The Wisconsin Fair Employment Act (WFEA) defines "sexual harassment," in relevant part, as follows:
“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. . . .
“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.
WFEA recognizes three (3) types of viable sexual harassment claims:
Quid pro quo
Sexual harassment by a supervisor.
Hostile-work environment (created by non supervisors and co-workers)
I. Quid Pro Quo Sexual Harassment
Quid pro quo, a Latin phrase meaning "something for something," is the most commonly recognized form of sexual harassment. It occurs when an employer, manager, or agent of an employer demands sexual favors from employees or prospective employees in exchange for job benefits, like a promotion, raise, or favorable work assignments.
Quid pro quo sexual harassment also includes an employer taking adverse action against an employer because the employee rejected or rebuffed their employer's unwelcome sexual advances, unwelcome requests for sexual favors, or unwelcome physical contact of a sexual nature.
By definition, employers are strictly liable for quid pro quo sexual harassment, because it only occurs when an agent of the employer, such as an owner or manager (in other words, the employer itself), is the person perpetrating the harassment.
An employee has an actionable claim for quid pro quo sexual harassment, regardless of the circumstances under which it takes place. An employee may also be able to establish a "constructive discharge" claim if he or she voluntary resigns and can show that the conduct made working conditions so intolerable that a reasonable person would feel compelled to resign. It is a difficult standard to meet.
II. Sexual Harassment By Supervisor (WFEA)
One way that the Wisconsin Fair Employment Act differs from federal law Title VII is that WFEA provides a right of action for sexual harassment, as defined by the statute, whenever it is perpetrated by a supervisor of the employer.
WFEA makes "engaging in sexual harassment" unlawful and defines "sexual harassment" to include "Unwelcome physical contact of a sexual nature and unwelcome verbal conduct or physical conduct of a sexual nature." When an agent of the employer, such as a manager, who acts on, as, and for the employer, engages in any conduct that fits the definition of "sexual harassment," the employee has established a violation of the Act and is entitled to a remedy. The employee is not further required to prove that the harassment rose to the level of a hostile work environment
III. Hostile Work Environment
A hostile work environment is a specific form of discrimination that does not involve an end to the employment relationship. Instead, a hostile exists when an employer creates or allows a harassing condition, based on employees' protected class membership, that is intolerable, abusive, and coercive and negatively affects the employee's ability to perform their job. Typically, claimants who allege that their co-workers have harassed them must prove the existence of a "hostile work environment" to hold the employer accountable. The employer must know or have reason to know of the harassment and failed to take appropriate and immediate corrective action. A corrective action is reasonable if it eliminates the condition or causes the harasser to not repeat the conduct.
A hostile work environment refers to harassing behavior that creates a "substantial interference with an employee's work performance" or "intimidating, hostile, or offensive work environment." To make this showing, the employee must establish "that a reasonable person under the same circumstances as the employee would consider the conduct sufficiently severe or pervasive to interfere substantially with the person’s work performance or to create an intimidating, hostile or offensive work environment."
The harassment does not need to be both "severe" and "pervasive." Subtle ridicule, and small microaggressions, not significant in and of themselves, spread out over time, can mount up to an actionable hostile work environment. At the same time, one incident of sexual harassment can be so severe that the employee does not need to show repeated instances in order to prove that he or she suffered legally actionable discrimination.
*It's important to note: harassment can be based on any protected class, i.e., race, religion, or national origin. Employees who experience hostile work environments on the basis of any legally protected characteristic may maintain harrassment claims. Courts apply a similar framework in addressing hostile environment claims, regardless of the protected class.