A PRIMER ON EMPLOYMENT DISCRIMINATION CLAIMS
November 20, 2018
When an employer is faced with defending against a discrimination complaint, it is important to understand the process and best practices for responding to the complaint. Under the Wisconsin Fair Employment Act (WFEA), employers are prohibited from discriminating against employees and applicants on the basis of certain protected categories. In addition, there are various federal anti-discrimination laws that apply in the employment context. Employers should be aware of both state and federal anti-discrimination laws to prevent discrimination claims from arising in the first place and, if a complaint is filed, to ensure that they can adequately defend against such claims.
Under the WFEA, an employer may not discriminate against an employee or applicant on the basis of any of the following categories: age (40 or older); arrest and/or conviction record; creed; disability; genetic testing; honesty testing; marital status; military service; pregnancy or childbirth; race; color; national origin; ancestry; sex; sexual orientation; and use or nonuse of lawful products off the employer’s premises during nonworking hours. The WFEA also prohibits harassment based on one’s protected characteristic, as well as retaliation. The WFEA’s prohibition against discrimination applies to various employment actions, including hiring, job assignments, promotion, compensation, other terms or conditions of employment, and termination.
Similarly, under Title VII of the Civil Rights Act of 1964 (Title VII), employers are prohibited from discriminating against employees and applicants on the basis of race; color; religion; national origin; and sex. Other federal anti-discrimination laws include the Americans with Disabilities Act of 1990 (ADA), the Age Discrimination in Employment Act of 1967 (ADEA), the Pregnancy Discrimination Act (PDA), the Equal Pay Act of 1963 (EPA), and the Genetic Information Nondiscrimination Act of 2008 (GINA). There are also prohibitions against retaliation under these federal laws.
The WFEA is administered by the Wisconsin Department of Workforce Development (DWD). If an employee or applicant wishes to pursue a complaint based on an alleged violation of the WFEA, he or she must file a complaint with the DWD. The applicable statute of limitations is 300 days. After a complaint is filed, the DWD assigns an investigator to investigate the complaint. The investigator provides the employer with a copy of the complaint and specifies a deadline by which the employer must submit a written response (often called a position statement). The employer should take note of this deadline and determine whether it should request an extension of time.
The position statement is a very important document for the employer. It gives the employer the opportunity to assert defenses, such as a statute of limitations defense, and also gives the employer the opportunity to explain its side of the story. The employer can also address factual inaccuracies in the complaint, factual deficiencies of the complaint, and why the complaint falls short of establishing a violation of the WFEA.
In responding to a complaint of discrimination, it is often helpful to submit copies of relevant documents as exhibits, such as copies of disciplinary records that formed the basis of the adverse action. An employer must also take care to preserve any and all records that may relate to the matter. After the employer submits its position statement and relevant exhibits, the investigator may follow up with the complainant, as well as the employer, to request additional information. The investigator may also inquire on whether the parties are interested in participating in mediation or discussing settlement.
If the case does not settle, the investigator will proceed with issuing a decision. The investigator may decide either that there is probable cause to believe that the employer engaged in discrimination or that there is no probable cause to believe that the employer engaged in discrimination. If the investigator issues a “no probable cause” determination, the decision is final unless the employee appeals the decision within thirty (30) days. If that happens, the case is then scheduled for a hearing before an Administrative Law Judge (ALJ) on the issue of whether there is probable cause to believe that a violation occurred. If the ALJ finds probable cause, the case then proceeds to a hearing on the merits. Conversely, if the ALJ finds no probable cause, the decision is final, but may be appealed to the Labor and Industry Review Commission (LIRC).
If there is an initial finding of probable cause, the case is scheduled for a hearing before an ALJ to determine whether a violation occurred. Both parties have the opportunity to present evidence, including witness testimony, in support of their respective cases. If the employee is ultimately successful, the ALJ may order remedies in the nature of back pay, reinstatement, lost benefits, costs, attorney’s fees, and interest. The ALJ’s decision may be appealed to LIRC. After that, if a party wishes to pursue the matter further, it may seek review of LIRC’s decision before a circuit court.
Importantly, the above procedures apply to a complaint that was initially filed with the DWD. In many cases, the U.S. Equal Employment Opportunity Commission (EEOC) also has jurisdiction to investigate the complaint under a corresponding federal law. The EEOC is responsible for enforcing the anti-discrimination laws described above. Similar to claims under the WFEA, an individual who wishes to pursue a discrimination charge under federal law must first file a charge with the EEOC (except for EPA claims). Under a worksharing agreement between the DWD and EEOC, the agency that initially receives the complaint will investigate it, but the complaint is automatically cross-filed with the other agency. In most cases, the second agency will adopt the findings of the first agency; however, the complainant may request that the second agency independently investigate the matter.
The EEOC resolves charges of discrimination in a different manner than the DWD. If the EEOC is unable to find a violation, it issues a Notice of Right to Sue. With respect to claims under Title VII or the ADA, this starts the 90-day time clock for an employee to file a lawsuit in federal court. After that time expires, the employee cannot bring a federal lawsuit. Conversely, if the EEOC finds a violation, it will attempt to reach a settlement. If the EEOC is unable to obtain a settlement, the EEOC will bring a lawsuit on its own or will issue a Notice of Right to Sue.
This article was designed to provide a general background of state and federal anti-discrimination laws, as well as a roadmap of the process when an employer receives a discrimination complaint/charge. Employers are strongly encouraged to document the reasons for adverse employment actions. Such documentation will assist an employer in defending against discrimination claims, in that the employer can show that it had a valid, non-discriminatory reason for its action.
For questions regarding this article, please contact the author, Attorney Jenna E. Rousseau (email: firstname.lastname@example.org; telephone: 844.833.0828), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.
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