Confronting Sexual Harassment in the Workplace in Wisconsin

Stories about sexual harassment in the workplace have been in the news recently, as a litany of advocates and victims have come forward to explain how widespread and insidious the problem is. This article briefly discusses federal and Wisconsin state standards for workplace harassment and what people should do to protect their rights.

What Constitutes Sexual Harassment At Work in Wisconsin?

As explained in our Employment Law pages, sexual harassment in the workplace is a form of sex discrimination that violates federal law (Title VII of the Civil Rights Act of 1964), state law (Wisconsin Fair Employment Act) and even local laws (Madison Equal Opportunities Ordinance). This article focuses on sexual harassment aspects of the Wisconsin Fair Employment Act.

Wisconsin Law Identifies Three Types of Sexual Harassment

The Wisconsin Fair Employment Law identifies three categories of prohibited conduct:

1. Sexual harassment by an employer occurs if an employer—meaning the owner of a company or an agent of the owner —engages in conduct that constitutes sexual harassment, regardless of whether it created a hostile work environment. In other words, if an employer (or supervisor or someone with similar authority) makes unwelcome comments or conduct that the employee did not solicit or invite, and where she regards the comments or conduct as offensive or undesirable, sexual harassment has occurred.
Whether conduct is “unwelcome” presents a question as to the subjective state of mind of the person to whom the conduct is directed. Any suggestion that, because an employee tolerates physical and verbal conduct of a sexual nature for some time, the conduct was not “unwelcome” is meritless. Indeed, an employee who laughs at the occasional off-colored joke does not waive her legal protections against unwelcome sexual harassment.

2. Quid pro quo sexual harassment occurs when sex-related harassment is explicitly or implicitly made a term or condition of an individual’s employment. For example, a supervisor tells an employee he will select her for promotion if she goes out with him.

3. Hostile environment sexual harassment is where a co-worker’s language or actions unreasonably interfere with an individual’s work performance or create an intimidating, hostile, or offensive working environment.

Employers Responsible For Sexual Harassment in Some Circumstances

Employers are directly responsible for the actions of supervisors or other managers who act as their agents if the harassment results in tangible employment action (e.g. termination, denial of promotion). They are also responsible for harassment by supervisors and co-workers if they have knowledge of the harassment and fail to take prompt corrective action. Employers can even be held responsible for sexual harassment of its employees by customers if the employer knows about the harassment but fails to take prompt remedial action.

Employees Can Take Act to Stop Harassment

Employees facing sexual harassment should first tell the harasser to stop the harassing behavior. In dangerous situations, employees should immediately call the police. The next step will be reporting the harassing behavior to someone in human resources. It is critically important that you make the report of harassment in writing to human resources! We encourage employees to send the complaint from a web-based email account (such as Yahoo, Gmail, or Hotmail), as this will create a saved copy of the complaint outside company jurisdiction. Alternatively, employees may send a sexual harassment complaint from their work account but blind-copy or “bcc” themselves at their web-based account in order to maintain a record of the complaint.

Reporting Sexual Harassment May Not Immediately Help

Employees should be aware that reporting allegations of sexual harassment to human resources oftentimes has the opposite effect of what they intended. Instead of stopping the harassment, the harassment just takes a different form. In this scenario, the person making the complaint becomes the object of the investigation and their actions are subject to greater scrutiny. This is tantamount to blaming the victim. We encourage harassed employees to begin keeping diligent notes chronicling any incidents at work that are unwelcome, including the identity of the people involved, when and where it occurred, and who, if anyone, witnessed it. Those notes can help support a formal legal complaint, should the need arise. Employees should also note whether they are experiencing retaliation from coworkers or supervisors, including demotions, suspensions, or the like.

An Attorney Can Guide a Sexual Harassment Complaint

The last step is to talk to an attorney to determine whether a formal legal action is required. An attorney will listen to an employee’s story and ask informed questions to reveal as many facts as possible. Given the facts of the case, an experienced attorney can then compare the facts to the legal standards for sexual harassment and make recommendations regarding an employee’s legal options. By engaging an attorney, an employee gains a powerful and experienced resource with whom to share the story, get advice and possibly seek damages for injustice. It can be hugely helpful not to face sexual harassment alone and instead have a strong advocate in your corner.

The attorneys at Hawks Quindel are here to assist you address any discrimination or retaliation in the workplace. If you or someone you know are being discriminated or retaliated against, please contact the employment attorneys at Hawks Quindel, S.C.

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Colin Good