National Origin Discrimination Laws in Wisconsin

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, prohibits discrimination based on national origin by covered employers. Federal law applies to employers with 15 or more employees. The statute defines national origin discrimination broadly to include discrimination based on the country of origin of the employee or their ancestors, accent, manner of speaking, or physical characteristics associated with national origin groups.

Federal law also protects employees from language-based discrimination, including English-only workplace policies that are not justified by business necessity. The Equal Employment Opportunity Commission (EEOC) enforces Title VII. Under 42 U.S.C. § 2000e-5, employees must file a charge with the EEOC within 180 days of the discriminatory act in most states, or 300 days in deferral states like Wisconsin that have substantially equivalent state employment discrimination laws.

Federal remedies include back pay, front pay, compensatory damages for emotional distress, punitive damages in cases of intentional discrimination, and attorney's fees and costs. The EEOC investigates charges, attempts conciliation, and may file suit if no resolution is reached. Employees may also pursue private litigation after obtaining a right-to-sue letter from the EEOC.

Wisconsin Statutes section 111.36 prohibits discrimination in employment based on national origin by employers with one or more employees. This is significantly broader than federal law, which applies only to employers with 15 or more employees. Wisconsin's Fair Employment Act, codified in sections 111.31 through 111.395, provides the state legal framework.

Wisconsin law is substantially equivalent to federal Title VII, meaning employees can file with either the Wisconsin Equal Rights Division or the EEOC, and the filing deadline is extended to 300 days. The Wisconsin Equal Rights Division, part of the Department of Safety and Professional Services, enforces the Fair Employment Act. State law covers all employment decisions including hiring, promotion, compensation, terms and conditions of employment, and termination.

Wisconsin law explicitly protects against discrimination based on national origin, which includes ancestry, country of origin, accent, language, and physical characteristics associated with national origin groups. The state has developed case law protecting employees from accent-based discrimination and English-only policies that lack business justification. Wisconsin also provides broader remedies than federal law in some contexts. Under Wisconsin Statutes section 111.39, remedies include back pay, front pay, reinstatement, compensatory damages, punitive damages, and attorney's fees and costs.

A key distinction is that Wisconsin covers employers with any number of employees, not just those with 15 or more. This means small business employees have state-law protections that may not exist under federal law. Additionally, Wisconsin's statute of limitations is longer (300 days) than the federal baseline in non-deferral states (180 days), giving employees more time to file complaints.

National origin discrimination laws contain important limitations and exceptions. First, employers may enforce English-only workplace policies if they are justified by legitimate business necessity. However, the policy must be narrowly tailored and apply only to situations where English fluency is genuinely required for job performance or safety.

Second, discrimination based on failure to speak English fluently may be permissible if the job genuinely requires English proficiency and the employer can demonstrate this requirement through objective criteria such as job analysis or prior adverse events. For example, a customer service representative position may justify an English-proficiency requirement.

Third, harassment based on national origin is not prohibited under the statute itself, but may be actionable as a violation of section 111.36 if it alters the terms and conditions of employment or creates a hostile work environment. However, the conduct must meet the legal threshold for severity and pervasiveness.

Fourth, bona fide occupational qualifications (BFOQs) may justify employment decisions based on national origin in narrow circumstances. However, BFOQs are narrowly construed and rarely upheld. For example, hiring a national of a specific country to represent that country's interests might qualify, but this exception is extremely limited.

Fifth, at-will employment remains the default rule in Wisconsin. Employees can be terminated for any non-discriminatory reason or no reason. The employee bears the burden of establishing that the adverse employment action was motivated, at least in part, by national origin discrimination. Fourth, independent contractors and certain religious organizations may have limited coverage under state law. Fifth, employment by federal, state, or local government entities may involve different procedures and remedies.

Step 1: Document the discrimination immediately. Create a written record of each incident including the date, time, location, individuals present, what was said or done, and how it affected you. Save all relevant emails, text messages, performance reviews, job postings, and personnel records. Request copies of your personnel file from your employer if possible. Document your job responsibilities and performance to establish you were qualified. Preserve evidence of similarly situated employees treated more favorably, and keep records showing your national origin or that the employer perceived you as having a particular national origin.

Step 2: Follow your employer's internal complaint procedures if one exists. Review your employee handbook for procedures to report discrimination or file a formal complaint. Report the discrimination to your Human Resources department, supervisor's manager, or compliance officer, depending on your company's structure. Request written confirmation of your complaint and the employer's response. Employers may argue that employees who bypass internal procedures waived their right to remedies, so following procedures protects your claim. Keep copies of all communications related to your internal complaint. If the discrimination involves your direct supervisor, report to a higher-level manager or Human Resources. This internal step does not waive your right to file an external charge.

Step 3: File a charge with either the Wisconsin Equal Rights Division or the EEOC within 300 days of the discriminatory act. The Wisconsin Equal Rights Division is located at 201 East Washington Avenue, Madison, WI 53703, and can be reached at (608) 266-6860 or visited online at dsps.wi.gov. The EEOC's Milwaukee District Office serves Wisconsin and is located at 310 West Wisconsin Avenue, Suite 500, Milwaukee, WI 53203, telephone (414) 297-1111, website eeoc.gov. You can file online with the EEOC at eeoc.gov/filing-charge. Provide your name, address, telephone number, employer name and address, date discrimination occurred, description of discriminatory conduct, and names of witnesses. Specify that your complaint involves national origin discrimination. File as soon as possible after the incident occurs to preserve evidence and witness memories. You may file with both agencies simultaneously, and they coordinate through worksharing agreements.

Step 4: The investigating agency will assign an investigator who will contact you and your employer. Expect the investigation to take 60 to 120 days, though complex cases may take longer. The investigator will request additional documentation from you and your employer, may conduct interviews with you and witnesses, and will review company policies and personnel records. You will have an opportunity to respond to the employer's position. Do not discuss the investigation with coworkers unnecessarily, as this could complicate the process. Cooperate fully with the investigator by providing responsive evidence and timely responses to requests. If you become aware of additional evidence during the investigation, provide it promptly. The investigator will issue a determination finding either reasonable cause to believe discrimination occurred or no reasonable cause.

Step 5: If the investigator finds reasonable cause, the agency will attempt to conciliate the complaint between you and your employer. If conciliation fails, you have the right to pursue litigation. Consult an employment discrimination attorney immediately if the agency finds reasonable cause, or if the agency finds no reasonable cause but you believe the determination was wrong. An employment discrimination attorney can evaluate the strength of your case, represent you in any settlement negotiations, file a lawsuit on your behalf in Wisconsin state court or federal court, and navigate discovery and litigation. Many employment attorneys work on contingency, meaning they take a percentage of any settlement or judgment rather than an upfront fee. Time is critical, as you may have additional deadlines for filing suit after the agency issues its determination.