Nov 24, 2011

Scott Walker appointee says workplace harassment of gays is legal

By Louis Weisberg

A commissioner on the board that makes final decisions in cases involving workplace discrimination says Wisconsin law does not prohibit anti-gay harassment on the job.

Her two fellow commissioners strongly disagree.

Laurie McCallum, who was recently appointed by Gov. Scott Walker to a six-year term on the state’s Labor and Industry Review Commission, wrote that the Wisconsin Fair Employment Act applies only to sexual harassment. That contention was the basis for her dissenting opinion in a case involving Milwaukeean Chris Bowen, a machine operator who was subjected to years of anti-gay harassment as an employee of Stroh Precision Die Casting.

In a 2-1 decision, commissioners Robert Glaser and Ann L. Crump found that Stroh was responsible for fostering a workplace environment hostile to Bowen because of his sexual orientation. Stroh did not deny that the harassment occurred; nor did the company argue that anti-gay harassment is allowed under state law during the eight years that the case bounced around the court system.

But McCallum, the politically connected wife of former GOP Gov. Scott McCallum, defied nearly 30 years of precedent in state law by asserting that sexual “preference,” as she put it, is not a protected category in workplace discrimination cases.

McCallum’s stance alarmed civil rights advocates as well as her fellow commissioners, who warned that her view could upend legal tradition and “make it permissible to harass an employee based upon race, national origin, religion, age or disability,” as well as sexual orientation.

Although Glaser and Crump prevailed over McCallum in the case, Bowen’s attorney Art Heitzer warned that Walker would have the opportunity to appoint another commissioner if he completes his four-year term. That would swing control of the commission, which also oversees workers compensation and unemployment insurance, in McCallum’s ideological direction.

Opponents of the governor are currently circulating petitions calling for his recall. They have a total of 60 days to gather 540,000 signatures and force him to face an election.

Although Bowen won the portion of his case alleging that Stroh was liable for creating a hostile work environment, he lost his complaint that he was fired over his sexual orientation. The commission did not have the authority to award Bowen monetary compensation, but Stroh was ordered to pay a portion of his legal fees.

Both sides have until Nov. 30 to file an appeal.

The court record showed that a group of Bowen’s co-workers repeatedly called him “fag,” “maricon” and “my little bitch,” among other slurs, over a period of years. Bowen once found a bulls-eye hunting target over which the word “gay” was written stuck to his toolbox. Someone put a sign that said, “queer” or “queen” on his locker. A sticker was put in his workplace that said, “Honk if you’re gay.”

In a statement that was excluded as evidence at Bowen’s administrative hearing, co-worker Kathryn Corroo said, “I witnessed the sexual harassment against Chris Bowen, especially during February 2002 through May 2002 by (co-employees) Tom Meier, Rick Hafemeister, David Lepke, Jesse Manhardt and Rose McGee. … I heard Tom Meier say that Chris was not in a very good mood and that maybe it was because he (Chris) didn’t get a apiece (sic) of ass over the weekend at Pridefest, the day after the weekend of Pridefest. I heard Rick Hafemeister make comments to Chris and myself about how all nigers (sic) and queers, etc. ... (sic) should be put in a big hole and shot. And get rid of them all.”

Glaser and Crump agreed with an administrative law judge that Stroh did not take reasonable steps to stop this sort of harassment, which made it difficult for McCallum to perform his duties. McCallum disagreed on that point as well, stating that the company acted responsibly in responding to Bowen’s complaints.

Bowen was fired in 2003 after a disagreement with another worker, who claimed Bowen grabbed his shirtsleeve during an altercation. Hetizer said the worker taunted Bowen and then complained he’d been assaulted when Bowen responded.

“We think the firing was retaliatory because (Bowen) complained about harassment and the company was very insensitive to the kind of harassment he complained about,” Heitzer said.

Bowen worked at Stroh a total of two decades – from 1978 to 1988 and from 1992 to 2003.

Despite the mixed and controversial ruling in the case, Heitzer and co-attorney Brenda Lewison described it as a landmark for LGBT civil rights.

It’s “the only reported case where the state found sufficiently strong evidence of a hostile environment based on sexual orientation, combined with notice to the employer, to conclude the law had been violated,” Heitzer’s office said in a press statement.

"This was a hard fought and significant victory for the employees in Wisconsin, even though the rationale of the dissent threatens to take it away along with other protections we have had for decades,” Lewison said.

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