Military Status Discrimination Laws in Wisconsin

The Uniformed Services Employment and Reemployment Rights Act (USERRA), codified at 38 U.S.C. § 4311 et seq., is the primary federal law protecting military service members and veterans from employment discrimination. USERRA applies to all employers with 15 or more employees, including private, public, and federal employers. The law prohibits discrimination against individuals based on their membership in the uniformed services, application for service, or performance of service.

USERRA protections cover hiring, promotion, pay, benefits, and other terms and conditions of employment. The law also guarantees reemployment rights to service members who leave employment for active duty, reserves, or National Guard service. Additionally, USERRA requires employers to maintain health insurance benefits during military service and provides continuation of benefits under COBRA.

The Department of Labor Wage and Hour Division (WHD) enforces USERRA for non-federal employees. Federal employees file complaints with the Office of Personnel Management (OPM). The statute of limitations for filing a USERRA action is three years. Remedies available federally include back pay, front pay, reinstatement, restoration of benefits, and reasonable attorney fees and costs.

Wisconsin Statute § 111.32 provides broader protections than federal law by prohibiting employment discrimination based on military service or status regardless of employer size. Wisconsin's law applies to all employers, including sole proprietorships with only one employee, whereas USERRA only covers employers with 15 or more employees. This means Wisconsin workers employed by very small businesses have state-level protection unavailable federally.

Wisconsin's statute covers discrimination in all employment decisions: hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The law protects active duty service members, veterans, reservists, and National Guard members. Wisconsin also protects applicants from discrimination based on military service status.

Under Wisconsin Statute § 111.36, the state's civil rights law establishes robust remedies for employment discrimination violations, including back pay from the date discrimination occurred, front pay for future lost wages, reinstatement or hiring, restoration of benefits, compensatory damages for emotional distress and humiliation, punitive damages in cases of malice or reckless indifference, and reasonable attorney fees and costs.

A critical distinction is that Wisconsin's 300-day filing deadline (compared to federal USERRA's 3-year statute of limitations) runs from the date of the discriminatory act. Employers cannot use lack of military service history as a proxy for other protected characteristics or use assumptions about military status to make employment decisions. Wisconsin law also protects employees from retaliation for filing complaints or opposing discriminatory practices based on military service.

Wisconsin law contains limited exceptions to military service discrimination protections. The main exception involves bona fide occupational qualifications (BFOQs)—an employer may exclude individuals based on military service status only if such service is a genuine business necessity for the specific job. However, Wisconsin courts interpret this exception narrowly, and the burden rests heavily on the employer to justify the exclusion with concrete evidence, not assumptions or stereotypes.

Another exception involves national security clearance requirements. If a position requires a federal security clearance and a service member's discharge status prevents clearance eligibility, the employer may lawfully decline to hire or may terminate the employee, provided the decision is based on the clearance denial itself, not discrimination against the person.

At-will employment doctrine in Wisconsin does not override military service protections. An employer cannot terminate an at-will employee based on military status, even though the employer could terminate for other reasons. However, an employer can terminate an employee for legitimate, non-discriminatory reasons unrelated to military service—the key is establishing that military service was not the motivating or contributing factor in the decision.

Union or collective bargaining agreements do not override statutory protections. If a union contract conflicts with Wisconsin's military discrimination statute, the statute prevails. Additionally, federal contractors covered by Defense Department regulations may have additional obligations beyond both Wisconsin and USERRA protections.

Step 1: Document the Discrimination. Keep detailed records of all discriminatory conduct: dates, times, locations, what was said or done, who witnessed it, and how it affected your employment. Save emails, text messages, performance reviews, job postings, pay stubs, and any written communications mentioning military service. Document when your military service status was disclosed and to whom. Create a written timeline of events showing the sequence of decisions that harmed you (denial of hire, demotion, termination, denial of promotion). Maintain copies in a secure location outside workplace systems.

Step 2: Internal Complaint Process. Before filing externally, consider reporting the discrimination to your employer's human resources or compliance department, unless doing so is unsafe or would be futile. Submit a written complaint stating the facts, dates, and how the conduct violated your rights based on military service. Keep a copy. Request written acknowledgment of receipt. This step demonstrates your employer had notice and opportunity to remedy the violation. However, proceeding with external filing is not dependent on whether internal complaints are exhausted.

Step 3: File a State Complaint. Contact the Wisconsin Department of Safety and Professional Services, Equal Rights Division. File a discrimination complaint within 300 days of the discriminatory conduct. Visit the agency website at dsps.wi.gov or call (608) 266-6860. You must provide: your name and contact information; the employer's name, address, and contact information; dates of discriminatory acts; description of the conduct; your military service status or connection; how the conduct harmed you; and whether you have filed federally. The complaint can be filed online, by mail, or in person.

Step 4: Investigation and Resolution. The Wisconsin Equal Rights Division will investigate your complaint, typically within 60 to 120 days. The agency will contact your employer and request their response. You may be asked to provide additional information or participate in interviews. The employer will have opportunity to present their version of events. The agency will gather documents and witness statements. At the conclusion, the Division issues a Finding of Probable Cause (meaning discrimination likely occurred) or No Probable Cause. If Probable Cause is found, the parties are invited to participate in conciliation—a settlement negotiation facilitated by the agency. If conciliation fails, the case may proceed to the Wisconsin Labor and Industry Review Commission for a hearing.

Step 5: Consult an Attorney. Consider hiring an employment attorney specializing in discrimination law before filing if the case is complex, involves multiple victims, or significant damages. An attorney can help evaluate whether you have a strong claim, guide filing procedures, represent you in investigations and hearings, and negotiate settlements. Many employment attorneys work on contingency (no upfront fee; they take a percentage of recovery). Consult an attorney immediately if your employer retaliates after you file—retaliation claims have additional legal theories and remedies.