Chapter DWD 221

DWD 221.01 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 221.02 DWD 221.02 Definitions. In addition to those terms defined in s. 106.52, Stats., the following are definitions for terms used in this chapter:

DWD 221.02(1) (1) “Act” means s. 106.52, Stats., unless the context requires otherwise.

DWD 221.02(2) (2) “Administrative law judge” means the examiner appointed to conduct hearings under the act.

DWD 221.02(3) (3) “Day,” when used in time computations in these rules, 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 221.02(4) (4) “Department” means the department of workforce development.

DWD 221.02(5) (5) “Division” means the equal rights division of the department.

DWD 221.02(6) (6) “Filing” means the physical receipt of a document at any division office.

DWD 221.02(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 221.02(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 discrimination probably has been or is being committed.

DWD 221.02(9) (9) “Test” means a simulation of any transaction covered by the act for the purpose of comparing the responses given by persons such as owners and operators of places of public accommodations or amusements to individuals such as customers, patients or patrons of places of public accommodations or amusements to determine whether discrimination as defined under s. 106.52 (3), Stats., is being or has been committed.

DWD 221.02 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; corrections in (intro.), (1) and (9) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540; correction in (9) made under s. 13.93 (2m) (b) 7., Stats., Register March 2004 No. 579, eff. 4-1-04.

DWD 221.03 DWD 221.03 Complaints.

DWD 221.03(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 221.03(2) (2) Where to file complaints.

DWD 221.03(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 221.03(2)(a)1. 1. Equal Rights Division, 201 East Washington Avenue, Madison, WI 53702. Facsimile number: 608-267-4592.

DWD 221.03(2)(a)2. 2. Equal Rights Division, 819 North 6th Street, Milwaukee, WI 53203. Facsimile number: 414-227-4084.

DWD 221.03(2)(b) (b) A complaint filed by facsimile transmission shall conform with the requirements of s. DWD 221.23 (1).

DWD 221.03(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 other form acceptable to the department. Each complaint shall be signed by the person filing the complaint or by the person’s duly authorized representative and shall be notarized. Each complaint shall contain substantially the following information:

DWD 221.03(3)(a) (a) The name and address of the complainant.

DWD 221.03(3)(b) (b) The name and address of the respondent.

DWD 221.03(3)(c) (c) A description and the address of the place of public accommodations or amusements which is involved.

DWD 221.03(3)(d) (d) A concise statement of the essential facts, including pertinent dates, constituting the alleged discrimination in public accommodations or amusements.

DWD 221.03(4) (4) Assistance by the department. The department shall, upon request, provide appropriate assistance in completing and filing complaints.

DWD 221.03(5) (5) Date of filing of complaint. A complaint is considered filed when it is received by the department in a form that reasonably meets the standards of sub. (3).

DWD 221.03(6) (6) Amendment of complaint. Subject to the approval of the department, a complaint may be amended no later 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 discrimination has occurred as alleged in the amended complaint. An amended complaint shall be dismissed if it does not meet the requirements of s. DWD 221.04 (1).

DWD 221.03(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 the complainant’s duly authorized representative or attorney of record. 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.

DWD 221.03 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; 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 221.04 DWD 221.04 Preliminary review of complaints.

DWD 221.04(1) (1) Review of complaint. The department shall review every complaint filed to ascertain all of the following:

DWD 221.04(1)(a) (a) Whether the complainant is protected by the act.

DWD 221.04(1)(b) (b) Whether the respondent is subject to the act.

DWD 221.04(1)(c) (c) Whether the complaint states a claim for which relief can be granted under the act.

DWD 221.04(1)(d) (d) Whether the complaint was timely filed.

DWD 221.04(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 in 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 221.04(3) (3) Appeal of preliminary determination. A complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written request 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 221.22 (1).

DWD 221.04 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. (2) and (3) Register March 2004 No. 579, eff. 4-1-04.

DWD 221.05 DWD 221.05 Notice to respondents. The department shall serve a copy of a complaint upon each respondent prior to the commencement of any investigation. The notice shall direct the respondent to respond in writing to the allegations of the complaint within 10 days after the date of the notice. The notice shall advise the respondent that if no response to the complaint is filed within the time provided, the division will make an initial determination based on the information provided by the complainant.

DWD 221.05 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 221.06 DWD 221.06 Testing.

DWD 221.06(1) (1) Conditions under which testing may be done by the department. The department may engage in testing for the purpose of verifying allegations of discrimination in public accommodations and amusements, or to determine whether sufficient evidence exists to initiate its own complaint. Testing may occur under circumstances including, but not limited to, the following:

DWD 221.06(1)(a) (a) Where no other means exists for verifying or refuting the allegations contained in a complaint, or where the findings of the investigator would be significantly strengthened by the inclusion of test results.

DWD 221.06(1)(b) (b) Where the number or content of complaints against a specific respondent is sufficient to indicate that a pattern of unlawful discrimination may exist.

DWD 221.06(1)(c) (c) Where demographic statistics would lead a reasonable person to believe that a pattern of unlawful discrimination exists in a particular geographical area.

DWD 221.06(2) (2) Testing procedures. Any person engaged in testing for the department shall do so only after having received specific authorization by the department. The results of each test for potential discrimination shall be submitted to the department in written form by those persons who conducted the test. No test which constitutes entrapment shall be utilized by the department.

DWD 221.06(3) (3) Notice of testing. The department may not give notice of testing to the persons who will be tested. If the testing is undertaken as the result of a complaint naming a specific respondent, the department shall delay sending the notice of the complaint to the respondent until after the completion of the testing.

DWD 221.06 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 221.07 DWD 221.07 Complainant’s duty to respond to correspondence from the department. The department may dismiss the complaint if the complainant fails to respond to the department within 20 days from the date of mailing of any correspondence from the department concerning the complaint, provided that such correspondence was sent by certified mail, return receipt requested, to the last known address of the complainant.

DWD 221.07 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 221.08 DWD 221.08 Investigations.

DWD 221.08(1) (1) Conduct of investigation. The department shall investigate all complaints which satisfy the review under s. DWD 221.04 (1). In conducting investigations under this chapter, the department shall seek the voluntary cooperation of all persons to provide requested materials to the department; to obtain access to premises, documents, individuals, and other possible sources of information; to examine, record, and copy necessary materials; and to take and record testimony or statements of persons reasonably necessary for 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 221.08(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. If the complaint is amended, the department shall investigate the allegations of the amended complaint, as well as the allegations of the initial complaint.

DWD 221.08(3) (3) Dismissal of complaint prior to completion of investigation.

DWD 221.08(3)(a) (a) The department may dismiss a complaint prior to completion of an investigation under the following circumstances:

DWD 221.08(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. 106.50 (6) (a) 6., Stats.

DWD 221.08(3)(a)2. 2. The allegations in the complaint have been previously dismissed by the department or by a state or federal court.

DWD 221.08(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 221.22 (1).

DWD 221.08 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: cr. (3) Register March 2004 No. 579, eff. 4-1-04.

DWD 221.09 DWD 221.09 Initial determination.

DWD 221.09(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 discrimination occurred as alleged in the complaint. The initial determination shall state the facts upon which its conclusion is based and shall be served upon the parties and their attorneys of record by first class mail.

DWD 221.09(2) (2) Initial determination of probable cause. If the department initially determines that there is probable cause to believe that a violation of the act occurred as alleged in the complaint, those allegations shall be certified to hearing.

DWD 221.09(3) (3) Initial determination of no probable cause. If the department initially determines that there is no probable cause to believe that the act was violated as alleged in the complaint, it shall dismiss those allegations in the complaint. The department shall, by a notice to be incorporated in the initial determination, notify the parties of the complainant’s right to appeal as provided in s. DWD 221.10.

DWD 221.09 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 221.10 DWD 221.10 Appeal of initial determination of no probable cause.

DWD 221.10(1) (1) When filed. Within 20 days after the date of an initial determination finding that there is no probable cause, a complainant may file with the division a written request for a hearing on the issue of probable cause. The department shall notify the respondent that an appeal has been filed within 10 days of receiving the appeal.

DWD 221.10(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 221.10(3) (3) Certification to hearing on issue of probable cause; right to stipulate that case be decided on merits. If a timely written request for a hearing 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 221.13 and 221.15 to 221.21, except that the parties may stipulate prior to the hearing that the administrative law judge may decide the case on the merits.

DWD 221.10 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 221.11 DWD 221.11 Conciliation; private settlement.

DWD 221.11(1) (1) Conciliation. With the consent of all parties, the department may assist the parties to reach a mutually agreeable and just resolution of the complaint at any time during the proceedings. If conciliation resolves the dispute, the terms of the agreement shall be reduced to a written conciliation agreement. The conciliation agreement must be signed by the respondent and the complainant, or by their representatives.

DWD 221.11(2) (2) Private settlement. The parties may enter into an agreement to settle the complaint at any time, with or without resort to conciliation. No complaint will be dismissed based on a settlement agreement unless the department receives a written request from the complainant withdrawing the complaint. A settlement agreement signed by the complainant which specifically authorizes the department to dismiss the complaint may be submitted by either party in place of a written request from the complainant withdrawing the complaint.

DWD 221.11 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 221.12 DWD 221.12 Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing. A complaint may be dismissed for the reasons set forth in s. DWD 221.04 (1) after the case is certified to hearing under either s. DWD 221.09 (2) or 221.10 (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 221.12 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 221.13 DWD 221.13 Notice of hearing.

DWD 221.13(1) (1) Content. In any matter which has been certified to hearing, the department shall send a notice of hearing to the parties and their attorneys of record, by first-class mail, advising them 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 of 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 discrimination 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 221.13(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 place of public accommodations or amusements which is the subject of the complaint is located. If no specific place of public accommodation or amusement is involved, the place of hearing shall be the county where the respondent resides.

DWD 221.13 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 221.14 DWD 221.14 Answer.

DWD 221.14(1) (1) When required. Within 10 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, along with a certification that a copy of the answer has been mailed to all other parties.

DWD 221.14(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 221.14 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. Register March 2004 No. 579, eff. 4-1-04.

DWD 221.15 DWD 221.15 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 221.15 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 221.16 DWD 221.16 Subpoenas and motions.

DWD 221.16(1) (1) Subpoenas. Witnesses summoned by a subpoena shall be entitled to the witness and mileage fees set forth in s. 814.67 (1) (a) and (c), Stats. Subpoenas may be enforced pursuant to s. 885.11, Stats.

DWD 221.16(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 221.16 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.