Wisconsin — Workplace Discrimination

The Wisconsin Fair Employment Act (WFEA) applies to employers with at least one employee. This coverage is broader than most federal anti-discrimination statutes — Title VII requires 15 employees, the ADA requires 15, and the ADEA requires 20. Under Wis. Stat. § 111.32(6)(a), "employer" means the state and each agency of the state and any other person engaging in any activity, enterprise, or business employing at least one individual. The statute exempts only social clubs or fraternal societies under Wis. Stat. Ch. 188 with respect to jobs advertised solely within the membership.

Source: Wis. Stat. § 111.32(6)

The Wisconsin Fair Employment Act (WFEA) prohibits employment discrimination on the basis of age, race, creed (religious belief or affiliation), color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, military service, 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 explicit statutory protection for declining to participate in religious or political meetings falls under Wis. Stat. § 111.321 and is separately defined in § 111.365. Employers may not discharge, discipline, or otherwise discriminate against an individual who refuses, even if no other protected class applies. There are limited exceptions for religious associations (not organized for profit), political organizations, and legal compliance with required disclosures. This protection is also listed on the official Wisconsin Fair Employment Law poster issued by the Department of Workforce Development.

Source: Wis. Stat. § 111.321 Source: Wis. Stat. § 111.365 Source: Wisconsin Fair Employment Law poster

Under the Wisconsin Fair Employment Act (WFEA), individuals who believe they have experienced employment discrimination must file a complaint with the Wisconsin Department of Workforce Development (DWD) within 300 days of the alleged discriminatory act. This time limit is set by statute and applies regardless of whether the employee is also pursuing a federal claim with the Equal Employment Opportunity Commission (EEOC). If a complainant files a federal discrimination complaint (such as under Title VII) and requests dual filing, the WFEA claim is considered preserved only if it was timely filed with the Wisconsin DWD within the 300-day period. The 300-day limit is a hard deadline; failure to file within this window generally precludes relief under the WFEA. The clock begins to run from the date of each alleged unlawful employment practice—not from the date the complainant first learns of the act, except in rare cases involving continuing violations (where each discrete act starts its own clock).

Source: Wis. Stat. § 111.39(1)

The Wisconsin Fair Employment Act (WFEA) does not simply prohibit discrimination in the abstract; it enumerates the specific employment actions (sometimes called “adverse actions”) that are unlawful when taken on the basis of a protected category. Under Wis. Stat. § 111.322, the statute lists the following prohibited actions:

Enumerated Prohibited Actions It is discrimination (and thus prohibited) for an employer, labor organization, or employment agency to:

• Refuse to hire, employ, admit, or license any individual;
• Discharge from employment or membership;
• Terminate, expel, or otherwise discriminate against an individual in promotion, compensation, or in terms, conditions, or privileges of employment;
• Retaliate against an individual because they have opposed any discriminatory practice, filed a complaint, or testified in an investigation, proceeding, or hearing under the WFEA.

Application to All Stages of Employment These prohibited actions apply at every stage of the employment relationship, from hiring through discharge, and cover not just direct employment, but also membership in labor organizations and licensure.

The statutory list is explicitly set out in Wis. Stat. § 111.322, which should be the practitioner's first reference when identifying a potential adverse employment action under Wisconsin law. Source: Wis. Stat. § 111.322

Under the Wisconsin Fair Employment Act (WFEA), Wis. Stat. § 111.335, employers generally may not make employment decisions—such as refusing to hire, terminate, suspend, or deny licensing—because of a person’s arrest or conviction record. There are, however, targeted exceptions where the law recognizes a legitimate connection between the prior conduct and the job duties or risks.

Exception for Substantially Related Circumstances:

• For a pending criminal charge (arrest record), Wis. Stat. § 111.335(2)(b) allows an employer to refuse to employ, suspend, or deny licensing if the circumstances of the charge substantially relate to the job or licensed activity. This exception is not about the mere fact of an arrest, but rather whether details of the alleged offense share essential characteristics—or risk factors—with the job itself.

• For a conviction record, Wis. Stat. § 111.335(3)(a)1 authorizes adverse action if the circumstances of the conviction substantially relate to the specific job or licensed activity. The focus is on whether the elements of the offense reveal behaviors, opportunities, or character traits likely to present actual risk if recurred in the employment context.

How the Substantial Relationship Test Works:

• The test is objective and applied by a reviewing tribunal, not by what the employer personally believes. The employer bears the burden of showing the link.
• Key factors, as discussed in County of Milwaukee v. LIRC, include whether the criminal offense involves traits or opportunities (like access, trust, response to supervision) that are likely to be relevant in the workplace. The analysis centers on statutory elements of the crime—not every surrounding fact.
• The Wisconsin Supreme Court in Cree, Inc. v. LIRC clarified this applies to offenses like domestic violence: reviewers look at whether the job environment could foster similar circumstances, not just whether the incident was "private."
• LIRC guidance notes that factors such as recency, rehabilitation, or prior satisfactory performance are usually not relevant to whether a substantial relationship exists, but are not categorically excluded in every instance (see LIRC ER Decision Digest § 122.19).
• Crimes committed on the job are almost always found to be substantially related by LIRC (though not strictly per se). Each case requires individualized assessment—blanket exclusions are not lawful.
• Employers generally are not required by LIRC to reassign employees to unrelated positions, but accommodation obligations are not entirely absolute and will depend on the specific context outlined in guidance.
• For arrest records, even if the charge is substantially related, an employer may suspend but not terminate solely because of an arrest (see Kammers v. Kraft Foods and LIRC Digest). Discharge based on arrest alone is generally prohibited, unless further conduct or independent grounds exist.

Source: Wis. Stat. § 111.335 Also discussed: County of Milwaukee v. LIRC, 139 Wis. 2d 805 (1987); Cree, Inc. v. LIRC, 2022 WI 15; LIRC ER Decision Digest § 122.19. Unable to confirm official court URLs for cited cases as of 2026-07-14.

The Equal Rights Division (ERD) of the Wisconsin Department of Workforce Development (DWD) is the agency responsible for enforcing the Wisconsin Fair Employment Act (WFEA), set out at Wis. Stat. §§ 111.31–111.395. The ERD administers the law, provides educational outreach, and processes all discrimination complaints under the WFEA. Employers are required to post notices about WFEA rights in the workplace (Wis. Admin. Code DWD 218.04).

How to file a discrimination complaint under the WFEA:

• Filing agency: Complaints must be filed with the ERD, either in person, by mail, or by fax at its Madison or Milwaukee offices. The ERD provides an official complaint form, but other written documents describing the alleged discrimination are accepted as long as they provide all required information. (Wis. Admin. Code DWD 218.03)

• Filing deadline: The complaint must be filed within 300 days of the alleged discriminatory act or the date the complainant became aware of the discrimination. This is a strict deadline—complaints filed after this window are generally dismissed. (Wis. Stat. § 111.39(1))

• Investigation: Once a complaint is received, the ERD assigns an investigator, notifies the employer (the respondent), and may attempt informal resolution or settlement. The investigator reviews submissions and evidence from both parties.

• Determination: The ERD issues an initial written determination of "Probable Cause" or "No Probable Cause."
• If probable cause is found, the case proceeds to a formal hearing before an Administrative Law Judge (ALJ), who may order remedies such as back pay, reinstatement, lost benefits, and attorney fees (punitive and emotional distress damages are not available under WFEA).
• If no probable cause is found, the complainant may appeal the decision internally within the ERD.

The discrimination complaint process is designed to be accessible and does not require the complainant to have an attorney, though both parties may be represented.

Source: Wisconsin DWD — ERD Complaint Process Source: Wis. Stat. §§ 111.31–111.395, Wis. Admin. Code DWD 218.03, Wis. Admin. Code DWD 218.04, Wis. Stat. § 111.39(1)