In case there was any doubt, it is now clearly the law that an employer may not allow co-workers to harass an employee on the basis of sexual orientation. In a recent case before the State of Wisconsin Labor and Industry Review Commission, the Commission held that state law unmistakably prohibits harassment on the basis of sexual orientation, and when co-workers engage in such harassment, an employer is obligated to investigate and take action to end it. The Commission affirmed that “the remedial obligation of an employer is two-fold: it must end harassment that is ongoing and must deter any future harassment.” The employer must take such action as is reasonably calculated to stop the harassment and prevent it from happening again.

In the recently decided case, the employee complained to the employer that he was being harassed because of his sexual orientation. The Commission found that while the employer investigated some of the complaints, it only generally cautioned the responsible employees that they needed to “stop fighting.” It took what it admitted were not credible denials at face value without any action. The employer took no disciplinary action against any of the harassers, and provided no training or retraining on sexual harassment. It also failed to reassure the harassed employee that the situation would be corrected, and did not follow up with him. Finally, when the harassed employee complained to the owner of the company about what kind of harassment he had been enduring, the owner told him that if he did not like working for the company, he could move on.

As with sexual and racial harassment, employers ignore sexual orientation harassment at their own risk. The law obliges them to seriously investigate these complaints, and to take whatever action is required to make the harassment stop.

Summer Murshid

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