DISCRIMINATION PRACTICE & PROCEDURE:

                                          WISCONSIN vs. FEDERAL

                                                                              by

                                                             Attorney Steven R. Olson

                  For additional information: link to Radosevich, Mozinski, Cashman & Olson LLP

Procedures for handling an employment discrimination case differ between Federal and Wisconsin law.  The statute of limitations for both is very short, compared to other areas of the law.  For example, the statute of limitations in Wisconsin for many contract claims is six years.  The statute of limitations for a personal injury claim is likely three years, unless government is involved as a defendant.  However, the statute of limitations for most discrimination claims under either Wisconsin or Federal law is only 300 days.  Some statutes of limitations, such as for the Wisconsin Family Medical Leave Act, is as short as thirty days.

Both Wisconsin and Federal law are similar in how an employment discrimination claim must begin. Before doing anything else, the employee must file an administrative complaint with either the Wisconsin Department of Workforce Development's Equal Rights Division (ERD)or the Federal Equal Employment Opportunity Commission (EEOC).  That administrative complaint must be received within 300 days of the date the discrimination occurred.  In some states other than Wisconsin, the statute of limitations for filing the initial administrative complaint is only be 180 days.  No matter whether the employee files the complaint with the Federal or State agency, those agencies automatically cross-file complaints with their counterpart.  This means that, even though the employee may only file with the Wisconsin ERD, the ERD will cross-file with the U.S. EEOC and, ultimately, the employee can proceed under Federal law in Federal courts.

As an example of how the administrative process works, this article tracks what occurs when an administrative complaint is filed with the Wisconsin ERD - Federal procedure differs.  Once the Wisconsin ERD receives a complaint, it is forwarded to the regional office of the ERD having jurisdiction over the county where the employer is located.  The complaint will be assigned to an ERD investigator within that regional office.  That investigator, acting somewhat like a police investigator, will ask for the employer's version of events and will then ask the employee to respond to the employer's position. The investigator will attempt to locate witnesses.  Ultimately, the ERD investigator will issue either a 'probable cause' or 'no-probable cause' determination.  If the ERD investigator finds it probable that unlawful discrimination occurred, the matter will be certified for a final hearing before an Administrative Law Judge employed by the Wisconsin ERD.  If the ERD investigator determines no-probable cause exists, the employee may apply for a hearing before an Administrative Law Judge solely on the issue of probable cause.  If the employee asks for a no-probable cause hearing before an Administrative Law Judge and is successful, the case will then be certified to a final hearing on the merits before a Administrative Law Judge, similar to if there had been a probable cause determination in the first place.

Cases proceeding completely under Wisconsin law will be decided by an Administrative Law Judge.  The Wisconsin Legislature does not permit juries to make a final determination under the WFEA. By contrast, under Federal law, a jury will make most of the final decisions regarding an employment discrimination case.  There are both tactical and strategic decisions involved when a victim decides whether to sue under federal or state law.  For those forms of discrimination prohibited under both state and federal law, the employee will choose the legal system - the employer has no choice.

         For additional information: link to Radosevich, Mozinski, Cashman & Olson LLP