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Important Wisconsin Court Case Recently Decided

Winter 1999

The decision in Jim Walter Color Separations v. Labor and Industry Review Commission substantially increases employers' risks of sexual harassment liability in Wisconsin and the likelihood of sexual harassment litigation. As a result of this decision, employers could be held liable for jokes and physical contacts which do not create a hostile work environment.

The prohibition against sexual harassment in the workplace is the creation of both federal and state law. Title VII of the federal Civil Rights Act of 1964 prohibits sex discrimination. The United States Supreme Court has concluded that sexual harassment can be a form of sex discrimination which violates the civil rights protections afforded by Title VII. Employers who violate Title VII's sexual harassment prohibitions can be required to reinstate an employee who has left; provide front-pay where reinstatement is impractical; provide back-pay representing lost wages and benefits; pay compensatory and punitive damages in an amount, depending on the size of the employer, between $50,000 and $300,000; and pay for the plaintiff's attorney's fees.

The federal courts have identified two forms of sexual harassment: (1) quid pro quo harassment where submission to demands for sexual favors is implicitly or explicitly made a condition of employment; and (2) hostile environment claims where an act or acts of sexual harassment substantially interfere with an individual's work environment.

In defining the latter form of sexual harassment, federal courts increasingly have been taking a tough stance, requiring the sexually harassing conduct to be particularly offensive or repeated before an actionable hostile work environment will be found. This past summer, the United States Supreme Court cautioned that the federal prohibition against sexually hostile work environments should not be interpreted as "a general civility code." For this reason, a Wisconsin federal court concluded that acts which included the following fell short of creating an actionable sexually hostile work environment: (1) "once, when [complainant] was wearing a leather skirt, he made a grunting sound that sounded like 'um um um' as she turned to leave his office"; (2) "once when she commented on how hot his office was, he raised his eyebrows and said, 'not until you stepped your foot in here'"; (3) advised the complainant that when the public address system sounded, it meant that "all pretty girls [should] run around naked"; and (4) made gestures in front of the complainant which suggested masturbation.

Implications of Case
The Jim Walter Color Separations case recognizes a third type of sexual harassment claim - one not recognized under federal law. In Jim Walter Color Separations, supervisory employees engaged in inappropriate, unprofessional conduct respecting the plaintiff which fell short of creating a hostile work environment. For example, the supervisors were alleged to have, among other things: (1) attempted to kiss the plaintiff; (2) referred to plaintiff's sweatshirt with zippers as her "breast feeding sweatshirt"; (3) slapped plaintiff on the rear; and (4) tossed a popcorn kernel down the front of plaintiff's shirt. The Wisconsin Department of Workforce Development and courts concluded that these facts did not create an actionable sexually hostile work environment.

Nonetheless, the Wisconsin Court of Appeals held the employer liable for violating Wisconsin's prohibition against sexual harassment. The court concluded that when an employer's owners or supervisory employees engage in "unwelcome physical contact of a sexual nature" or "unwelcome verbal or physical conduct of a sexual nature," sexual harassment liability can be established even when these actions do not create a hostile work environment. Liability for unwelcome physical contact or verbal or physical conduct of a sexual nature can be established even if the offensive conduct is isolated and not repeated. This view could turn Wisconsin's Fair Employment Act into the "general civility code" rejected under federal law by the United States Supreme Court.

If this decision is not reversed by the Wisconsin Supreme Court, it substantially lowers the bar for a plaintiff seeking to hold employers liable for sexual harassment. Even an employee who suffered no financial loss as a result of such comment could saddle the employer with a substantial liability for his/her attorney's fees.

Under federal law, employers can avoid liability for sexual harassment if verbal or physical conduct or contact is not severe. For example, if a supervisor tells a dirty joke in the workplace and it prompts a complaint, the employer can warn the employee, provide training, and avoid liability for that situation. This appears no longer to be the case in Wisconsin.

Under these circumstances, prevention of sexual harassment is the only remaining employer option for avoiding liability for sexual harassment under state law. At a minimum, we suggest that supervisor and employee training is essential. In addition, harassment policies should be reviewed and, where appropriate, revised. Tougher stances regarding sexual remarks and innuendoes in the workplace is also essential in Wisconsin. Now that a sexual joke which does not establish a hostile work environment can be the basis for liability, employers cannot tolerate even mild sexual humor or content in the workplace.

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