Fair Employment Law Complaint Process

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, discharge, or otherwise discriminate in any term or condition of work because of a person's protected class.
The protected classes are shown in the chart 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:

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

Other prohibited practices are:

Retaliation against persons who assert their 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.

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.

Protected Classes

Protected Class		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 a "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	Title VII
Sex/Gender	Being female or male.	1961	Title VII & EPA
Disability	Physical or mental impairment making achievement difficult or limiting the capacity; having a record of or being perceived as having a work disability. Employer has a "duty to accommodate."	1965	ADA
Arrest/Conviction Record	Information indicating a person was questioned, arrested, charged or convicted of a felony or misdemeanor.	1977	---
Marital Status	Status of being married, single, divorced, separated or widowed.	1982	---
Sexual Orientation	Having a preference for heterosexuality, homosexuality or bisexuality; having a history of or being identified as having such a preference.	1982	Title VII
Military Service	Member of the U.S. armed forces, national guard, state defense force or other state or federal reserve unit.	1987	---
Outside Lawful Products	Use or nonuse of lawful products (e.g., tobacco, alcohol) off the employer's premises during nonworking hours.	1992	---

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 on the chart above:

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

The Civil Rights Complaint Process

How is a complaint filed under Wisconsin law?

A person who believes his or her rights have been violated under one of the Civil Rights laws may file a complaint with the Equal Rights Division. Complaints must be filed within a certain number of days from the date of the violation. Please consult the relevant law's page to check on the required filing deadline.

How long does it take?

Depending on which law the complaint is filed under, 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 does not represent 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 legal advice is needed by either party. (The division can provide a list of attorneys who handle fair employment cases).

After a complaint is received 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. Staff is trained to assist the parties to work out a fair and equitable resolution. They can also help draft a voluntary agreement. The merits of settlement should be seriously considered by the parties 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 the law has been violated.

Probable Cause (PC) is not a finding that the law was violated. It means there was enough believable information to suggest the law was violated to send the case on for a hearing on its merits.

No Probable Cause (NPC) means there was not enough evidence to believe that the law has been violated. It does not always mean the law was not violated. The case is dismissed, unless the complainant files a written appeal within the time period listed in the determination.

What happens at a formal hearing?

A Civil Rights hearing is 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 the law was violated. 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 an ALJ finds that a Civil Rights law was violated the ALJ can make the complainant "whole" by awarding back pay, reinstatement, lost benefits, interest and attorney's fees and costs. Other remedies may be awarded, based upon the circumstances of the case.
Remedies may differ for cases under the Wisconsin FMLA, Open Housing law, or Public Accommodations and Amusements law.
An ALJ cannot award damages for humiliation or emotional pain, or for punitive damages.