A Tale of Two Sexual Harassment Laws
By David R. Friedman, Friedman Law Firm
HR professionals should know there are important differences between the sexual harassment definitions and affirmative defenses to sexual harassment under Title VII of the Civil Rights Act of 1964 and Wisconsin’s Fair Employment Law (WFEA). Too often the federal law gets the publicity and Wisconsin law is ignored. This difference between the two laws has become more critical because of a March 31, 2005, Labor and Industry Review Commission (LIRC) decision in Sanderson v. Handi Gadgets Corp. In that case, LIRC indicated that it would no longer recognize the affirmative defenses that can be raised by an employer under federal law in defending a sexual harassment claim. The first part of this article will review the state and federal definitions of sexual harassment and the second part will examine the status of these affirmative defenses.
Title VII of the Civil Rights Act of 1964 makes it unlawful “for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex ….” 42 U.S. C. §2000e-2(a). The EEOC, in 29 C. F. R. §1604.11, established the “quid pro quo” and hostile work environment standards for sexual harassment.
Wisconsin ’s sexual harassment law consists of two parts. The first part is Sec. 111.32(13) which defines sexual harassment. "Sexual harassment" means unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. "Sexual harassment" includes conduct directed by a person at another person of the same or opposite gender. "Unwelcome verbal or physical conduct of a sexual nature" includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments of a sexual nature; the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes; or deliberate verbal or physical conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employee's work performance or to create an intimidating, hostile or offensive work environment.
The second part of the law is Sec. 111.36(1)(b) which provides that certain employer actions constitute employment discrimination because of sex or gender. Under §111.36(1)(b) the three separate categories of prohibited conduct are:
- Where an employer or its agent engages in sexual harassment;
- Where an employer either engages in or permits, either explicitly or implicitly, the acquiescence in or submission to sexual harassment as a term or condition of employment or the basis of any part of a decision affecting the employee (“quid pro quo”);
- Where an employer permits sexual harassment to substantially interfere with an employee’s work performance or to create an intimidating, hostile or offensive work environment (“hostile work environment”).
The first category of the definition, governing the acts of an employer or the employer’s agent, is contained only in Wisconsin’s law. Therefore in cases where the employer or the employer’s agent engages in “sexual harassment”, LIRC has stated that cases decided under Title VII do not necessarily provide guidance for cases involving the WFEA. LIRC has stated that there does not have to be a finding of a “quid pro quo” or “hostile work environment” for there to be a finding of “sexual harassment” under this part. Rather, all that needs to be found is that the employer or its agent engaged in “sexual harassment” as defined in §111.32(13).
The second category is “quid pro quo”. This is where the employee is pressured or effectively obliged to tolerate sexual harassment, or to engage in sexual activity, in order to obtain some benefit of employment which the employee would or should be entitled to in any event (such as, for example, the continuation of employment). This separate formulation is necessary because of the qualification that sexual harassment must be "unwelcome”; this makes it clear that an employee's failure to object to (or outright acquiescence in) sexual conduct by a harassing employer does not mean that the conduct was "unwelcome" where it was in fact coerced by the withholding or the threat of withholding benefits of employment.
The third category addresses what has come to be called "hostile environment" harassment. This element of the definition is necessary to address sexual harassment engaged in by co-workers who can not be treated as outright agents of the employer in connection with their harassing behavior. This part of the definition obliges the employer to take steps to prevent or terminate sexual harassment in the work place, even if the employer (or its agents) is itself not "engaging in" the sexual harassment, if the harassment engaged in by other employees is severe enough that it creates an intimidating, hostile or offensive work environment.
In viewing a claim of sexual harassment, it is necessary for the employer to determine if the harassment was by an employer’s agent or co-worker. The next article will examine that issue and the lack of affirmative defenses under Wisconsin’s law.
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