Written by attorney Randy T. Enochs

Should I File My Employment Discrimination Claim with the EEOC or the ERD?

A commonly misunderstood and confusing part of employment law litigation for employees who feel they have been discriminated against in Wisconsin is whether to file their claim with the Wisconsin Equal Rights Division (ERD) or the Equal Employment Opportunity Commission (EEOC). While both entities were created to allow people to file discrimination complaints, there are very big differences between the two agencies that people ought to be aware of before filing their discrimination claims. Equal Rights Division The ERD is a state-level administrative agency under the Wisconsin Department of Workforce Development that processes and handles employment discrimination claims filed under the Wisconsin Fair Employment Act (WFEA). The ERD does not deal with federal laws like the Americans with Disabilities Act (ADA or Title VII, but the WFEA covers disability and race discrimination claims, among other things. The difference with filing a claim with the ERD is that it tends to be a faster process but the downside, now, is that claimants are limited in the damages (money) they can be awarded if they prevail. As discussed in a previous blog post, Wisconsin is very close to repealing the law enacted to allow prevailing claimants to be awarded punitive and compensatory damages, which are available under federal laws. Thus, prevailing claimants who file claims with the ERD are limited to what is known as a "make-whole remedy." The other important differences with filing a claim with the ERD is that there is no filing fee, it's easier and simpler to file a claim as they are not subject to a motion to dismiss and the ERD recently began offering a mediation service that is free of charge handled by ERD administrative law judges. People who feel discriminated on the basis of their arrest and conviction record or sexual orientation must file their claim with the ERD as there is currently no federal law that protects against this type of discrimination. Equal Employment Opportunity Commission The EEOC is the federal agency that processes claims filed under federal laws like the ADA, ADEA, Title VII, EPAand GINA. While the EEOC is an excellent agency, it often takes claims much longer to be investigated and processed and more often than not, the EEOC does not prosecute claims and issues charging parties a " Right to Sue" letter, which gives charging parties 90 days to file suit in federal court on their own with the assistance of a private attorney, if they choose and can afford one, or forever have their claim dismissed. Once a charging party receives a Right to Sue letter, they have to pay a filing fee, serve the defendant and then follow the Federal Rules of Civil Procedure which are quite onerous. One of the major advantages to pursuing claims under federal law is the ability to pursue compensatory and punitive damages--that is, a successful plaintiff is eligible to receive a lot more money if they prevail. People who feel they have been discriminated against in their employment are encouraged to discuss their case and options with a local employment law attorney prior to filing their claims, even if they feel they cannot afford an attorney.

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