Monday, August 1, 2011

Filing an Equal Rights Division Discrimination Complaint

I feel compelled and obligated to disclaim at the beginning of this post that this article is not meant to be a thorough, exhaustive discussion or a how-to guide. The purpose of this article is to briefly discuss the Equal Rights Division (ERD) process for filing an employment discrimination complaint to better inform the public. No blog or article can ever replace knowledgeable, effective legal counsel!

The Wisconsin Fair Employment Act (WFEA) is Wisconsin's state law that expressly prohibits discrimination in employment based upon a person's "protected class" and provides more protected classes than federal law.

PROTECTED CLASSES

It is important to first discuss who and what is protected and what are the basis of employment discrimination claims--also known as protected classes. Also, it is important to note that Wisconsin provides more protected classes than the federal government. In Wisconsin, protected classes are:
  • Race (also protected federally under Title VII)
  • Color (also protected federally under Title VII)
  • Creed/Religion (also protected federally under Title VII)
  • Ancestry (also protected federally under Title VII)
  • National Origin (also protected federally under Title VII)
  • Age (also protected federally under the Age Discrimination in Employment Act (ADEA))
  • Sex/Gender (also protected federally under Title VII and the Equal Pay Act (EPA))
  • Disability/Handicap (also protected federally under the American with Disabilities Act (ADA))
  • Arrest & Conviction Record (NOT protected federally)
  • Marital Status (NOT protected federally)
  • Sexual Orientation (NOT protected federally)
  • Military Status (NOT protected federally, but in some cases, USERRA may apply)
  • Use or nonuse of lawful product (i.e., alcohol, cigarettes, tobacco, etc) (NOT protected federally)
PROTECTIONS PROVIDED

Since almost everyone employed fits into a protected class, the next question is what is protected in connection with belonging to a protected class? Federal law and the WFEA prohibit discrimination in employment-related actions such as:
  • Hiring or recruitment
  • Pay
  • Promotion
  • Training
  • Lay-off and firing/termination
  • Demotion
  • Job assignments
  • Leave or benefits
  • Licensing or union membership
  • Retaliation against those who assert their rights under the WFEA, WFMLA, etc
  • Harassment on the job because of a person's sex or protected class (e.g., race, religion)
  • Genetic testing or giving an improper honest test
  • Other related actions
It is extremely important to keep in mind that it's not enough to simply belong to a protected class and suffer an adverse employment action because it's not employment discrimination unless the adverse employment action was taken BECAUSE OF the membership in the protected class, which isn't always so easy to prove.

FILING A COMPLAINT

It is always advisable to first speak with a local employment law attorney before running off and filing a complaint with the ERD or Equal Employment Opportunity Commission (EEOC), as there are still plenty of considerations even if you believe you suffered an adverse employment action because of your protected class. Some considerations are:
  • Is my complaint timely? A complaint under the WFEA is timely if filed within 300 days of the alleged discrimination.
  • How do I file a complaint? The ERD department is very helpful to individuals without a lawyer, but an employment lawyer has the training and expertise to carefully draft a complaint to hit all the important points that need to be made.
  • How long does the process take? After the complaint is filed, it is then processed and sent to the employer (also known as the Respondent). Then the employer has about a month to draft a well-crafted response and then the employee (called the Complainant) has 20 days to respond to the employer's response. After all responses are submitted, the investigator then reviews the file and makes an Initial Determination of either Probable Cause or No Probable Cause.
  • What will I "win" if I prevail? This is probably the biggest consideration in deciding whether to file a claim and whether to settle and for how much. Only a knowledgeable employment attorney can assist here as the ERD avoids providing legal advice. An administrative law judge (ALJ) can only award a "make-whole remedy" which is limited to back pay, reinstatement (if reasonable), lost benefits, interest and attorney's fees and costs. Punitive and Compensatory damages are only possible through circuit court after the ALJ issues their decision.
There is a lot to discuss when deciding whether to file a complaint, at any level. This article simply hopes to bring some major considerations to the fore and better educate employees on what the employment discrimination complaint process involves.


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