220-240 Prohibited Bases of Employment Discrimination

220 Age Discrimination

220.1 Coverage, Exceptions

220.11 Lower Age Limit

220.12 Upper Age Limit

Complainant was ostensibly terminated for acquiring property from her employer with an IOU, which violated store policy regarding payment of the full purchase price. Although other employees were involved in the transaction, Complainant--who was more than ten years older than her coworkers--was the only employee disciplined. Respondent maintained that Complainant was actually terminated for shopping on the clock, but the fact that Complainant alone was disciplined, while younger coworkers were spared, was sufficient to demonstrate age discrimination. Gardner v. Wal-Mart Vision Center, MEOC Case No. 22637 (Ex. Dec. 6/3/01).

The Hearing Examiner found that the Complainant had failed to meet her burden of proof on either claim of discrimination and therefore dismissed the complaint. The Complainant contended that the Respondent had discriminated against her on the basis of her age (she was approximately 15 years older than most of her coworkers) and on the basis of race by association (she had befriended one of the few African-American assembly workers). Schulz v. Ultratec, Inc., MEOC Case No. 21584 (Ex. Dec. 9/2/94).

220.13 Hazardous Occupations

220.14 Preemption

The Madison Equal Opportunities Commission may not interpret municipal statutes such as the Madison Equal Opportunities Ordinance cannot provide remedies that conflict with remedies provided under state or federal law. Municipal ordinances may not preempt state regulation in the same area. Hovde v. Equal Opportunities Commission of the City of Madison, 00 CV 0803 (Dane County Cir. Ct. 2/20/01).

Respondents moved to dismiss an allegation of discrimination on the basis of political beliefs (unlawful interference with unionization efforts) based on preemption by the National Labor Relations Act (NLRA). The Hearing Examiner granted Respondents' motion, applying the Supremacy Clause of the U.S. Constitution and well-settled federal law on preemption. The Hearing Examiner recognized that, had the Complainant's political beliefs been limited to vocal support for the idea of a union, it is possible that the Hearing Examiner would not find preemption. One key difference between the NLRA and the ordinance appears to exist along the line of activity as opposed to thought. Zitnick v. Capitol Lakes, MEOC Case No. 20092085 (Ex. Dec. 3/2/10).

The Respondent argued that the Federal Arbitration Act requires the Madison Department of Civil Rights, Equal Opportunities Division to either dismiss or stay the Complainant's allegations of age discrimination and retaliation. The Respondent requested that the Hearing Examiner order the parties to submit to mediation and arbitration pursuant to the Respondent's Employee Dispute Resolution Plan. The Hearing Examiner found that the Plan constituted a valid agreement to resolve disputes arising under the Plan and that it was neither procedurally nor substantively unconscionable. Thus, the Hearing Examiner ordered the parties to submit to mediation and arbitration. However, the Hearing Examiner stayed rather than dismissed the case to ensure that the Complainant had a forum available for review of the arbitrator's decision. Witten v. Firestone Complete Auto Care, MEOC Case No. 20092026 (Ex. Dec. 9/8/10).

In a case involving allegations of retaliation for the exercise of a right protected by the ordinance, the Respondent, a school district, moved to dismiss the complaint for lack of subject matter jurisdiction. The Respondent's contentions supporting dismissal fall into three general assertions. First, the Respondent argues that matters of employment, such as hiring and firing personnel, are matters of state wide concern and therefore such matters are beyond the purview of the city's local equal opportunities ordinance. Second, the Respondent maintains that it is an agent of the state and as such it is not subject to the Equal Opportunities Division's (EOD) jurisdiction. Third, the Respondent contends that, even if the EOD has jurisdiction, a recently enacted state law expressly divests the EOD of the authority to award compensatory or punitive damages against a school district. The Hearing Examiner found that the issue of employment discrimination constitutes both a statewide and a local concern. Since the Respondent failed to demonstrate a discernible conflict of laws, the Hearing Examiner concluded that the EOD is permitted to enforce the ordinance. In addition, while conceding that the EOD is without jurisdiction to issue punitive damages awards, the Hearing Examiner found that state law neither expressly nor impliedly withdraws power from the EOD to issue an award of compensatory damages against a school district. Rhyne v. Madison Metropolitan School District, MEOC Case No. 20092030 (Ex. Dec. 06/09/11).

In this matter, the Respondent filed a motion similar to that which it filed in Rhyne v. Madison Metropolitan School District, MEOC Case No. 20092030 (Ex. Dec. 6/9/11). In addition to the grounds stated in the earlier motion, in the present matter, the Respondent contended that the Consent Decree entered in State ex rel. Area Vocational, Technical and Adult Education District No. 4, by its Board v. Equal Opportunities Commission of the City of Madison (the MATC case) required similar treatment of the Respondent. The Hearing Examiner incorporated by reference his decision in Rhyne and found that the Respondent's argument concerning the Consent Decree in the MATC case was inadequate to deprive the Madison Department of Civil Rights, Equal Opportunities Division of jurisdiction in this matter. Specifically, there is no evidence of what motivated the parties to enter into the Consent Decree and the Respondent posited only a superficial similarity between it and the MATC. Accordingly, the Hearing Examiner dismissed the Respondent's motion. Banks v. Madison Metropolitan School District, MEOC Case No. 20102172 (Ex. Dec. 8/3/11).

Respondent sought to have complaint alleging discrimination on the basis of conviction record in failing or refusing to hire or wrongful termination of employment dismissed for a lack of jurisdiction because of preemption of state statutes relating to the licensing of private security guards. (Wis. Stats. Sec. 440.2) Respondent argued that state licensing guidelines (which place no time limits on conviction record) override the Madison Equal Opportunity Ordinance, which stipulates that only conviction records within the last three years and substantially related to job duties may be considered by the employer. In the present matter, the conviction occurred well outside of the three-year period specified in the ordinance. Permits to become a private security person in Wisconsin are issued by the Department of Safety and Professional Services (DSPS), which is to apply the standards of the Wisconsin Fair Employment Act (FEA) (Wis. Stats. Secs. 111.31-111.395) requiring a determination that a conviction is substantially related to the duties of the job. As there is nothing in the record indicating that there has been any actual application of Wis. Stats. Sec. 440.26 to the facts in this matter, and, absent some determination on the part of the Department (DSPS), the Hearing Examiner finds that it is not possible to determine whether the Complainant was lawfully barred from employment by action of state law. Further, as the ordinance recognizes as a limitation convictions that prohibit an individual from obtaining required licenses, it does not appear that the ordinance would conflict with the provisions of Wis. Stats. Sec. 440.26 regardless of the time frame stated in either the FEA or the ordinance with respect to the conviction in question in this complaint. Respondent's motion to dismiss is denied. Barry v. Total Security Mgmt., MEOC Case No. 20122076 (Ex. Dec. 11/27/2012).

After the Investigator/Conciliator issued an Initial Determination of probable cause that the Respondent had discriminated against Complainant in employment on the basis of his conviction record, and attempts at conciliation failed, the matter was transferred to the Hearing Examiner for further proceedings.

At the Pre-Hearing Conference, the Complainant indicated that he wanted to file for judgment of the pleading based on the existing record, and shortly thereafter filed further supportive materials. Respondent filed both a response to Complainant and a request for dismissal of the complaint due to lack of standing. The Hearing Examiner dismissed both motions.

Complainant's request is based on the procedures of the Wisconsin Department of Workforce Development (DWD) Equal Rights Division (ERD), whose processes and procedures are entirely inapplicable to complaints filed with the Department of Civil Rights. Provisions of the Wisconsin Fair Employment Act Wis. Stats. 111.30 et seq. do not mandate any particular outcome for a complaint filed under the Madison Equal Opportunities Ordinance. Case law developed under different statutes may be useful in assisting a decision maker to the extent that similar purposes and similar language may be helpful in enlightening interpretation of a piece of legislation, but for the most part, decisions interpreting different laws do not have binding results on the interpretation of a law at different level of government. See McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W. 830 (Ct. App. 1988).

Respondent's motion is framed as a motion to dismiss due to Complainant's lack of standing because the record does not demonstrate that Complainant actually applied for employment, but given Respondent's arguments which address the sufficiency of the arguments in the record rather than the Department's jurisdiction, the Hearing Examiner sees the Respondent's motion as one for summary judgment. Respondent contends that the Initial Determination of probable cause was erroneous and that a hearing should not be required. The Rules of the Equal Opportunities Commission at rule 5.21 make clear that only a finding of no probable cause is appealable. The rules are structured in this manner to protect the due process rights of both parties, in that the Complainant has the opportunity to challenge a finding of no probable cause that would otherwise dispose of the Complainant's interests, while the Respondent's rights are protected by assuring it the right to defend itself at a hearing.

The Hearing Examiner treated both requests as forms of motion for summary judgment, and informed both parties that the Commission did not accept motions for summary judgment unless they go to the jurisdiction of the Department. This has been the position of the Department as far back as 1989. In the case of Rhone v. Marquip, MEOC Case No. 20967 (Ex. Dec. on summary judgment 04/05/89), the Hearing Examiner found that the Rules of the Equal Opportunities Commission state a preference to hearing once a complaint has been certified to hearing, and told the Complainant who had moved for summary judgment that such motions were not available. The Rhone decision has been followed by subsequent Hearing Examiners. See Vivas v. Summit Credit Union, MEOC Case No. 20112019 (Ex. Dec. 05/09/12, Ex. Dec. on jurisdiction 05/09/12).

The Hearing Examiner found no merit in either party's motion, and proceeded to hearing. Jackson v. Ruan Transportation, MEOC Case No. 20122079 (Ex. Dec. on liability: 02/26/2013, Ex. Dec. on summary judgment: 01/04/2013).

220.2 Hire

It was not age discrimination to select a younger job applicant over a 35-year-old with more experience because: (1) the job involved team teaching and the principal who made the hiring decision believed, based on information in the complainant's employment pool interview summary, that the younger teacher could interact more favorably with other faculty members; (2) the younger teacher was multilingual (as required by one of the job specifications) and had spent more time overseas than the complainant; and (3) the employer had hired at least 20 teachers at or above the complainant's experience level, including some recommended by the same principal who was involved in this case. Lazar v. Madison Metro. Sch. Dist., MEOC Case No. 2472 (Comm. Dec. 6/26/81, Ex. Dec. 12/16/80).

Although a job applicant's training and experience clearly exceeded that of the individual, who was hired, the employer's concerns about the applicant's working relations with the staff and her telephone manner justified its decision not to hire her as a telephone communications coordinator. Strachan v. Independent Living, No. 2778 (Ex. Dec. 8/24/82).

A complainant established a prima facie case of age discrimination by showing that (1) s/he was 18 years of age or older, (2) s/he applied for or worked at a job for which s/he was qualified, (3) s/he was affected by an adverse employment decision, and (4) the employer continued to seek applicants with her qualifications; . . . but these elements may be altered to fit each particular case (e.g., where the job is abolished after a complainant's discharge); . . .and a complainant need only show that age was a causative or determinative factor. State Medical Society v. MEOC (May), No. 82-CV-2560 (Dane County Cir. Ct., 3/2/83).

Where one of the complainant's own references said that the complainant (while extremely competent, very well educated and very well qualified) had interpersonal problems getting along with people and working well with people, the complainant was unable to show that the employer's belief that the younger applicant it hired could get along better with co-workers and others was a pretext for age discrimination. Lindas v. MATC, MEOC Case No. 20256 (Ex. Dec. 3/11/85).

The Respondent discriminated against the Complainant, an Asian-American woman, on the basis of her race by failing or refusing to hire her. The Complainant applied for a position as bus person but was not hired whereas persons of other races were hired during the same time frame. [Complainant's claim of discrimination on the basis of national origin failed because she presented no evidence that the Respondent knew that she was a Korean American] The Respondent was ordered to cease and desist from discriminating against the Complainant and other prospective employees. The Complainant was awarded $2,939.00 in back pay, $750.00 in emotional damages, attorney's fees and costs. Chung v. Paisans, MEOC Case No. 21192 (Ex. Dec. on liability 2/10/93, on attorney's fees 7/29/93 and 9/23/93).

One way to establish the causal connection of the Respondent’s failure to hire to the Complainant’s membership in a protected class is to examine whether the candidate hired was someone less qualified, someone not within the protected class, or that the employer treated a similarly situated candidate not in the protected class more favorably. Llanos v. Wisconsin Women's Business Initiative, MEOD Case No. 20142060/EEOC Case No. 2B201400032.

Given that the Complainant met more of the posted job requirements, and that the Respondent seemed to minimize the experience and education of the Complainant, and given the difference in ages of the successful candidate, combined create a strong inference of discrimination. Llanos v. Wisconsin Women's Business Initiative, MEOD Case No. 20142060/EEOC Case No. 2B201400032.

220.3 Compensation, Benefits

220.4 Conditions of Employment

A Black, African-American Complainant approximately 45 years of age claimed she was discriminated against on the basis of her race, color, and age when she was disciplined, and shortly afterwards terminated, by Respondent. The Hearing Examiner finds that under the circumstances as disclosed in the testimony of the parties, the Respondent's directive to the Complainant to leave for the rest of the day did not constitute discipline, but was an attempt to regain control over a difficult situation. Finding that the directive did not constitute discipline, the Complainant's allegations that she was disciplined on the basis of her race, color or age are not proved and are dismissed. Johnson v. Hy-Vee, MEOC Case No. 20142051 (Ex. Dec. 06/15/2016).

The Complainant states that during the Complainant's layoff a supervisor indicated that the Complainant either was old or was getting to the point in life where perhaps he wanted to slow down. The hire of a younger male during the period of the Complainant's layoff creates an inference that the Complainant's age played some role in either his layoff or his continued layoff after the hire. This inference is sufficiently strong to warrant a finding that the Complainant has made out a prima facie claim of age discrimination.

The Respondent in order to overcome the Complainant's initial demonstration of a prima facie claim must set forth one or more legitimate, nondiscriminatory reasons for its taking the allegedly discriminatory action. Given the economics of the trucking business, and Complainant's rudeness, use of profanity, and frequent unavailability, the Respondent's decision to allow a woman, and eventually, a younger man, to operate trucks while keeping the Complainant as a reserve driver represents a legitimate, nondiscriminatory explanation for its actions.

The Complainant can overcome the Respondent's proffer by presenting evidence to show that the explanation presented by the Respondent is either not credible or represents a pretext for an otherwise discriminatory motive. The Hearing Examiner cannot find that the Complainant has carried his burden to show a lack of credibility on the part of the Respondent or that the proffered reason of the Respondent represents a pretext for an otherwise discriminatory explanation. Wales v. Affiliated Carriage Systems Inc., MEOC Case No. 20122017 (Ex. Dec. 07/11/2016).

Complainant’s layoff was not discriminatory despite her seniority and a Layoff Policy as outlined in the Respondent’s Employee Handbook. Respondent’s budgetary reasons for laying off the Complainant as opposed to the two employees that absorbed her job duties was a legitimate business reason for the layoff. Syverud v. Journey Mental Health Center, MEOD Case No. 20142170/EEOC Case No. 26B201500005.

220.5 Termination-Age

A 61-year-old employee did not prove age discrimination where he was unable to perform essential lifting duties required of the job. Wopat v. St. Vincent de Paul Society, MEOC Case No. 2551 (Ex. Dec. 10/7/80).

Although an employee's new supervisor had never specifically warned her, either verbally or in writing, of any particular deficiencies regarding three workplace incidents or any other reservations he might have had about her attitude or work performance, the employee nevertheless failed to prove that the employer's articulated reasons for her discharge were a pretext for age discrimination; while her discharge without warning after approximately six years of service in the dining facility was a questionable employment practice, the complainant failed to show it was discriminatory. Starin v. Elks Club, MEOC Case No. 2871 (Ex. Dec. 9/14/82).

A 49-year-old woman manager who was abruptly terminated from her job and replaced by a younger woman failed to show the employer's articulated reasons were a pretext for age discrimination. The complainant failed to persuasively show that her male supervisor, who had previously promoted her, was engaged in a "youth movement" aimed at eliminating older women managers or that he replaced her because he was having an intimate relationship with the younger woman who succeeded her. Stenbroten v. Wis. Dairy Herd Improvement Coop, MEOC Case No. 2849 (Comm. Dec. 11/30/84, Ex. Dec. 6/1/84).

A 56-year-old coordinator showed that her age was a determining factor in the elimination of her position by establishing that: (1) her supervisor had expressed displeasure with her age; (2) alternate work was found for younger employees not performing as well as she; (3) she was not considered for other available positions; and (4) another employee over 40 was "laid off" and later replaced by someone younger. State Medical Society v. MEOC (May), supra.

The Hearing Examiner found the Complainant was terminated because she failed to meet four of six entry level requirements for her position, rather than because of her age. Moreover, the Complainant had been disciplined several times without improvement in her performance. The Commission affirmed. On the Complainant's appeal, the City's motion for declaratory judgment was granted when the Court found that it was the Complainant's poor work performance that resulted in dismissal. Gathing v. YMCA of Metropolitan Madison, Inc., & East YMCA of Madison, MEOC Case No. 21198 (Comm. Dec. 1/9/92, Ex. Dec. 7/11/91). Nancy Gathing v. Madison Equal Opportunities Commission, et al., 92 CV 0677 (Dane County Cir. Ct. 3/16/93).

Complainant, a fifty-eight (58) year old female who was terminated, filed a claim of discrimination against Respondent based on age and sex in regards to terms and conditions of employment and termination of employment. The Hearing Examiner concluded Respondent had discriminated against Complainant because her supervisor was overheard making disparaging comments relating to Complainant's age and because statistics indicated that the Respondent overwhelmingly promoted, hired and transferred individuals who were 35 years and under.

The Hearing Examiner did not find that Respondent discriminated against Complainant because of her sex despite Complainant's ability to establish a prima facie case. This was because statistics for promotions and terminations relating to sex were not as probative as compared to the age discrimination statistics. May v. State Medical Society, MEOC Case No. 2584 (Comm. Dec. 4/21/82, Ex. Dec. 10/20/81) See Painters Union Local 802 v. Madison Newspapers Inc.

Complainant claimed that she was terminated because of her age. She was sixty-two when Respondent terminated her employment. Complainant established that she was never disciplined for poor performance, that management-level employees, including the company president, had made derogatory remarks about her age, weight and appearance, and that she was replaced with someone much younger. Noting that Complainant only needed to show that age partly motivated her termination, the Hearing Examiner found that Respondent had discriminated against Complainant. Respondent offered one nondiscriminatory explanation-poor job performance-but this explanation was not entirely credible. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

A Black, African-American Complainant approximately 45 years of age claimed she was discriminated against on the basis of her race, color, and age when she was terminated by Respondent. It is the Complainant's burden to establish discrimination by the greater weight of the credible evidence. Given the differences in testimony and without compelling evidence to support either side's version, the Hearing Examiner must conclude that the Complainant has failed to meet her burden of proof to show a causal connection between her membership in her protected classes and her termination. Johnson v. Hy-Vee, MEOC Case No. 20142051 (Ex. Dec. 06/15/2016).

The Complainant was discriminated against on the basis of age when a younger, less qualified, female employee was retained and assumed the Complainant’s role in a combined position. The Respondent’s implication that the Complainant was not competent or well liked was not supported in the record. Plummer v. CUNA Mutual Group, MEOD Case Nos. 20092108, 20102067/EEOC Case Nos. 26B200900051, 26B201000034.

220.9 Miscellaneous

Due to a glitch in a computer system accepting applications for open positions, the Complainant’s application was not timely submitted, and another candidate, being the only one to have timely submitted an application, was hired. The Respondent’s hiring of that candidate on the belief that they were the only one to have applied, represented a legitimate, non-discriminatory reason to have not hired the Complainant. The Complainant failed to demonstrate that the explanation was not credible or represented pretext for discriminatory intent. Plummer v. CUNA Mutual Group, MEOD Case Nos. 20092108, 20102067/EEOC Case Nos. 26B200900051, 26B201000034.

221 Arrest or Conviction Record Discrimination

221.1 Coverage, Exceptions

The Complainant claimed that the Respondent's refusal to issue a policy for auto insurance was based on his previous arrest record. On Respondent's motion to dismiss, the Hearing Examiner found the Commission to be without jurisdiction, and dismissed the complaint. Hieb v. American Standard, MEOC Case No. 3255 (Comm. Dec. 12/3/92, Ex. Dec. 3/11/92).

Where the Respondent moved to dismiss the complaint for lack of jurisdiction alleging the Commission is without jurisdiction to address the allegation of conviction record discrimination because the Commission is preempted by state and federal law, the Examiner ruled that although not preempted by the Wisconsin Fair Employment Act, the Ordinance was preempted by the applicable federal statute that automatically disqualified an individual from employment who had been convicted of a crime involving injury to another person. Respondent provides physical and related care of elderly and/or developmentally disabled persons. Complainant was convicted of second degree sexual assault stemming from an allegedly consensual sexual relationship with a 15-year-old male. Pagel v. Elder Care of Dane County, MEOC Case No. 22442 (Ex. Dec. 10/31/96).

Following a hearing at which the Respondent did not appear, the Hearing Examiner determined that the Respondent wrongfully terminated the Complainant from employment based upon a felony more than three years after conviction. The Hearing Examiner ordered the Respondent to re-hire the Complainant, pay him all wages lost as the result of the unlawful firing, and pay him $15,000.00 for his emotional distress and anxiety resulting from the discriminatory employment action. Baxter v. Courier Personal Services WHII, MEOC Case No. 20082105 (Hearing Ex. Decision 11/3/09).

Respondent Ho-Chunk Gaming Madison, charged with discrimination in employment on the basis of sex and race in violation of the Madison Equal Opportunities Ordinance Mad. Gen. Ord. Sec. 39.03(08), claimed that the Equal Opportunities Division is without jurisdiction in the matter because of the Respondent's status and due to the status of its facility.

The Respondent's facility is within the geographical boundaries of the City of Madison, but because of its status as a recognized tribe, and the titling of the land in the Bureau of Indian Affairs as "Trust Land", the enterprise is not subject to the DCR's jurisdiction. Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. re: jurisdict. 12/11/2014).

As a sovereign nation, the Respondent represents an entity separate and distinct from the City of Madison and the DCR is unable to exercise jurisdiction over it unless the Respondent acquiesces to the jurisdiction of the DCR. There is nothing in the record of this matter indicating that the Respondent has willingly submitted itself to the jurisdiction of the DCR. Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. re: jurisdict. 12/11/2014).

Respondent's status as a sovereign nation places it in the same position as other governmental entities such as the federal government, the State of Wisconsin or Dane County that are immune from action under the Equal Opportunities Ordinance. Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. re: jurisdict. 12/11/2014).

Respondent Ho-Chunk Gaming Madison, charged with discrimination in employment on the basis of sex and race in violation of the Madison Equal Opportunities Ordinance Mad. Gen. Ord. Sec. 39.03(08), claimed that the Equal Opportunities Division is without jurisdiction in the matter due to its status as a sovereign nation and because of its presence on trust lands.

Complainant asserts that the City of Madison has exercised jurisdiction in certain capacities such as police action, contending that if the City has jurisdiction to arrest someone on the Respondent's property, other municipal agencies such as the DCR should also have authority to act. However, the provision of certain enumerated services by the City of Madison is pursuant to a Memorandum of Understanding (MOU) with the Respondent in exchange for an agreement to make certain payments to the City of Madison in lieu of property tax payments which the City of Madison cannot collect given the Respondent's status. These services are not provided as a governmental entity exercising jurisdiction over the Respondent but rather are services provided subsequent to a contract between two independent parties. Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. re: jurisdict. 12/11/2014).

221.11 Definition of Arrest Record and Conviction Record

221.12 Underlying Act or Reason, Rather Than Arrest or Conviction

Where the Complainant, a black, African American male was arrested for allegedly passing forged checks was later barred from Respondent's store on two occasions because several of Respondent's employees who believed Complainant passed the bad checks also felt they had been harassed and intimidated by the Complainant, the Hearing Examiner found that although Complainant presented a prima facie case of discrimination, his exclusion from the store was a legitimate nondiscriminatory reason since Respondent's actions were based on the erroneous belief that Complainant had, in fact, passed forged checks and harassed and intimidated several employees of Respondent. Barlow v. Woodman's Food Market, MEOC Case No. 3334 (Ex. Dec. 8/29/96).

221.19 Miscellaneous

The Hearing Examiner found that termination of an employee for absence, even though the employee's absence was due to his arrest, does not constitute discrimination on the basis of arrest record. Complainant was absent from work on the weekend of June 25 and 26, as well as June 27, because he had been arrested after leaving work on June 24. Since weekend production lines at Oscar Mayer are operated by only as many workers as are actually necessary, any unexpected absences tend to result in a disruption of production operations. Both of the Complainant's absences were deemed unexcused and he was terminated pursuant to Oscar Mayer policy. The Commission affirmed the Examiner's Decision without comment. Bordson v. Oscar Mayer Food Corp., MEOC Case No. 20989 (Comm. Dec. 4/4/90, Ex. Dec. 9/29/89).

Complainant claimed that she was terminated from her employment due to her boyfriend's arrest. The Hearing Examiner found that the Commission was without jurisdiction because "arrest record by association" does not fit within the "by association" framework of race and sex cases decided under Title VII, which hold that the race or sex of the complainant is a factor in the discrimination. Additionally, the Common Council specifically adopted "by association" protection in the ordinance's housing section and did not extend it to other provisions. Ezrow v. PDQ, MEOC Case No. 21966 (Ex. Dec. 9/15/94).

Complainant was suspended from work after making threats to beat another employee with a bat. Employer investigated the threat incident and in the process discovered the full nature of a significant conviction record involving violence and sexual assault. Employer terminated Complainant for failing to disclose the full nature of his conviction record at the time of hire. Although the employer's investigation into the issue of whether Complainant had properly disclosed his conviction record was flawed, Complainant was unable to prevail at the pretext stage since nothing in the record suggested that the Complainant's race or conviction record was the true motive for Complainant's suspension and termination. Johnson v. Webcrafters, MEOC Case No. 20042097 (Ex. Dec. 3/30/06).

The Complainant alleged that the Respondent discriminated against him on the bases of arrest and conviction record when it failed to hire him as a dish washer and as a laundry worker. The Respondent denied discriminating against the Complainant and asserted that it had hired individuals with arrest and conviction records prior and subsequent to the Complainant's applications for employment. Additionally, there was evidence that an individual with an apparent conviction record was hired for an available dish washer position. Upon review of the evidence, the Hearing Examiner concluded that the Complainant had failed to demonstrate a causal connection between his arrest and conviction records and the Respondent's failure to hire him. The Hearing Examiner ordered that the case be dismissed. Wilson v. Madison Concourse Hotel, MEOC Case No. 20072249 (Ex. Dec. 05/18/12)

The Respondent did not discriminate against the Complainant on the basis of his conviction record because he did not apply for employment with the Respondent. It is not possible for the Hearing Examiner to conclude that the Complainant would be a qualified applicant even if he had applied for the position because the Complainant lacked some of the necessary certifications for the position in which he was interested. Given the record as a whole, the Hearing Examiner can find no basis for the Complainant's claim that the Respondent failed or refused to hire him because of his conviction record. Equally, there is no indication in the record that the Respondent took any steps to prevent or to discourage the Complainant from pursuing an application with the Respondent. Jackson v. Ruan Transportation, MEOC Case No. 20122079 (Ex. Dec. on liability: 02/26/2013, Ex. Dec. on summary judgment: 01/04/2013).

221.2 The "Substantial Relationship" Standard

Does "conviction record" apply simply to the status of having such a record or does it include consideration of the specific crimes for which an individual was convicted? The Ordinance exceptions at MGO 39.03(8)(i)(3)(b) contemplate an individualized analysis of the offense(s) and their substantial relation to a particular position. The Respondent determined that it could not offer the Complainant employment within the limits of his parole restrictions. Wollschlager v. Hy Vee, MEOD Case No. 20142022.

221.21 Generally

Complainant charged that Respondent discriminated against him on the basis of his conviction record when it did not hire him for a receptionist position. Respondent moved to dismiss the complaint on the grounds that a conviction for 2nd degree homicide was as a matter of law substantially related to the Complainant's prospective employment as a receptionist. The Hearing Examiner concluded that a hearing was necessary and could not find that the ordinance would allow for finding any particular conviction to automatically preclude employment in a specific position. Rogers v. New Horizons, MEOC Case No. 19982232 (Ex. Dec. 8/10/99).

The Complainant charged that the Respondent had discriminated against him on the basis of his conviction record when it failed or refused to hire him for a sales position.

The set of facts from the hearing on the merits in this case established that the Complainant was a member of the protected class "conviction record," that he experienced an adverse employment action, and that there was a causal connection between his membership in the protected class and the adverse employment action. This was sufficient to establish a prima facie claim of discrimination.

There was no doubt that the Complainant had an extensive conviction record, and that he was not hired for a position for which he appears to have been qualified. Finally, the record was clear that the reason for the Respondent's rejection of the Complainant was his conviction record.

The Respondent might have contested the above showing by either demonstrating that the Complainant's conviction record was sufficiently related to the nature of his employment that it would have been unreasonable for the Respondent to have hired the Complainant, or that it acted not because of the Complainant's conviction record, but because of the nature of the conduct that resulted in the Complainant's conviction record. However, the Respondent did not appear at the hearing and the Hearing Examiner is not able to speculate as to the basis of the Respondent's actions absent the testimony of witnesses presented by the Respondent.

The Respondent violated the Ordinance’s prohibition against discriminating against the Complainant in employment because of his conviction record. Obriecht v. Midwest Infinity Group, MEOC Case No. 20162022 (Ex. Dec. on fees: 04/21/2017; Ex. Dec. on liability: 03/24/2017; Ex. Dec. on mot. to add party: 02/01/2017; Ex. Dec. on mot. to dismiss: 02/01/2017).

221.22 Circumstances Not Substantially Related

221.23 Circumstances Substantially Related

Compliance with an employee’s probation/parole restrictions is a legitimate concern of the employer, based on guidance from the ERD and the Complainant’s failure to be forthcoming about his conviction and the accompanying restrictions. Whether those restrictions were "absolutes" or not was irrelevant because of the Complainant’s failure to disclose, no meaningful analysis could be done by the Complainant’s probation agent. Wollschlager v. Hy Vee, MEOD Case No. 20142022.

The Respondent’s decision to suspend the Complainant pending the outcome of charges involving the possession of child pornography was non-discriminatory. Respondent was rightfully concerned that the Complainant’s lack of supervision, presence of minors in the store, and access to computers and the internet could create a risk of the Complainant’s downloading or observing child pornography or committing a crime of sexual contact while on the Respondent’s premises. Despite the fact that the charges against the Complainant were for non-contact offenses, the fact that the circumstances present the opportunity for an individual predisposed to commit such acts is sufficient to establish a substantial relationship. Schrankler v. Best Buy Stores, L.P., MEOD Case No. 20122001.

Discussions about the Respondent’s concern that the Complainant would engage in similar activity that led to a conviction for sexual intercourse with a child age 16 but not 18 showed that their decision not to hire the Complainant was motivated, in part, by his conviction record. However, the Ordinance provides an affirmative defense if the circumstances of the conviction substantially relate to the particular job or licensed activity and the conviction or placement on probation or parole occurred within the past three years. The Ordinance does not require that the Respondent establish the probability of future criminal activity. Obriecht v. Woodmans, MEOD Case No. 20172014.

221.3 Other Affirmative Defenses

Despite an initial offer of employment being rescinded for discrimination based upon his arrest record and conviction record, the Complainant did begin employment with the Respondent which was subsequently terminated when his user name was “flagged” for internet searches for sexual or pornographic images. The Respondent’s sole client became aware of this “flagged” search history, and requested the Complainant’s termination. Despite the Respondent being the sole decision maker regarding hiring and firing, they felt some pressure to keep their only customer happy. The client requesting the Complainant’s termination would have no way of knowing of the Complainant’s arrest or conviction record. Obriecht v. Laserwords US, Inc., MEOD Case No. 20152151.

221.9 Miscellaneous

The Hearing Examiner concluded that despite the Respondent's questionable record-keeping practices, the Complainant failed to demonstrate that he had been fired as a result of his arrest record. Mitchell v. Marge's Amoco, MEOC Case No. 21935 (Ex. Dec. 12/15/95).

Complainant was hired as a sales agent with the Respondent. Prior to beginning his employment, the offer was rescinded by the HR Director for the Respondent. The Complainant was ultimately hired, and in a conversation with the HR Director following the commencement of his employment, the HR Director apologized to the Complainant for rescinding the offer of employment due to his arrest record and conviction record for 2nd Degree Attempted Sexual Assault. Obriecht v. Laserwords US, Inc., MEOD Case No. 20152151.

An agent for the Respondent called the Complainant after he checked “yes” to having been convicted of a felony to confirm that information. When the Complainant confirmed he had been convicted of a felony in 2004, the agent for the Respondent told him that they could not hire him, and hung up. The Complainant’s application did not advance further through the process. Hanson v. Motel 6, MEOD Case No. 20182029.

222 Disability Discrimination

Complainant, a 42-year-old male, claimed that he was discriminated against in regard to his age when the Respondent allegedly charged a higher price for a ticket to a play to those under 60. The ticket included public bus fare to and from the play plus refreshments. The Examiner found that no discrimination occurred because of an implied exemption for the Madison Senior Center based on city support for the Center both as a matter of policies expressed in the ordinances and in financial appropriations for its operation. The Commission rejected the Examiner's reasoning, but found no discrimination since the Senior Center charged the same amount for its services regardless of age, and merely passed along a federal subsidy for bus fare for persons 60 and older. Schultz v. Madison Senior Center, MEOC Case No. 3188 (Comm. Dec. 5/24/90, Ex. Dec. 9/15/89).

Complainant alleged that the Respondents discriminated against him on the basis of his disability (depression and anxiety disorder) when it failed to accommodate his disability and terminated his employment. The Respondent asserted that the Complainant violated the Respondent's attendance policy, that he was moody and that he had quit. The Respondent failed to respond to the Complainant's Request for Admissions, and as a result, the Respondent is deemed to have admitted the allegations contained in the admissions. Accordingly, the Hearing Examiner held that the Respondent knew of the Complainant's disability and failed to extend clemency or forbearance for any possible violation by the Complainant of the Respondent's attendance policy. The Hearing Examiner found that the Complainant's disability was, at least in part, a motivating factor in the Respondent's termination of the Complainant. The Hearing Examiner ordered the Respondent to pay the Complainant's lost wages, damages for emotional distress, and attorney's fees. Groholski v. Old Town Pub, MEOC Case No. 20072041 (Ex. Dec. 3/12/10).

222.1 Coverage

222.11 Definition of Disability, Generally

A disabled person is someone who: (1) has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work; or (2) has a record of such impairment; or (3) is perceived as having such impairment. Stanton v. Dairy Equipment, MEOC Case No. 2540 (Ex. Dec. 6/9/82).

222.12 Perceived Disability

A lay person's testimony by itself does not support a conclusion of law that an individual was disabled; however, testimony other than expert medical testimony did support a conclusion that the person was perceived or regarded by the employer as disabled. Siebert v. Backey & Assoc., MEOC Case No. 2694 (Ex. Dec. 7/8/81).

An employee who was perceived by his employer to be disabled was nevertheless not discriminated against in regard to rehire where the evidence showed that his previous performance as a welder had been unsatisfactory and no jobs were available as a painter or janitor at the time he tried to return to work. Siebert v. Backey and Assoc., supra.

An employer who had otherwise lawfully discharged an employee, believing that episodes of fainting and dizziness on the job were not disability related, was not required to hold the employee's job open for two years until he was diagnosed as hypoglycemic. Rogers v. Stop-n-Go, MEOC Case No. 2437 (Ex. Dec. 7/16/81).

The Hearing Examiner found that the Complainant's failure to comply with the terms of a consensual medical leave of absence was the reason for his termination, rather than the Respondent's perception of the Complainant's serious drug abuse problem. In general, the Hearing Examiner determined the Complainant to be a less than credible witness on his own behalf. James v. Klein Dickert Co., Inc., MEOC Case No. 20612 (Ex. Dec. 2/23/89).

The Hearing Examiner found that the Complainant failed to demonstrate with competent medical evidence that she had an actual handicap/disability that required accommodation. The testimony supported a finding that the Respondent perceived the Complainant to be handicapped/disabled because of her conduct at the workplace and the manager's belief that she had a mental impairment. Despite this perception the Respondent terminated the Complainant for a specific instance of misconduct rather than as a result of any belief in the Complainant's handicap/disability. Joseph v. The Swiss Colony, MEOC Case No. 20984 (Ex. Dec.6/28/89).

The Complainant alleged that the Respondent unlawfully discriminated against her because of her disability-cocaine addiction-in failing to reasonably accommodate her disability and in discharging her from her employment. Both the Hearing Examiner and the Commission found that no discrimination occurred. The Circuit Court upheld the Commission's decision that proof of addiction must be made by an expert medical witness. Since there was no expert testimony proving the Complainant's addiction, the case was dismissed. Also, the Circuit Court upheld the Examiner's determination that there is no requirement for an employer to accommodate a perceived disability where no disability exists. Busto v. Wisconsin Power and Light, MEOC Case No. 20945 (Comm. Dec. 3/14/90, Ex. Dec. 9/25/89); State ex rel. Elizabeth Busto v. MEOC and WP&L, 90 CV 1594 (Dane County Cir. Ct. 1/9/91).

The Respondent discriminated against the Complainant on the basis of what it perceived to be a disability, namely a broken wrist, by changing the Complainant's position from Program Administrator to Residential Coordinator, though it presented no evidence that Complainant was unable to perform her duties. Respondent's subsequent termination of Complainant did not constitute retaliation because the Respondent had no knowledge of the complaint to MEOC when it took steps to terminate her for misconduct. The Commission dismissed the complaint, finding that the Complainant's broken wrist constituted a temporary condition and was therefore not a disability. Lewis v. Creative Community Living Services, Inc., MEOC Case No. 21063 (Comm. Dec. 4/14/93, Ex. Dec. 9/28/92).

The mention of a past injury does not create an awareness of a complainant's disability. A complainant must demonstrate that a respondent knew of the complainant's disability or regarded the complainant as having a disability. A respondent who regarded a complainant as having a disability effectively terminated her by not re-evaluating her job status after she drew unemployment benefits. Rosin v. Rite-Way Leasing Company, MEOC Case No. 19982206 (Comm. Dec. 4/22/02, Ex. Dec. 10/3/01).

The Complainant, an African American, walks with a pronounced limp. He alleged discrimination in a public place of accommodation or amusement based on race and disability against Respondent, an automobile dealership. Allegedly, the Respondent refused to service the Complaint's car, made disparaging remarks about his race and mobility, and requested he leave the premises. After hearing, the Hearing Examiner determined that there was no proof of actual disability without expert medical testimony, and held when Respondent is equally credible as Complainant, Complainant needs additional evidence to demonstrate a perceived disability. The Hearing Examiner also found insufficient evidence in the record that the Complainant was denied service or equal enjoyment of a public place of accommodation or amusement because of racial discrimination, despite his suspicions to the contrary. Marchell Mack v. Kayser Automotive Group, MEOC Case No. 20043144 (Ex. Dec. 9/18/07, aff'd Comm. Dec. 4/1/08).

222.13 Permanent Versus Temporary Conditions

222.14 Conditions Found to Be Disabilities

Back Injury Stanton v. Dairy Equipment, supra.

Back Injury (history of) Siebert v. Backey & Assoc., supra.

Eye Sensitivity Laitsch v. Llama Imports, Ltd., MEOC Case No. 2656 (Com. Dec. 12/10/81, Ex. Dec. 7/16/81).

Heart Attack McFayden v. MEOC, infra.

Height and Weight Pham v. Emer. Crises Center, infra.

Hypertension Rogers v. Stop-n-Go, infra.

Migraine Headaches Maxson v. MEOC (Means Serv.), 84 CV 4150 (Dane County Cir. Ct. 7/18/85).

Thumb and Wrist Injury Steinbring v. Oakwood

(history of) Lutheran Home, MEOC Case No. 2763 (Comm. Dec. 3/10/83, Ex. Dec. 2/11/82).

Note: For a more extensive listing of disabling conditions under state law, see Wis. Fair Employment & Housing Decision Digest V (Wisconsin Equal Rights Division).

222.15 Conditions Found Not to Be Disabilities

222.16 Preemption by Worker's Compensation Act

(See section 213.3)

222.19 Miscellaneous

The Complainant has a disability in the form of epilepsy. He has a dog accompany him and he relies upon the dog to alert him to seizures and respond to him when he experiences a seizure. The Complainant filed a claim alleging that the Respondent discriminated against him in a public place of accommodation based primarily upon his disability and his use of a service dog by ordering him and the dog out of Respondent's premises. After hearing, the Hearing Examiner determined that the primary issue in the case was whether the Complainant met his burden of proof, not whether he was disabled or if his dog was a service animal or provided a reasonable accommodation (although the Hearing Examiner addressed these issues). The Hearing Examiner determined that the Complainant's version of events was contradictory and vague and thus, unlikely. The Hearing Examiner found that the Respondent's version of the same events was more credible and corroborated by a restaurant manager, thus concluding that the Complainant failed to carry his burden of proof and dismissing his complaint. Bottila v. McDonalds, MEOC Case No. 20073203 (Ex. Dec. 7/27/09).

The Complainant is disabled and has two service dogs to assist him. The Complainant and his dogs visited the Respondent's facility regularly for medical services. One of the Respondent's employees was attacked and severely injured by a wolf hybrid dog prior to her employment with the Respondent, and consequently suffers emotional stress from this incident. On several occasions, the Complainant's dogs and the Respondent's employee came into brief contact; the employee experienced a post traumatic flashback. Respondent then required the Complainant and his dogs to use a specific entrance to ensure they would not encounter the employee. The Complainant complained that this access arrangement discriminated against him in a public place of accommodation on the basis of his disability. The Hearing Examiner determined that the Respondent did not discriminate against the Complainant in violation of the ordinance and held that the Respondent's limited access to its building was a reasonable accommodation and did not limit the Complainant's full and equal enjoyment of the Respondent's goods, service and facilities. Nichols v. Mental Health Center of Dane County, Inc., MEOC Case No. 20053154 (Ex. Dec. 8/6/09, aff'd Comm. Dec. 4/14/10).

222.2 Particular Disabilities

222.21 Acquired Immune Deficiency Syndrome (AIDS)

222.22 Alcoholism, Drug Addition

222.23 Back Problems, Lifting Restrictions

The fact that an individual returned from a short term medical leave of absence and stated that he was unable to lift heavy loads did not establish that he was disabled or perceived to be disabled. Wopat v. St. Vincent de Paul Society, MEOC Case No. 2551 (Ex. Dec. 10/7/80).

222.24 Epilepsy, Seizure Disorders

222.25 Visual, Hearing Impairments

222.3 Complainant's Burden of Proof

222.31 Generally

An adult who was four feet tall and weighed 65 pounds was not discriminated against on the basis of disability nor physical appearance where the employer established that her low interview scores were related to her lack of practical experience; although her education and ability to handle stress were somewhat underrated by the panel, she failed to show that the ratings were a pretext for discrimination. Pham v. Respite Emer. Crisis Center, MEOC Case No. 2676 (Ex. Dec. 8/26/81).

A shipping and receiving clerk who was discharged within a few months of having returned to work after a massive heart attack was not discriminated against on the basis of disability where he could perform the lifting or carrying requirements which were an essential part of his job. McFayden v. MEOC (University Bookstore), No. 81-CV-3744 (Dane County Cir. Ct., 11/15/82).

The Complainant failed to prevail on his discrimination claim based on the alleged disability, fractured hip and irritable colon, in regard to termination of employment. Due to lack of documents, records or testimony regarding the alleged disability, the Hearing Examiner was unable to conclude that the Complainant had a physical impairment within the meaning of the ordinance. Also, the Hearing Examiner found that it was the Complainant's unsatisfactory work performance that warranted his discharge. Studinski v. Madison Property Management, Inc., MEOC Case No. 21298 (Ex. Dec. 7/9/92).

In discouraging Complainant from seeking advancement within the company, and in failing to provide her with any opportunity to explain whether her congenital hip condition would affect her performance of duties associated with the position she desired, Respondent discriminated against Complainant based upon her disability. The position required interaction with local physicians and marketing experience. The successful candidate was allegedly chosen because she had professional marketing experience, but Complainant demonstrated that Respondent, through its director, repeatedly discouraged her from seeking advancement, steering her towards less visible positions. Laitinen-Schultz v. TLC Wisconsin Laser Center, MEOC Case No. 19982001 (Ex. Dec. 7/1/2003).

222.32 Employer's Knowledge of Disability

The fact that an individual returned from a short term medical leave of absence and stated that he was unable to lift heavy loads did not establish that he was handicapped or perceived to be handicapped. Wopat v. St. Vincent de Paul Society, MEOC Case No. 2551 (Ex. Dec. 10/7/80).

Where a store manager's doctor had previously diagnosed him as tired and overworked, it did not constitute disability discrimination to discharge him after he suffered a second episode of fainting and dizziness which incapacitated him and required him to be sent home; while the employer knew that he suffered from high blood pressure, high cholesterol and a weight problem, it had no reason to believe that any of these conditions had caused the fainting and dizziness; . . . and a doctor's diagnosis made two years after an employee had been discharged, although admissible at hearing as a hearsay exception, was not as critical to the findings as the diagnosis of the physician who had been seeing the employee close to the time of his discharge. Rogers v. Stop-n-Go, MEOC Case No. 2437 (Ex. Dec. 7/16/81).

The fact that an employee has difficulty completing job duties does not place an employer on notice that an employee has a disability or require the employer to make inquiries into the reasons for the employee's difficulties. If an employer does not know of an employee's disability, then any action it took could not have resulted from the employee's membership in a protected class. An employee who did not inform his employers of his disability was terminated because the employer believed he was falsifying data on reports. Vogt v. Best Buy Stores, L.P., MEOC Case No. 22749 (Ex. Dec. 3/26/01).

The perception of a disability by a supervisor imputes perception of a disability to a Respondent employer. A Complainant was discriminated against when she was terminated due to a perceived disability. Teich v. Center for Prevention and Intervention, MEOC Case No. 20002153 (Ex. Dec. 6/12/02, On Fees 8/5/02).

222.4 Employer's Burden of Proof; Affirmative Defenses

222.41 Generally

Where a job applicant had been authorized by her own physician and the employer's doctor to return to work for at least a three-month probationary period, the employer's refusal to rehire her as a nursing assistant because of past wrist and thumb injuries was disability discrimination; . . . and the employer's claim that she was not rehired because of her past absenteeism was not credible where she had never been warned about it and had been offered rehire by the employer in positions other than nursing assistant. Steinbring v. Oakwood Lutheran Home, supra.

In the typical disability accommodation case, the accommodation at issue is one which would enable an individual to perform his or her essential job functions; . . . and an employer is not required to pay another employee to actually perform such essential functions on a regular basis for the handicapped individual, or to transfer that individual to a new position. McFayden v. MEOC (University Bookstore), supra.

As a general proposition, municipal ordinances may contain bases of discrimination more inclusive than the bases of discrimination listed in Section 66.432, Wis. Stats. and 101.22, Wis. Stats. Atty. Gen. Opinion, OAG-46-85 (12/17/85).

The MEOC found that Respondent discriminated against Complainant when it terminated Complainant for violating the company dress code, which prohibited eyebrow rings. Respondent appealed the decision, and the Dane County Circuit Court reversed the discrimination finding. Complainant and the MEOC appealed. The Court of Appeals affirmed, holding that enforcement of the dress code served legitimate nondiscriminatory business purposes. Regarding the issue of proving and/or disproving "reasonable business purposes," the Court of Appeals held that because the MEOC had historically imposed upon complainants the burden of disproving articulated "reasonable business purposes," it could not impose upon this Respondent the burden of proving "reasonable business purposes" as affirmative defenses. Maier v. Sam's Club, MEOC Case No. 19992203 (Aff'd Sam's Club, Inc. v. MEOC (Maier), Case No. 02-2024 (Ct. App. 07/24/2003); rev'd and dismissed Sam's Club, Inc. v. MEOC (Maier), Case No. 01CV2943 (Dane County Cir. Ct., 07/19/2002); aff'd Comm. Dec. 10/01/2001; Ex. Dec. on liability: 03/30/2001).

222.42 Inability to Perform Job-Related Responsibilities

222.43 Requirements of Case-By-Case Evaluation

222.5 Employer's Duty to Accommodate

The Hearing Examiner found that Complainant, a receiving clerk at Respondent's warehouse, was not discriminated against by Respondent when Respondent gave Complainant a reasonable accommodation after Complainant suffered a heart attack and was later retired as permanently disabled. The accommodation allowed Complainant to have a thirty (30) pound lifting and carrying restriction in the warehouse, but Respondent was unsuccessful in ascertaining how long Complainant's accommodation would be needed after serval attempts to receive the information from Complainant. The Hearing Examiner ruled that the accommodation was an undue hardship and the discharge was non-discriminatory in nature. McFadyen v. University Bookstore, MEOC Case No. 2539 (Comm. Dec. 6/29/81, Ex. Dec. 2/3/81).

An employer does not owe a duty of reasonable accommodation to people it does not employ. A complainant who applied for a job was not entitled to engaging in an interactive process for determining accommodations when no decision had been made to hire her. Mutchler v. The Disney Store, MEOC Case No. 19982193 (Ex. Dec. 9/25/02).

A respondent employer does not incur an automatic duty to initiate reasonable accommodations because an employee has a mental disability. The severity and nature of the disability must be taken into account when determining an employer's duty. Mutchler v. The Disney Store, MEOC Case No. 19982193 (Ex. Dec. 9/25/02).

222.6 Proof of Medical Facts

An employee's medical history of treatment for a back injury (which the employer was aware of) was protected by the ordinance's prohibition against disability discrimination. Stanton v. Dairy Equipment, supra.

222.9 Miscellaneous

A handicapped employee's discharge for failing to call in (although he was physically able to) on three consecutive days when he was absent and later failing to provide adequate reasons for this conduct was not discrimination where the employer made no exceptions to this rule for non-disabled employees. Stanton v. Dairy Equipment, supra.

Respondent discriminated against the Complainant on the basis of a diagnosed physical disability, severe urinary incontinence. The Complainant requested and was ultimately granted a leave of absence in order to attempt to have this condition surgically corrected. However, before having the surgery, Complainant received a letter from her supervisors outlining their dissatisfactions with Complainant's job performance. Respondent had made no previous complaints regarding her performance. In a written reply, Complainant denied these allegations. She was subsequently terminated. Nelson v. Weight Loss Clinic of America, Inc. et al., MEOC Case No. 20684 (Ex. Dec. 9/29/89).

223 Marital Status Discrimination

223.1 Definition; Spousal Identity

A job applicant's marital status was not a factor in her failure to be hired as an Outreach Worker where the (nonprofit) employer showed that the person selected possessed non-discriminatory qualities which were in line with the stated purpose of the organization's funding; . . . and basing a hiring decision on the needs of the competing applicant with two children was not discriminatory as there was no evidence of either applicant's marital status and because "parental status" was not a protected class. Sanchez v. Neighborhood Youth Corps., MEOC Case No. 2192A (Ex. Dec. 11/23/76).

An employer's unwritten work rule prohibiting (any) employees from associating with married (co-) employees of the opposite sex outside of work-related matters was not discriminatory on the basis of marital status. Fed. Rural. Elec. Ins. v. MEOC, et al., 131 Wis. 2d. 189 (1986).

The Hearing Examiner concluded that the Respondent had not discriminated against the Complainant on the basis of his marital status when it denied the Complainant employment because of his wife's employment. The Hearing Examiner held that the Respondent's policy of not hiring relatives or close friends of persons who were employed by Respondent's competitors did not constitute discrimination on the basis of marital status. Gustafson v. WPS, MEOC Case No. 20539 (Ex. Dec. 5/19/87).

223.2 Exceptions; Insurance Coverage

223.9 Miscellaneous

The regulation and control of a savings and loan's lending practices have been preempted by the State of Wisconsin in Chapter 215, Wis. Stats., by establishing a comprehensive and all-encompassing scheme regarding savings and loan association practices . . . and the application of the City of Madison's local credit anti-discrimination ordinance (prohibiting discrimination on the basis of marital status in regard to refusal to grant a loan) to the Respondent's credit practices was contrary to the spirit of the state's structure of all aspects of credit and lending by savings and loan associations and was without authority and in conflict with the state comprehensive plan. Anchor Savings & Loan v. MEOC (Schenk), 120 Wis. 2d 391, 355 N.W.2d 234 (1984).

224 National Origin and Ancestry Discrimination

224.1 Coverage; Discrimination Between National Origin and Ancestry

224.2 Harassment Because of National Origin

224.3 Cases

The Hearing Examiner dismissed the complaint, finding that although the Complainant proved that he applied for employment and was not hired, he was unable to prove that Respondent's loss of his application was related to his national origin, ancestry or disability, or that the Respondent did not actually lose his application. Colon v. Famous Footwear, MEOC Case No. 20747 (Ex. Dec. 9/7/88).

The Examiner found the Respondent discriminated against the Complainant, a black male from Nigeria, on the basis of his race and national origin in failing to grant him a promotion. Respondent's failure to investigate and update Complainant's work record though it updated the file of the successful applicant--a white female less senior to Complainant--constituted discrimination. The Respondent cited the Complainant's Nigerian accent as one of the deciding factors in not promoting him.

The Examiner found this constituted national origin discrimination, since the accent would not have interfered with the Complainant's work. The Complainant was awarded back pay plus $15,827.59 in costs and attorney's fees. In a supplemental decision, Complainant was also awarded front pay.

The Commission, in overruling the Examiner's decision, found that the Respondent demonstrated legitimate, nondiscriminatory reasons for refusing to promote Complainant. Although it was determined that the person making the employment decision had little first hand experience of Complainant's working abilities at the time of application, this only demonstrated poor business sense on the part of MUHL and did not constitute discrimination. Reviewing testimony, the Commission also determined that the Complainant's accent did create a communication difficulty with customers as well as co-workers and that clear oral communication was a necessary job requirement. Oviawe v. Madison United Hospital Laundry. Ltd., MEOC Case No. 20723 (Comm. Dec. 8/3/90, Ex. Dec. 9/29/89).

After hearing, the Hearing Examiner found that the Respondent had discriminated against the Complainant on the bases of her race, color and ancestry when it failed to hire her for a teaching position. The Hearing Examiner dismissed a claim of discrimination based upon the Complainant's sex and a claim that the Respondent had retaliated against the Complainant for her filing of an internal complaint of discrimination. The Hearing Examiner awarded the Complainant $25,860 in back pay and $25,000 compensatory damages for emotional distress, and costs and reasonable attorney's fees. The Commission reversed the Hearing Examiner and found that the Complainant had not proven her claim of discrimination and dismissed the complaint. Villarreal v. Madison Metropolitan School District, MEOC Case No. 21122 (Comm. Dec. 6/28/94, Ex. Dec. 12/27/93, Ex. Interim Dec. 1/22/93).

Complainant, a Hispanic, charged that the Respondent terminated the Complainant because of his race and national origin/ancestry. The Hearing Examiner found that the Commission had jurisdiction over the complaint because the Respondent could not prove that the relationship between the Complainant and Respondent was of an independent contract nature, rather than an employee-employer relationship. This was because all the work was done at Respondent's site, all duties were overseen and assigned by Respondent, all tools were provided by Respondent, there was no written contract and Complainant was paid by the hour instead of a flat fee.

Having found that the Commission had jurisdiction, the Hearing Examiner nevertheless concluded that the Complainant had not carried his burden to overcome the Respondent's independent witness about certain facts in controversy and could not overcome the inference of a lack of a discriminatory motive when the Respondent hired a Hispanic on the day he fired the Complainant, an El Salvadorian. The Commission later adopted the Hearing Examiner's decision. Castillo v. Fisher and Hellenbrand, MEOC Case No. 22322 (Com. Dec. 11/1/99, Ex. Dec. 3/13/99).

A Black, African-American Complainant claimed that he was discriminated against on the basis of his national origin/ancestry when he was subject to reduced hours and then laid off from his job in a restaurant where the other kitchen workers were predominantly of West African ancestry. Where a decision to terminate an employee is made by the same official who made the decision to hire an individual and a relatively short period of time has elapsed between hiring and firing, there is an inference that the firing was not done for a discriminatory motive because if the decision maker were going to discriminate against the employee, it would be easier for the decision maker not to hire the individual in the first place, than to hire him and turn around and fire him a short time later. Randall v. Africana Restaurant & Lounge, MEOC Case No. 20082190 (Ex. Dec. 06/16/2016)

A Black, African-American Complainant claimed that he was discriminated against on the basis of his national origin/ancestry when he was subject to reduced hours and then laid off from his job at a restaurant where the other kitchen workers were predominantly of West African ancestry. A lack of business and hence income represents a legitimate, nondiscriminatory explanation for reducing staff and cutting hours including those of the Complainant. Presentation of this explanation meets the Respondent’s burden of production and shifts the burden back to the Complainant. On this record, the Hearing Examiner must conclude that the Complainant has failed to meet his burden to establish either that the Respondent’s explanation is not credible or represents a pretext for an otherwise discriminatory motive. Randall v. Africana Restaurant & Lounge, MEOC Case No. 20082190 (Ex. Dec. 06/16/2016)

224.9 Miscellaneous

225 Physical Appearance Discrimination

225.1 Coverage, Generally

A four-foot tall, 65-pound female who applied for a position at an emergency crisis center was not discriminated against on the basis of her physical appearance where she had expressed concerns about her ability to deal with certain clients at the center. Pham v. Respite Emer. Crisis Center, MEOC Case No. 2676 (Ex. Dec. 8/26/81).

Employee requirements relating to physical appearance are permitted when such requirements are uniformly applied . . . to employees in a business establishment for a reasonable business purpose [see Sec. 3.23(2)(k), Madison General Ordinances] . . . and a "reasonable business purpose" in the context of the physical appearance anti-discrimination prohibitions is broader than the business purpose exceptions allowed under the statutes prohibiting discrimination based on such factors as age or disability. State ex rel. McDonald's Restaurant (Karaffa) v. MEOC, No. 83-1571 (Ct. App. 8/28/84).

The Complainant alleged discrimination based on sexual orientation (perceived homosexuality) and his physical appearance (wearing an earring and a small braid on the back of his neck), when he was told he was not needed at the temporary agency where he had been placed by a referral agency. Respondent asserts instead that the Complainant was inappropriately dressed for business purposes. The Hearing Examiner determined that the Respondent had discriminated against the Complainant based on physical appearance. The Respondent was ordered to cease and desist from further acts of discrimination. The Complainant was entitled to wages lost in the sum of $4.95. The charges based on sexual orientation were dismissed. Regan v. Lyons Mortgage Co. MEOC Case No. 20846 (Ex. Dec. 1/31/89).

The Commission found that in addition to retaliation, the Complainant had demonstrated that he had been discriminated against on the basis of his physical appearance. The Commission also reversed the Hearing Examiner's determination that attorney's fees for the Complainant's earlier consultations with attorneys was not awardable, and remanded the case to the Hearing Examiner for the determination of appropriate attorney's fees. The Commission concurred with the Hearing Examiner's conclusion that emotional damages were not appropriate in this instance, but specifically declined to adopt the Examiner's rationale. Maxwell v. Union Cab Cooperative, MEOC Case No. 21028 (Comm. Dec. 7/10/92, Ex. Dec. 12/31/91); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison and Maxwell, No. 95-0190 (Ct. App. 9/20/95); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison and Maxwell, No. 93-0657 (Ct. App. 3/24/94); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison, 92 CV 3260 (Dane County Cir. Ct. 12/1/94).

"Physical appearance" as a protected class includes eyebrow piercing/facial jewelry, if not as an aspect of "manner of dress," then certainly as part of the "other aspects of appearance" that comprises the "outward appearance" of a person. The Madison Common Council did not likely include the catch-all language of "or other aspects of appearance" in order to restrict or limit aspects of appearance to only those specifically named. By excluding certain types of attire, as prescribed by a dress code for example, the Ordinance recognizes that other types of attire (which can include facial jewelry) are intended to be included. Maier v. Sam's Club, MEOC Case No. 19992203 (Aff'd Sam's Club, Inc. v. MEOC (Maier), Case No. 02-2024 (Ct. App. 07/24/2003); rev'd and dismissed Sam's Club, Inc. v. MEOC (Maier), Case No. 01CV2943 (Dane County Cir. Ct., 07/19/2002); aff'd Comm. Dec. 10/01/2001; Ex. Dec. on liability: 03/30/2001).

Eyebrow piercing/facial jewelry is not an immutable physical trait. Respondent argues that facial jewelry's changeable nature places it outside the reach of the Ordinance. The Ordinance is intended to address transient characteristics such as political beliefs or dyed hair as well as personally chosen characteristics of appearance like hairstyle, hair length, or jewelry. Maier v. Sam's Club, MEOC Case No. 19992203 (Aff'd Sam's Club, Inc. v. MEOC (Maier), Case No. 02-2024 (Ct. App. 07/24/2003); rev'd and dismissed Sam's Club, Inc. v. MEOC (Maier), Case No. 01CV2943 (Dane County Cir. Ct., 07/19/2002); aff'd Comm. Dec. 10/01/2001; Ex. Dec. on liability: 03/30/2001).

This case requires an interpretation of where facial jewelry falls within the definition of physical appearance and what may qualify as a reasonable business purpose. Eyebrow piercing/facial jewelry is part of physical appearance, and discrimination on the basis of physical appearance is against the Madison Equal Opportunity Ordinance (MEOO). Preservation of a conservative business image does not constitute a "reasonable business purpose" under the MEOO. Maier v. Sam's Club, MEOC Case No. 19992203 (Aff'd Sam's Club, Inc. v. MEOC (Maier), Case No. 02-2024 (Ct. App. 07/24/2003); rev'd and dismissed Sam's Club, Inc. v. MEOC (Maier), Case No. 01CV2943 (Dane County Cir. Ct., 07/19/2002); aff'd Comm. Dec. 10/01/2001; Ex. Dec. on liability: 03/30/2001).

Conditioning employment based on characteristics of physical appearance in accordance with what an employer believes consumers will find more pleasing will not be met kindly. Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir. 1982). In Gerdom, a female flight attendant was discharged for surpassing the weight limit prescribed by Continental. Continental’s sole proffered business purpose was justified based on perceived consumer preferences for thin, attractive females. According to Gerdom, "passengers' preference for attendants who conform to a traditional image should not enter into employment policies." A general retailer such as Sam's Club who caters to consumers who condition patronage on prejudices and bias towards certain physical appearances is catering to the lowest common denominator, infringing on employees’s rights, and violating the Madison Equal Opportunity Ordinance (MEOO). Maier v. Sam's Club, MEOC Case No. 19992203 (Aff'd Sam's Club, Inc. v. MEOC (Maier), Case No. 02-2024 (Ct. App. 07/24/2003); rev'd and dismissed Sam's Club, Inc. v. MEOC (Maier), Case No. 01CV2943 (Dane County Cir. Ct., 07/19/2002); aff'd Comm. Dec. 10/01/2001; Ex. Dec. on liability: 03/30/2001).

Respondent maintains promoting their conservative image constitutes a reasonable business purpose. Respondent brought expert testimony explaining what constitutes a conservative business image and how facial jewelry is in conflict with that image. For a general-public retailer to justify a business purpose based on perceived consumer prejudices or values is to defy the nature of the ordinance. The ordinance is designed to protect employees from prejudice based on qualities unrelated to job performance while simultaneously allowing employers to maintain appropriate standards in areas like safety and health.

Reasonable business purposes may be tied to considerations of health or safety. State ex rel. McDonald’s v. Madison Equal Opportunity Comm., 120 Wis. 2d 677, 356 N.W.2d 495 (Ct. App. 1984) (unpublished). The business purpose of conservative image cannot be considered as promoting health or safety concerns. In the Hearing Examiner’s opinion, the articulated business purpose of a conservative image does not form a reasonable business purpose for the purposes of the Ordinance. Maier v. Sam's Club, MEOC Case No. 19992203 (Aff'd Sam's Club, Inc. v. MEOC (Maier), Case No. 02-2024 (Ct. App. 07/24/2003); rev'd and dismissed Sam's Club, Inc. v. MEOC (Maier), Case No. 01CV2943 (Dane County Cir. Ct., 07/19/2002); aff'd Comm. Dec. 10/01/2001; Ex. Dec. on liability: 03/30/2001).

225.2 Hire

225.3 Termination-Physical Appearance

An outside porter discharged for violating an employer's requirement to be clean shaven failed to rebut the employer's articulated purpose for the rule that a beard would result in an increased risk of food poisoning. State ex. rel. McDonald's Restaurant v. MEOC (Karaffa), supra.

An employee who was disciplined, suspended and effectively discharged in part for having worn skirts with hemlines which the employer considered too long was found not to have been discriminated against on the basis of physical appearance where she failed to carry her burden of showing that the articulated safety reason for the adoption of the rule was a pretext for physical appearance discrimination. Quinn-Gruber v. Wis. Physician's Serv., MEOC Case No. 2877 (Comm. Dec, 1/27/83, Ex. Dec. 9/27/82).

For the purposes of the Ordinance, prescribing and proscribing employee attire both have the same meaning. An employee was not discriminated against on the basis of physical appearance when she was terminated for wearing facial jewelry in violation of the Respondent's policy. Maier v. Sam's Club, MEOC Case No. 19992203 (Aff'd Sam's Club, Inc. v. MEOC (Maier), Case No. 02-2024 (Ct. App. 07/24/2003); rev'd and dismissed Sam's Club, Inc. v. MEOC (Maier), Case No. 01CV2943 (Dane County Cir. Ct., 07/19/2002); aff'd Comm. Dec. 10/01/2001; Ex. Dec. on liability: 03/30/2001).

The MEOC maintained that appealing to conservative customer preferences was not reasonable, but the appellate court concluded that attracting and maintaining customers plainly depended upon customer preferences and customer satisfaction. In response to another argument advanced by the MEOC-that Respondent could not describe with sufficient precision the conservative image it maintained-the Court of Appeals held that whether Respondent defined "conservative" with precision was unrelated to whether Respondent could reasonably have chosen to promote its conservative image. Finally, the Court held that one could not rationally distinguish between retail and office settings when determining whether dress codes serve some "reasonable business purpose." The Court stated that requiring cleanliness, uniforms, or prescribed attire is acceptable when intended to further some reasonable goal that benefits the business. Maier v. Sam's Club, MEOC Case No. 19992203 (Aff'd Sam's Club, Inc. v. MEOC (Maier), Case No. 02-2024 (Ct. App. 07/24/2003); rev'd and dismissed Sam's Club, Inc. v. MEOC (Maier), Case No. 01CV2943 (Dane County Cir. Ct., 07/19/2002); aff'd Comm. Dec. 10/01/2001; Ex. Dec. on liability: 03/30/2001).

Complainant terminated for wearing facial jewelry (eyebrow ring) in contravention of Sam's Club policy did not offer witnesses to attempt to disprove Respondent's articulated reasonable business purpose. But because Respondent's articulated purpose—promoting a conservative image—falls short of what the ordinance demands, Complainant's failure to disprove the articulated purpose does not defeat her claim. Maier v. Sam's Club, MEOC Case No. 19992203 (Aff'd Sam's Club, Inc. v. MEOC (Maier), Case No. 02-2024 (Ct. App. 07/24/2003); rev'd and dismissed Sam's Club, Inc. v. MEOC (Maier), Case No. 01CV2943 (Dane County Cir. Ct., 07/19/2002); aff'd Comm. Dec. 10/01/2001; Ex. Dec. on liability: 03/30/2001).

225.4 Terms and Conditions

225.9 Miscellaneous

226 Race Discrimination (see also 230.1)

226.1 Coverage; Generally

Respondent discriminated against the Complainant on the basis of race by association. Complainant, a white woman, maintained social relations with Black and Hispanic men. The Hearing Examiner found Respondent failed to promote the Complainant because of such associations when Respondent failed to prove that the successful candidate for the position was at least as qualified as the Complainant. Leatherberry v. GTE, MEOC Case No. 21124 (Comm. Dec. 4/14/93, Ex. Dec. 1/5/93).

226.2 Hire

A prima facie case may also be established by showing that a policy or practice of the employer (e.g., an applicant test) has the effect of excluding a disproportionately high number of persons of the complainant's race. Jones v. Madison Serv. Corp., MEOC Case No. 2574 (Ex. Dec. 11/24/81).

While some of an employer's reasons for selecting a white over a black for a permanent laborer position were not believable, there were legitimate factors which justified hiring the white instead of the otherwise equally qualified black. Donahue v. MG&E, MEOC Case No. 2560 (Comm. Dec. 9/10/81, Ex. Dec. 2/9/81).

Where two employees were otherwise equally qualified for a Claims Processor job, it was not discriminatory to hire the white applicant where the black applicant had a negative job reference from a previous employer; . . . and it was also not discriminatory to reject the same black applicant for a subsequent position based on the negative reference and the applicant's failure to list on her application the employer responsible for the reference. Thompson v. Wis. Life, MEOC Case No. 2479 (Ex. Dec. 10/13/81).

Where a complainant did not show that he met the minimum qualifications for the job he applied for and did not otherwise raise an inference of race discrimination, his complaint was dismissed for failure to establish a prima facie case. Fields v. Roadway Express, MEOC Case No. 2716 (Comm. Dec. 7/26/82, Ex. Dec. 3/3/82).

A black initially selected for a staff position as a neighborhood coordinator and who was replaced by a white prior to the actual starting date of the job was not discriminated against on the basis of his race where he had performed poorly in the interim as a volunteer on related work. State ex rel. Adams v. MEOC, (Northport Packers), No. 82-CV-1637 (Dane County Cir. Ct., 6/9/83).

The Hearing Examiner dismissed Complainant's claim that her application was not considered because of her race, finding that the Respondent had neither seen nor spoken to the Complainant and therefore, at the time of the decision not to hire, had no knowledge of the Complainant's race. Rhone v. Marquip, MEOC Case No. 20967 (Ex. Dec. on summary judgment 4/5/89, on liability 7/31/89).

The Hearing Examiner found that Respondent did not discriminate against Complainant when it failed to hire him. Complainant's rude conduct, not his race, resulted in the decision not to hire. Rose v. Kippcast, MEOC Case No. 20851 (Ex. Dec. 9/29/89).

The Complainant, a Black male, failed to prevail on his claim that he was not hired for the position of housekeeping because of his race when he failed to produce sufficient support for the contention that he had 15 years of related work experience. Toomer v. Meriter Hospital, MEOC Case No. 21582 (Ex. Dec. 11/10/92).

The Complainant, an African American male, failed to demonstrate that the Respondent did not hire him because of his race. The Complainant used "testing" evidence consisting of an inquiry made by a white friend but the Hearing Examiner found that the "test" conditions had not been controlled sufficiently to make the test reliable, i.e., there was no information indicating that the Complainant and his friend had spoken to the same people, asked the same questions and followed up in the same manner. Reid v. PDQ, MEOC Case No. 21680 (Ex. Dec. 7/1/94).

The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Speedway Self Service, MEOC Case No. 22354 (Ex. Dec. 12/5/97).

The Respondent did not discriminate against the Complainant when it did not offer the Complainant employment. Hiring others who were not similarly situated and who possessed superior credentials does not constitute discrimination. Rolack v. Speedway Self Service, MEOC Case No. 22354 (2nd Ex. Dec. 2/11/00).

When poor recordkeeping and mismanagement are the likeliest reasons why someone is not hired, there will be no finding of discrimination. The Complainant, an African-American male, did not demonstrate the Respondent did not hire him on the basis of his race. Rolack v. Pizza Hut, MEOC Case No. 22355 (2nd Ex. Dec. 2/11/00).

The Respondent's stated reason for not continuing the application process, that the Complainant failed to produce required professional documentation, is a legitimate, nondiscriminatory explanation for not continuing the application process. The Complainant fails to point to evidence or facts that are sufficient to rebut the Respondent's nondiscriminatory explanation for its decision to terminate the Complainant's application. The Complainant admittedly had not submitted much of the material required by the Respondent as part of the application process. There is no assertion that the material required by the Respondent was discriminatory or that the requirement to provide the information was either discriminatory or was discriminatorily applied. Complainant failed to demonstrate by a preponderance of the evidence a prima facie case that he was discriminated against in employment based on race. Had the Complainant initially made a prima facie case of discrimination, this failure to carry his burden of proof at this stage would result in a finding of no discrimination as well. Neal v. US Bank, MEOC Case No. 20112019 (Ex. Dec. 03/08/2013).

226.3 Conditions of Employment, Harassment Because of Race

An employer was liable for isolated racial slurs made by a supervisory employee. Vance v. Eastex Packaging, MEOC Case No. 20107 (Ex. Dec. 5/21/85).

Where racial harassment by a non-supervisory co-employee was alleged, to establish the employer's liability the complainant had to show:

(a) the racial harassment occurred;

(b) the employer knew or should have known about the racial harassment;

(c) the employer failed to take reasonable steps to redress or eliminate the racial harassment. Guyton v. Rolfsmeyer, MEOC Case No. 20424 (Comm. Dec. 7/18/86, Ex. Dec. 4/28/86).

. . . and where the employer took reasonable steps to redress or eliminate the racial harassment based on what the employer knew or should have known, the complainant failed to establish the employer's liability for racial harassment. Guyton v. Rolfsmeyer, supra.

An employee was not insulated from the battles of the work place, no matter how unfair, where he could not show that his race was a factor in his treatment in regard to: (1) training; (2) a compensation and salary differential; (3) loss of supervisory authority; or (4) treatment he received as the employer's affirmative action officer. Morgan v. Community Action Comm., MEOC Case No. 2642 (Ex. Dec. 2/12/82).

Where an employer had taken reasonable steps to redress or eliminate racial harassment based on what the employer knew or should have known, it was not race discrimination to have discharged a black employee who engaged in a physical altercation with the non-supervisory, white co-employee he had accused of perpetrating the racial harassment. The black employee initiated the physical altercation that ensued as a result of a verbal argument with the white employee, the white employee was also discharged and the black employee failed to show that his discharge was a result of the employer's failure to have (previously) adequately disciplined the white employee for the claimed racial harassment. Guyton v. Rolfsmeyer, supra.

The Hearing Examiner concluded that the Complainant had suffered racial harassment at the hands of a co-worker/supervisor and that other managers knew of the harassment and failed to take adequate steps to remedy the problem. The Complainant was not awarded emotional distress damages as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), but the Respondent was ordered to pay the Complainant's costs and attorney fees. Mosley v. Gantos, MEOC Case No. 22247 (Ex. Dec. 8/20/97).

Reporting harassment (in this instance by nonsupervisory coworkers) or demonstrating that an employer reasonably knew or should have known is an essential element in a claim of racial harassment. One of Complainant's nonsupervisory coworkers harassed him because of his race and/or color, but Complainant has not met his burden of proof to establish that it is more likely than not that he reported nonsupervisory co-worker harassment to management. Failing to demonstrate by the greater weight of the credible evidence that either he reported the harassment to management or that management should have reasonably known of the harassment, the Complainant fails to meet his burden of proof with respect to this claim. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 MEOC Case No. 20112017 (aff'd Comm. Dec. 06/16/2014; Ex. Dec. on liability: 04/19/2013).

A single incident involving Respondent supervisor's insensitive, hurtful, and racially biased statement to Complainant, in the context of an extensive personal history of sympathetic or friendly relations between the two and pre-dating Complainant's employment with Respondent, is insufficient to establish a pattern or practice of supervisory harassment. The ordinance does not establish a per se standard in which even a single incident can establish violation of the ordinance. Even this single incident when considered in combination with a similar but more ambiguous incident between Complainant and a second Respondent supervisor does not rise to the level of a hostile workplace that would permit the Hearing Examiner to find a persistent pattern or practice of harassing conduct. The two isolated and individual incidents do not establish illegal discrimination under the terms of the ordinance. The Complainant was not subject to harassment on the basis of his race or color by a manager of the Respondent. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (aff'd Comm. Dec. 06/16/2014; Ex. Dec. on liability: 04/19/2013).

Complainant's general complaints fail to specify the actual method or manner of harassment and thus do not establish that the Complainant was subjected to a pervasive pattern or practice of patently offensive language or conduct of an explicitly racial nature stemming from the supervisors at the Complainant's workplace. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (aff'd Comm. Dec. 06/16/2014; Ex. Dec. on liability: 04/19/2013).

In the case of harassment by a customer, it must be demonstrated that the employer either knew or reasonably should have known of the harassment and failed to take reasonable steps to eliminate the conduct. The Hearing Examiner finds that there is insufficient support in the record to conclude that the Complainant complained to Respondent management about discriminatory language or treatment at the hands of customers, leading Hearing Examiner to conclude that Complainant may have been harassed by customers of the Respondent because of his race or color, but he failed to report those incidents. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (aff'd Comm. Dec. 06/16/2014; Ex. Dec. on liability: 04/19/2013).

Complainant filed a claim against Respondent North Central States Regional Council of Carpenters Training Fund (Training Fund) alleging discrimination based on his race, color, and in retaliation when he was harassed and then terminated from his apprenticeship. At an early point in the investigation Respondent interposed a claim for lack of jurisdiction based on three contentions. The Hearing Examiner addressed the Respondent's argument that the Training Fund is not a proper party because it is not and never has been the Complainant's employer.

In the past, the Hearing Examiner has defined the "essence of the employment relationship" as "work in exchange for compensation." Schenk v. Domestic Abuse Intervention Services, Inc. The relationship between the Complainant and Respondent in this case much more clearly resembles the relationship between student and school. The Respondent did not pay the Complainant for the work he performed as part of his apprenticeship, while payment came from Complainant's employer, under terms set forth by the union and the state.

Furthermore, the Respondent had no control over other factors that might be said to indicate an employment relationship, such as work hours or schedule, nor did the Respondent "hire" or "fire" the Complainant, or have any control over whether Complainant was accepted into the program. Wis. Stat. Sec. 106.01(5p) gives the DWD sole power to terminate an apprentice contract. Under the circumstances of this claim, the Hearing Examiner must conclude that the Complainant was not an employee of the Respondent, and that the Commission lacks jurisdiction in this case. Dinkins v. North Central States Regional Council of Carpenters Training Fund, MEOC Case No. 20162002 (Ex. Dec. re: jurisdict. 09/26/2016).

The single incident of harassing conduct described by the Complainant did not rise to the level of the extreme language or conduct needed to demonstrate hostile work environment harassment on the basis of race and color. The fact that there were no further incidents demonstrates that there was not a pattern or practice of harassing behavior sufficient to create a hostile work environment. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

226.4 Promotion, Compensation, Terms of Employment

Although a black data entry operator had more general supervisory experience, it was not race discrimination for his employer to select a white data entry operator for a supervisory position who had a significantly higher production and lower error ratio where the employer had traditionally relied on these criteria as the sole determinative factors in such promotions. Robinson v. Electronic Data Systems, MEOC Case No. 2559 (Ex. Dec. 1/7/81).

Complainant failed to prevail on her claim of race discrimination in regard to promotion. The Complainant, who is Black, alleged that she should have been promoted from her Employee Relations Assistant II position sooner than she actually was. She claimed that criticism of her communications skills was racially motivated and affected her promotional opportunities. The Complainant did not, however, adequately rebut the Respondent's articulated reasons that the Complainant was not promoted in May of 1985 primarily because her job duties and responsibilities had not changed sufficiently to warrant promotion (the Complainant was promoted in 1986). The Commission affirmed the Hearing Examiner's decision in its entirety. McCarter v. Wisconsin Power and Light, MEOC Case No. 20471 (Comm. Dec. 3/26/87, Ex. Dec. 12/29/86).

The Hearing Examiner found that the Complainant had failed to prove that the Respondent's failure to promote him was based upon his race. The Hearing Examiner determined that other applicants were more qualified, and the areas in which the Complainant perceived that he was more qualified were not essential to the job. Lynes v. Marquip, Inc., MEOC Case No. 21797 (Ex. Dec. 12/12/94).

The Hearing Examiner concluded that the Respondent had discriminated against the Complainants on the basis of their race, African-American, by manipulating Hunt's work schedule so as to prevent Thomas from exercising certain contractual rights that would allow Thomas to advance to the position of chef. The Hearing Examiner entered an interim Order on damages, awarding the Complainants back pay with prejudgment interest. Further the Hearing Examiner concluded that as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), the Commission lacked authority to make awards of either emotional distress damages or punitive damages. Hunt v. Oscar Mayer Foods Corp., MEOC Case No. 21104 (Ex. Dec. 5/23/97), Thomas v. Oscar Mayer Foods Corp., MEOC Case No. 21220 (Ex. Dec. 5/23/97).

The Hearing Examiner concluded that the Complainant's (a Black Dominican) demotion and the requirement that he produce a doctor's excuse for his absence were not predicated on either his race or national origin/ancestry but were reasonable and non-discriminatory exercises of management authority. The Hearing Examiner found that he was without jurisdiction to consider Complainant's claim regarding termination because the Complainant had not timely appealed a finding of no probable cause with respect to this allegation. De Leon v. Woodman's Food Market - West, MEOC Case No. 22080 (Ex. Dec. 6/11/97).

African-American construction worker brought action against his employer, claiming that his employer discriminated against him based upon his race and color. The employer allegedly displaced the worker from certain equipment, denying him overtime opportunities. The worker argued that this action constituted race-based discrimination with respect to compensation and the conditions and privileges of employment. The Hearing Examiner found that the employer had neither displaced the worker nor exhibited any racial animus. The worker had voluntarily stepped aside for another, more experienced employee who needed additional overtime hours. Duncan v. H. James & Sons, Inc., MEOC Case No. 20022040 (Comm. Dec. 5/27/04, Ex. Dec. 12/22/03, 2/11/05).

The Complainant received the same or a better rate of pay than other similarly situated employees regardless of his race or color, and the record does not support a claim that the Complainant's race or color played any role in the rate of his pay. Nothing in the record establishes that the Complainant was either paid less than comparably situated White employees or that he was denied any limited opportunity to advance or to train for advancement because of his race or color. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (aff'd Comm. Dec. 06/16/2014; Ex. Dec. on liability: 04/19/2013).

Allegations of failure or refusal to hire or promote during employment because of race, color, sex or age are rebutted by the legitimate business reason that a candidate’s experience working with the Respondent and specific supervisory experience in a child care setting are at least as important, if not more so, than a candidates educational background. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

Respondent’s offering of a Professional Development Plan to the Complainant as a mechanism to advance within the Respondent’s organization does not constitute an adverse action. The Professional Development Plan was offered as a means to advance within the Respondent’s organization and was not required of the Complainant. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

226.5 Termination-Race

In establishing a prima facie case of discriminatory discharge, it is not always necessary for a complainant to show that s/he was replaced or that the replacement was of a different race. Morgan v. Community Action Comm., supra.

A black employee failed to show that he was discriminated against on the basis of race in regard to discharge. The evidence showed that his discharge was due to his absence for three work days without calling in, and the complainant failed to show that the respondent's articulated reason was a pretext for race discrimination. Vance v. Eastex Packaging, supra.

A black employee proved race was a motivating factor in his discharge where he showed that a number of the employer's articulated reasons for terminating him were not credible and that the employer did not afford him the same level of due process as a white employee had been afforded for a comparable infraction. More specifically, the complainant showed that he was not late for work and that he was not hung over or drunk as asserted by the respondent. Further, the complainant was not given an opportunity to rebut the accusations against him whereas a white employee who had been accused of smoking marijuana while working was afforded an opportunity to rebut those accusations and no action was taken against him. Sanders v. U-Haul Company of Western Wisconsin, MEOC Case No. 20288 (Ex. Dec. 5/22/85).

It was not race discrimination to discharge a black "temporary" employee without prior warnings for a work-related offense where the only white employee shown to be given progressive discipline prior to discharge was a "permanent" worker shown to be subject to a separate set of disciplinary rules. Goldsberry v. ChemLawn, MEOC Case No. 2967 (Ex. Dec. 11/21/83).

. . . but it was discrimination to summarily discharge a black employee while white employees who had committed comparable or more serious violations were terminated, if at all, only after progressive discipline. Morgan v. Community Action Comm., supra.

A laid off a black employee failed to show that a less senior white employee who was retained had the same job description and duties. Davis v. Alpine Rentals, MEOC Case No. 2473 (Ex. Dec. 7/16/80).

A black employee who was otherwise a good employee was nevertheless not discriminated against where he was discharged for violating his employer's unwritten requirement of calling on the day of an unanticipated absence; . . . and a different application of this rule by supervisors in other departments did not establish disparate treatment where the employer showed that each department was autonomous and operated without upper management interference. Jackson v. Madison Club, MEOC Case No. 2715 (Ex. Dec. 9/24/81).

Where the employer's work rule stated that fighting could lead to dismissal, a black employee who was discharged by the employer without investigation along with the white employee with whom he fought did not show race discrimination and his claim of self defense was rejected. Hargons v. Gardner Baking, MEOC Case No. 2619 (Comm. Dec. 11/9/81, Ex. Dec. 4/29/81).

Although a black employee's absence and tardiness record was far from exemplary, it was discrimination to discharge him where white employees with worse records were retained and where supervisors were inconsistent in reporting absences; . . . and the employer's claim that the black employee also performed poorly in his job was found to be pretextual. Fitzgerald v. Hillhaven, MEOC Case No. 2757 (Ex. Dec. 2/18/82).

Complainant alleged that the Respondent discriminated against him because of his race with respect to the terms, conditions, and benefits of his employment by engaging in racial harassment, and that he was discharged from his employment because of his race. The Hearing Examiner determined that the evidence failed to support Complainant's racial discrimination claim. It was Complainant's conduct in swearing at Respondent that resulted in his termination. Magee v. John Neal Company. Inc. et al., MEOC Case No. 20777 (Ex. Dec. 8/29/89).

When Respondent failed to appear at the hearing, the Hearing Examiner found, based on the Complainant's testimony, that the Complainant was terminated from Respondent's employment under circumstances for which White employees were not terminated. Perez v. Affiliated Carriage Systems, MEOC Case No. 20938 (Comm. Dec. 6/3/92, Ex. Dec. 12/30/91) Affiliated Carriage Systems, Inc., v. Equal Opportunities Commission of the City of Madison, 92 CV 2714 (Dane County Cir. Ct. 2/25/93).

The Hearing Examiner found that the Respondent did not discriminate against the Complainant on the basis of race; several instances of problems with co-workers were found to have no racial component, and Respondent made reasonable efforts to end racial harassment that did occur. Morgan v. Hazelton Labs, MEOC Case No. 21005 (Ex. Dec. 4/2/93).

The Hearing Examiner found that the Complainant's employment was terminated as a result of her poor work performance and the Respondent's perception that she was regularly violating the provisions of her work contract, and not because of her race or sex. Baker v. Capital Services Inc., MEOC Case No. 21489 (Ex. Dec. 5/7/93).

The Complainant prevailed on her discrimination claim based on race and sex in regard to termination from employment. The Respondent alleged that Complainant was terminated due to violation of its telephone restrictions. The Hearing Examiner found that a White male employee was not terminated under similar circumstances. However, the Respondent was not found to have discriminated against Complainant on the basis of race or sex in failing to offer her a position performing floor care and by following her and another co-worker around their assigned areas, as she was not qualified for the floor care position, and Respondent was exercising its normal supervisory authority by checking on her work. The Respondent failed to appear at the hearing. The Complainant was awarded $16,666.80 in back pay, $2,000.00 in compensatory damages and reinstatement. Franklin v. Capital Services, MEOC Case No. 21490 (Ex. Dec. 5/14/93).

The Complainant, an African American male, was not terminated from his employment or disciplined more harshly than others not of his race because of his race but because he had significantly violated the Respondent's attendance policy. The white employees to whom the Complainant pointed to show discrimination were not similarly situated to the Complainant. Maas v. Woodman's Food Markets, Inc., MEOC Case No. 21724 (Ex. Dec. 8/4/94).

The Respondent was found to have discriminated against the Complainant, a black male, on the basis of race in regard to employment termination. It was proven that the Respondent treated Complainant differently with respect to discipline. Complainant was awarded back pay, front pay, prejudgment interest, and reasonable costs and attorney's fees. On appeal, the Commission upheld the Examiner's ruling. The Circuit Court determined that the Commission's findings were supported by the record and affirmed the Commission's decision. The Court found that the Commission's use of the "in part" test for determining discrimination was appropriate. The Court of Appeals affirmed the judgment below stating that it need not determine whether the substantial evidence test or the "in part" test was appropriate because the level of proof of discrimination was sufficient under either test. The Court of Appeals remanded the complaint to the Commission for further determination of damages. Harris v. Paragon Restaurant Group. Inc. et al., MEOC Case No. 20947 (on liability/damages: Comm. Dec. 2/14/90, 5/12/94, Ex. Dec. 6/28/89, 11/8/93; on atty. fees: Comm. Dec. 2/27/95, Ex. Dec. 8/8/94) Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 91-1267 (Ct. App. 6/18/92, unpublished) Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 90 CV 1139 (Dane County Cir. Ct. 2/14/90).

Respondent did not discriminate against the Complainant on the basis of his race when it terminated his employment because of its legitimate suspicions about the Complainant's possible theft from the company. The Complainant's attempt to compare his treatment to that of other white employees drew on too narrow a group for comparison. McKoy v. Prange Way, MEOC Case No. 21639 (Ex. Dec. 1/31/95).

Complainant, a black male, failed to show that Respondent terminated him because of his race. The Hearing Examiner concluded that Complainant's inability and sometimes refusal to perform standard tasks of clerks such as cleaning restrooms, and slicing meat was the basis for the termination. The Hearing Examiner also found that Complainant was not terminated because of his race because two (2) white employees were terminated by Respondent near the time frame as Complainant for similar reasons. Harper v. Open Pantry Food Marts, MEOC Case No. 2771 (Comm. Dec. 8/31/82, Ex. Dec. 4/13/82).

Defendant's motion to dismiss was granted when Complainant, a black male, failed to establish a prima facie case concerning allegations that he was terminated because of his race. The Hearing Examiner determined that Complainant's five (5) written disciplinary warnings and numerous verbal warnings for various infractions were the motivating factors for terminating the Complainant. The Commission later adopted the Hearing Examiner's reasoning. Rumph v. Ohio Medical Products, MEOC Case No. 2946 (Comm. Dec. 8/4/83, Ex. Dec. 3/24/83).

African-American construction worker brought action against his employer, alleging that his employer discriminated against him based upon his race and color when his employer fired him. The Hearing Examiner found that the worker was mistaken about having been fired. After having been replaced aboard certain equipment, the worker simply departed and never returned. The employer later contacted the worker and clearly invited him back, but the worker declined. Duncan v. H. James & Sons, Inc., MEOC Case No. 20022040 (Comm. Dec. 5/27/04, Ex. Dec. 12/22/03, 2/11/05).

The Complainant (black/African-American) alleged that the Respondent suspended him and later terminated his employment on account of his race and color. The Hearing Examiner concluded that the Complainant failed to establish a nexus between his membership in a protected class and the adverse actions he suffered. In this regard, the Complainant primarily argued that, in the year following his termination, the Respondent hired a number of individuals outside of his protected class. The Hearing Examiner held that this fact, without more, cannot result in a finding that the Respondent's actions towards the Complainant were racially motivated. Rather, at most, the record supports finding that the Respondent's actions were symptomatic of a lapse in business judgment. Rhyne v. Kelley Williamson's Mobil, MEOC Case No. 20092086 (Ex. Dec. 03/30/11, 2nd Ex. Dec. 11/30/11, Comm. Dec. 05/23/12).

Complainant alleges that unfair treatment during his work tenure, and his eventual termination, was due to race and sex discrimination on the part of supervisory staff. The Hearing Examiner found that Complainant's employment was terminated because his attitude and actions caused his supervisors and coworkers, both African American and white, male and female, to no longer be able to work with the Complainant. The Complainant's inability to work with others or to work towards resolution of outstanding issues required his termination. Neither the Complainant's sex nor his race or color were motivating factors in his termination. Evans-Jackson v. Goodman Community Center, MEOC Case No. 20112076 (aff'd Comm. Dec. 06/17/2014; Ex. Dec. on liability: 07/03/2013).

At the time of the Complainant's termination, Respondent employed at least one other African American in the position of Delivery Driver. While the Hearing Examiner does find the Respondent's failure to document its termination decision troubling, the Hearing Examiner concludes that the Complainant fails to present sufficient evidence for the Hearing Examiner to conclude that his race or color was a motivating factor in the Respondent's decision to terminate Complainant. Complainant has failed to carry his burden of proof as to either the existence of a causal connection between his race or color and his termination, or that if such a causal connection has been made that the Respondent's explanation is pretextual. The Hearing Examiner concludes that the Complainant's termination was not motivated by his race or color. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (aff'd Comm. Dec. 06/16/2014; Ex. Dec. on liability: 04/19/2013).

Complainant asserted that she was discriminated against in employment on the basis of her race (Hmong/Asian) when her employment was terminated because of the Respondent's perception of a high-level threat of workplace violence stemming from the Complainant’s divorce. The Complainant contended that this perception came from her Hmong heritage and that of her ex-husband, and the Hmong people's experience during the Viet Nam War.

The record adequately demonstrates the first two elements of the general prima facie claim: that the Complainant is a member of the protected class "race," and that her termination from employment was an adverse employment action.

Rather than offering the third element of a prima facie claim by demonstrating a causal link between the Complainant's race and her termination, the Complainant attacked the reasons propounded by the Respondent for its decision to terminate the Complainant. Complainant thus fell short in meeting her burden of proof on one of the critical elements of her claim.

While the Hearing Examiner believes that the Respondent's actions were heartless and represented a somewhat paranoid view of the world and the risk and possible expense that retaining the Complainant might represent, the Hearing Examiner cannot conclude that the Respondent's stated reason was incredible or a pretext for discrimination. Yang v. American Family Insur. Group, MEOC Case No. 20112016 (Ex. Dec. on liability: 01/19/2017).

Complainant asserted that she was discriminated against in employment on the basis of her race (Hmong/Asian) when her employment was terminated because of the Respondent's perception of a high-level threat of workplace violence stemming from the Complainant's divorce. The Complainant contended that this perception came from her Hmong heritage and that of her ex-husband, and the Hmong people's experience during the Viet Nam War.

The Hearing Examiner agrees with the arguments and testimony presented that the Respondent overreacted to the Complainant's situation and circumstance and treated her unfairly, but the evidence does not support a conclusion that this treatment was a result of the Complainant's race. Yang v. American Family Insur. Group, MEOC Case No. 20112016 (Ex. Dec. on liability: 01/19/2017).

226.9 Miscellaneous

A complainant may establish a prima facie case of discrimination by showing that s/he was treated differently than others in similar situations. Monroe v. Swiss Colony, MEOC Case No. 2534 (Ex. Dec. 9/5/80); . . . the burden then shifts to the employer to produce evidence to rebut this showing; the complainant retains the ultimate burden of showing that the employer's evidence is a pretext for discrimination. Morgan v. Community Action Comm., MEOC Case No. 2642 (Ex. Dec. 2/12/82); Goldsberry v. ChemLawn, MEOC Case No. 2967 (Ex. Dec. 11/21/83).

In a mixed-motive case, it is sufficient to prove liability for race discrimination by showing that race was a motivating factor relied on by the employer even where the employer also relied on some nondiscriminatory motives. Sanders v. U-Haul Company of Western Wisconsin, MEOC Case No. 20288 (Ex. Dec. 5/22/85).

No race discrimination was found in regard to job assignments of a female Native American employed as a steam fitter apprentice where the Respondents job assignment actions were based on her sex. Whiteagle v. Badger Mechanical, MEOC Case No. 20133 (Comm. Dec. 1/31/86, 8/6/86, Ex. Dec. on liability 6/14/85, on damages 9/25/85, on remand 4/28/86).

African-American construction worker brought action against his employer, alleging that his employer discriminated against him based upon his race and color. The employer allegedly displaced the worker from certain equipment, denying him overtime opportunities. Thereafter, the employer allegedly fired the worker. Based upon the record, the Hearing Examiner found that the employer had neither displaced the worker, nor fired him, nor showed any racial animus. The worker was evidently mistaken about having been fired, and although the employer invited him back, the worker declined. Duncan v. H. James & Sons, Inc., MEOC Case No. 20022040 (Comm. Dec. 5/27/04, Ex. Dec. 12/22/03, 2/11/05).

An employer's failure to undertake, conduct and complete an adequate investigation of a racial discrimination claim may not create a per se violation of the ordinance. However, this failure to investigate, coupled with the employer's conduct and proposed resolution, which included a forced face to face meeting between accuser and accused and a refusal to consider a transfer of either the Complainant or the supervisor, was the basis for a finding of liability of either discrimination on the basis of race or retaliation for the exercise of rights protected by the ordinance. The retaliation claim was based on the ordinance's prohibition of coercing, intimidating, or otherwise discriminating against a person for an exercise of rights protected by the ordinance. Carver-Thomas v. Genesis Behavioral Services, Inc., MEOC Case No.19992224 and 20002185 (Ex. Dec. 1/25/06).

The racial composition of the rest of the Respondent's workplaces does not overcome the finding that the Complainant's race was a motivating factor in her treatment, even where the composition evinces equal opportunity hiring for minorities. Carver-Thomas v. Genesis Behavioral Services, Inc., MEOC Case No.19992224 and 20002185 (Ex. Dec. 1/25/06).

The Complainant, a black, African-American male, was denied the opportunity to rent a truck and was told to leave the Respondent's store after a dispute with the Respondent's acting manager. Testers, not of the Complainant's race and color, helped demonstrate that the Respondent's actions were likely motivated by the Complainant's race and color. The Hearing Examiner awarded the Complainant $15,000.00 in damages for emotional distress based, in part, on the testimony of a treating physician. The Respondent was also ordered to pay the Complainant's costs and fees including a reasonable attorney's fee. Jackson v. UHAUL, MEOC Case No. 20093107 (Ex. Dec. 02/08/12).

227 Religion Discrimination

227.1 Coverage; Generally

227.2 Exception Allowing Religious Associations to Give Preference to Adherents to Their Creed

227.3 Constitutional Issues

227.4 Employer's Duty to Accommodate

227.5 Harassment Because of Creed

227.6 Cases

227.9 Miscellaneous

228 Sex Discrimination

228.1 Coverage, Exceptions

A sex discrimination complainant will prevail by showing directly that a discriminatory reason likely motivated the employer or showing directly that the employer's stated reasons for its actions are not believable. Madison Gen. Hosp. v. MEOC (Dayton), No. 81-CV-1925 (Dane County Cir. Ct., 7/9/82).

228.11 Sex as a Bona Fide Occupational Qualifications (BFOQ)

Sex (female) was a BFOQ for a medical technologist position at a clinic run by two male doctors where they established that it was necessary to have a female on duty to accommodate the privacy wishes of some of their patients. Robbins v. Walsh Clinic, MEOC Case No. 2512 (Comm. Dec. 2/20/81, Ex. Dec. 10/10/80).

Bona fide occupational qualification exceptions are to be granted only in rare circumstances, and the burden is on the employer to establish that a BFOQ exists or is necessary; where an employer alleges that a BFOQ is required because of ability to perform on the basis of sex, an employer must how that: (1) the BFOQ is reasonably necessary to the normal operation of the business; and (2) the essence of the business would be undermined by not hiring members of one sex exclusively; . . . in cases where an employer alleges that a BFOQ is required because of its perception of customer privacy interests; the employer must show, in addition to (1) and (2) above, that the nature of the business makes it infeasible to assign job responsibilities in a selective manner to avoid collision with the privacy rights of the customers; . . . and, while a women's apparel store discriminatorily refused to hire a male applicant for a sales clerk job, it would have been legitimate not to schedule him at those times when no female clerks would have been available to enter and inspect the dressing rooms. Bodle v. Midwest Fashions, MEOC Case No. 2781 (Ex. Dec. 4/5/82).

228.12 Pregnancy, Childbirth, Maternity Leave or Related Medical Condition

The Complainant alleged that the Respondent discriminated against her on account of her sex (pregnancy/maternity) in her terms and conditions of employment (reduction of hours and harassment) and in the termination of her employment (refusal to rehire). The Hearing Examiner concluded that the facts and evidence did not support a finding of discrimination. Specifically, the Hearing Examiner found that, while the Complainant's reduction in work hours corresponded with her pregnancy, the reduction could reasonably be explained by the Respondent's seasonal requirements. Further, a female employee that was not a member of the Complainant's protected class also suffered a reduction in hours at the same time as the Complainant. The Hearing Examiner found that despite a less than cordial working relationship between the Complainant and her manager, the Complainant had not been subjected to a hostile work environment because of her pregnancy/maternity. The Hearing Examiner also found that the Complainant failed to adequately follow up with the Respondent about returning to work after a confrontation with her manager and again after the birth of her child. Had the Complainant better communicated with the Respondent, it is likely that she would have been permitted to return to work. Robinson v. Bridges Golf Course, MEOC Case No. 20092058 (Ex. Dec. 07/27/12).

228.13 "Sex Plus"

The Hearing Examiner applied a "sex plus" theory to bring complainant's claim of discrimination based upon her status as a pregnant employee under the Commission's jurisdiction. Though the Common Council adopted Title VII protections before Title VII included the Pregnancy Discrimination Act, the federal courts had interpreted Title VII to encompass the "sex plus" theory. Ultimately the Hearing Examiner concluded that the Complainant failed to establish that the Respondent's failure to promote her resulted from her pregnancy or her sex. Dickson v. Woodman's, MEOC Case No. 21919 (Ex. Dec. 10/23/95).

228.2 Hire

It was sex discrimination to reject a female applicant for a truck driver position because of her refusal to demonstrate she could lift heavy boxes where males were not asked to do so. State ex. rel. Badger Produce v. MEOC (Matlack), No. 79-CV-4405 (Dane County Cir. Ct., 9/23/80), aff'd, No. 80-1906 (Wis. Sup. Ct., 3/20/82 and 4/6/82).

A male who was initially selected for a staff position as a neighborhood coordinator but was later replaced by a female prior to the actual starting date of the job was not discriminated against on the basis of his sex where he had performed poorly in the interim as a volunteer on related work. State ex rel. Adams v. MEOC, (Northport Packers), No. 82-CV-1637 (Dane County Cir. Ct., 6/9/83).

A complainant who volunteered during her interview for a warehouse delivery job that she would leave for another job in as soon as six months if she were called failed to show that she was discriminated against on account of her sex. She failed to show as pretextual the employer's articulated reason that a male was hired because the employer believed he would stay longer. Wroblewski v. Rock-A-Bye Youth Center, MEOC Case No. 20206 (Ex. Dec. 1/24/85).

The Hearing Examiner awarded the Complainant relief when Respondent failed to appear at the pre-hearing conference. The Complainant presented evidence that when she contacted Respondent to apply for employment as a general laborer, painter, and construction helper, the Respondent refused to consider her application because she is female, without having considered her qualifications for the position. Baremore v. Allen and Procknow, MEOC Case No. 20619 (Ex. Dec. 4/1/87).

Complainant alleged that he was not recalled to employment because of his sex. However, it was Complainant's poor attendance record during a past temporary position with Respondent that ultimately led to the decision not to hire. Allen v. Wisconsin Bell, MEOC Case No. 20804 (Ex. Dec. 8/1/89).

Complainant, a female, established a prima facie case of discrimination on the basis of sex when the evidence showed Respondent failed to assign her to a light labor position while assigning a male to that position. Complainant was clearly more qualified for almost any type of construction or laborer position than the male who received the assignment thereby leading no credibility to Respondent's argument that it was required to match the qualifications of the two applicants and to consider the work requirements involved. Downing v. Labor Ready, MEOC Case No. 22462 (Comm. Dec. 8/29/97, Ex. Dec. 11/20/96).

228.3 Sexual Harassment

The Hearing Examiner determined that the Complainant's claims of racial and sexual harassment were not supported on the record. Specifically the Examiner determined that once the Respondent's manager was given sufficiently specific allegations to investigate, a complete and thorough investigation was made. The Complainant could not testify to any specific acts of harassment occurring after the manager's investigation and warning in the workplace that harassment would not be tolerated. Stinson v. Bell Laboratory, MEOC Case No. 20762 (Comm. Dec. 12/14/89, Ex. Dec. 3/17/89).

The Complainant's allegation of sexual harassment was dismissed for lack of evidence because the Complainant's testimony was deemed unreliable by the Respondent and the Hearing Examiner. Joseph v. The Swiss Colony, MEOC Case No. 20984 (Ex. Dec.6/28/89).

Respondent brought a motion to dismiss for lack of jurisdiction because Complainant failed to utilize the sexual harassment policy that was adopted shortly before her leaving the employment of the Respondent. The Hearing Examiner determined that there is no requirement of exhaustion of internal procedures recognized in sexual harassment law. Whether the Complainant properly rejected use of the Respondent's sexual harassment policy can be a factor in determining whether her leaving employment was reasonable under the circumstances. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99).

It is reasonable and essential for an employer to have an opportunity to conduct an internal investigation into allegations of harassment. Termination upon receiving notice of possible harassment is unwarranted. An employer did not fail to provide an environment free of sexual harassment when it acted promptly upon being notified of possible harassment. Pflaum v. Union Transfer and Storage, Inc., MEOC Case No. 20002092 (ex. Dec. 4/5/02).

Complainant, an experienced bartender, claimed that Respondent violated the Equal Opportunities Ordinance when it failed to take reasonable action to provide her with a workplace free from sexual harassment despite Respondent's knowledge or constructive knowledge of the situation.

In order to determine if the sexual harassment was of a nature or severity to interfere with the performance of her duties or to create an intimidating, hostile or offensive working environment, the question is whether a "reasonable person" would find the resulting workplace to be intimidating, hostile, and/or offensive. Harris v. Forklift clearly indicates that harassment should not be evaluated on a numerical basis nor require debilitating consequences for the Complainant; rather one must look at the circumstances compassionately and with an eye to the impact upon the individual Complainant.

Complainant's detailed descriptions of frequent use of demeaning and offensive language, one or more customers' routine propositions to engage in sexual activity, display of pornographic material including pictures of his own private parts, and regular incidents of grabbing behavior and other unwanted physical contact manifested upon the Complainant, among other behaviors, corroborated in whole or in part, or not contested by others, including the manager, a current employee, and a former employee, constitute hostile workplace sexual harassment under the Equal Opportunities Ordinance. Bedford v. The Farm Tavern, MEOC Case No. 20132017 (Ex. Dec. 08/15/2016).

Ordinance Section (k)(4) makes it clear that sexual harassment generated by nonemployee individuals such as customers, contractors or other third parties, violates the Ordinance where the harassment occurs during the employee's regular work duties and where the employer knows or reasonably should know of the harassment. Bedford v. The Farm Tavern, MEOC Case No. 20132017 (Ex. Dec. 08/15/2016).

Conduct complained of was based on Complainant’s sex, but the conduct, for the most part, was not unwelcomed or unwanted. The alleged harassment was not so severe or pervasive as to alter the conditions of the Complainant’s employment or to create an abusive or hostile working environment, and when the employer was put on notice, the appropriate corrective action was taken. Complainant’s acquiescence to the harassment was not implicitly or explicitly a term or condition of her employment and was not used as the basis or any part of the basis for employment decisions affecting the employee. Cruse v. Nordic Consulting, MEOD Case No. 2014065.

Comments made to a subordinate were of a boorish, immature or inappropriate nature. The Complainant and Mr. Madden had, at one time, a close and personal relationship. At some point there is a shift in this relationship, but for the Hearing Examiner to comment on the cause of the change in relationship would be merely speculative. Cruse v. Nordic Consulting, MEOD Case No. 2014065.

References to an upskirt photo, the “bra” comment and an interpretation of an emoticon filled message are particularly offensive and juvenile to the Hearing Examiner, however, within the larger picture, and given the Complainant’s tepid reaction to these comments, the Hearing Examiner finds the behavior was part of a wider personal relationship that blunts the impact of these incidents. Cruse v. Nordic Consulting, MEOD Case No. 2014065.

One of the cornerstones of sexual harassment is the exercise of power by the harasser over the harassed. While Mr. Madden had the requisite power as the Complainant’s supervisor, the record does not demonstrate that he used that power in his relationship with the Complainant until […] after the Complainant’s complaint to Mr. Bakken about Mr. Madden’s behavior. Cruse v. Nordic Consulting, MEOD Case No. 2014065.

228.4 Compensation, Benefits, Equal Pay

A female college teacher showed that her initial salary was discriminatorily set below that for a male with a similar educational background where the college relied solely on such backgrounds in determining the salary groupings; but she was unable to show that her step level within that grouping was also set discriminatorily where she did not meet the college's criteria of relevant work experience for a higher step level, and males who also had work experience similar to hers were set at the same level. Meyer v. MATC, MEOC Case No. 2603 (Comm. Dec. 11/9/81, Ex. Dec. 6/16/81).

228.5 Promotion, Job Assignments

A female applicant who was at least equally qualified and had more seniority than the male who was selected for a supervisory position established that her sex was a factor in the decision by showing that the employer traditionally used seniority as the determining factor where two applicants for promotion were equally qualified; . . . and the employer's argument that the male had more supervisory experience was a pretext for discrimination where another male who did not meet the minimum supervisory qualifications was seriously considered for the job. Madison Gen. Hosp. v. MEOC (Dayton), supra.

A Respondent was found to have discriminated against the Complainant on the basis of sex in regard to job assignments. The Complainant, a female Native American, was employed by the Respondent as a steam fitter apprentice. The Complainant's supervisor testified that he had not assigned the Complainant to certain job duties because he "didn't feel it was her place to be down in that tunnel anyway" and because he "did not want to put a girl in the hole down there." The Complainant also was not assigned to work with a journey person partner as frequently as male apprentices were. Whiteagle v. Badger Mechanical, MEOC Case No. 20133 (Comm. Dec. 1/31/86, 8/6/86, Ex. Dec. on liability 6/14/85, on damages 9/25/85, on remand 4/28/86).

The Complainant filed a discrimination complaint against the Respondent on the basis of sex alleging she was treated differently from male employees. The complaint was later amended to include retaliation for filing the complaint when she was discharged from employment. The Respondent discriminated against the Complainant in regard to terms and conditions, but the Complainant's violation of work policy was a non-retaliatory reason for discharge from employment. The Complainant was awarded $5,000.00 in compensatory damages for emotional distress, attorney's fees and costs. Because of procedural irregularities, the Commission remanded the termination portion of the complaint: 1) to the investigator for issuance of an initial determination with respect to the allegation of retaliatory termination, and 2) to the Hearing Examiner for consideration of and decision on the allegation that the Complainant's termination was based upon her sex. (The case was settled before either the Investigator's or Hearing Examiner's decisions on remand.) The Commission affirmed the Hearing Examiner's decision, finding discrimination relating to discipline, provision of training and permitting a hostile work environment to exist. The Commission concluded that the Complainant's claim of reduced promotional opportunities was not proven. The Commission affirmed the Hearing Examiner's award of $5,000 for emotional damages and the order for costs and attorney's fees. Hagland v. Bancroft Dairy, MEOC Case No. 20909 (Comm. Dec. 11/11/93, 12/15/93, Ex. Dec. 4/15/93, Ex. Dec. on admissibility of results of polygraph examination 12/22/80).

The Hearing Examiner determined that Complainant, a female, was discriminated against based on her sex when she did not receive a promotional position as a supervisor for security and parking, and a male who was less qualified was promoted instead. Respondent's reasons for failing to promote Complainant were found to be a pretext because Complainant had more work and job related experience than the male who received the promotion.

The Hearing Examiner also ruled that if the Complainant and the male who received the promotion were viewed as equally qualified, the seniority rule would still cause the Complainant to receive the promotion because Complainant had been at the job longer than the male who received the promotion. Dayton v. Madison Gen. Hospital, MEOC Case No. 2535 (Comm. Dec. 3/5/81, Ex. Dec. 10/17/80).

An unsubstantiated employee comment that a Respondent manager was "partial to girls" constituted the direct evidence for Complainant's sex discrimination contention. Had the elder manager in question truly been "partial to girls," one would expect a higher representation of females in the Respondent's workforce, which in fact included only one female driver.

The Hearing Examiner concludes that the Complainant's proffered direct evidence is not sufficient to meet his burden of proof to demonstrate a prima facie claim of discrimination based upon the Complainant's sex. Wales v. Affiliated Carriage Systems Inc., MEOC Case No. 20122017 (Ex. Dec. 07/11/2016).

Complainant, who remained employed by Respondent, maintained that he was laid off for approximately 6 weeks at least in part because of his age and/or gender in violation of the Ordinance, while Respondent continued to give driving assignments to younger drivers or a woman driver. Respondent asserted that the temporary layoff resulted from truck availability issues, the Complainant's availability, and Complainant's demeanor.

An unsubstantiated comment about [being partial to] "girls" that if uttered may have been a joke, together with the fact that the other truck drivers at Respondent were overwhelmingly male, leads the Hearing Examiner to conclude that the Complainant has failed to meet his burden of proof to demonstrate a prima facie claim of discrimination based upon the Complainant's sex. Wales v. Affiliated Carriage Systems Inc., MEOC Case No. 20122017 (Ex. Dec. 07/11/2016).

The Complainant’s prima facie claim of discrimination on the basis of sex stands despite the Respondent’s legitimate, non-discriminatory reason of selecting the male candidate, based on his project management qualifications and demonstration of initiative, over the Complainant (a female) because the male candidates qualifications were not so great as the Complainant’s in the core mission of the job at issue. Testimony showed that the Respondent had already decided to hire the male candidate and would not consider the Complainant (female) despite knowing she would be interested in the position. Plummer v. CUNA Mutual Group, MEOD Case Nos. 20092108, 20102067/EEOC Case Nos. 26B200900051, 26B201000034.

228.6 Termination-Sex

228.61 Termination Because of Sex, Generally

Complainant was ostensibly terminated for acquiring property from her employer with an IOU, which violated store policy regarding payment of the full purchase price. Although other employees were involved in the transaction, Complainant--who was the only female involved--was the only employee disciplined. Respondent maintained that Complainant was actually terminated for shopping on the clock, but the fact that Complainant alone was disciplined, while male coworkers were spared, was sufficient to demonstrate sex discrimination. Gardner v. Wal-Mart Vision Center, MEOC Case No. 22637 (Ex. Dec. 6/3/01).

A female apprentice failed to show that an employer's articulated reasons for her layoff (discharge) were a pretext for sex discrimination. The employer's articulated reasons were that two male apprentices had been retained because they had far more substantial welding backgrounds than the complainant and the complainant also had once been warned about removing scrap metal from salvage for personal use without the employer's permission. Whiteagle v. Badger Mechanical, supra.

Even though an employer failed to recall a female construction worker but recalled less senior male employees and hired some new male employees with specific skills, the female employee failed to overcome the employer's allegations that she was a less skillful employee than those males who had been recalled or subsequently hired. Bruhn (Laufenberg) v. Badger Expediting, MEOC Case No. 2826 (Ex. Dec. 4/1/82).

Complainant, a male, proved that the Respondent discriminated against him on the basis of sex in discharging him from his employment. The Hearing Examiner held that discrimination was proved by evidence that approximately a week before Complainant's discharge, his female supervisor was heard to say "There are too many males in this program and something has to be done," and that when asked what she meant by that statement, said "You know how you men are," together with evidence that Complainant was not adequately supervised or instructed with respect to his job duties. The Commission affirmed the Hearing Examiner's decision on Respondent's appeal, and Dane County Circuit Court affirmed the decision, finding it was supported by substantial evidence in the record. Scott v. United Neighborhood Centers, MEOC Case No. 20464 (Comm. Dec. 1/7/87, Ex. Dec. 7/31/86), United Neighborhood Center v. City of Madison EOC and Scott, 87 CV 744 (Dane County Cir. Ct. l/21/88).

The Hearing Examiner did not find that Respondent discriminated against Complainant because of her sex despite Complainant's ability to establish a prima facie case. This was because statistics for promotions and terminations relating to sex were not as probative as compared to the age discrimination statistics. May v. State Medical Society, MEOC Case No. 2584 (Comm. Dec. 4/21/82, Ex. Dec. 10/20/81) See Painters Union Local 802 v. Madison Newspapers Inc.

Complainant’s termination was motivated at least in part by the Complainant’s exercise of a right protected by the ordinance when she reported her supervisor’s sexually harassing conduct. The Hearing Examiner finds that the greater weight of the credible evidence supports the conclusion that but for the Complainant’s report of the sexually harassing behavior of her supervisor, she would not have been terminated. Cruse v. Nordic Consulting, MEOD Case No. 2014065.

228.62 Termination Because of Pregnancy, Childbirth, Maternity Leave or Related Medical Condition

When the Respondent did not appear at hearing, the Hearing Examiner found that the Respondent had discriminated against the Complainant on the basis of her sex when it terminated her employment approximately two weeks after she gave birth. The Respondent was ordered to pay back pay of $9,000, compensatory damages for emotional distress of $10,000, punitive damages of $20,000 and costs and reasonable attorney's fees. In a separate decision, the Hearing Examiner awarded attorney's fees of $1,560 and costs of $96. Balch v. Snapshots, Inc. of Madison, MEOC Case No. 21730 (Ex. Dec. on liability 10/14/93, on damages 12/9/93).

Respondent knew of Complainant's pregnancy via workplace talk though Complainant did not self-identify. Respondent was held not to have discriminated against Complainant because he did not recall Complainant back to work after an agreed-upon layoff. Sveum v. Guanajuatence, MEOC Case No. 20112102 (Ex. Dec. 8/1/2013).

229 Sexual Orientation Discrimination

The Hearing Examiner concluded that the Respondent had not discriminated against the Complainant on the basis of her sexual orientation (lesbian) in failing to extend her limited term employment or to hire her for several positions on either the adult or children's psychiatric units. The Hearing Examiner was persuaded by the Respondent's explanation that other employees and applicants were more qualified than the Complainant for these positions. The Complainant also contended that her LTE position had been prematurely terminated. The Hearing Examiner found that her position had expired and that she had not lost any shifts to which she may have otherwise been entitled. Steinbach v. Meriter Health Services, Inc., MEOC Case No. 22125 (Ex. Dec. 11/11/97, on motion to dismiss 2/19/96).

Complainant was discriminated against by Respondent when she was refused employment due to Respondent's perception of Complainant's sexual orientation. The Respondent had hired a less qualified applicant and denied further hiring procedures on the basis of a higher-level supervisor's perception that Complainant was a lesbian and hiring a lesbian would "disrupt the office." Ashford v. Magna Publishing, MEOC Case No. 22719 (Ex. Dec. 3/27/00), aff'd by Magna Publishing v. MEOC (Ashford), No. 00-CV-2908 (Dane County Cir. Ct., 7/26/01).

Although the Complainant, a homosexual male, is protected by the Equal Opportunities Ordinance, Sec. 3.23, because of his sexual orientation, Respondent did not discriminate against him on this basis upon discharging him from employment. The Hearing Examiner concluded that Complainant's extreme and undesirable public behavior at a work- related convention was the Respondent's non-discriminatory reason for terminating Complaint's employment. Goad v. Ahrens Cadillac/Oldsmobile, Inc., MEOC Case No. 20022061 (Comm. Dec. 12/26/06, Ex. Dec. 8/6/06).

230 Other Protected Classes

230.1 Color

230.2 Source of Income

230.3 Less Than Honorable Discharge

230.4 Political Beliefs

The term "political beliefs" is not so vague or uncertain that the ordinance should be declared unconstitutional; . . . nor is the term "political beliefs" limited to those convictions and conclusions related to governmental policy; politics is present wherever there is a power struggle between competing interest groups for valued social goods or resources; . . . however, each and every manifestation of a political belief is not protected against discrimination. Northport Apts. v. MEOC (Carey), No. 80-CV-2680 (Dane County Cir. Ct., 3/12/81).

Respondents' moved to dismiss complaints of discrimination on the basis of political belief (trade unionism) based on preemption by federal law. The Complainants had filed unfair labor practice complaints at approximately the same time as their Commission complaints. The Hearing Examiner granted Respondents' motion, applying the Supremacy Clause of the U.S. Constitution and well-settled federal law on preemption. Moyer, Carey and Kaatz v. Thrift Painting and Genesis Companies Inc., MEOC Case Nos. 22440, 22441, 22447, 22448, 22449, and 22450 (Ex. Dec. 7/7/97).

230.5 Student Status

240 Retaliation

Employees similarly situated to the Complainant had not been terminated following the refusal to take a job. It was only after the Complainant’s text message to her supervisor opposing a discriminatory practice that she was terminated. Franklin v. AJ Prestige, LLC, MEOD Case No. 20152133.

240.1 Coverage

An employee or job applicant's good faith opposition to practices believed to be discriminatory is protected by the Ordinance even though some opposition may not reach the formal complaint stage or even though an underlying formal complaint may be withdrawn or found to be without merit; . . . but opposition which takes the form of illegal activity is generally not protected. Perez v. Kupfer Iron Wks., MEOC Case No. 2700 (Comm. Dec. 6/10/82, Ex. Dec. 2/8/82).

"Good faith" may be established by, among other methods, an initial determination of probable cause. Id.

The Respondent discharged the Complainant partially based on several incidents of misconduct, not by reason of race. Respondent did not discriminate in regard to discipline, terms and conditions of employment and termination in retaliation against the Complainant for filing a complaint. The Respondent was ordered to cease and desist from retaliation against the Complainant. Reinstatement was not ordered because the Complainant did not seek it. Complainant was awarded $3,332.72 in back pay, $4,000.00 as compensation for emotional injuries and attorney's fees and costs. Morgan v. Hazelton Labs, MEOC Case No. 21005 (Ex. Dec. 4/2/93).

The Hearing Examiner determined that the Respondent had not discriminated against the Complainant, a male driver who wore makeup and jewelry, on the bases of sex, sexual orientation and physical appearance, when it disciplined him for an apparent violation of an agreement settling an earlier discrimination action. The Examiner did conclude that the Respondent had retaliated against the Complainant in violation of the ordinance for issuing a disciplinary letter. The Examiner ordered the Respondent to withdraw the disciplinary letter and to stop retaliating against the Complainant, but awarded no monetary damages nor attorney's fees. The Commission found that in addition to retaliation, the Complainant had demonstrated that he had been discriminated against on the basis of his physical appearance. The Commission also reversed the Hearing Examiner's determination that attorney's fees for the Complainant's earlier consultations with attorneys was not awardable, and remanded the case to the Hearing Examiner for the determination of appropriate attorney's fees. The Commission concurred with the Hearing Examiner's conclusion that emotional damages were not appropriate in this instance, but specifically declined to adopt the Examiner's rationale. Maxwell v. Union Cab Cooperative, MEOC Case No. 21028 (Comm. Dec. 7/10/92, Ex. Dec. 12/31/91); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison and Maxwell, 95-0190 (Ct. App. 9/20/95); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison and Maxwell, 93-0657 (Ct. App. 3/24/94); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison, 92 CV 3260 (Dane County Cir. Ct. 12/1/94).

The Commission upheld the Hearing Examiner's conclusion that the Respondent had retaliated against the Complainant as a result of its perception that the Complainant had opposed sexual harassment by one of the Respondent's supervisors. The Hearing Examiner determined that the fact that the Respondent was mistaken that the sexual harassment complaint came from the Complainant did not bar a finding of retaliation. The Court affirmed the Commission's decision, finding specifically that a claim of retaliation for "perceived" protected activity is encompassed by the ordinance. Dischler v. Boldt Construction, Inc., MEOC Case No. 21545 (Comm. Dec. 11/29/94, Ex. Dec. 7/11/94); Oscar Boldt Construction Company v. City of Madison et al., 94 CV 3781 (Dane County Cir. Ct. 5/11/95 oral dec. affirming Comm. Dec.).

Complainant filed a charge of discrimination based on sexual harassment and retaliation against the Respondent in his individual capacity. The Hearing Examiner granted Respondent's motion to dismiss as to sexual harassment finding that the ordinance employment section does not support claims against persons in their individual capacities. The Hearing Examiner denied the motion as to retaliation finding that the ordinance retaliation section was intended to cover individuals, as well as employer actions.

On appeal, the Dane County Circuit Court ruled that the ordinance retaliation section does not permit retaliation claims against individuals, keeping in line with interpretations of Wisconsin and federal employment statutes.

The Complainant also alleged emotional distress damages stemming from alleged acts of sexual harassment and retaliation, the Hearing Examiner found that the MEOO is not preempted by the Wisconsin Worker's Compensation Act's (WCA) exclusivity provision. Therefore, parties may seek remedy under either the WCA or the ordinance or both. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99). Hovde v. Equal Opportunities Commission of the City of Madison, 00 CV 0803 (Dane County Cir. Ct. 2/20/01).

The Hearing Examiner concluded that the ordinance worked in harmony with the state's Fair Employment Act (FEA) and did not interfere with or violate the letter or spirit of the FEA and should not be preempted by state law. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99).

The Hearing Examiner found the Respondent liable for discharging the Complainant, a long term, high level executive, partly in retaliation for exercising rights protected by the ordinance when the Complainant complained to upper management about his supervisor's use of racist, sexist, and homophobic language. Miller v. CUNA, MEOC Case No. 20042175 (Ex. Dec. 5/16/08).

The Hearing Examiner finds that the Complainant was not protected under the purview of retaliation when she alleges she was required to read the Respondent's response to allegations of another employee's MEOD Complaint. The Complainant’s wish to protect the other employee's privacy is not the exercise of a right protected by the ordinance. Kennen v. Coalition of Wisconsin Aging Groups, Inc., MEOD Case No. 20122042/EEOC Case No. 26B201200034.

Respondent cannot have terminated the Complainant in retaliation for the exercise of a right protected by the ordinance because the Complainant voluntarily quit her employment. Sandoval v. Capitoland Christian Center Church, Inc., MEOD Case No. 20152033/EEOC Case No. 26B201500021.

240.2 Standard of Proof

Complainant filed a complaint of discrimination in good faith following what she believed to be a variety of discriminatory actions on the part of the Respondent. Prior to that time, Respondent had worked with the Complainant to address ongoing timekeeping issues. The Respondent would work with the Complainant did not take any disciplinary action for these discrepancies prior to the filing of the complaint. Following the filing of her Complaint and attendance at a MEOD early mediation, the Complainant was fired for fraud with respect to the use of sick leave and theft of time from the Respondent. This termination was considered retaliatory because of the temporal proximity of the termination and the Respondent’s change in conduct to the filing of the complaint. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

240.21 Prima Facie Case

An employee alleging that his discharge was retaliation established a prima facie case by showing that: (1) he filed a formal complaint with the MEOC; (2) he was discharged for activity directly related to pursuing that complaint; and (3) he had a good faith belief that his complaint was valid. Perez v. Kupfer Iron Wks., supra.

Complainant's retaliation claim, though somewhat supported inferentially by testimony in the record, did not overcome the Respondent's evidence that it dismissed the Complainant because of misconduct and poor performance rather than for any retaliatory motive. The Commission affirmed the Hearing Examiner's decision in its entirety. Stinson v. Bell Laboratory, MEOC Case No. 20762 (Comm. Dec. 12/14/89, Ex. Dec. 3/17/89).

The elements of a prima facie case of retaliation include showing that the matter complained of is within the subject matter of the Ordinance, that a complainant had reasonable grounds to complain that a complainant made complaints to appropriate Respondent personnel, and reason to believe the retaliatory action occurred as a result of the complaint. A complainant was retaliated against when he was terminated after complaining of racial comments and no grounds for termination existed. Flowers v. The Charlton Group, MEOC Case No. 20002129 (Ex. Dec. 9/17/02).

Employer suspended Complainant pursuant to allegations that Complainant had struck another worker and also violated a policy against eating in the food preparation area of a bakery facility. Because the Complainant's alleged misconduct was more severe than allegations he had previously raised against co-workers not of his race, Complainant was unable to show that he was similarly situated to the co-workers that Complainant cited in previous ancillary incidents. In addition, Respondent's investigation and suspension were proportional to those it had previously used with previous incidents of violence involving employees not of Complainant's race. Woods v. Sara Lee Bakery, MEOC Case No. 20042176 (Ex. Dec. 4/25/2006).

240.22 Employer Knowledge of Oppositional Activity

Respondent argues that a text message sent by the Complainant that the Respondent claimed it never received could not be considered a protected activity under the ordinance when claiming retaliation as the un-received message did not oppose a practice. The Respondent's testimony regarding receipt of the text message and the ability to delete one message out of a string of text messages was proven unreliable at hearing by demonstration. Franklin v. AJ Prestige, LLC, MEOD Case No. 20152133.

240.23 Establishing a Causal Connection Between the Oppositional Activity and the Adverse Employment Action

. . . and a job applicant established the causal requirement that she was not hired as a result of her complaint activity by showing that the employer violated its own practices and rules in order to hire someone else. Lazar v. Madison Metro. Sch. Dist., MEOC Case No. 2472 (Comm. Dec. 6/26/81, Ex. Dec. 12/16/80).

Complainant contends that her being required to read the Respondent’s report responding to whistleblower and MEOC Complaints, and to sign a confidentiality agreement was an adverse action. The actual reading and possession of the information contained in the report did not adversely affect the Complainant or her employment with the Respondent, and the confidentiality agreement she was being asked to sign would have been moot the day after she signed it when the document(s) it referred to were filed with the MEOC and became public record. Therefore, this too could not be reasonably believed to have been an adverse action. Kennen v. Coalition of Wisconsin Aging Groups, Inc., MEOD Case No. 20122042/EEOC Case No. 26B201200034.

240.3 Cases

An employer's refusal to hire a job applicant because of her pending complaint with the MEOC was retaliation even though refusal was based on the advice of the employer's attorney; . . . but having previously asked the applicant if she would drop her charge in exchange for full-time employment did not establish retaliation where the person who had asked was not involved in the applicant's subsequent rejection for the position. Newton v. MATC, MEOC Case No. 2242 (Ex. Dec. 2/20/78).

Where a respondent made an unconditional offer to re-employ a Complainant, who had filed a discrimination claim that included a discriminatory discharge allegation and where the complainant accepted the respondent's offer in a reasonable time, the respondent's failure to then re-employ the complainant was unlawful retaliation. Whiteagle v. Badger Mechanical, No. 20133 (MEOC, 1/31/86).

An employer's rationale for rejecting a job applicant who had previously filed a discrimination complaint was a pretext for retaliation where the applicant showed that the person hired was less experienced, not properly licensed, and did not appear on the certified list of candidates. Lazar v. Madison Metro. Sch. Dist., supra.

Where an employee agreed to pay his co-worker one third of any monetary recovery in exchange for the co-worker's testimony which the employee believed to be truthful, his resulting discharge for allegedly attempting to bribe a witness was retaliation. Perez v. Kupfer Iron Wks., supra.

The Commission rejected the Complainant's various age discrimination claims, but initially ruled the Complainant had been retaliated against both during her employment and in regard to her discharge. She was awarded reinstatement and full back pay (among other remedies). Hilgers v. Laboratory Consulting, Inc., MEOC Case No. 20277 (Comm. Final Order on Remand 03/29/89; aff'd Case No. 87-2266 (Ct. App. 12/22/1988); remanded Case No. 86 CV 6488 (Dane County Cir. Ct. 08/24/87); Comm. Dec. on Remand 11/10/86; (not available) Case No. 85CV 6300 (Dane County Cir. Ct. 8/20/86); rev'd Comm. Dec. 11/18/85; Ex. Recommended Decis. 07/12/85; Ex. Interim Recommended Decis. 04/11/85).

240.9 Miscellaneous

Logical fallacy of "post hoc ergo propter hoc”. In her belief that the Respondent retaliated against her by not opening a position to outside candidates, the Complainant needs to demonstrate more than merely one event followed another, i.e. that the Respondent’s knowledge of Complainant’s filing of a complaint immediately preceded the decision not to post a position to external candidates does not automatically prove retaliatory intent. Plummer v. CUNA Mutual Group, MEOD Case Nos. 20092108, 20102067/EEOC Case Nos. 26B200900051, 26B201000034.

250 Affirmative Action

An employer's alleged internal affirmative action goal of hiring a male applicant over a comparably qualified female applicant to balance its teaching staff was not justified where the employer could not show that the imbalance was the result of its past discrimination toward men. Newton v. MATC, MEOC Case No. 2242 (Ex. Dec. 2/20/78).

260 Particular Employment Actions

260.1 Constructive Discharge

The Hearing Examiner concluded that the Complainant had voluntarily terminated her employment and that she had not been constructively terminated as a result of racial harassment. The Hearing Examiner found that the Complainant was dissatisfied with the unhealthy and uncooperative working environment and quit to be rid of sniping and bickering, rather than because of racial harassment. Mosley v. Gantos, MEOC Case No. 22247 (Ex. Dec. 8/20/97).

After having been passed over for promotion, Complainant who believed she had been discriminated against based upon her congenital hip condition eventually came into conflict with her manager. The manager repeatedly suggested that Complainant was using her disability for career advancement, of which she disapproved. Believing she could not continue working for Respondent, Complainant ultimately left her position with the company.

Complainant maintained that she was constructively terminated from her employment based upon her disability. Although her credibility was somewhat shaken by certain allegations that proved untrue, Complainant demonstrated that under the circumstances, her belief that she was constructively terminated was reasonable. The work environment created by her manager was sufficiently hostile that Complainant was forced to discharge herself. Laitinen-Schultz v. TLC Wisconsin Laser Center, MEOC Case No. 19982001 (Ex. Dec. 7/1/2003).

In order to make a constructive discharge claim the Complainant must show that the working conditions were so difficult or unpleasant that a reasonable person would have been compelled to resign. The Complainant stated she enjoyed working at Capitoland and that she had no problems with staff or supervisors, or did she raise any concerns during a performance review approximately one month prior to her no longer being employed. Sandoval v. Capitoland Christian Center Church, Inc., MEOD Case No. 20152033/EEOC Case No. 26B201500021.