Filing a Discrimination Claim – Wisconsin
Employment discrimination is the practice of unfairly treating a person or group of people differently from other people or groups of other people at work, because of their membership in a legally protected category such as race, sex, age, or religion. Each state has passed laws and rules to protect your workplace rights: this page covers Wisconsin employment discrimination. The purpose of the Wisconsin Fair Employment Law is to protect workers in Wisconsin from unlawful discrimination in employment. Read below to learn more about Wisconsin employment law and how the law protects you.
1. What kinds of discrimination are against state law in Wisconsin?
The Wisconsin Fair Employment Law makes it illegal for an employer to discriminate on the basis of age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, membership in the national guard, state defense force or any other reserve component of the military forces, declining to attend a meeting or participate in any discussion regarding political or political matters that substantially and adversely affect the general welfare of the stateor use or nonuse of lawful products off the employer’s premises during nonworking hours.
Employers may not require certain types of honesty testing or genetic testing as a condition of employment, nor discipline an employee because of the results.
Wisconsin law also provides broader protection for disabled employees than the similar federal statute, the Americans with Disabilities Act (ADA). The Wisconsin Fair Employment Act allows “working” to be considered a major life activity, requires a greater level of accommodation, and otherwise is more favorable for employees. For more information about the ADA, see our page on disability discrimination.
2. How do I file a discrimination claim in Wisconsin?
A discrimination claim can be filed either with the state administrative agency, the Wisconsin Equal Rights Division (WERD) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.
The Wisconsin anti-discrimination statute covers employers of any size. Therefore, if your workplace has between 1 and 14 employees, you may wish to file with the WERD, as the EEOC enforces federal law which covers only employers with 15 or more employees. If your workplace has 15 or more employees, you may file with either agency.
To file a claim with the WERD, contact your closest office below. More information about filing a claim with the WERD can be found at https://dwd.wisconsin.gov/er/discrimination_civil_rights/ .
201 E. Washington Ave. (GEF-1)
Madison, WI 53703
Phone: (608) 266-6860
TDD: (608) 264-8752
Fax: (608) 267-4592
819 North Sixth St., Room 255
Milwaukee, WI 53203
Phone: (414) 227-4384
TDD: (414) 227-4081
Fax: (414) 227-4084
To file a claim with the EEOC, contact your local EEOC office below. More information about filing a claim with the EEOC can be found at the EEOC Filing a Charge website.
|EEOC’s Milwaukee District Office
310 West Wisconsin Avenue
Milwaukee, WI 53203-2292
Phone: (414) 297-1111
TTY: (414) 297-1115
EEOC has launched an online service that enables individuals who have filed a discrimination charge to check the status of their charge online. This service provides a portal to upload and receive documents and communicate with the EEOC, allowing for a faster transmitting period. Those who have filed a charge can access information about their charge at their convenience, and allow entities that have been charged to receive the same information on the status of the charge. All of the EEOC offices now use the Digital Charge System. If you file on or after September 2, 2016, the Online Charge Status System is available for use. The system is not available for charges filed prior to this date or for charges filed with EEOC’s state and local Fair Employment Practices Agencies. The system can be accessed at the EEOC website. If you do not have internet or need language assistance, you may call the toll-free number at 1-800-669-4000. For additional help, you may also call the toll free number to retrieve the same information provided in the Online Charge Status System.
3. What are my time deadlines?
Do not delay in contacting the WERD or EEOC to file a claim. There are strict time limits in which charges of employment discrimination must be filed. In order for these agencies to act on your behalf, you must file with the WERD or EEOC within 300 days of the date you believe you were discriminated against. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible, but if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the state and federal administrative agencies.
You may also wish to check with your city or county to see if you live and/or work in a city or county with a local anti-discrimination law, or “ordinance.” Some cities and counties in Wisconsin (including Madison) have agencies that process claims under local ordinances and may be able to assist you. These agencies are often called the “Human Rights Commission,” “Human Relations Commission,” or the “Civil Rights Commission.” Check your local telephone directory or government website for further information.
4. What happens after I file a charge with the EEOC?
When your charge is filed, the EEOC will give you a copy of your charge with your charge number. Within 10 days, the EEOC will also send a notice and a copy of the charge to the employer. At that point, the EEOC may decide to do one of the following:
- Ask both you and the employer to take part in a mediation program
- Ask the employer to provide a written answer to your charge and answer questions related to your claim, then your charge will be given to an investigator
- Dismiss the claim if your charge was not filed in time or if the EEOC does not have jurisdiction
If the EEOC decides to investigate your charge, the EEOC may interview witnesses and gather documents. Once the investigation is complete, they will let you and the employer know the result. If they decides that discrimination did not occur then they will send you a “Notice of Right to Sue.” This notice gives you permission to file a lawsuit in a court of law. If the EEOC determines that discrimination occurred then they will try to reach a voluntary settlement with the employer. If a settlement cannot reached, your case will be referred to the EEOC’s legal staff (or the Department of Justice in certain cases), who will decide whether or not the agency should file a lawsuit. If the EEOC decides not to file a lawsuit then they will give you a “Notice of Right to Sue.” `
How long the investigation takes depends on a lot of different things, including the amount of information that needs to be gathered and analyzed. On average, it takes the EEOC nearly 6 months to investigate a charge. A charge is often able to settle faster through mediation (usually in less than 3 months).
5. How can I or my attorney pursue a claim in court in Wisconsin?
If your case is successfully resolved through the investigative process before an administrative agency, it may not be necessary to hire an attorney or file a lawsuit (to resolve your case, you probably will be required as to sign a release of your legal claims). However, if your case is not resolved during the investigative process by the WERD or EEOC and you may want to continue to pursue the matter, you will need to pursue your claim either through the administrative hearing process of the WERD or Federal Court.
There is no private right of action under Wisconsin law for discrimination claims, which means that you cannot file a lawsuit directly in court under Wisconsin law. You are allowed only to appeal the administrative determination of your case after following the WERD’s process to its conclusion. Therefore, under state law, a hearing before the WERD Administrative Law Judge would be your only opportunity to examine witnesses and present evidence.
A federal employment discrimination case cannot be filed in court without first going to the EEOC, as discussed above, and having the EEOC dismiss your case. This process is called “exhaustion” of your administrative remedy. Once the EEOC issues the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” (Form 161), only then can you file a case based upon your federal claim. A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. (Be sure to mark down that date when you receive the notice.) This deadline is called the “statute of limitations.”
If you have received one of these EEOC notices, do not delay consulting with an attorney. If your lawsuit is not filed by the deadline, then you may lose your ability to pursue a discrimination case.
Because Wisconsin’s state antidiscrimination statute does not permit the compensatory (emotional pain and suffering) and punitive damages (damages intended to punish the employer) allowed under federal law, and because Wisconsin law does not permit a court action to be filed under state law, many Wisconsin attorneys choose to file employment discrimination cases in federal court using federal law.
© 2017 Workplace Fairness