Employment Discrimination Complaints: How to Avoid Them and How to Defend Them When They Arise
Jenna E. Rousseau, Strang, Patteson, Renning, Lewis & Lacy, S.C.

Employers are prohibited from discriminating against employees and job applicants based upon certain protected classifications under state and federal law. It is often time-consuming and expensive for employers to defend against discrimination complaints when they arise. Therefore, it is important for employers to implement certain policies and practices to avoid discrimination complaints. In addition, if an employer follows its policies and practices, it will likely be in a much better position to defend against a discrimination complaint. If an employer receives notice of a discrimination complaint, it is important for it to weigh its options, such as participating in mediation, engaging in private settlement discussions, or defending against the complaint.

The Wisconsin Fair Employment Act (WFEA)[1] applies to public and private employers with at least one employee. The WFEA prohibits discrimination against an individual in employment-related actions on the basis of his or her age, race, creed, color, disability, marital status, sex, sexual orientation, pregnancy or child birth, national origin, ancestry, arrest record, conviction record, military service, genetic testing, honesty testing, use or nonuse of lawful products off the employer’s premises during nonworking hours, and declining to attend a meeting or to participate in any communication about religious matters or political matters. The WFEA also prohibits harassment based upon one’s protected classification(s), as well as retaliation against an employee for filing a complaint, assisting with a complaint, or opposing discrimination. The Wisconsin Equal Rights Division enforces the WFEA. 

There are also various federal laws that prohibit employment discrimination and retaliation. For instance, Title VII of the Civil Rights Act of 1964[2] (Title VII) prohibits discrimination in employment actions on the basis of one’s race, color, religion, national origin, or sex. The Pregnancy Discrimination Act of 1978[3] added pregnancy, child birth, and medical conditions related thereto to Title VII as prohibited bases of discrimination. In addition, the Age Discrimination in Employment Act of 1967[4] (ADEA) prohibits discrimination in employment actions on the basis of one’s age for individuals who are 40 or older. Moreover, Title I of the Americans with Disabilities Act of 1990,[5] as amended, prohibits employment discrimination against qualified individuals with disabilities. The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal anti-discrimination laws. 

An employee or job applicant may initially file a discrimination complaint (or charge of discrimination) with the ERD or the EEOC within 300 days after the alleged discrimination occurred. Pursuant to a work-sharing agreement between the two agencies, if the allegation(s) fall under both state and federal anti-discrimination laws, the agency that initially receives the complaint will cross-file it with the other agency. The agency that initially receives the complaint will usually process it first.

 The process for filing a discrimination complaint (or charge of discrimination) differs depending on which agency the complainant wishes to file with initially. If filing initially with the ERD, the complainant must generally use the form provided by the ERD. The complainant must include his or her name and address, the employer’s name and address, his or her signature or representative’s signature, and a “concise statement of the facts, including pertinent dates, constituting the alleged act of employment discrimination.”[6] The ERD must provide assistance to the complainant in preparing and filing the complaint, if requested.[7] This process differs from the EEOC filing process, which generally commences with the complainant submitting an inquiry to the EEOC, followed by an interview. The EEOC staff member who conducts the interview then prepares a charge of discrimination for the complainant to review and sign. Once filed, the agency that initially receives the complaint or charge must notify the employer.

An employer has several options to respond to a complaint or charge of discrimination. The notice containing a copy of the complaint will direct the employer to respond to the allegations by a specific date, typically within 30 days, though it may be possible to seek a short extension. The response usually takes the form of a position statement. Alternatively, the notice from the agency containing the complaint or charge of discrimination usually offers the parties the option of participating in early mediation.

Early mediation may be a good option for a number of reasons. For instance, if an employer does not wish to spend a considerable amount of time and money to defend against a discrimination complaint, regardless of the strength or weakness of the allegations, it may wish to participate in early mediation. In addition, if there is a risk of significant liability, the employer may wish to attempt early resolution to reduce its exposure. Conversely, the allegations may be so deficient that an employer can settle early on for a minimal amount. An employer also has the option of engaging in direct settlement negotiations with the complainant, but this will not stay the timeline to submit a position statement, and there can be risks associated with negotiating directly with a complainant.

If the parties do not participate in early mediation, the agency will conduct an investigation regarding the complaint or charge of discrimination. In this regard, the agency assigns an investigator to the matter. The first step is usually for the employer to submit its position statement in response to the complaint or charge of discrimination. In the position statement, it is important for employers to raise any timeliness defenses, and also to explain why the complainant failed to (and cannot) state a claim of discrimination or retaliation. The position statement is usually structured with a statement of facts section, applicable law section, and argument section. In addition, the employer should attach any relevant exhibits that rebut the complainant’s allegations. After submission of the position statement, the investigator usually provides the complainant with an opportunity to reply, and may ask the employer to provide responses to specific questions or requests for information. The investigator may also conduct interviews and obtain statements, with or without the employer’s knowledge.

In general, a position statement should focus on why the employee failed to set forth a prima facie case of discrimination or retaliation. Under Wisconsin law, to establish a prima facie case of discrimination on the basis of disparate treatment, a complainant must generally show that “he was a member of the protected group and suffered the adverse action alleged, and that the relevant circumstances create an inference of discrimination, i.e., typically, that others not in the protected group were treated more favorably.”[8] If the complainant meets his or her burden, the employer then has the burden to produce evidence of its legitimate, non-discriminatory reason(s) for the employment action at issue.[9] If the employer meets its burden, the employee must then show that the employer’s reasons are merely a “pretext” for discrimination.[10]

Similarly, under federal law, an employee asserting a disparate treatment claim under Title VII through indirect evidence may prove his or her claims using the “McDonnell Douglas framework.”[11] Under this framework, which is meant to be flexible, an employee may establish a prima facie case of discrimination by “‘showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under’ Title VII.”[12] Thereafter, if the employee meets this burden, the employer must articulate its legitimate, non-discriminatory reasons for the employment action.[13] The employee must then show that the employer’s reasons are “pretextual.”[14]

 There are different elements that an employee must show for retaliation claims under Wisconsin law. Under the direct method of proof, the employee must show that he or she “engaged in protected activity, was subject to adverse employment decisions, and that there was a causal connection between the two facts.”[15] By contrast, under the indirect method of proof, the employee must show that he or she: “(1) engaged in statutorily protected activity; (2) met the employer’s legitimate expectations; (3) suffered an adverse employment action; and (4) was treated less favorably than a similarly situated employee who did not engage in statutorily protected activity.”[16] The United States Court of Appeals for the Seventh Circuit applies the same standards for retaliation claims under Title VII.[17]

Against this backdrop, employers with policies and procedures in place to avoid discrimination complaints in the first instance will likely have a much stronger defense to discrimination complaints when they arise.

For instance, employers should have a non-discrimination policy, including a procedure for employees to report allegations of discrimination or harassment. If an employee never reported discrimination or harassment under the employer’s policy, and the employer was not otherwise aware of the allegations, these facts may strengthen its defense to a subsequent discrimination complaint. In addition, if an employer thoroughly investigated a report of discrimination or harassment and found no evidence to support it, these facts will likely strengthen its defense. Moreover, it may be the case that the employer finds evidence of discrimination or harassment following an investigation. If the employer takes immediate action to stop the discrimination or harassment and imposes discipline against the aggressor, this will likely strengthen its defense. Conversely, if an employer fails to follow its own policy or to otherwise address allegations of discrimination or harassment of which it has knowledge, it could result in liability.

Employers should also have procedures in place to properly document the reason(s) for any adverse employment action. For instance, it is important for employers to document employee performance-related issues, including the employers’ attempts to counsel the employee regarding his or her work performance. This may consist of performance reviews, documentation of verbal counseling, documentation of meetings to address poor work performance and expectations, documentation of verbal or written warnings, documentation of suspensions, and performance improvement plans. Such documentation will serve as evidence of the employer’s legitimate, non-discriminatory reason for imposing discipline, including termination of employment. Moreover, if an employer has a progressive discipline policy in place, it should ensure that it follows the policy, applies it uniformly, and documents reasons why it chose to impose certain levels of discipline.

Employers should be clear about their reasons for taking an adverse employment action. In this regard, employers should resist using vague reasons for terminating an employee’s employment, such as “we’ve decided to go in a different direction,” or “it’s not a good fit.” Similarly, if an employee requests information on why he or she was not chosen for a promotion, it is advisable to provide specific, objective reasons as opposed to a vague response that another candidate “was a better fit.” If an employer provides a vague reason for its adverse employment action or inconsistent reasons, it will be in a much weaker position to defend against a discrimination complaint. Indeed, if an employer provides inconsistent reasons for its decision, an employee may argue that it serves as evidence of pretext. 

Employers should also have procedures in place to ensure that they impose comparable discipline for employees who are similarly situated. In this regard, if an employer can produce evidence of employees who engaged in similar conduct and received similar discipline, such evidence tends to contradict allegations of discrimination or retaliation, particularly if the comparable employee is outside of the protected class at issue. Conversely, if an employer imposes different levels of discipline for employees who are similarly situated, it must be able to explain its legitimate, non-discriminatory reasons for doing so.

 It could also be the case that the purported comparator is not similarly situated, in which case the employer should be prepared to explain why. For instance, the comparator may not be similarly situated to the complainant if the complainant’s conduct is more severe than the comparator’s conduct, the complainant has a history of work performance issues and the comparator does not, or the comparator’s position is entirely different from the complainant’s position. Under state and federal law, the analysis “calls for a ‘flexible, common-sense’ examination of all relevant factors,”[18] and “[a] similarly situated employee need not be identical to the employee in every conceivable way.”[19] Thus, when determining an appropriate level of discipline to impose, the employer should take a broad view of other potential comparators. 

In making hiring and promotional decisions, employers should document the objective and subjective considerations that they relied upon. For instance, the job announcement, position description, minimum qualifications, and exam scores may serve as evidence of the objective criteria that the employer relied upon in making its hiring or promotional decision. Interview notes and reference check documentation may serve as evidence of the non-discriminatory, subjective criteria that the employer relied upon. This documentation will be relevant in an investigation and subsequent hearing, if any. 

After the employer submits its position statement and the investigator concludes his or her investigation, the investigator will issue a determination. An investigator for the ERD will issue an initial determination of whether probable cause exists to believe that the employer engaged in employment discrimination.[20] If the investigator issues a determination of probable cause, the case will be assigned to an Administrative Law Judge for a hearing on the merits.[21] Conversely, if the investigator issues a determination of no probable cause, the case will be dismissed, subject to the complainant’s right to appeal the initial determination within 30 days.[22] If a complainant appeals a no probable cause determination, the ERD will assign an Administrative Law Judge to conduct a hearing on the issue. Notably, the investigator can also issue a decision finding probable cause in part and no probable cause in part. This can lead to two separate hearings, one on the issue of probable cause, and one on the merits, if the complainant appeals the no probable cause determination. There is an option to stipulate to a consolidated hearing on the merits, however.[23]

At a hearing on the issue of probable cause, the complainant has the burden of proof to establish a prima facie case of discrimination or retaliation. This burden of proof is “low” and is “somewhere between a preponderance and a ‘suspicion’ that discrimination has occurred.”[24] If the complainant meets his or her burden, such as through witness testimony and exhibits, the burden then shifts to the employer, as set forth above. Although the complainant’s burden at a probable cause hearing is lower than at a merits hearing, a probable cause hearing can be helpful to put closure to a case that has no merit, to narrow the issues between the parties in cases involving in part determinations, or to use the process as a discovery tool. If the Administrative Law Judge finds no probable cause after such a hearing, the allegations are dismissed, subject to the complainant’s right to file a petition for review with the Labor and Industry Review Commission (LIRC).

If the Administrative Law Judge finds probable cause after a hearing, or if the investigator issues an initial determination of probable cause, the ERD will certify the case to a merits hearing. Thereafter, the case will be scheduled for hearing before an Administrative Law Judge. After a case is certified to hearing, whether on the issue of probable cause or on the merits, the parties may commence discovery. The methods and scope of discovery are similar to other civil cases, but different rules apply to pro se parties. At the hearing, the parties may present witnesses and exhibits to prove their respective cases. After the hearing, the Administrative Law Judge may allow written briefing from the parties. The Administrative Law Judge will then issue a decision. If the Administrative Law Judge finds that an employer engaged in unlawful discrimination or retaliation, the Administrative Law Judge “shall order such action by the respondent as shall effectuate the purposes of the act.”[25] Any party may appeal a final decision of the Administrative Law Judge to the LIRC.

The EEOC’s determination process differs from the ERD determination process. Specifically, if the EEOC is unable to conclude that there is reasonable cause to believe that discrimination occurred, it will issue a Dismissal and Notice of Rights. This notice triggers the 90-day timeframe for the complainant to file suit in federal court based on claims under federal law. Conversely, if the EEOC finds reasonable cause to believe that discrimination occurred, it will issue a Letter of Determination and attempt to resolve the charge through a voluntary process called conciliation. If the case is not resolved through conciliation, the EEOC may sue in federal court or issue a Notice of Right to Sue to the complainant, thereby triggering the 90-day period for the complainant to file suit in federal court. Notably, it is also possible for a complainant to request a Notice of Right to Sue after 180 days have passed since the filing of a charge.

The agency that did not initially investigate the discrimination complaint or charge will usually adopt the findings of the investigating agency unless the complainant requests an additional investigation by the second agency. Accordingly, it is conceivable that an employer may need to respond to two separate investigations involving the same allegations.

The process to defend against discrimination complaints can be time-consuming and costly for employers. There are also intangible costs to an employer, such as a negative impact on employee morale. Accordingly, it is important for employers to have policies and procedures in place to avoid discrimination complaints on the front end. If an employer receives notice of a discrimination complaint or charge of discrimination, it must carefully evaluate its options. It is also important for an employer to re-evaluate its options as the case progresses.

Author Biography:

Jenna E. Rousseau is a shareholder at Strang, Patteson, Renning, Lewis & Lacy, S.C. She graduated from Marquette University cum laude with a bachelor’s degree and obtained her J.D. from Marquette University Law School magna cum laude. In the area of Labor and Employment law, Jenna represents public and private employers in connection with discrimination/retaliation complaints, wrongful termination claims, wage and hour complaints, investigations, discipline and discharge, and employment contract disputes. She also assists employers with employee handbooks, personnel file matters, and general questions related to the application of state and federal employment and labor laws. In addition, Jenna advises school districts and other local government clients on a wide range of matters, including public records and open meetings, drafting and negotiation of contracts, application of state and federal laws, real estate/property issues, student matters, board governance, policy review, and other matters. Jenna also has significant experience in the area of civil litigation, including representing public and private sector clients with employment-related matters, contract disputes, real estate/property disputes, construction disputes, and other matters. She has represented public and private sector entities at the administrative level, trial court level and appellate court level, in both state and federal court. Jenna also regularly counsels clients on the litigation process, and assists clients with resolving disputed issues without the need for litigation.

[1] Wis. Stat. §§ 111.31–111.395.

[2] 42 U.S.C. § 2000e, et seq.

[3] Pub.L. 95–555.

[4] 29 U.S.C. § 621, et seq.

[5] 42 U.S.C. § 12111, et seq.

[6] Wis. Admin. Code § DWD 218.03(3). 

[7] Id.

[8] Alexander v. Hous. Auth. of the City of Milwaukee, ERD Case No. CR201103474 (LIRC Jan. 30, 2020).

[9] Id.

[10] Id.

[11] See Young v. United Parcel Serv., Inc., 575 U.S. 206, 225 (2015).

[12] Id. (citing Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978)).

[13] Young, 575 U.S. at 228.

[14] Id.

[15] Kannenberg v. Lab. & Indus. Rev. Comm'n, 213 Wis. 2d 373, 395, 571 N.W.2d 165 (Ct. App. 1997).

[16] Gephart v. Dep’t of Corr., ERD Case No. CR200404656 and ERD Case No. CR200501467 (LIRC, Nov. 18, 2009).

[17] See, e.g., Tomanovich v. City of Indianapolis, 457 F.3d 656, 663-67 (7th Cir. 2006).

[18] Binversie v. Manitowoc Tool & Mfg. Inc., ERD Case No. CR200901810 (LIRC March 28, 2013) (citing Henry v. Jones, 507 F.3d 558, 564 (7th Cir. 2007)).

[19] Binversie, ERD Case No. CR200901810 (citing Patterson v. Indiana Newspapers, Inc., 589 F.3d 357, 365-66 (7th Cir. 2009)).

[20] Wis. Admin. Code § DWD 218.07.

[21] Id.

[22] Id.; Wis. Admin. Code § DWD 218.08.

[23] Wis. Admin. Code § DWD 218.08.

[24] Alexander, ERD Case No. CR201103474.

[25] Wis. Admin. Code § DWD 218.20(3).