Self-Advocacy Guide: Wisconsin Employment Discrimination Complaint Process

If your employer denied your request for a reasonable accommodation of your disability or if you believe your employer discriminated against you because of your disability, you can file a Discrimination Complaint with Wisconsin’s Equal Rights Division (ERD). This resource describes the 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.

Please note that this guide does not apply to federal employees, who have a different timeline and complaint process. If you wish to complain about a federal employer, please visit the U.S. Equal Employment Opportunity Commission’s website for more information.

Step 1 – File an Employment Discrimination Complaint with Wisconsin’s Equal Rights Division (ERD)

You can complain about employment discrimination based on disability for up to 300 days after the discrimination happened or you learned about it. To file a state complaint about disability discrimination in employment, fill out the ERD complaint form and mail or fax to your local office:

ERD Madison
PO Box 8928 
Madison, WI 53708-8928 
Fax: 608-267-4592

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

You can also send your complaint form online, although you must create an account to do so.

Once ERD gets your complaint, they’ll look it over to make sure you and the employer are covered under Wisconsin fair employment 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 218.05(1)). If your complaint doesn’t meet these requirements, ERD will dismiss it. (DWD 218.05(2)). If you get a dismissal, you can appeal within 20 days to an Administrative Law Judge (ALJ). (DWD 218.05(3)).

Step 2 – ERD Investigation and Initial Determination

If your complaint meets the requirements, ERD will investigate. (DWD 218.06(1)). They may visit the work site or other locations, get records and documents, or talk to people who know about what happened. (Id.). ERD will ask your employer to give a Position Statement describing the employer’s perspective on the Discrimination Complaint. Then, ERD may ask you to respond to your employer’s Position Statement.

ERD can dismiss complaints before finishing their investigation if:

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

• You signed a waiver and release of claims with your employer, or

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

(DWD 218.06(3)(a)). If they dismiss your complaint for one of these reasons, you can appeal to an ALJ within 20 days. (DWD 218.06(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 218.03(7)).

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

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

2. they think there is no probable cause to believe your employer violated the law. (DWD 218.07(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 218.07(2)). If ERD decides there’s no probable cause, they may dismiss your complaint. (DWD 218.07(3)). You can appeal a No Probable Cause determination within 30 days by asking, in writing, for a Probable Cause Hearing. (See DWD 218.08). See Hearing Types below for more information about Probable Cause Hearings.

Mediation

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. See DWD 218.09 for more information.

Step 3 – ERD Hearing

Hearing Types

There are two kinds of hearings that can happen in the ERD employment 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 evidence of your employer and 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 evidence of your employer and decides if the employer broke the law and can order the employer to take corrective action for what happened. Both types of hearings follow the same basic process, described below.

ERD will send you and the employer 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 218.11(1)). Within 21 days of the Notice, the employer must send an answer to the complaint allegations on which the ERD found probable cause, to both you and ERD. (DWD 218.12(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 218.13. See Wis. Stat §227.44(4) for more details on pre-hearing conferences.).

You and the employer 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 218.14. See Wis. Stat. Ch. 804 for more information about discovery.).

At least 10 days before the hearing, you and the employer must send ERD and the other side a list of witnesses and copies of any exhibits, or documents, you plan to use at the hearing. (See DWD 218.17). You must send these by mail or fax unless the ALJ says you can use email. (See DWD 218.25).

The actual hearing will happen according to the rules from Wisconsin law. (See DWD 218.18, Wis. Stat. Ch. 227.). This will feel like a courtroom proceeding – the judge guides the process, and you and the other side can question witnesses and show exhibits. You can go to the hearing in person, or an authorized representative (like a lawyer) can go for you. (DWD 218.18(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 218.18(4)).

Step 6 – 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 218.20(2)). After a Hearing on the merits, the ALJ will write a decision which either dismisses the complaint or orders the employer to take corrective action. (DWD 218.20(3)).

If you lose at a Probable Cause Hearing or Merits Hearing, you can appeal to the labor industry and review commission. (See DWD 218.20(2) and DWD 218.21). The ALJ’s decision should describe your appeal rights.