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December 1, 2011Client Alert

LIRC Issues Decision Affirming Sexual Orientation Harassment and Awarding Attorney’s Fees

After an eight year battle, the Labor and Industry Review Commission (“LIRC”) has issued a decision in Bowen v. Stroh Die Casting Co. Inc., ERD Case No. CR200301568 (LIRC October 28, 2011) affirming the administrative law judge’s conclusion that the complainant was subjected to harassment by his co-workers based upon his sexual orientation. In reaching its conclusion, LIRC relied upon events that occurred both within and outside the 300-day statute of limitations period for filing a complaint under the Wisconsin Fair Employment Act (“WFEA”) and confirmed, over the objection of the dissent, that sexual orientation harassment is a viable cause of action in the State of Wisconsin. LIRC also awarded close to $150,000 in attorney’s fees to the complainant (which was a reduction from the over $330,000 the complainant’s attorneys charged, which in turn was more than the over $260,000 the defense spent). 

 

Continuing Violation Theory Applied to the Facts

 

Although the vast majority of the acts allegedly contributing to complainant’s complaint of harassment based upon his sexual orientation occurred outside of the 300-day filing period, LIRC considered those allegations as part of a pattern of harassment. LIRC noted that application of the continuing violation theory was appropriate in this case because two or more acts that contributed to the claim of sexual orientation harassment occurred within the 300-day filing period. These acts consisted of the following:

 

  • One of the complainant's co-workers routinely referred to the complainant as "the little b**ch" or "my little b**ch."
  • In January of 2003 a co-worker brought donuts into work and, when the complainant opened the box to take one, another worker stated something to the effect of, "the pink one's for you, buddy."

Since the above acts occurred within the 300-day filing period, the following acts, which occurred over a five month period and up to seven months outside of the 300-day filing period, were also considered for purposes of determining liability: 

 

  • A co-worker commented to the complainant, during the course of an argument, that he should go ahead and call his "boy toy lawyer."
  • Someone propped a newspaper article with a picture of Liberace up against the complainant's locker.
  • Someone put a sticker on the complainant's toolbox with a picture of a hunting bull's-eye that said, "Honk If You're Gay."
  • Someone left a printed joke on the complainant's toolbox that said, "Medical authorities have announced that AIDS can be contracted through the ears by listening to a**holes."
  • Someone left a sign on the complainant's locker that said either "qu**r" or "queen."
  • A co-worker commented that the complainant and a member of management, to whom the complainant was talking, were "b**t buddies."
  • Two or more co-workers made hand gestures imitating a specific sex act that were directed at the complainant.
  • A co-worker repeatedly called the complainant "f*g."
  • A co-worker called the complainant a "m*ricon," a Spanish word for "f*g."
  • On one or more occasions several workers chanted "Rudy, Rudy" in a high-pitched voice in the presence of the complainant. Rudolph is the complainant's middle name.
  • A co-worker stated, in response to a newspaper article about homosexuals, that "all gays, qu**rs and ni**ers should be put in a big pit and shot."
  • A co-worker commented to another worker that the complainant was grumpy and that he wondered if it was because the complainant didn't get a "piece of a**" at Pride Fest.

 

An Actionable Claim and Liability Established

 

In reviewing the above events, LIRC concluded that the harassment by the co-workers was actionable under the WFEA as it was sufficiently pervasive to create a hostile working environment. LIRC also concluded that the employer was liable for the co-worker harassment because the employer knew or should have known that the complainant was being sexually harassed and/or harassed based upon his sexually orientation and failed to take appropriate remedial action. LIRC went on to state that once an employer is put on notice that an employee is being harassed, it is obligated to take remedial action whether or not it is aware of each individual allegation. The remedial action must end the harassment and deter any future harassment. 

 

LIRC determined that the employer in this case failed to take adequate steps to address the complainant's complaints and to eradicate the harassment that was occurring in its workplace.  More specifically, LIRC chided the employer for the following:

 

ACT OF HARASSMENT

EMPLOYER RESPONSE

 

Manager overhears “boy toy lawyer” taunting

 

Nothing

 

 

Complainant complains to employer about “Honk If You’re Gay” sticker

 

Supervisor asks the employee whom the supervisor suspects posted the sticker about the sticker but when the employee denies doing it, the employer lets the matter drop.

 

 

Complainant tells his supervisor about the “qu**r” or “queen” sign.

 

Supervisor tells complainant he will follow-up, but that there was not much hope of finding who did it.  Although no evidence was entered to indicate what steps the supervisor took to investigate, LIRC determined it was clear no action was taken.

 

 

Complainant submitted written complaint that identifies three co-workers.

 

Employer interviews only the three co-workers identified and when they deny harassment, no further action is taken.

 

 

Complainant complains of “Rudy, Rudy” chanting.

 

Employer questions an employee, who denies conduct.  Although employer did not find the denial credible, it took no further action.

 

 

Complainant reports to owner of the company that he was being “harassed”, without providing specifics.

 

Owner fails to ask any follow-up questions or provide any assurance that any ongoing harassment would be dealt with.  Rather, he tells complainant that if he did not like working for the company he could move on.

 

 

In affirming that the employee was subjected to harassment based upon his sexual orientation, LIRC confirmed that sexual orientation discrimination is a viable cause of action in the State of Wisconsin and that even where remedies such as back pay, reinstatement, and front pay are not in play because no wrongful termination occurred, there may be significant exposure to employers in the form of attorney’s fees. 

 

Lessons Learned

 

This case highlights the importance of:

 

  • Conducting prompt, through investigations
  • Asking follow-up questions in response to generalized complaints of harassment
  • Issuing disciplinary action, where appropriate
  • Providing employees with training on your sexual harassment policy
  • Providing your leadership team with training on recognizing and responding properly to possible complaints of harassment
  • Following up with individuals who complain of harassment to find out whether the situation had improved
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