Chapter DWD 218

Ch. DWD 218 Note Note: Chapter Ind 88 as it existed on June 30, 1995 was repealed and chapter ILHR 218 was created effective 7-1-95. Chapter ILHR 218 was renumbered chapter DWD 218 under s. 13.93 (2m) (b) 1., and corrections made under s. 13.93 (2m) (b) 6. and 7., Stats., Register, November, 1997, No. 503.

DWD 218.01 DWD 218.01 Purpose. The purpose of this chapter is to implement the provisions of ss. 16.009 (5) (d), 46.90 (4) (b), 50.07 (3) (b), 106.56, 111.31 to 111.395, 146.997, and 321.65 (7) (b), Stats. Sections 111.31 to 111.395, Stats., prohibit employment discrimination, unfair honesty testing, and unfair genetic testing. Section 16.009 (5), Stats., prohibits retaliation for reports to the Board on Aging and Long Term Care. Section 46.90 (4) (b), Stats., prohibits retaliation for reporting the abuse of an elderly person to a state or county agency. Section 50.07 (3) (b), Stats., prohibits retaliation for reports of abuse in care and service residential facilities. Section 146.997, Stats., prohibits retaliation against health care workers who report certain information about a health care facility or health care provider. Section 321.65 (7) (b), Stats., provides reemployment rights after national guard, state defense force, or public health emergency service. Section 106.56, Stats., prohibits discrimination on the basis of physical condition or developmental disability in post-secondary education. The goal of this chapter is to provide a constructive, impartial and speedy procedure for resolving disputes arising under these laws.

DWD 218.01 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 06-062: am. Register November 2006 No. 611, eff. 12-1-06; corrections made under s. 13.92 (4) (b) 7., Stats., Register March 2013 No. 687.

DWD 218.02 DWD 218.02 Definitions. When used in this chapter or in the Wisconsin fair employment act:

DWD 218.02(1) (1) “Act” means the Wisconsin fair employment act, ss. 111.31 to 111.395, Stats.

DWD 218.02(2) (2) “Administrative law judge” means the examiner appointed to conduct hearings under the act.

DWD 218.02(2m) (2m) “Agency” means an office, department, independent agency, authority, institution, association, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts.

DWD 218.02(3) (3) “Complainant” means the person who files a complaint alleging that an action prohibited by the act has been committed.

DWD 218.02(4) (4) “Day”, when used in time computations in this chapter, means a calendar day, except that if the last day of the time period is a Saturday, Sunday or legal holiday, the last day shall be the next business day.

DWD 218.02(5) (5) “Division” means the equal rights division of the department of workforce development.

DWD 218.02(6) (6) “Filing” means the physical receipt of a document.

DWD 218.02(7) (7) “Person” includes, but is not limited to, one or more individuals, partnerships, associations, corporations, joint stock companies, trusts, unincorporated organizations, trustees, or trustees or receivers in bankruptcy.

DWD 218.02(8) (8) “Probable cause” means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of the act probably has been or is being committed.

DWD 218.02(9) (9) “Respondent” means the person or agency alleged to have committed an action prohibited by the act.

DWD 218.02 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; emerg. cr. (2m), am. (9) eff. 8-5-03; CR 03-092: cr. (2m), am. (9) Register March 2004 No. 579, eff. 4-1-04.

DWD 218.03 DWD 218.03 Complaints.

DWD 218.03(1) (1) Who may file complaints. A complaint may be filed by any person or by the person’s duly authorized representative. A complaint filed by a representative shall state that the representative is authorized to file the complaint.

DWD 218.03(2) (2) Where to file complaints.

DWD 218.03(2)(a) (a) A complaint may be filed in person with any division office, or it may be mailed or sent by facsimile transmission to one of the following division offices:

DWD 218.03(2)(a)1. 1. Equal Rights Division, 201 East Washington Avenue, Madison, Wisconsin 53702. Facsimile number: 608-267-4592.

DWD 218.03(2)(a)2. 2. Equal Rights Division, 819 North Sixth Street, Milwaukee, Wisconsin 53203. Facsimile number: 414-227-4084.

DWD 218.03(2)(b) (b) A complaint filed by facsimile transmission shall conform with the requirements of s. DWD 218.25 (1).

DWD 218.03(3) (3) Form and content of complaint. A complaint shall be written on a form which is available at any division office or on any form acceptable to the department. Each complaint shall be signed by the person filing the complaint or by the person’s duly authorized representative. The signature constitutes an acknowledgment that the party or the representative has read the complaint; that to the best of that person’s knowledge, information and belief the complaint is true and correct; and that the complaint is not being used for any improper purpose, such as to harass the party against whom the complaint is filed. Each complaint shall contain all of the following information:

DWD 218.03(3)(a) (a) The name and address of the complainant.

DWD 218.03(3)(b) (b) The name and address of the respondent.

DWD 218.03(3)(c) (c) A concise statement of the facts, including pertinent dates, constituting the alleged act of employment discrimination, unfair honesty testing or unfair genetic testing.

DWD 218.03(4) (4) Assistance by the department. The department shall, upon request, provide appropriate assistance in completing and filing complaints.

DWD 218.03(5) (5) Date of filing of complaint deferred by another agency. A complaint which is deferred to the department by a federal or local employment opportunity agency with which the department has a worksharing agreement complies with the requirements of sub. (3) and is considered filed when received by the federal or local agency.

DWD 218.03(6) (6) Amendment of complaint. A complaint may be amended, subject to the approval of the department, except that a complaint may not be amended less than 45 days before hearing unless good cause is shown for the failure to amend the complaint prior to that time. If the complaint is amended prior to the issuance of an initial determination, the department shall investigate the allegations of the amended complaint. If the complaint is amended after the case has been certified to hearing, the chief of the hearing section or the administrative law judge may remand the complaint to the investigation section to conduct an investigation and issue an initial determination as to whether probable cause exists to believe that the respondent has violated the act as alleged in the amended complaint. An amended complaint shall be dismissed if it does not meet the requirements of s. DWD 218.05 (1).

DWD 218.03(7) (7) Withdrawal of complaint. A complaint may be withdrawn at any time. A request for withdrawal shall be in writing and shall be signed by the complainant or by the complainant’s duly authorized representative. Upon the filing of a request for withdrawal, the department shall dismiss the complaint by written order. Such dismissal shall be with prejudice unless otherwise expressly stated in the order.

DWD 218.03 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 03-092: am. (6) Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (2) Register November 2006 No. 611, eff. 12-1-06.

DWD 218.04 DWD 218.04 Notification of respondent.

DWD 218.04(1) (1) When notice is to be sent. Except where prevented by the anonymity requirement of s. 111.375 (1), Stats., the department shall serve a copy of a complaint which meets the requirements of s. DWD 218.03 upon each respondent prior to the commencement of any investigation.

DWD 218.04(2) (2) Content of notice. The notice shall include a copy of the complaint, which shall indicate on its face the date the complaint was filed. The notice shall direct the respondent to respond in writing to the allegations of the complaint within a time period specified by the department. The notice shall further state that, if the respondent fails to answer the complaint in writing, the department may make an initial determination as to whether an act of employment discrimination, unfair honesty testing or unfair genetic testing has occurred based only on the department’s investigation and the information supplied by the complainant.

DWD 218.04 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

DWD 218.05 DWD 218.05 Preliminary review of complaints.

DWD 218.05(1) (1) Review of complaint. The department shall review every complaint filed to determine all of the following:

DWD 218.05(1)(a) (a) Whether the complainant is protected by the act.

DWD 218.05(1)(b) (b) Whether the respondent is subject to the act.

DWD 218.05(1)(c) (c) Whether the complaint states a claim for relief under the act.

DWD 218.05(1)(d) (d) Whether the complaint was filed within the time period set forth in the act, if that issue is raised in writing by the respondent.

DWD 218.05(2) (2) Preliminary determination dismissing complaint. The department shall issue a preliminary determination dismissing any complaint, or any portion of a complaint, that fails to meet the requirements of sub. (1). The department shall send the order of dismissal by first class mail to the last-known address of each party and to their attorneys of record.

DWD 218.05(3) (3) Appeal of preliminary determination. The complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written appeal with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division for review by an administrative law judge. The administrative law judge shall issue a decision which shall either affirm, reverse, modify, or set aside the preliminary determination. The department shall serve the decision of the administrative law judge upon the parties. If the decision reverses or sets aside the preliminary determination, the complaint shall be remanded for investigation. If the decision affirms the preliminary determination, it may be appealed to the labor and industry review commission if it is a final decision and order as defined in s. DWD 218.21 (1).

DWD 218.05 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 03-092: am. (2) and (3) Register March 2004 No. 579, eff. 4-1-04.

DWD 218.06 DWD 218.06 Investigations.

DWD 218.06(1) (1) Conduct of investigation. Except as provided under sub. (3), the department shall investigate all complaints that satisfy the review under s. DWD 218.05 (1). In conducting investigations under this chapter, the department may seek the cooperation of all persons to provide requested materials to the department; to obtain access to premises, records, documents, individuals, and other possible sources of information; to examine, record, and copy necessary materials; and to take statements of persons reasonably necessary for the furtherance of the investigation. The department may subpoena persons or documents for the purpose of the investigation. Subpoenas may be enforced pursuant to s. 885.11, Stats.

DWD 218.06(2) (2) Advising complainant to amend complaint. If, during an investigation, it appears that the respondent has engaged in discrimination against the complainant which is not alleged in the complaint, the department may advise the complainant that the complaint should be amended.

DWD 218.06(3) (3) Dismissal of complaint prior to completion of investigation.

DWD 218.06(3)(a) (a) The department may dismiss a complaint prior to completion of an investigation under the following circumstances:

DWD 218.06(3)(a)1. 1. The complainant has failed to respond to correspondence from the department concerning the complaint within 20 days after the correspondence was sent by certified mail to the last-known address of the person filing the complaint, in accordance with the provisions of s. 111.39 (3), Stats.

DWD 218.06(3)(a)2. 2. The complainant signed a valid waiver and release of claims arising out of the complainant’s employment with the respondent that would preclude the department from finding that the respondent has violated the act.

DWD 218.06(3)(a)3. 3. The allegations in the complaint have been previously dismissed by the department or by a state or federal court.

DWD 218.06(3)(b) (b) A complainant may appeal from an order dismissing a complaint under this subsection by filing a written appeal with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division for review by an administrative law judge. The administrative law judge shall issue a decision which shall either affirm, reverse, modify, or set aside the dismissal of the complaint. The decision of the administrative law judge shall be served upon the parties. If the decision reverses or sets aside the dismissal, the complaint shall be remanded for further investigation. If the decision affirms the dismissal of the complaint, it may be appealed to the labor and industry review commission if it is a final decision and order as defined in s. DWD 218.21 (1).

DWD 218.06 History History: History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 03-092: am. (1), cr. (3) Register March 2004 No. 579, eff. 4-1-04.

DWD 218.07 DWD 218.07 Initial determination.

DWD 218.07(1) (1) General. At the conclusion of the investigation, the department shall issue a written initial determination which shall state whether or not there is probable cause to believe that an act of employment discrimination, unfair honesty testing or unfair genetic testing occurred as alleged in the complaint. This initial determination shall set forth the facts upon which its conclusion is based and shall be served upon the parties.

DWD 218.07(2) (2) Initial determination of probable cause. If the department initially determines that there is probable cause to believe that any discrimination, unfair honesty testing or unfair genetic testing occurred as alleged in the complaint, it shall certify the case to hearing. A hearing on the merits shall thereafter be noticed and conducted in accordance with the provisions of ss. DWD 218.11 to 218.20.

DWD 218.07(3) (3) Initial determination of no probable cause. If the department initially determines that there is no probable cause to believe that employment discrimination, unfair honesty testing or unfair genetic testing occurred as alleged in the complaint, it may dismiss those allegations. The department shall, by a notice to be incorporated in the initial determination, notify the parties and their attorneys of record of the complainant’s right to appeal as provided in s. DWD 218.08.

DWD 218.07 History History: History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

DWD 218.08 DWD 218.08 Appeal of initial determination of no probable cause.

DWD 218.08(1) (1) When filed. Within 30 days after the date of an initial determination finding that there is no probable cause, a complainant may file a written request for a hearing on the issue of probable cause. The request for hearing shall state specifically the grounds upon which the appeal is based. The department shall notify the respondent that an appeal has been filed within 10 days of receiving the appeal.

DWD 218.08(2) (2) Dismissal final if no appeal filed. If no timely written request for a hearing is filed, the initial determination’s order of dismissal shall be the final determination of the department.

DWD 218.08(3) (3) Certification to hearing on issue of probable cause; right to stipulate that case be decided on merits. If a timely appeal is filed, the division shall issue a notice certifying the matter to hearing. A hearing on the issue of probable cause shall be noticed and conducted in accordance with the provisions of ss. DWD 218.11 and 218.13 to 218.20, except that the parties may stipulate prior to the hearing that the administrative law judge may decide the case on the merits. If a hearing on the issue of probable cause is requested in a case in which the initial determination also found probable cause with respect to one or more issues the department may, with the consent of the parties, consolidate the hearing on probable cause and the hearing on the merits.

DWD 218.08 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 06-062: am. (3) Register November 2006 No. 611, eff. 12-1-06.

DWD 218.09 DWD 218.09 Private settlement and conciliation. The parties may enter into an agreement to settle the complaint at any time during the proceedings, with or without assistance by the department. The department may assist the parties to reach a settlement agreement. The parties shall notify the department immediately upon reaching a settlement.

DWD 218.09 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

DWD 218.10 DWD 218.10 Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing. A complaint may be dismissed based upon the conditions set forth in s. DWD 218.05 (1) or for any other procedural basis after the case is certified to hearing under either s. DWD 218.07 (2) or 218.08 (3). In determining whether to dismiss the complaint, the administrative law judge may consider documents and affidavits presented by any party and may hold a hearing to allow the parties to establish facts which may have a bearing on whether the complaint should be dismissed. If the administrative law judge issues an order dismissing the complaint under this section, a certified copy of the order and a notice of appeal rights shall be sent by first class mail to the last known address of each party and to their attorneys of record.

DWD 218.10 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

DWD 218.11 DWD 218.11 Notice of hearing.

DWD 218.11(1) (1) Content. In any matter which has been certified to hearing following an initial determination of probable cause under s. DWD 218.07 (2) or an appeal of an initial determination of no probable cause under s. DWD 218.08 (3), the department shall advise the parties and their representatives and attorneys of record in writing by first-class mail, of the specific time, date and place established for the hearing. The notice of hearing shall fully identify the parties and the case number. It shall specify a time and date for hearing not less than 30 days after the date of mailing of the notice of hearing. The notice of hearing shall specify the nature of the act of employment discrimination, unfair honesty testing, or unfair genetic testing which is alleged to have occurred and shall state the legal authority on which the hearing is based. A copy of the complaint shall be attached to the notice of hearing.

DWD 218.11(2) (2) Place of hearing. The hearing shall be held in the county where the alleged act of discrimination occurred, or at another location with the consent of the parties. For purposes of this subsection, the county where the alleged act of discrimination occurred is the county where the respondent resides or where the alleged discrimination, unfair honesty testing or unfair genetic testing occurred.

DWD 218.11 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

DWD 218.12 DWD 218.12 Answer.

DWD 218.12(1) (1) When required. Within 21 days after the date of a notice of hearing on the merits, each respondent shall file with the hearing section of the division an answer to the allegations of the complaint upon which there is a finding of probable cause, along with a certification that a copy of the answer has been mailed to all other parties.

DWD 218.12(2) (2) Content of answer. The answer shall contain the respondent’s current address. It shall also contain a specific admission, denial or explanation of each allegation of the complaint. If the respondent is without knowledge or information sufficient to form a belief as to the truth of an allegation, the respondent shall so state and this shall have the effect of a denial. Admissions or denials may be to all or part of an allegation, but shall fairly meet the substance of the allegation. Any affirmative defense relied upon, including the statute of limitations, shall be raised in the answer unless it has previously been raised by a motion in writing. Failure to raise an affirmative defense in the answer may, in the absence of good cause, be held to constitute a waiver of such a defense.

DWD 218.12 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 03-092: am. (1) and (2) Register March 2004 No. 579, eff. 4-1-04.

DWD 218.13 DWD 218.13 Pre-hearing conference. In any case which has been certified to hearing, a pre-hearing conference may be held in accordance with the provisions of s. 227.44 (4), Stats.

DWD 218.13 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

DWD 218.14 DWD 218.14 Pre-hearing discovery.

DWD 218.14(1) (1) When discovery may begin. Discovery may not be used prior to the time that a matter is certified to hearing, except that the taking and preservation of evidence shall be permitted prior to certification to hearing under the circumstances set forth in s. 227.45 (7), Stats.

DWD 218.14(2) (2) Discovery directed to a party not represented by legal counsel. In the case of discovery directed to a party who is not represented by legal counsel, the party seeking that discovery shall, not less than 10 days prior to conducting such discovery, state in writing that it intends to seek discovery. The party seeking discovery shall send this notice to the party who is not represented by legal counsel and to either the chief of the hearing section or the administrative law judge, if one has been assigned to the case. All copies of demands for discovery and notices of depositions shall be filed with the department at the time they are served upon the party from whom the discovery is sought. Copies of responses to discovery by an unrepresented party and the original transcript of any deposition of an unrepresented party shall be filed with the department by the party which instituted those discovery requests as soon as practicable after the discovery has been taken.

DWD 218.14(3) (3) Scope, method and use of discovery. The scope of discovery, the methods of discovery and the use of discovery at hearing shall be the same as set forth in ch. 804, Stats.

DWD 218.14(4) (4) Failure to comply with discovery requests; duty to consult with opposing party. The administrative law judge may compel discovery, issue protective orders, and impose sanctions in the manner provided under ch. 804, Stats. All motions to compel discovery or motions for protective orders shall be accompanied by a statement in writing by the party making the motion that, after consultation in person or by telephone with the opposing party and sincere attempts to resolve their differences, the parties are unable to reach agreement. The statement shall state the date and place of such consultation and the names of all parties participating in the consultation.

DWD 218.14(5) (5) Filing with department. Copies of discovery requests and responses to discovery requests need not be filed with the division, except as required under sub. (2).

DWD 218.14 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 03-092: am. (2) and (4) Register March 2004 No. 579, eff. 4-1-04.

DWD 218.15 DWD 218.15 Subpoenas and motions.

DWD 218.15(1) (1) Subpoenas. The department or a party’s attorney of record may issue a subpoena to compel the attendance of a witness or the production of documents. A subpoena issued by an attorney shall be in substantially the same form as provided in s. 805.07 (4), Stats., and shall be served in the manner provided in s. 805.07 (5), Stats. Witnesses summoned by a subpoena who are not employees of the civil service as defined in s. 230.03 (6), Stats., shall be entitled to the witness and mileage fees set forth in s. 814.67 (1) (a) and (c), Stats. The cost of service, witness, and mileage fees shall be paid by the person issuing the subpoena. Subpoenas may be enforced pursuant to s. 885.11, Stats.

DWD 218.15(2) (2) Motions. Motions made during a hearing may be stated orally and shall, with the ruling of the administrative law judge, be included in the record of the hearing. All other motions shall be in writing and shall state briefly the relief requested and the grounds upon which the moving party is entitled to relief. All written motions shall be filed with the administrative law judge assigned to the case. Any briefs or other papers in support of a motion, including affidavits and documentary evidence, shall be filed with the motion. Any party opposing the motion may file a written response. All written motions shall be decided without further argument unless requested by the administrative law judge.

DWD 218.15 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; emerg. am. (1) eff. 8-5-03; CR 03-092: am. (1) Register March 2004 No. 579, eff. 4-1-04.