Fair Employment Law and Complaint Process

ERD Publication ERD-6061-PWEB

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Note:
The links (bookmarks) in the Table of Contents take you to that section in this Publication.
The links in the Text take you to either a page in our website, a section in the Wisconsin Statutes or a section in the Wisconsin Administrative Code.

Table of Contents

  • The Complaint Process
  • Questions about employment discrimination .
  • Wisconsin’s Fair Employment Law Pamphlets.

    Fair Employment Law

    What Is the Law’s Purpose?

    The purpose of the law is to protect the rights of people to employment free of unlawful discrimination.

    • It is unlawful, for public and private employers, employment agencies, licensing agencies and unions, to refuse to hire, to discharge, or otherwise discriminate in any term or condition of work, because of a person’s protected class.
    • The protected classes are shown below. The fair employment law is contained in Sections 111.31-111.395, of the Wisconsin Statutes.
    • It is important to note that unfair treatment is not necessarily unlawful. Certain employment actions may be harsh, insensitive or unjust. But, they do not become unlawful under the above law unless an adverse action is taken, at least in part, because of a person’s protected class.

    What Protections Are Provided?

    Generally, it is unlawful to treat people less favorably than others because of their protected class. The law prohibits discrimination in employment related actions such as:

    • Recruitment and hiring
    • Pay
    • Promotion
    • Training
    • Lay-off and firing
    • Demotion
    • Job Assignments
    • Leave or benefits
    • Licensing or union membership
    • Other employment related actions

    Other prohibited practices are:

    • Retaliation against persons who assert there rights under the fair employment law, the family and medical leave law and other labor standards laws.
    • Harassment on the job because of a person’s sex or because of their particular protected class.
    • Engaging in most types of Genetic Testing or giving an improper Honesty Test.

    Protected Classes
    Description
    Year WI Adopted
    Federal Laws

    Race
    Generally, a member of a group united or classified together on the basis of common history, nationality or geography
    1945
    Title VII

    Color
    Black to white and all colors in between.
    1945
    Title VII

    Creed
    Religious, moral or ethical beliefs about right and wrong that are sincerely held. Employer has “duty to accommodate.”
    1945
    Title VII

    Ancestry
    The country, nation, tribe or other identifiable group from which one descends.
    1945
    Title VII

    National Origin
    Generally a member of a nation by origin, birth or naturalization or having common origins or traditions.
    1945
    Title VII

    Age
    Being age 40 or older.
    1959
    ADEA

    Sex/Gender
    Being Female or Male.
    1961
    Title VII & ERP

    Handicap Or Disability
    Physical or mental impairment making achievement difficult or limiting work capacity or having a record of or being perceived as having a disability. Employer has “duty to accommodate.”
    1965
    ADA

    Arrest/Conviction Record
    Information indicating a person was questioned, arrested, charged or convicted of a felony or misdemeanor.
    1977
    N/A

    Marital Status
    Status of being married, single, divorced, separated or widowed.
    1982
    N/A

    Sexual Orientation
    Having a preference for heterosexuality, homosexuality or bisexuality or having a history of or being identified as having a reference.
    1982
    N/A

    Military Service
    “Military service” means service in the U.S. armed forces, the state defense force, the national guard of any state, or any other reserve component of the U.S. armed forces..
    2008
    N/A

    Outside Lawful Products
    Use or nonuse of lawful products (e.g., tobacco, alcohol) off the employer’s premises during nonworking hours.
    1992
    N/A

    Are There Any Exceptions under the Law?

    Yes, there are times when an employer may “legally” discriminate even though a person may otherwise be protected under the law. While legal exceptions are very limited and uncommon, a few examples of cases where an exception might apply include:

    Conviction Record: An employer may reject an applicant or fire an employee whose conviction is substantially related to the job.

    Age: In certain physically dangerous or hazardous jobs an employer may set maximum age requirements.

    Marital Status: An employer may prevent a person from directly supervising his or her spouse.

    Disability: In limited cases, employment of a person with a disability may present a significant risk of real harm to the health or safety of the individual or others.

    Federal Anti-Discrimination Laws

    Federal laws differ from state laws, as do procedures for complaint handling. The most common federal laws that might apply are shown below:

    • Title VII is part of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e
    • ADEA stands for the Age Discrimination in Employment Act, 29 U.S.C. § 621-643.
    • ADA stands for the Americans with Disabilities Act, 42 U.S.C. §12101 ET seq.
    • EPA stands for the Equal Pay Act of 1964, 29 U.S.C. § 206

    For more details on these laws and information about filing a federal discrimination complaint, contact:

    U.S. Equal Employment Opportunity Commission (EEOC)
    310 W. Wisconsin Avenue, Suite 800
    Milwaukee, WI 53203

    (414) 297-1112
    (414) 297-1115 (TTY)
    1 (800) 669-4000 (Toll Free)

    The Complaint Process

    How Is A Complaint Filed Under Wisconsin Law?

    A person, who believes he or she is a victim of unlawful employment discrimination, may file a complaint with the Equal Rights Division within 300 days of the discriminatory action.

    • Follow this link for a Complaint Form with instructions. Please see the end of this document for the telephone numbers and addresses of our main Division offices.

    How Long Does It Take?

    Resolution of some cases may take longer than one year . The Division makes every effort to settle or resolve cases in a timely manner.

    What Happens after A Complaint Is Filed?

    The complaint is assigned to an equal rights officer to be investigated. The investigator acts impartially and independently, and represents neither the complainant (person filing the complaint) nor the respondent (employer being complained against). The investigator cannot give legal advice to the parties. An attorney should be contacted if either party needs legal advice. (The Division can provide a list of attorneys who handle fair employment cases).

    After the division receives a complaint, a copy is sent to the respondent, who must provide a written answer to the complaint. The investigator may contact the complainant after receiving this answer and may want more information from the parties or any witnesses. The investigator may ask the parties if they want to resolve the case through a settlement.

    Consider Settlement

    Settlement is often a good option for both parties. The staff is trained to assist the parties’ in working out a fair and equitable resolution and in drafting a voluntary agreement. The parties should seriously consider the merits of settlement at any time in the process, even up to the day of a formal hearing. Let us know if you would like more details on the merits of settlement and how it is handled.

    If a case is not settled, the equal rights officer will complete an investigation and then write an initial determination of whether there is “Probable Cause” or “No Probable Cause” to believe that the law has been violated.

    Probable Cause (PC) is not a finding of discrimination. It means there was enough believable information about discrimination to send the case on for a hearing on its merits.

    No Probable Cause (NPC) This finding means there was not enough evidence of discrimination. It does not always mean there was no discrimination. The case is dismissed, unless the complainant files a written appeal within 30 days.

    What Happens At A Formal Hearing?

    Discrimination hearings are similar to a court proceeding. Both parties present evidence under oath before an administrative law judge (ALJ).

    The ALJ reviews the evidence and hears testimony of witnesses, then issues a decision on whether or not discrimination occurred. All relevant evidence and testimony must be presented at this hearing. It is the only chance for the parties to do so. Information given earlier to the investigator is not considered at the hearing.

    The ALJ cannot represent either party. Legal counsel may be advisable at this point, but is not required.

    What Remedies Are Available?

    • If discrimination is proven by a complainant under state law, an ALJ can award wages lost, interest on lost wages, attorney fees and costs. A job offer may also be ordered, if appropriate. Either party may appeal the ALJ'S decision.
    • Additional relief for damages such as humiliation and emotional pain or for punitive damages may be awarded only if a case is filed in federal court.

    Are Complaint Records Open to the Public?

    Complaint records are open for public review. However, during the investigation, files (other than the complaint itself) are open only to the parties involved in the dispute.

    Questions about employment discrimination should be directed to:

    STATE OF WISCONSIN
    DEPARTMENT OF WORKFORCE DEVELOPMENT
    EQUAL RIGHTS DIVISION
    CIVIL RIGHTS BUREAU

    201 E WASHINGTON AVE
    ROOM A300
    PO BOX 8928
    MADISON WI 53708

    Telephone Number: (608) 266-6860
    TTY Number: (608) 264-8752

    Or

    819 N 6th ST
    ROOM 723
    MILWAUKEE WI 53203

    Telephone Number: (414) 227-4384
    TTY Number: (414) 227-4081

    Equal Rights Division Web Site

    The Department of Workforce Development is an equal opportunity service provider. If you need assistance to access services or need material in an alternate format, please contact us.

    This is one of a series of pamphlets highlighting programs of the Wisconsin Department of Workforce Development. It is intended to provide only a general description, not a legal interpretation.

    Wisconsin’s Fair Employment Law Pamphlets

    #1 Avoiding Loaded Interview Questions
    #2 Harassment in the Workplace
    #3 Pregnancy, Employment & The Law
    #4 Persons With Disabilities On The Job
    #5 Fair Employment Law & Complaint Process
    #6 Age Discrimination in the Workplace
    #7 Settlement: An alternative to investigation and hearing
    #8 Race, Color, National Origin and Ancestry
    #9 Sexual Orientation Protection

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