Legal Procedure & Process FAQs
How and where do I file a discrimination, harassment, or retaliation complaint?
Before you file anything, consult with an employment law attorney, such as those at Walcheske & Luzi, LLC. An employment law attorney can analyze your situation and, at the very least, provide guidance on filing your complaint. Unlike some firms, we are willing to get involved from the start and will prepare complaints for their clients if they are retained prior to filing.
Whether you hire an attorney or decide to try handling your case yourself, employment discrimination, harassment, and retaliation complaints can be filed with either Wisconsin’s State agency, the Equal Rights Division (ERD), or the Equal Employment Opportunity Commission (EEOC). It does not cost anything to file a complaint with either agency.
Complaints can be filed with the Equal Rights Division (ERD) in person, by mail, online, or by phone. Complaints can be filed with the Equal Employment Opportunity Commission (EEOC) in person, by mail, or by phone. The EEOC does not yet have an online form.
What are the steps in the legal process for an employment discrimination case?
The following is a simplified overview of the legal process assuming that your case begins in the Equal Rights Division (ERD):
- After an employment discrimination complaint is filed, the initial stage of the case is known as the “investigative stage.” Your complaint will be assigned to an investigator whose job it is to obtain information from you and the employer before reaching an initial determination. That determination will be either “Probable Cause” (more probable than not that you were discriminated against) or “No Probable Cause” (not probable that you were discriminated against).
- If you receive an initial determination of Probable Cause, your case is certified to a Hearing on the Merits before an Administrative Law Judge. Between the time of the initial determination and hearing, you are in the “discovery stage” where the sides exchange information requests to gather additional information from each other. At hearing, you must prove your case before an Administrative Law Judge.
- If you receive an initial determination of No Probable Cause and you appeal that determination, your case is certified to a Hearing on Probable Cause before an Administrative Law Judge. Between the time of the initial determination and hearing, you are in the “discovery stage” where the sides exchange information requests to gather additional information from each other. At the Probable Cause hearing, you must prove to the Administrative Law Judge that it is more probable than not that you were discriminated against. Assuming you carry your burden and overturn the initial determination, your case is certified to a second hearing, a Hearing on the Merits, where you must again prove your case before an Administrative Law Judge.
Throughout the course of this entire process, a claim can be resolved through informal settlement or mediation at any time.
Additionally, if you so choose, your case can be removed to federal court after you have received the investigator’s initial determination by requesting a Notice of Right to Sue. You should consult with an employment law attorney to determine if that is best for you and your case.
What is the difference between the administrative process and the federal court process?
The biggest differences between the administrative process and the federal court process are:
- Formality of process
- Potential damages available
1) In the administrative process, formal rules are few and far between beyond some simple over-arching rules, such as telling the truth. Hearings generally only take a day or two and are conducted before Administrative Law Judges in conference rooms, not appointed Federal Judges or juries in large court rooms. Evidentiary rules are enforced, but not to the same degree as in federal court.
2) The administrative process is, generally speaking, more cost effective. Beyond whatever arrangements you make with your employment law attorney, it does not cost anything to file your complaint or have your complaint investigated. On the other hand, there is a $350 filing fee for filing in federal court and many times you have to additionally pay for the complaint to be served on the other party. Other costs may be incurred as well that make federal court more cost prohibitive.
3) Through the administrative process, the only damages generally available to an individual are back pay (lost wages), reinstatement (reemployment if you were terminated), and attorney fees and costs. At the federal level, these same remedies are available; however, an individual also may be able to obtain compensatory damages (pain and suffering) and punitive damages (monetary punishment assessed against the company for its unlawful conduct).
How long can the legal process and my employment law case take?
At the outset of any case, it truly is impossible to know how long a case may take. A case may be resolved by the parties in a month or the case may take 3 years.
Looking simply at the Equal Rights Division (ERD) process for illustration purposes, an investigation takes approximately 6 months, but can take up to 1 year to complete. Thereafter, it usually takes approximately 8 months to 1 year to go to hearing. So, total, you may be looking at approximately 2 years, start to finish.
If you appeal an initial determination of No Probable Cause, this process can take twice as long because of the two hearings.
If your case is removed to federal court, that would add additional time as well.
What is a deposition and do I have to go?
A deposition is an opposing attorney’s chance to ask you questions about you and your case. Depositions can be very lengthy and can cover an extremely wide range of topics, from how you met your spouse to why you believe you were discriminated against. Depositions are, at their core, a test of how well you know the facts of your case and an opportunity to analyze you as a person, such as your credibility, your ability to think on your feet, how clear your answers are, etc.
If you are to be deposed, your appearance is mandatory. If you are being represented by an employment law attorney, your attorney will try to reach an agreement with the other side on a date that you are able to attend.
What is the difference between the Equal Rights Division (ERD) and the Equal Employment Opportunity Commission (EEOC)?
The Equal Rights Division (ERD) is Wisconsin’s state agency that administers the Wisconsin Fair Employment Act (WFEA), while the Equal Employment Opportunity Commission (EEOC) is a federal agency that administers federal anti-discrimination, harassment, and retaliation laws.
Both agencies conduct investigations of employment discrimination complaints and generally handle the same forms of discrimination, harassment, and retaliation laws, although there are some claims, such as arrest and conviction record discrimination and sexual orientation discrimination that only the ERD can handle.
Claims that are covered by both State and federal law are cross-filed between the agencies. So, if you file a race discrimination claim with the ERD, it will be cross-filed with the EEOC and vice versa.
How do I get a copy of my employee/personnel file from my employer or former employer?
In Wisconsin, current employees are entitled to view and copy their employee/personnel files twice per calendar year. Former employees are also able to and should obtain a copy of their employee/personnel files. If you are a former employee, it’s possible to have a copy of your file mailed to your home.
Your request should be in writing. Email is a great way to do this, as the date you send the request is automatically recorded on the email.
An employer is required by law to permit you to inspect or provide you with a copy of your employee/personnel file within 7 business days of its receipt of your request.