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Wisconsin Employers Face Tough Road in Defending Sexual Harassment Claims

June 24, 2005

Wisconsin employers will confront new challenges in defending against employee sexual harassment claims as a result of the Labor and Industry Review Commission's (LIRC) June 14, 2005 decision in Sanderson v. Handi Gadgets Corp.

Prior to the Sandersonruling, the United States Supreme Court had established that an employer may escape liability for Title VII sexual harassment claims (the federal law) if it (a) exercised reasonable care to prevent and promptly correct sexual harassment; and (b) if the plaintiff unreasonably failed to take advantage of any preemptive or remedial opportunities provided by the employer. This "affirmative defense" theory is well recognized in the Seventh Circuit Court of Appeals and has been applied in both Wisconsin and Illinois district courts since 1998.

In Sanderson, however, LIRC announced that the affirmative defenses available to employers for Title VII sexual harassment claims do not apply to sexual harassment claims brought under the Wisconsin Fair Employment Act (WFEA). LIRC opined that under the WFEA, an employer is liable for sexual harassment by its agents whether or not it took affirmative steps to prevent or correct that harassment, and regardless of whether the complaining employee availed him or herself of opportunities to report the harassment to the employer.

In Sanderson, a factory worker filed a claim against her employer with the Wisconsin Equal Rights Division of the Department of Workforce Development, alleging that her line supervisor had sexually harassed her in violation of the WFEA. An administrative law judge (ALJ) ruled in favor of the defendant, and LIRC affirmed the decision on appeal. In its opinion, however, LIRC disputed the legal basis for the ALJ's decision, claiming that the affirmative defenses theory established by the Supreme Court only applied to claims brought under Title VII, not under the WFEA. Therefore, LIRC contended, Sanderson's employer had no legal right to argue any affirmative defenses to her sexual harassment claim.

Following Sanderson, the number of sexual harassment lawsuits in Wisconsin likely will increase because defendant employers can no longer avoid liability by proving they took pre-emptive or remedial steps to curtail sexual harassment in the workplace. The defenses available to employers are now limited, and consequently, it may be easier for plaintiffs to successfully prove their claims.

Sandersonunderscores the need for employers to initiate and to maintain effective, preventive training programs addressing sexual harassment issues for all employees. Management employees need to understand how their actions can create employer liability. Regular training of all employees remains an important way of minimizing employer liability.

The employment attorneys at Godfrey & Kahn welcome the opportunity to advise employers on the appropriate measures to take in developing sexual harassment training programs.

Sanderson v. Handi Gadgets Corp., ERD Case No. CR200201194 (June 14, 2005) can be found at: http://www.dwd.state.wi.us/lirc/erdecsns/775.htm.


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