Has the Labor & Industry Review Commission (LIRC) Effectively Created Strict Liability for Sexual Harassment Engaged in by an Owner or Supervisor?

By Victoria L. Seltun

In Jim Walter Color Separations v. LIRC and Marcy Ann Tobias, 226 Wis.2d 334 (Ct. App. 1999) the Wisconsin Court of Appeals held that an owner or agent in a position of responsibility may be liable for sexual harassment if the owner or agent engages in conduct that meets the definition of “sexual harassment,” whether or not that conduct creates a hostile work environment. In the subsequent case of Baier v. J & J Electric, (LIRC, 12/16/03), the LIRC clarified that Jim Walters did not stand for the proposition that any comment of a sexual nature made by an owner or agent of an employer is sufficient to qualify as “sexual harassment” under the Wisconsin Fair Employment Act (WFEA). The LIRC concluded that actions such as aggressive physical contact for a sexual purpose, comments evincing an interest in initiating a sexual relationship, repeated direct references to a woman’s breasts or legs, or other similar conduct are sufficient to constitute “sexual harassment.” Off-handed comments and isolated incidents, unless extremely serious, will not normally amount to discriminatory changes in terms and conditions of employment.

However, in the recently-issued cases of Sanderson v. Handi Gadgets Corp., (LIRC, 3/21/05) and Miller v. Greenfield Veterinary Clinic, (LIRC, 4/28/05), the LIRC emphasized that the WFEA definitions of “sexual harassment” differ from Title VII. The LIRC expressly rejected the affirmative defenses [(1) exercising reasonable care to prevent and correct promptly any harassing behavior; and, (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise] available to employers for supervisory harassment involving “hostile work environment” as set forth in the U.S. Supreme Court’s Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) decisions. Under the WFEA, if the harasser is the employer (owner) or an agent of the employer (supervisor), any “sexual harassment” on the owner or agent’s part is attributable to the employer. According to the LIRC’s decisions in Sanderson and Miller, there are no affirmative defenses available in these cases. The Commission noted that under the WFEA, an employer is liable for “sexual harassment” by its agent regardless of whether it addressed the matter promptly or whether the alleged victim availed himself or herself of any opportunities to complain.

Bottom line for Wisconsin employers . Even a single instance of “verbal or physical conduct of a sexual nature” by an owner or supervisor can subject the employer to liability for “sexual harassment.” The LIRC has specifically rejected its holding in Baier and has now clarified that any conduct which falls within the statutory definition of “sexual harassment” is unlawful if perpetrated by an employer or agent of the employer. The LIRC’s recent decisions highlight the importance of proper supervisory training with respect to recognizing and preventing “sexual harassment” in the workplace.

This article is intended for general informational purposes only, and should not be construed as legal advice. Always contact your legal counsel for advice or answers to your questions.