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Two recent Wisconsin Labor and Industry Review Commission (LIRC) cases have increased the risk of employer liability for sexual harassment by a supervisor, regardless of the employer’s efforts to prevent and correct such harassment.
Sanderson v. Handi Gadgets Corp.
In Sanderson v. Handi Gadgets Corp., (LIRC March 31, 2005), LIRC held that, under the Wisconsin Fair Employment Act, employers cannot assert the affirmative defense that no tangible employment action occurred. The U.S. Supreme Court supported this defense in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
Employers have been encouraged under the Ellerth-Faragher affirmative defense to avoid liability under Title VII when a supervisor has created a hostile work environment that has not resulted in a tangible employment action. Accordingly, companies have developed anti-harassment policies and grievance mechanisms. The affirmative defense permits an employer to avoid liability if it can prove: (a) it exercised reasonable care to prevent and correct any sexually harassing behavior; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or otherwise to avoid harm. Liability can be prevented, for example, if an employer has a sexual harassment policy that encourages reports of suspected harassment and the alleged victim never reports the alleged harassment.
LIRC had to reject its own precedent to conclude the affirmative defense does not apply. In prior cases, LIRC had discussed the Ellerth-Faragher affirmative defense as though it applied under the Fair Employment Act and had remanded a case so that an Administrative Law Judge (ALJ) could apply it. Baier v. J & J Electric, (LIRC
December 16, 2003
).
Miller v.
Greenfield
Veterinary Clinic
In Miller v.
Greenfield
Veterinary Clinic, (LIRC
April 28, 2005
), LIRC rejected prior precedent on the question of what conduct is necessary to establish sexual harassment by owners and supervisors.
In an earlier case, Baier v. J & J Electric, (LIRC
December 16, 2003
), the complainant, Baier, had argued that the conduct of an alleged harassing supervisor constituted unlawful sexual harassment. Tobias v. Jim Walters Color Separations, (LIRC August 13, 1997) aff’d Jim Walters Color Separations v. LIRC, 226 Wis. 2d 334 (1999) had held that conduct by an owner of a business constituted unlawful sexual harassment regardless of whether the conduct rose to the level that would be required to prove a hostile work environment. LIRC rejected Baier’s argument that “any comment of a sexual nature made by an owner or an agent of an employer is sufficient to qualify as harassment under the” Fair Employment Act. LIRC recognized that under Jim Walters, conduct by a supervisor need not reach the level of a hostile work environment; but LIRC held that to establish liability, the harassment must be "similar" to that required for a hostile work environment. In reaching this conclusion in Baier, LIRC reviewed a number of cases in which it had held that repeated conduct by a supervisor had not constituted unlawful sexual harassment.
But in Miller, LIRC rejected Baier, saying that in Sanderson v. Handi Gadgets, it had "clarified" that "any conduct that falls within the definition of sexual harassment is unlawful if perpetrated by an employer or agent of the employer." Thus, LIRC could potentially find unlawful sexual harassment based on even one sexually offensive comment by a supervisor.
The Sanderson and Miller decisions favor employees when compared with precedent that applies to similar facts under federal law. Under Title VII, employers can assert the Ellerth-Faragher affirmative defense and the employee must establish the alleged harassment was sufficiently severe or pervasive to establish a hostile work environment. These recent LIRC cases may result in more alleged victims of supervisor harassment pursuing their claims because LIRC has made it easier for employees to establish liability under the Wisconsin Fair Employment Act. Accordingly, employers may want to take additional measures, such as sexual harassment training, to prevent their supervisors from engaging in harassing conduct.
For more information about sexual harassment training or for information about our pocket-sized, 21 page Sexual Harassment: A Handbook for Supervisors, please contact our educational services department at (414)423-1330.
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