complainant, therefore, failed to meet her burden of proving that she was subject to religious harassment that rose to a level of a violation of the Act. Catley v. Benjamin Air Rifle Co. (LIRC, 06/21/91).