622.1 General considerations

The McDonnell-Douglas method of proving discrimination was not meant to be inflexible. Sometimes a Complainant cannot identify similarly-situated employees. However, the Complainant may show that the circumstances surrounding the adverse action indicate that it is more likely than not that his protected status was the reason for it (rather than establishing that the Complainant was treated less favorably than a similarly-situated person not in the protected class). Williams v. All Saints Healthcare Sys. (LIRC, 08/14/09).

The Complainant alleged that his discharge was based upon race and that, had he been a white employee, he would not have been discharged for engaging in the same conduct. In support of this assertion, the Complainant attempted to present comparative evidence showing that white employees had engaged in serious misconduct with lesser disciplinary consequences. Comparative evidence is relevant in a disparate treatment case, and the appropriate question is not whether such evidence is admissible, but how much weight it should be given. The Respondent’s belief that the workers to whom the Complainant compared himself were distinguishable from the Complainant went to the strength of the Complainant’s pretext argument. It was not, however, a proper basis for excluding the evidence from the record. Arvin v. C & D Technologies (LIRC, 10/31/08).

In reviewing disparate treatment claims it is appropriate to utilize the burden-shifting method of analysis originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that analysis, first the Complainant has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. Second, if the Complainant succeeds in proving the prima facie case, the burden shifts to the Respondent to articulate some legitimate, non-discriminatory reason for the employee’s rejection. Third, should the Respondent carry this burden, the Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Respondent were not its true reasons, but were a pretext for discrimination. (Citing Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981)). Josellis v. Pace Indus. (LIRC, 08/31/04).

It is not adequate for a Complainant to present evidence which simply raises the suggestion or the possibility that a prohibited motivation was at work. A Complainant bears the burden of demonstrating by a preponderance of the evidence that the Respondent’s actions were based upon prohibited factors. Connor v. Heckel’s, Inc. (LIRC, 09/27/99).

Discriminatory intent is an element of a disparate treatment case under the Wisconsin Fair Employment Act. Discriminatory intent can be inferred using the McDonnell-Douglas standard. Eleby v. Meriter Retirement Services (LIRC, 08/28/97).

Discrimination cases are frequently based upon circumstantial evidence. Circumstantial evidence is often stronger and more satisfactory than direct evidence. Novick v. ABQC Corp. (LIRC, 02/26/97).

While comparative evidence can be material in a discrimination case, the fact that a Respondent did not discharge everybody in the protected class does not mean it did not discriminate against a particular Complainant. Schneider v. Stoughton Trailers (LIRC, 02/24/95).

Irrespective of sec. 903.01, Stats., relating to presumptions, the Respondent’s burden in a case arising under the Wisconsin Fair Employment Act is one of production, rather than persuasion. It is for the Complainant to establish by a preponderance of the evidence that the Respondent's actions were based upon prohibited factors. Lowe v. City of Appleton (LIRC, 01/11/95).

Where the employer has articulated a legitimate nondiscriminatory reason for failing to hire a Complainant, whether the Complainant made out a prima facie case is no longer relevant; the only issue that remains is the ultimate factual dispute of whether the employer intentionally discriminated against the Complainant. Kurtz v. Sch. Dist. of St. Croix Falls (LIRC, 06/10/93).

The prima facie case method established in McDonnell-Douglas was never intended to be rigid, mechanized or ritualistic. Rather it is merely a sensible, orderly way to evaluate the evidence in light of common experience. Gentilli v. Badger Coaches (LIRC, 07/12/90), aff’d sub nom. Gentilli v. LIRC, (Dane Co. Cir. Ct., 01/15/91).

Where the Respondent’s asserted non-discriminatory reasons for its action are put into the record during the Complainant’s case, the question of whether a prima facie case has been proven falls away and the inquiry proceeds to the ultimate issue of whether the Respondent has violated the Act. Duarte-Vestar v. Goodwill Indus. (LIRC, 11/09/90).

The prima facie case method established in McDonnell-Douglas v. Green was not intended to be rigid, mechanized or ritualistic. The parties may develop their record without adhering to the prima facie case method. A Complainant can prove discrimination by direct or circumstantial evidence or by making the required showing under McDonnell-Douglas. Kumph v. LIRC (Ct. App., Dist. IV, unpublished opinion, 02/23/89).

When the ultimate issue of whether the Act was violated is reached, the question of whether a prima facie case of discrimination has been established is no longer important. Mouncil v. Pepsi Cola (LIRC, 02/16/89).

Where the Respondent has done everything that would be required of it if the Complainant had properly made out a prima facie case, whether the Complainant really did so is no longer relevant. The question in such cases is whether or not the Complainant proved that the Respondent's proffered reasons were merely a pretext. Schenck v. Northwest Fabrics (LIRC, 02/20/87).

The Wisconsin Fair Employment Act does not provide a specific procedure by which a Complainant must prove a charge of discrimination. Accordingly, state courts have looked to federal court decisions involving Title VII for guidance in interpreting the Fair Employment Act; citing Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (1985). Wilbert v. City of Sheboygan (LIRC, 04/15/86).

Where the Respondent fails to persuade the examiner to dismiss the complaint for lack of a prima facie case at the close of the Complainant’s case in chief, and then responds to the Complainant’s proof by offering evidence of the reason for the Complainant’s rejection, the prima facie case analysis is no longer relevant. The question then becomes whether the Complainant has proved by a preponderance of the evidence that the legitimate reasons offered by the Respondent were not its true reasons, but were a pretext for discrimination. Lyckberg v. First Realty Group (LIRC, 09/25/85).

The ultimate burden of persuading the trier of fact of sex discrimination remains at all times with the Complainant. The employer’s burden is satisfied if it simply explains what has been done or produces evidence of legitimate, nondiscriminatory reasons. The employee must then show directly that a discriminatory reason is the more likely explanation, or show indirectly that the employer’s explanation is unworthy of credence and therefore a pretext for discrimination. Warnke v. DHSS (Dane Co. Cir. Ct., 09/22/81); Miller v. Sch. Dist. of Manawa (LIRC, 02/24/82).

The U.S. Supreme Court has clarified the burden and order of proof in discriminatory treatment cases in Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981). First, the employee has the burden of proving a prima facie case. Second, if the employee succeeds, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the employee's rejection. Third, the employee must then prove that those reasons were either not true or a pretext for discrimination. Henry v. Andrews Roofing & Siding (LIRC, 11/20/81), aff’d sub nom. Henry v. LIRC (Fond du Lac Co. Cir. Ct., 11/11/82); Anderson v. UW-Whitewater (LIRC, 12/03/80), aff’d sub nom. UW-Whitewater v. LIRC (Dane Co. Cir. Ct., 07/03/81).

Because the question of the order and nature of proof in sex discrimination cases has not been addressed by the Wisconsin Supreme Court, the Wisconsin courts generally, and DILHR consistently, have applied the standards developed by the federal courts in Title VII actions as set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). Waukesha Pub. Sch. v. DILHR (Coulson) (Dane Co. Cir. Ct., 07/06/78).