Self-Advocacy Guide: Wisconsin Public Accommodations Discrimination Complaint Process

If a business that serves the public denied your request for a reasonable accommodation for your disability, or you believe the business discriminated against you because of your disability, you can file a Discrimination Complaint with Wisconsin’s Equal Rights Division (ERD) or you can submit a complaint with the U.S. Department of Justice. This resource describes the ERD complaint process and gives tips for navigating it on your own.

This resource is a general guide for people with disabilities, not legal advice. For legal advice specific to your situation, please talk with an attorney.

If you decide to sue the business, you have one year from the date of the discrimination to do so. (See Wis. Stat. § 106.52(4)(e)). Filing a complaint with ERD does NOT change this timeline. 

Step 1 – File a Public Accommodation or Amusement Discrimination Complaint with Wisconsin’s Equal Rights Division (ERD)

You can complain about disability discrimination by a place of public accommodation or amusement for up to 300 days from when the discrimination happened or you learned about it. To file a state complaint about disability discrimination in public spaces, fill out the ERD complaint form, have your signature notarized, and mail or fax to your local office:

ERD Madison
201 E. Washington Ave., Room A400
P.O. Box 8928 
Madison, WI 53708
Fax: 608-267-4592

ERD Milwaukee
819 N. 6th St., Room 723
Milwaukee, WI 53203
Fax: 414-227-4084

Once ERD gets your complaint, they’ll look it over to make sure you and the business are covered under Wisconsin public accommodations law, that your complaint has a claim they can address, and that you filed it within 300 days of the discrimination or when you learned about it. (DWD 221.04(1)). If your complaint doesn’t meet these requirements, ERD will dismiss it. (DWD 221.04(2)). If you get a dismissal, you can appeal within 20 days to an Administrative Law Judge (ALJ). (DWD 221.04(3)).

The U.S. DOJ can win money damages for emotional distress if they decide to investigate and take on a public accommodations case. Visit DOJ’s website for more information.

Step 2 – ERD Investigation and Initial Determination

If your complaint meets the requirements, ERD will investigate. (DWD 221.08(1)). They may visit the business or other locations, get records and documents, or talk to people who know about what happened. (Id.). ERD will ask the business to give a Position Statement describing their perspective on the Discrimination Complaint. (DWD 221.05). Then, ERD may ask you to respond to the business’s Position Statement.

ERD can dismiss complaints before finishing their investigation if:

• You don’t respond to something they send you within 20 days, or

• ERD or a court have dismissed the allegations in your complaint before.

(DWD 221.07, DWD 221.08(3)(a)). If they dismiss your complaint for one of these reasons, you can appeal to an ALJ within 20 days. (DWD 221.08(3)(b)).

If you decide at some point that you no longer want to pursue the Discrimination Complaint, you can withdraw your complaint any time. If you want to withdraw, ask for this in writing, sign it, and send it to ERD. If you withdraw your complaint, though, you probably won’t be able to bring it again. (See DWD 221.03(7)).

After ERD finishes investigating, they will write an Initial Determination – which says either:

1. they think there is probable cause to believe the business broke the law by discriminating against you because of your disability, or 

2. they think there is no probable cause to believe the business broke the law. (DWD 221.09(1)).

If ERD decides there’s probable cause, they will send the case to an Administrative Law Judge to schedule a hearing (see below). (DWD 221.09(2)). If ERD decides there’s no probable cause, they will dismiss your complaint. (DWD 221.09(3)). You can appeal a No Probable Cause determination within 20 days by asking, in writing, for a Probable Cause Hearing. (See DWD 221.10(1)). See Hearing Types below for more information about Probable Cause Hearings.

Mediation and Private Settlements

If the parties agree, ERD can try to help you reach an agreement to resolve the problem from your complaint – this is called mediation or conciliation. You can also resolve the issue with the business without the ERD’s help in a private settlement. The ERD won’t dismiss your complaint after a private settlement unless you ask them to, in writing, or the settlement includes this dismissal. See DWD 221.11 for more information. 

Step 3 – ERD Hearing

Hearing Types

There are two kinds of hearings that can happen in the ERD public accommodations discrimination complaint process. The first is a Probable Cause Hearing, which happens if ERD says there’s No Probable Cause and you appeal. At a Probable Cause Hearing, an ALJ will hear your evidence of discrimination and the business’s evidence, then decide if there is probable cause for your complaint to move forward.

The second is a Hearing on the merits, which happens if ERD finds Probable Cause. At a Hearing on the merits, the ALJ hears your evidence of discrimination and the business’s evidence, then decides if the business broke the law and can order the business to take corrective action for what happened and to pay a small fine. Both types of hearings follow the same basic process, described below.

ERD will send you and the business a Notice of Hearing with the hearing details, like date, time, and place. The hearing must happen at least 30 days after the notice, so you have time to get ready. (DWD 221.13(1)). Within 10 days of the Notice, the business must send an answer to the complaint allegations on which the ERD found probable cause, to both you and ERD. (DWD 221.14(1)).

At any time during the hearing process, the ALJ may hold a Pre-Hearing Conference to talk with both parties and create a schedule for the case. (DWD 221.14. See Wis. Stat. § 227.44(4) for more details on pre-hearing conferences). ALJs usually do this over the phone. The schedule will include dates for discovery (see below), motions to the court, and exchange of witness and exhibit lists.

You and the business you complained about both have the right to review any evidence the other party has about the issue, before the hearing, so you can prepare. This information is exchanged in a process called discovery. In the discovery stage, you can ask the other side for documents and information they may have relating to your complaint. You can also ask questions of any witnesses to the discrimination, in a meeting called a deposition. The respondent gets to make discovery requests to you also. (DWD 221.17. See Wis. Stat. Ch. 804 for more information about discovery).

You must send hearing documents by mail or fax unless the ALJ says you can use email. (See DWD 221.23).

The hearing will happen according to the rules from Wisconsin law. (See DWD 221.19(1), Wis. Stat. Ch. 227). It will be less formal than a courtroom proceeding and will probably happen over Zoom. If the hearing happens in person, it will likely happen around a conference table at an ERD office without a witness stand or court reporter. The ALJ guides the process, and you and the other side can question witnesses and show exhibits. You can attend the hearing yourself, or an authorized representative (like a lawyer) can go for you. (DWD 221.19(3)). If you don’t go to your hearing, the ALJ will dismiss your complaint unless you show that you had a good reason. (DWD 221.19(4)).

Step 4 – Hearing Decision

After a Probable Cause Hearing, the ALJ will write a decision which either dismisses the complaint or orders the case to go to a Hearing on the merits. (DWD 221.21(2)). After a Hearing on the merits, the ALJ will write a decision which either dismisses the complaint or orders the business to take corrective action. (DWD 221.21(3)).

If you lose at a Probable Cause Hearing or Merits Hearing, you can appeal to the labor industry and review commission within 21 days. (See DWD 221.21(2) and DWD 221.22). The ALJ’s decision should describe your appeal rights. (Id.).