Employment Discrimination Laws and Best Practices

WDC Journal Edition: Summer 2021
By: Matthew J. Hastings, Kasdorf, Lewis & Swietlik, S.C.

For the past several years, the Wisconsin Equal Rights Division (“ERD”) has investigated around 3,000 employment discrimination complaints per year,[1] while the U.S. Equal Employment Opportunity Commission (“EEOC”) has done the same for the roughly 1,000 charges (EEOC jargon for “complaints”) filed annually by Wisconsin employees.[2] In either case, the complainant need only establish probable cause – a low standard that requires more than mere “suspicion” but less than a “preponderance of the evidence.”[3] And yet, after investigation, roughly 75% of ERD complaints[4] and EEOC charges[5] cannot meet this low bar and, consequently, are dismissed at the initial determination stage.[6]

 

The point here is neither to dissuade aggrieved employees from pursuing legitimate claims nor to reassure intolerant employers. Rather, the intended takeaway is that, whether it involves a trivial slight against “an irritable, chip-on-the-shoulder employee,”[7] a terrorizing sequence of “persistent, crazy, hostile behavior” that a male employee directs toward a female colleague “of average steadfastness” without consequence,[8] or anywhere in between, the long odds of success[9] have not depressed employment discrimination claims. What’s more, since all complaints are automatically cross-filed with both the ERD and EEOC, a simple dispute can easily turn into an expensive and years-long ordeal, as the Aldrich odyssey clearly illustrates.[10]

 

Accordingly, the objective of this article is simply to provide an overview of the requirements and range of actions arising under the Wisconsin Fair Employment Act (“WFEA”)[11] and the three (3) central statutes within the federal regime[12] – Title VII of the Civil Rights Act (“Title VII”),[13] the Age Discrimination in Employment Act (“ADEA”),[14] and the Americans with Disabilities Act (“ADA”)[15] – and offer a few simple measures that can be taken to avoid the pitfalls that these statutes can present.

 

I.              The Legal Framework of Employment Discrimination

 

In many ways, the WFEA is analogous to its federal counterparts. Title VII, the ADEA, and the WFEA extend their protection from employment discrimination to the same classes of people; Title VII protects everyone from discrimination based on their “race, color, religion, sex,[16] or national origin,”[17] the ADEA protects all “individuals who are at least 40 years of age,”[18] and the WFEA covers all the aforementioned classes.[19] And despite sharing very little else in common, both the WFEA and ADA extend various protections to individuals with a disability.

 

The most consequential difference between the two regimes lies in their remedial provisions. The WFEA does not create a private right of action in circuit court and the available remedies are generally limited to back pay, attorney’s fees, and orders of reinstatement where appropriate.[20] By contrast, each of the federal provisions confer a private right of action to recover compensatory and punitive damages, as well as “any other equitable relief as the court deems appropriate.”[21]

 

Nevertheless, under all the statutes, intentional discrimination[22] encompasses three types of claims: disparate treatment, retaliation, and harassment.[23] While the same causes of action are cognizable under the ADA, its additional eligibility requirements, duties, and causes of action require a separate discussion.

 

II.            Disparate Treatment and Retaliation Claims

 

Broadly speaking, all disparate treatment and retaliation claims arising under any antidiscrimination statute have the same basic elements. Disparate treatment claims require the plaintiff to prove (1) membership in a statutorily protected class (e.g., over 40 years of age for ADEA coverage); (2) an adverse action taken against his or her employment; and (3) a causal connection between the two.[24] Similarly, retaliation claims require the plaintiff to prove (1) engagement in a statutorily protected activity, meaning (a) good faith opposition to perceived workplace discrimination[25] or (b) participation in any investigation or proceeding related to such conduct;[26] (2) subjection to an adverse employment action; and (3) a causal link between the protected activity and the adverse action.[27]

 

In most disparate treatment and retaliation claims, the sole question that matters is whether the plaintiff would have kept his or her job if he or she had a different protected status (or none at all), and everything else had remained the same.[28] For Title VII retaliation and all ADEA claims, “the traditional standard of ‘but-for’ causation” applies.[29] For Title VII disparate treatment and WFEA claims, the more relaxed “mixed motive” or “motivating factor” causation standard applies.[30] Proving causation, however, is a much more complicated question. For present purposes, suffice it to say that the standards laid out in Ortiz and its progeny[31] provide the blueprint under both state and federal law.[32]

 

III.          Harassment and Hostile Work Environment Claims

 

Wis. Stat. § 111.36(1)(b) notwithstanding,[33] harassment claims originate from the “terms, conditions, or privileges of employment” component of the protections common to all antidiscrimination statutes.[34] Two types of discriminatory harassment are actionable at both the state and federal levels. The first and most obvious type is quid pro quo sexual harassment in which a supervisor conditions employment or tangible benefits on submission to their harasser’s sexual advances.[35]

 

The second, more common form of actionable harassment is “hostile work environment” discrimination. A hostile work environment is one that is “so ‘permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment.’”[36] The plaintiff must prove that (1) he or she was subjected to unwelcome harassment; (2) he or she was being harassed because of a protected characteristic; (3) the harassment was sufficiently severe or pervasive from both a subjective (i.e., the plaintiff’s perspective) and an objective (i.e., a reasonable person’s perspective) point of view to create a hostile work environment; and (4) there is a basis for employer liability.[37] If a supervisor participated in the harassment, then the employer is strictly liable; otherwise, the fourth element requires proof that the employer was negligent in discovering or remedying the harassment by a coworker or a third party.[38]

 

Notably, the plaintiff need not prove an “adverse action” in the traditional sense; instead, the act of subjecting an employee to a hostile work environment is considered an adverse action unto itself.[39] Thus, the focus is on whether the harassment was so “sufficiently severe or pervasive” as to create a workplace so heavily polluted with discrimination that the terms and conditions of employment are altered.[40] The case law on this point is legion,[41] but suffice it to say that although conditions need not become “hellish,” [42] the underlying “conduct must be extreme to amount to a change in the terms and conditions of employment.”[43]

 

IV.          The ADA’s “Qualified Individual” Inquiry and Duty to Accommodate

 

Unlike Title VII and the ADEA, the ADA and its WFEA counterpart have surface-level similarity but cannot accurately be characterized as each other’s analog. Since employers face far greater exposure under federal law, this section will focus solely on the ADA instead of trying to catalog all the ways it differs from the WFEA.[44]

 

As previously noted, disparate treatment, retaliation, and harassment are all cognizable claims under the ADA and require proof of the same basic elements as the other statutes,[45] including “but-for” causation.[46] However, two features distinguish the ADA from the other statutes. First, the ADA does not extend protection to all individuals with a disability; instead, the ADA prohibits discrimination “against a qualified individual on the basis of disability.”[47] Second, the ADA recognizes a separate cause of action for failure to accommodate that is entirely distinct from a disparate treatment claim.[48]

 

Determining whether someone is a “qualified individual” entails a two-step inquiry.[49] The first step asks whether the plaintiff is “qualified on paper” in that he or she satisfies the prerequisites for the job he or she holds or desires by virtue of his or her experience, education, and the like. If so, then the second step asks whether the plaintiff is “otherwise qualified,” meaning he or she can perform all the essential functions of his or her job either with or without reasonable accommodation.[50]

 

The duty to accommodate is triggered when a paper-qualified employee informs his or her employer about a disability and requests an accommodation.[51] At that point, the employer has two options: (1) provide reasonable accommodation without further inquiry or (2) fulfill the duty to engage the employee in an “interactive process,” which is simply a flexible, informal dialogue geared toward identifying a reasonable accommodation. If the employer initiates the interactive process, then both sides are obliged to cooperate in a good faith effort to find an effective solution.[52]

 

In either case, an unaccommodated “qualified individual” may bring a cause of action for “failure to accommodate.” The elements of a “failure to accommodate” claim are logical and straightforward: (1) statutory protection (i.e., “qualified individual” status); (2) the employer’s awareness of the disability; and (3) failure to reasonably accommodate the known disability. No adverse action is necessary, since the decisive inquiry is simply whether the plaintiff can identify a facially reasonable accommodation that was not offered to him or her and, if so, whether the employer can demonstrate that providing the accommodation would cause undue hardship to the business.[53]

 

The interrelated concepts of “reasonable accommodation” and “essential functions” are at the core of both the “qualified individual” inquiry and a “failure to accommodate” claim. Broadly speaking, reasonable accommodation includes any adjustments to the physical workspace or nonessential duties of the job that will enable an otherwise qualified employee to perform all essential functions of the job.[54] “Essential functions” simply refers to the “fundamental” duties of the job, as opposed to those which are “marginal.” Courts generally defer to the employer’s judgment as to what functions are “essential,” and their opinion is presumed correct unless the plaintiff produces evidence to the contrary.[55]

 

Putting these interlocking concepts together, the duty to accommodate requires the employer to take whatever reasonable steps are necessary to either enable the employee to work his or her current job in reasonable comfort,[56] or to reassign the employee to an existing but vacant position for which they are otherwise qualified.[57] The employee is not entitled to a perfect solution, their ideal accommodation, or even the one they request or prefer; their entitlement is to whatever reasonable solution the employer selects, so long as it effectively accommodates the disability.[58] If the employee’s disability-related limitations do not affect his or her ability to perform an essential function, then the ADA does not require an accommodation.[59] While removing some of the job’s nonessential functions may be required, reassigning or otherwise modifying the job’s essential functions is unreasonable as a matter of law,[60] as are any accommodations which impose an undue burden on the employer from a cost-benefit perspective.[61]

 

V.            Suggested Practices for Avoiding but Preparing for Litigation

 

The prevailing theme of most antidiscrimination case law is that the best way to avoid litigation is to maintain open lines of communication. Disciplining an employee without providing any clear explanation creates fertile ground for resentment and, ultimately, litigation. Conversely, an open dialogue allows employees to air their grievances to a responsive supervisor and enables the employer to communicate its expectations so that everyone is on the same page.

 

The obvious problem is that no workplace can be sunshine and rainbows all the time, and even the most benevolent employer can and should expect at least some conflict to inevitably arise. With that in mind, here are a few suggested ways that employers can maintain a reasonably harmonious environment while simultaneously protecting themselves if and when an employee relationship goes south.

 

VI.          Update and Distribute the Employee Handbook

 

Stating the obvious, the best way to communicate the company’s general policies and expectations is through the employee handbook. However, having a handbook does not do anyone any good if it has not been updated or distributed since the 1980s, or if you have no idea which employees have actually received it – both of which are remarkably common, particularly among smaller businesses. Accordingly, before addressing any substantive policies, here are a few quick fixes for some basic but surprisingly pervasive deficiencies:

 

Update the handbook at reasonable intervals. In terms of legal obligations, this is a no-brainer and, since sea changes in the law are rare, this need only occur every few years. If company resources do not permit engaging counsel to make these revisions, then open sources such as the ABA’s quarterly newsletter can be useful tools for keeping up with the times. Other policies in the handbook should also be addressed on an as-needed basis when unique or persistent issues emerge. For example, a lax attendance policy should be revised if employees routinely show up 10 minutes late.

 

Distribute all revised versions to employees. Consider this scenario: a 20-year employee who only received a handbook at the time of hire files a complaint after being terminated for violating the current personal conduct policy. Even assuming the fossilized version can be located, it is entirely possible that its policy is quite different than the current version. This may not be a dispositive issue, but wouldn’t it make the employer’s life easier if the fired employee had actual knowledge of the policy that led to his or her termination?

 

Keep handbook receipts. This ties into the other two suggestions. Handbooks commonly include a form for the employee to sign, date, and return to their supervisor. This form acknowledges not only their receipt of the handbook, but also their agreement to review and abide by its terms and to consult a supervisor if they do not understand any policy. If the employee later asserts they were fired for some manufactured policy violation, then a signed handbook receipt at least means he or she cannot challenge the policy’s existence or claim ignorance of the same.

 

VII.        Establish a Comprehensive but Flexible Code of Conduct

 

Whether part of the handbook or kept as a separate policy, having all prohibited conduct organized in a single location rather than scattered throughout multiple policies can short-circuit any argument that the employer scoured the handbook in search of a pretext for the adverse action. More fundamentally, workplace rule violations are legitimate bases for employee discipline up to and including termination, and federal law does not recognize an exception for bad conduct that is a byproduct of a disability.[62]

 

Relatedly, a progressive discipline policy, meaning one that escalates the consequences at each “step,” should certainly include a statement that preserves the employer’s discretion to deviate upward or downward based on the severity of the offense. After all, as the Seventh Circuit has repeated in more than 100 published opinions, the court does not sit as a super-personnel department that second-guesses an employer’s facially legitimate policies or determines which employment infractions deserve greater punishment,[63] and claims which are solely based on the employee’s belief that he or she was punished too severely typically fall on deaf ears.[64] However, it is just as important (and intuitive) that all rules are enforced (or not enforced) evenly and that similar punishment is meted out for similar offenses. Consistent application and enforcement of the rules can preempt these common lines of attack in disparate treatment claim.[65]

 

VIII.     Take Advantage of the Interactive Process

 

All businesses have (or should have) a policy containing boilerplate language that generally notifies employees of the ADA’s accommodation requirements. Clearly directing requests to a supervisor or human resources is useful, but having a strict reporting protocol likely exceeds the employee’s minimal initial burden to “tell his employer” of the disability and corresponding need for accommodation.[66]

 

Once a qualified individual requests accommodation, engaging in the interactive process is a low-risk, high-reward proposition. If the employee can show that an effective reasonable accommodation was possible but never offered by the employer, then liability turns on which party was responsible for the breakdown of the interactive process. Obviously, this does not bode well for the employer who refuses to take part in any interactive process. By contrast, taking an active, good-faith role in the interactive process shields the employer from liability if the employee refuses to participate, withholds essential information, or otherwise obstructs or delays the process.[67]

 

Along the same lines, if an employee’s request seems specious on its face, the interactive process allows the employer to confirm its legitimacy without exposing itself to liability. For example, the employer can request medical evidence from the employee and even consult with their treating physician to determine necessary accommodations, and if the employee refuses to provide that evidence, then the request may be denied without fear of ADA liability.[68]

 

IX.          Make Sure Employees Have Multiple Avenues for Reporting Harassment and Discrimination.

 

Like the accommodation policy, the substance of these policies is typically boilerplate and there is no need to reinvent the wheel. However, the policy should establish a clear reporting process, including multiple points of contact for situations in which the alleged harasser is a supervisor. Ideally, this type of policy protects both the employee and employer by fixing the problem on the front end and avoiding potential liability on the back end.[69]

 

a.     Investigate All Facially Plausible Allegations

 

It seems obvious that reports of serious incidents should be internally investigated, since an employer’s liability for harassment claims often hinges on their failure to act.[70] Bearing in mind that an actionably hostile environment can arise from severe or pervasive harassment, however, less severe but facially plausible complaints should also be investigated to the extent warranted by the allegation. There is little drawback in doing so, particularly since courts generally avoid assessing the quality or manner of an internal investigation.[71] Moreover, failure to investigate can be considered an adverse employment action if it leads to demonstrable harm or retaliation.[72] Better to err on the side of thoroughness than to dismiss a complaint out of hand.

 

b.    Carefully Document Significant Employee Interactions

 

Keeping comprehensive records does more than simply protect against the inevitable fading of memories due to the passage of time, though that is certainly good reason for doing so. In the run of cases, discrimination claims are about intent, and it is not uncommon for claims to come down to which of two competing interpretations of a one-on-one interaction seems more credible. While there is no perfect solution, keeping contemporaneous notes of employee interactions which are contentious or related to discrimination can at least help vitiate claims of “shifting explanations” or after-the-fact justification for the adverse action.[73] Sending a brief post-meeting summary email to the employee, including a simple request for the person to respond with any clarifications or misstatements, can also prove useful.

 

However, all written materials should be drafted with the expectation that they will be used as evidence at some point. Detailed descriptions of conduct and demeanor are useful, so long as it does not devolve into any editorializing that could be interpreted as vindictive.

 

Ideally, these memos should make their way into the personnel file of each party to the dispute. This is particularly true in ERD cases, since the ALJ is not bound by common law or statutory rules of evidence.[74] If the decisionmaker is no longer with the company and is unable (or unwilling) to testify at a hearing, then those contemporaneous notes can be authenticated by their successor if they are kept in the employee’s personnel file.

 

c.     Keep Up-to-Date Job Descriptions for Every Position

 

Tedious as it may seem, a written job description listing a clear set of essential functions for each position could pay dividends. The ADA specifically mandates that an employer’s written job description “shall be considered evidence of the essential functions of the job,” provided it was prepared “before advertising or interviewing applicants for the job.”[75]

 

X.            Conclusion

 

It should go without saying that this article only scratches the surface of employment discrimination law. Like any other practice area, each of the applicable statutes has its own peculiarities, fact-specific exceptions, and wide variations that exist between the WFEA and federal law – not to mention the “rat’s nest of surplus ‘tests’” for causation that were recently eradicated from federal litigation yet live on in state cases. Whatever their substantive differences, all discrimination claims have at least one thing in common: regardless of their statutory origin, the steady flow of complaints shows no signs of slowing down.

 

Author Biography:

 

Matthew J. Hastings is a senior associate at Kasdorf, Lewis & Swietlik, S.C. in Milwaukee where his civil litigation practice is primarily focused on employment, civil rights, and insurance defense. Matt earned his B.A., cum laude, from St. Norbert College in 2004 and his J.D. from Marquette University Law School in 2007. Before joining Kasdorf, Matt worked as an Assistant District Attorney at the Racine County District Attorney’s Office.

 

 


[1] See Wis. DWD Biennial Report, 2017-19 at 41-42 (“In close to one quarter of [civil rights complaints], ERD investigators found probable cause to believe the law had been violated.”).

[2] EEOC, FY 2009 - 2020 EEOC Charge Receipts for WI, available at:

https://www.eeoc.gov/statistics/enforcement/charges-by-state/WI (last visited: June 6, 2021).

[3] Wis. Admin. Code § DWD 218.02(8) (“‘Probable cause’ means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of the act probably has been or is being committed.’”); Brunette v. Cardinal Ridge Residential Care, LLC, ERD Case No. CR201403694 (LIRC Feb. 22, 2019).

[4] Supra note 1.

[5] Percentage reflects averages for Title VII, ADEA, and ADA charges closed by Administrative Closure (21.61%), No Reasonable Cause (73.16%), and Reasonable Cause (5.23%). See EEOC, Title VII of the Civil Rights Act of 1964 Charges (Charges filed with EEOC) (includes concurrent charges with ADEA, ADA, EPA, and GINA) FY 1997 - FY 2020, available at:

https://www.eeoc.gov/statistics/title-vii-civil-rights-act-1964-charges-charges-filed-eeoc-includes-concurrent-charges (last visited: June 10, 2021); EEOC, Age Discrimination in Employment Act (Charges filed with EEOC) (includes concurrent charges with Title VII, ADA, EPA, and GINA) FY 1997 - FY 2020, available at: https://www.eeoc.gov/statistics/age-discrimination-employment-act-charges-filed-eeoc-includes-concurrent-charges-title (last visited: June 10, 2021); EEOC, Americans with Disabilities Act of 1990 (ADA) Charges (Charges filed with EEOC) (includes concurrent charges with Title VII, ADEA, EPA, and GINA) FY 1997- FY 2020, available at: https://www.eeoc.gov/statistics/americans-disabilities-act-1990-ada-charges-charges-filed-eeoc-includes-concurrent (last visited: June 10, 2021).

[6] Of course, dismissal does not signal the end for either the state or federal litigant. The Wisconsin litigant has avenues of appeal, see Wis. Stat. § 111.395, Wis. Admin. Code §§ DWD 218.20-218.21, while the federal complainant can file a federal lawsuit. See 42 U.S.C. §§ 2000e-5(b), (f)(1).

[7] Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996).

[8] Frazier v. Delco Elecs. Corp., 263 F.3d 663, 666-68 (7th Cir. 2001).

[9] See Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. Empirical Legal Stud. 429, 429, 433 (2004) (noting that even though “[e]mployment discrimination plaintiffs have a tough row to hoe,” the number of cases “exploded” by 270% in the 1990s.).

[10] See Aldrich v. Best Buy Co., 3:05-cv-00226-jcs; 2005 U.S. Dist. LEXIS 20986 (W.D. Wis. Sept. 21, 2005); Aldrich v. Best Buy, Inc., ERD Case No. CR200400999 (LIRC Jan. 12, 2007), rev’d sub nom. Aldrich v. LIRC, Case No. 2007CV000113 (Eau Claire Cty. Cir. Ct. June 7, 2008), aff’d and remanded 2008 WI App 63, 310 Wis. 2d 796, 751 N.W.2d 866, dismissed sub nom. Aldrich v. Best Buy, Inc., ERD Case No. CR200400999 (LIRC May 21, 2009), vacated sub nom. Aldrich v. LIRC, Case Number 2009CV000518 (Eau Claire Cty. Cir. Ct. June 9, 2010), rev’d 2011 WI App 94, 334 Wis. 2d 495, 801 N.W.2d 457, rev’d and remanded 2012 WI 53, 341 Wis. 2d 36, 814 N.W.2d 433.

[11] Wis. Stats. §§ 111.31-111.395.

[12] See Sandra F. Sperino, Revitalizing State Employment Discrimination Law, 20 Geo. Mason L. Rev. 545, 546-47 (2013) (“Federal employment discrimination law is centered on” the Title VII, the ADEA, and the ADA.).

[13] Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.

[14] Age Discrimination and Employment Act of 1967, as amended 29 U.S.C. § 621, et seq.

[15] The Americans with Disabilities Act, as amended by the ADA Amendments Act of 2008 (“ADAAA”), 42 U.S.C. § 12101, et seq.

[16] “Sex” includes sexual orientation, see Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339, 341 (7th Cir. 2017) (En banc); Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020), Bowen v. LIRC, 2007 WI App 45, ¶¶ 7-9, 299 Wis. 2d 800, 730 N.W.2d 164; Gustavus v. Wis. Dep’t of Corrs., ERD Case No. 200303640 (LIRC May 8, 2008), and encompasses same-sex harassment. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 78-79 (1998).

[17] 42 U.S.C. § 2000e-2(a)(1); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280 (1976).

[18] 29 U.S.C. § 631(a).

[19] Wis. Stat. §§ 111.321 (“… [N]o employer … may engage in any act of employment discrimination … against any individual on the basis of age, race, creed, color, disability, marital status, sex, national origin, [or] ancestry ….”), 111.33(1) (“The prohibition against employment discrimination on the basis of age applies only to discrimination against an individual who is age 40 or over.”).

[20] See Aldrich, 310 Wis. 2d 796, ¶¶ 9-10; Olson v. Whatever Bar, ERD Case No. CR201003939 (LIRC Mar. 12, 2013); Wis. Stat. § 111.39(c).

[21] 42 USC §§ 1981a., 2000e-5(b), (f)(1), (g).

[22] Though this article focuses solely on intentional discrimination, Title VII also permits claims of “disparate impact” in which a facially neutral policy unintentionally produces a disproportionately adverse effect on minorities. See 42 U.S.C. § 2000e-2(k)(1). For discussion of disparate impact claims, see Ricci v. DeStefano, 557 U.S. 557, 577-578 (2009).

[23] See, e.g., Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 787 (7th Cir. 2007); Cole v. Bd. of Trs., 838 F.3d 888, 895 (7th Cir. 2016), cert. denied, 137 S. Ct. 1614, 197 L. Ed. 2d 708 (2017); Alamo v. Bliss, 864 F.3d 541, 548 (7th Cir. 2017).

[24] Abrego v. Wilkie, 907 F.3d 1004, 1012 (7th Cir. 2018) (quoting Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir. 2013)).

[25] Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016), cert. denied, 137 S. Ct. 1115, 197 L. Ed. 2d 185 (2017); Kruschek v. Trane Co., ERD Case No. CR200603576 (LIRC Dec. 23, 2010).

[26] Robertson v. Wis. Dep’t of Health Servs., 949 F.3d 371, 378-79 (7th Cir. 2020); Hanson v. State of Wis. DOT, ERD Case No. 200303172 (LIRC June 14, 2005).

[27] Lewis v. Wilkie, 909 F.3d 858, 866 (7th Cir. 2018).

[28] Vega v. Chi. Park Dist., 954 F.3d 996, 1004 (7th Cir. 2020); Joll v. Valparaiso Cmty. Sch., 953 F.3d 923, 929 (7th Cir. 2020); Waldvogel v. DC Everest Area S.D., ERD Case No. CR201302128 (LIRC Mar. 22, 2019).

[29] EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 772-73 (2015); Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 351-52 (2013); Gross v. FBL Fin. Servs., 557 U.S. 167, 175-76 (2009).

[30] Nassar, 570 U.S. at 348-49; Hoell v. LIRC, 186 Wis. 2d 603, 606, 608-11, 522 N.W.2d 234 (Ct. App. 1994); Stoughton Trailers, Inc. v. LIRC, 2006 WI App 157, 295 Wis. 2d 750, 721  N.W.2d 102 (“mixed motive” or “motivating factor” test applies.) aff’d 2007 WI 105, ¶ 70, 303 Wis. 2d 514, 735 N.W.2d 477 (standard in “mixed-motive” case is whether the termination would have occurred “in the absence of the impermissible motivating factor.”).

[31] Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016); see also, e.g., David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216 (7th Cir. 2017); Monroe v. Ind. DOT, 871 F.3d 495 (7th Cir. 2017); Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887 (7th Cir. 2018); Khungar v. Access Cmty. Health Network, 985 F.3d 565 (7th Cir. 2021); Igasaki v. Ill. Dep’t of Fin. & Prof’l Regulation, 988 F.3d 948 (7th Cir. 2021).

[32]Williams v. All Saints Healthcare System, Inc., ERD Case No. 200504037 (LIRC Aug. 14, 2009) (McDonnell Douglas may be used at probable cause hearing and merits hearing.); but see Waldvogel, ERD Case No. CR201302128.

[33] Sec. 111.36(1)(b) of the WFEA was intended to provide broader protections than Title VII by creating a cause of action for sexual harassment perpetrated by an employer or their agent (i.e., a supervisor) regardless of whether the underlying conduct satisfied the elements of a hostile work environment claim. Anderson v. MRM Elgin Corp., ERD Case No. 199804070 (LIRC Jan. 28, 2004); but see Haugerud v. Amery Sch. Dist., 259 F.3d 678, 693 (7th Cir. 2001) (“[O]ne extremely serious act of harassment could rise to an actionable level [of harassment.”). Otherwise, state and federal law are substantively identical.

[34] See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64-65 (1986) (quoting 42 U.S.C. § 2000e-2(a)(1)); see also Ford v. Marion Cty. Sheriff’s Office, 942 F.3d 839, 851 (7th Cir. 2019) (“Hostile work environment claims have their legal basis in the phrase ‘terms, conditions, and privileges of employment’ present in the ADA and other employment discrimination statutes.”); Dent v. RJ Wood Indus., Inc., ERD Case No. CR200903357 (LIRC Mar. 28, 2014) (citing Wis. Stat. § 111.322(1)); 29 U.S.C. § 623(a) (prohibiting discrimination with respect to, inter alia, “terms, conditions, or privileges of employment, because of such individual’s age.”); but see Tyburski v. City of Chi., 964 F.3d 590, 600-01 (7th Cir. 2020) (“We have ‘assumed, but never decided, that plaintiffs may bring hostile environment claims under the ADEA.’” (citations omitted)).

[35] Jim Walter Color Separations v. LIRC, 226 Wis. 2d 334, 342 (Ct. App. 1999); see also Faragher v. City of Boca Raton, 524 U.S. 775, 790-91 (1998).

[36] Hall v. City of Chi., 713 F.3d 325, 330 (7th Cir. 2013) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

[37] EEOC v. Costco Wholesale Corp., 903 F.3d 618, 625 (7th Cir. 2018); Vaserman v. Lakeshore Medical Clinic, Ltd., ERD Case No. CR201004003 (LIRC Oct. 30, 2015).

[38] Howard v. Cook Cty. Sheriff’s Office, 989 F.3d 587, 607 (7th Cir. 2021) (citations omitted); accord Muhammad v. Caterpillar, Inc., 767 F.3d 694 (7th Cir. 2014) (“An employer is not liable for co-employee sexual harassment when a mechanism to report the harassment exists, but the victim fails to utilize it.”).

[39] Gates v. Bd. of Educ. of Chi., 916 F.3d 631, 636 (7th Cir. 2019); accord Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2175, 167 L. Ed. 2d 982 (2007). (“In hostile work environment claims, “the actionable wrong is the environment, not the individual acts that, taken together, create the environment.”).

[40] Vance v. Ball State Univ., 570 U.S. 421, 427 (2013); cf. Harper v. Menard Inc., ERD Case No. CR200602401 (LIRC Sept. 18, 2009); Dent, ERD Case No. CR200903357.

[41] See, e.g., Oncale, 523 U.S. at 81; Faragher, 524 U.S. at 787-88; Swyear v. Fare Foods Corp., 911 F.3d 874, 881 (7th Cir. 2018); Johnson, 892 F.3d at 900-01; Coolidge v. Consol. Indianapolis, 505 F.3d 731, 734 (7th Cir. 2007); Alamo, 864 F.3d at 550.

[42] Gates, 916 F.3d at 637.

[43] Faragher, 524 U.S. at 787-88.

[44] The WFEA’s disability protections are discussed at length in Wis. Bell, Inc. v. LIRC, 2018 WI 76, 382 Wis. 2d 624, 914 N.W.2d 1, and the cases cited therein. See also Schultz v. Cty. of Manitowoc, ERD Case No. CR201104000 (LIRC Oct. 31, 2016).

[45] Igasaki, 988 F.3d at 961 (ADA disparate treatment); Williams v. Bd. of Educ., 982 F.3d 495, 508-09 (7th Cir. 2020) (ADA retaliation); Ford, 942 F.3d at 852-53 (ADA harassment/ hostile work environment).

[46] Stelter v. Wis. Physicians Serv. Ins. Corp., 950 F.3d 488, 491 (7th Cir. 2020); but see Kurtzhals v. Cty. of Dunn, 969 F.3d 725, 728 (7th Cir. 2020) (collecting cases) (applying “but-for” causation, but asserting “it remains an open question in this circuit whether that change affects the ‘but for’ causation standard we apply in these cases.”).

[47] Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 862 (7th Cir. 2005), cert. denied, 546 U.S. 1033 (2005).

[48] See Rodrigo v. Carle Found. Hosp., 879 F.3d 236, 241-42 (7th Cir. 2018).

[49] Although the plaintiff must also show that he or she has a statutory “disability,” the ADAAA and corresponding EEOC regulations relaxed the definition to such extent that it now includes nearly any type of “impairment.” See 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(i)(2), (j)(1). Accordingly, whereas pre-2009 cases commonly address the issue of whether the plaintiff has a “disability,” it is rarely litigated in post-2009 cases. See Mancini v. City of Providence, 909 F.3d 32, 40-41 (1st Cir. 2018) (ADAAA and amended regulations “changed the ground rules and defenestrated” the previous requirements that limited the universe of “impairments” that could be considered a “disability.”).

[50]Brumfield v. City of Chicago, 735 F.3d 619, 632 (7th Cir. 2013); Conners v. Wilkie, 984 F.3d 1255, 1261 (7th Cir. 2021); 42 U.S.C. §§ 12111(8)-(9), 12112(b)(5)(A); 29 C.F.R. § 1630.2(m), (n)(1),(o)(1).

[51] Cloe v. City of Indianapolis, 712 F.3d 1171, 1176 (7th Cir. 2013); see also Brumfield, 735 F.3d at 632 (“[A]n employer’s accommodation duty is triggered only in situations where an individual who is qualified on paper requires an accommodation in order to be able to perform the essential functions of the job.”).

[52] Rehling v. City of Chicago, 207 F.3d 1009, 1015-16 (7th Cir. 2000) (citing, inter alia, 29 C.F.R. § 1630.2(o)(3), pt. 1630, app.); Sansone v. Brennan, 917 F.3d 975, 979-80 (7th Cir. 2019).

[53] Taylor-Novotny v. Health Alliance Med. Plans, Inc., 772 F.3d 478, 493 (7th Cir. 2014).

[54] 42 U.S.C. § 12111(9) – (10); 29 C.F.R. § 1630.2(o) – (p); Cloe, 712 F.3d at 1176; Hoffman v. Caterpillar, Inc., 256 F.3d 568, 577 (7th Cir. 2001).

[55] Basith v. Cook Cty., 241 F.3d 919, 928-29 (7th Cir. 2001); Gratzl v. Office of Chief Judges, 601 F.3d 674, 679 (7th Cir. 2010); Kotaska v. Fed. Express Corp., 966 F.3d 624, 628-29 (7th Cir. 2020); Conners, 984 F.3d at 1261-62; Tonyan v. Dunham’s Athleisure Corp., 966 F.3d 681, 688-89 (7th Cir. 2020).

[56] Cloe, 712 F.3d at 1176; Hoffman, 256 F.3d at 577.

[57] Rehling, 207 F.3d at 1014; Stern v. St. Anthony’s Health Ctr., 788 F.3d 276, 291 (7th Cir. 2015); accord Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 678 (7th Cir. 1998) (employer not required to abandon legitimate, nondiscriminatory job qualifications, to accommodate a transfer.).

[58] Igasaki, 988 F.3d at 961-62; Stewart v. Cty. of Brown, 86 F.3d 107, 111-12 (7th Cir. 1996); Mays v. Principi, 301 F.3d 866, 872 (7th Cir. 2002); Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1116-17 (7th Cir. 2001).

[59] Brumfield, 735 F.3d at 633; Hoffman, 256 F.3d at 577.

[60] Kotaska, 966 F.3d at 631; Ammons v. Aramark Unif. Servs., 368 F.3d 809, 819 (7th Cir. 2004).

[61] Mays, 301 F.3d at 872; Hoffman, 256 F.3d at 577. Vande Zande v. State of Wis. Dep’t of Admin., 44 F.3d 538, 543 (7th Cir. 1995).

[62] Guzman v. Brown Cty., 884 F.3d 633, 641-42 (7th Cir. 2018); but see Wis. Bell, Inc., 382 Wis. 2d 624, ¶ 41 (“[A]n employer does not engage in intentional discrimination when it bases an adverse employment action on the employee’s conduct unless the employee proves the employer knew his disability caused his conduct.”).

[63] Joll, 953 F.3d at 933; Harris v. Warrick Cty. Sheriff's Dep’t, 666 F.3d 444, 449 (7th Cir. 2012); accord Joyce v. Milwaukee Cylinder, ERD Case Nos. CR201303197 & CR201402554 (LIRC Nov. 5, 2019) (Employer has discretion to decide the severity it attaches to violations of its rules.).

[64] See Williams v. Verizon Wash., D.C. Inc., 304 F. Supp. 3d 183, 200 (D.D.C. 2018) (“[T]he mere fact that Verizon could have taken a different approach – i.e., suspend[] him instead of terminat[ing] him” doesn’t show pretext.) (citing Wilkerson v. Wackenhut Protective Servs., Inc., 813 F. Supp. 2d 61, 67 (D.D.C. 2011) (pretext cannot be established by claiming the employer “could have, but did not, impose progressive discipline, especially when [its] policy permitted swift and severe punishment for a single ‘no show.’”)).

[65] See generally Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 546 (7th Cir. 2002) (pretext argument that employee was “singled out” for harsher discipline than others who broke the same rules.); Ezell v. Potter, 400 F.3d 1041, 1049 (7th Cir. 2005) (same.); cf. Bagwe v. Sedgwick Claims Mgmt. Servs., 811 F.3d 866, 882 (7th Cir. 2016) (evidence of employer’s departure from its customary enforcement and response to violations of a specific policy may be circumstantial evidence of discrimination.), cert. denied, 137 S. Ct. 82, 196 L. Ed. 2d 36 (2016).

[66] See, e.g., Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055, 1062 (7th Cir. 2014) (quoting Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 934 (7th Cir. 1995)).

[67] See EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805-06 (7th Cir. 2005).

[68] Haschmann v. Time Warner Entertainment Co., L.P., 151 F.3d 591, 601 (7th Cir. 1998) (citing 42 U.S.C. § 12112(d)(4); 29 C.F.R. § 1630.14(c)); Keen v. Merck Sharp & Dohme Corp., 819 F. App’x 423, 427 (7th Cir. 2020).

[69] Muhammad, 767 F.3d at 698; cf. Montgomery v. American Airlines, Inc., 626 F.3d 382, 392 (7th Cir. 2010) (“An aggrieved employee must at least report—clearly and directly—nonobvious policy violations troubling him so that supervisors may intervene.”).

[70] Howard, 989 F.3d at 607.

[71] Marshall v. Ind. Dep’t of Corr., 973 F.3d 789, 793 (7th Cir. 2020).

[72] See Kuhn v. United Airlines, 63 F. Supp. 3d 796, 802-03 (N.D. Ill. 2014) (citing, inter alia, Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 640-41 (10th Cir. 2012)).

[73] Bagwe, 811 F.3d at 882.

[74] Rutherford v. LIRC, 2008 WI App 66, ¶ 21, 309 Wis. 2d 498, 752 N.W.2d 897 (citing Wis. Stat. § 227.45).

[75] 42 U.S.C. § 12111(8); Dunderdale v. United Airlines, Inc., 807 F.3d 849, 853 (7th Cir. 2015) (employer’s judgment and written job description are first among several factors considered in essential functions inquiry.), cert. denied, 136 S. Ct. 2399, 195 L.Ed.2d 764 (2016).