Employee Tip: Things to Consider Before Filing a Discrimination Complaint at the Wisconsin ERD or EEOC

If you are an employee thinking of filing a discrimination complaint with the Wisconsin Equal Rights Division (ERD) or the Equal Employment Opportunity Commission (EEOC), there are several things you may want to consider before submitting the complaint.

Please note this post does not provide legal advice- if you want legal advice, you should contact an attorney and discuss your specific circumstances. If you are interested in legal assistance from attorney-author Michael Brown for your matter, you can contact Mr. Brown and his law firm DVG Law Partner here:

First, you can review ERD’s website here for information about Wisconsin’s discrimination law, the Wisconsin Fair Employment Act (WFEA), and about filing a complaint at ERD. You can also review EEOC’s information about filing a complaint (also called a “charge”) here.

In addition to those resources, you may want to consider the information below, which I feel are important (and often overlooked) factors employees should consider before filing a discrimination complaint.

• You should know that the complaint deadline (or “statute of limitations”) is 300 days from the date of whatever discriminatory action you contest.

If you decide to file the complaint, it must be filed within 300 days of the employer’s adverse action(s) that you allege to be discriminatory. Often, the adverse action is a job termination. If the discrimination complaint is not filed with ERD or EEOC within 300 days of the job termination date, then the right to file the complaint is forever lost.

Sometimes, a discrimination complaint will encompass several adverse actions. For example, consider an employee who was denied an accommodation for her disability on January 2, 2008, was suspended from her job on January 5, 2008 and had her job terminated on March 3, 2008. She alleges all of these adverse actions were discrimination, based on her disability. If the employee wants to file a discrimination complaint that alleges all of these actions are discriminatory, she must file the complaint with ERD or EEOC within 300 days of the first adverse action (in this example, she must file her complaint within 300 days from January 2, 2008, or by October 28, 2008).

You can quickly calculate deadline dates by using an internet date calculator at a site like this.

Please note the original complaint (not a faxed or emailed copy) must be received by ERD or EEOC on or before the 300th day.

How much time you have left before your deadline(s) may affect your ability to follow various options below.

• You should know that the financial value of a discrimination complaint depends largely on how much income you lost, and how long you were out of work, as a result of the employer’s actions.

The financial value of a discrimination complaint depends largely on how much income you lost as a result of the employer’s actions.

For example, consider a hypothetical employee, called Employee #1. His employment was terminated for discriminatory reasons, due to his disability, and he took 6 months to find a new job. The new job paid more. Were Employee #1 to win an ERD hearing, he would likely be awarded 6 months’ worth of back pay for the time he was out of work (minus unemployment income or any other income he received during that 6 months).

Now consider Employee #2. She was subject to sexual harassment (discrimination) for several years, but the employer never cut her pay and she was not fired. She resigned her job, and started work for a new employer the next day, making a higher income. If Employee #2 won an ERD hearing, she would likely be awarded no back pay, because she did not lose money due to the employer’s discriminatory actions.

Note: You can review this post for a more detailed hypothetical scenario, and example of how potential back pay is calculated.

Typically, a discrimination complaint has greater value when an employee has been fired and out of work for a long stretch of time. If any employee’s employment was not terminated, then it’s unlikely that the employee would be awarded significant monies at an ERD hearing, unless the employee suffered some other loss of income (e.g. demotion/cut wages, suspension without pay, etc.).

At the ERD (i.e. under WFEA discrimination law), an employees’ potential awards (called “damages”) are largely limited to back pay and out-of-pocket monies lost. (If an employee goes to federal court and prevails, he or she could be awarded additional monies for emotional distress and/or punitive damages, which in some cases can be substantial. However, going to federal court may not be a feasible option, due to legal and/or financial limitations).

Before you file a discrimination complaint, it is very important you or your attorney analyze your potential damages- that is, you should estimate the monies “on the table” were you to win a legal proceeding. In some situations, employees have very good evidence of discrimination, but the monetary value of their potential damages at ERD are scant or zero. If that is the case, it is better you know that sooner rather than later, and before you invest your time and money into discrimination complaint proceedings.

• You should know that the ERD investigates discrimination claims under Wisconsin law (called the Wisconsin Fair Employment Act or WFEA), and the EEOC investigates discrimination claims under federal law.

The ERD handles discrimination complaints under State of Wisconsin discrimination law, i.e. the Wisconsin Fair Employment Act or WFEA. The EEOC handles federal law discrimination complaints.

For most types of discrimination, you have a choice of filing a discrimination complaint with either ERD or EEOC. For example, if you wish to file a sexual harassment complaint, both WFEA and federal discrimination law provide for claims of sexual harassment, so both ERD and EEOC can accept a complaint.

However, some types of discrimination claims are only available under Wisconsin/WFEA law, and must be filed at ERD. For example, WFEA recognizes a legal claim for arrest record discrimination, whereas federal law does not.

You can find information about WFEA/ERD claims here.

You can find information about federal/EEOC claims here.

You can check these sites to ensure that whatever type of claim you are considering is accepted by ERD and/or by EEOC.

• If your type of alleged discrimination gives you the option between ERD and EEOC, keep in mind that these agencies have several differences and your choice to file with one or the other can have several implications.

As discussed above, sometimes an employee must file a complaint at one agency (e.g. an employee who alleges arrest record discrimination must file at ERD). However, often an employee has a choice between ERD or EEOC.

If the complaint is filed at ERD, the complaint is “cross-filed” at EEOC-that is, EEOC receives a copy of the complaint and accepts it for filing. The same is true vice versa. So, once a complaint is filed with one agency, it is filed with the other, and all t’s are crossed for getting State and federal discrimination proceedings under way.

However, where you file the complaint makes one big difference: the agency that receives the complaint is the agency that investigates it and handles most of the proceedings.

For example, if you file a complaint at ERD, it will be assigned to an ERD investigator (rather than an EEOC investigator), and the investigator will decide whether there is “probable cause” for discrimination. If there is probable cause found, the matter will proceed to a hearing before an administrative law judge (ALJ) at ERD. At the hearing, the ALJ can award back pay and other damages if discrimination is found. The ERD website describes the foregoing process here.

Conversely, if you file a complaint at EEOC, an EEOC investigator will investigate the complaint, and will decide whether there is discrimination present. If there is discrimination found, the EEOC (unlike the ERD) will not set up a hearing. Rather, EEOC will try “conciliation” with the employer to develop a remedy for the discrimination. If EEOC is unable to successfully conciliate the case, EEOC could decide to bring suit in federal court, or could issue the employee a right to sue on his or her own. There is no hearing at EEOC, unlike at ERD. The EEOC website describes EEOC’s process here.

• You should consider whether hiring an attorney is worthwhile, financially and otherwise.

An experienced attorney could be a big help in pursuing a discrimination complaint. However, hiring an attorney should be a financially feasible decision. For example, Employee #2 described above does not stand to win any monies if she wins an ERD hearing. Thus, she should be careful to learn about her damages limitations before she pays an attorney significant amounts of money for legal fees.

It should be mentioned that an employee who prevails on a discrimination claim can be reimbursed for attorneys fees, by the ERD, as well as by a federal court deciding a federal discrimination claim. With that said, there is no guarantee that you will win your claim and will win your attorneys fees back.

In other words, there is some risk involved in paying an attorney. Before you take on that risk, you should consider the potential benefit. For example, if your potential damages include $50,000 in lost wages (back pay), then it makes more sense to invest in an attorney’s $5,000 retainer, than it does to pay a $5,000 retainer when your potential damages are $1,500.

There are also several non-financial factors to consider when hiring an attorney, which you can read about in this post.

Summary

Filing a discrimination complaint is an important decision, and often involves a large commitment of time and expense. Before filing the complaint, you may want to consider the information above, and try to make the most informed decisions possible.

Please note this post does not provide legal advice- if you want legal advice, you should contact an attorney and discuss your specific circumstances. If you are interested in legal assistance from attorney-author Michael Brown for your matter, you can contact Mr. Brown and his law firm DVG Law Partner here: