I recently received statistical information from the agency that handles Wisconsin-law employment discrimination complaints, the Wisconsin Department of Workforce Development, Equal Rights Division (ERD).
The numbers reveal difficult odds, but not impossible odds, for employee-complainants who have filed discrimination complaints at ERD. I should note that each case is unique, and if you are a worker with a potential or actual discrimination complaint, you should not assume your case is bad (or good) based on the general numbers in this article. For an assessment of your odds, you should talk to an experienced employee rights attorney– and no, it doesn’t have to be me! If you want to review some general numbers, read on.
After I reviewed ERD’s raw numbers (e.g. of investigators’ initial determinations, hearing decisions, etc.), I calculated some percentages/statistics for select issues, which are referenced below. Of note, my numbers below are not official numbers from ERD or the State, but based on my own review and calculations. If you want numbers provided or endorsed by ERD or the State, you would need to contact ERD directly. Also, the numbers do not reflect several important scenarios– such as workers with strong potential discrimination cases who settled before an ERD complaint was ever filed, cases that settled after an ERD complaint but before a legal decision, cases that were dismissed before initial determination due to lack of complainant cooperation, etc.
With that said, here are some numerical findings based on my review and calculations from ERD data:
– Between calendar years 2007-2012, ERD made a total of 12,274 Initial Determinations, i.e. where ERD investigators determined whether cases had: (1) Probable Cause (PC) of discrimination, in which event the case was scheduled to proceed to a Merits Hearing before an Administrative Law Judge (ALJ) to make a legally-binding decision whether there was discrimination or not; or (2) No PC, in which event the case was dismissed by the ERD investigator.
– Of those Initial Determinations, most of them dismissed the employee-complainants’ cases: 78% were No PC Findings/Dismissals (9,627/12,274), with 22% being PC determinations.
– Of PC – receiving employees who continued (without settling/withdrawing etc.) and completed a merits hearing/decision from an ALJ, 65% (314 out of 486 Merits hearing decisions) had a No Discrimination decision, and 35% had a Discrimination decision.
So, these numbers suggest that ERD complainants between 2007-2012 who proceeded with ERD claims through the points of legal decisions (Initial Determination and/or Merits hearing decisions) faced generally uphill odds, although by no means impossible odds, as a significant minority had success with each type of ERD decision referenced.
Again, for an assessment of a worker’s own matter, the worker should consider consulting with an employee rights attorney. An attorney may assess a particular worker’s case to have a much better, or worse, chance of success than the general statistics above. More importantly, a competent employee rights attorney could describe good reasons why a particular case may face good or bad odds in going forward.
One thing I can say from experience: most ERD complainants with whom I have consulted have assessed their own odds to be much higher than the employee success rates above. In some instances, I have agreed with workers’ self-assessments. But in most instances I have disagreed, and was able to provide concrete reasons why I believed a given case was better or worse than the worker believed it to be.
If you are interested in a consultation and case review with me, you can contact me here:
WI Employee Rights Lawyer: Severance, Wages, Job Termination, Discrimination 