Workplace Harassment Claims

June 8, 2009

Complaints of workplace harassment continue to rise. In addition to claims of sexual and racial harassment, recent court decisions and jury verdicts have also upheld claims of workplace harassment based on disability, age and religion. Jury verdicts in harassment cases have been staggering, although many verdicts have been reduced by the court to the damages caps established by Congress. Moreover, employees and former employees who prevail on claims of workplace harassment are entitled to their actual attorney’s fees, which can run in excess of $100,000.

The law had recognized two (2) forms of sexual harassment: quid pro quo and hostile work environment harassment. Quid pro quo is Latin for “something for something.” This type of harassment occurs when a supervisor conditions a benefit of employment on an employee’s submission to the supervisor’s sexual advances. It includes positive consequences (“I will give you a promotion if you have sex with me”) or negative consequences (“I will terminate you unless you have sex with me”). Employers whose supervisors engage in quid pro quo harassment are automatically liable.

Hostile work environment harassment involves an employee being subjected to unwelcome conduct of a sexual nature which is severe and pervasive enough to objectively and subjectively create an offensive work environment for the employee. Employer liability, including what defenses are available to the employer in a hostile work environment case, depends on whether the offending conduct was engaged in by a co-employee, a supervisor or a high level manager.

Wisconsin has recognized a third type of sexual harassment under Wisconsin’s Fair Employment Act. It allows for employer liability under a hostile work environment theory, even though the alleged conduct would not be severe and pervasive enough to give rise to liability under existing federal hostile work environment law.

Under both state and federal anti-discrimination law, an employee must file an administrative complaint with either the state Equal Rights Division or the federal Equal Employment Opportunity Commission within three hundred (300) days of the alleged harassment. An employee cannot go to court on the claim of workplace harassment unless the employee first pursues his or her claim through the administrative process.

It is critical that employers seek advise of counsel if an employee or former employee files an administrative complaint alleging workplace harassment. Written submissions by an employer during the investigative process can come back to haunt the employer as admissions against interest if the employee’s claims proceed either to court or to an administrative hearing. At some point in the administrative process, an employer may take sworn testimony of the employee in the form of a deposition. A deposition may present an opportunity to the employer to pin the employee down on key issues in the claim. Employers should not minimize the impact that the administrative process can have – both positively and negatively – for them in cases of workplace harassment.

Axley Brynelson, LLP litigators have represented employers in both administrative proceedings and state and federal court actions involving claims of workplace harassment. If you have any questions about workplace harassment claims or actions which employers can take to minimize the threat of workplace harassment claims, please consult our attorneys in the Workplace Harassment and Civil Rights practice areas.

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