Sexual Orientation Discrimination Laws in Wisconsin

Federal law prohibiting sexual orientation discrimination in employment is relatively recent. In Bostock v. Clayton County, 590 U.S. ___ (2020), the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e et seq., prohibits discrimination based on sexual orientation because such discrimination necessarily depends on considering an employee's sex. The decision applies to all employers covered by Title VII, meaning those with 15 or more employees.

However, before Bostock, sexual orientation was not explicitly protected under Title VII or other major federal employment statutes. The federal statute does not explicitly mention sexual orientation as a protected class. While Bostock effectively provides nationwide protection, the interpretation is sex-based rather than a standalone sexual orientation protection. The EEOC enforces federal sexual orientation protections. Federal remedies include back pay, front pay, compensatory damages for emotional distress, punitive damages (in cases of intentional discrimination by private employers), and attorney's fees.

The federal framework applies to employers with 15 or more employees. Small employers with fewer than 15 employees are not covered by Title VII.

Wisconsin has provided explicit, standalone protection against sexual orientation discrimination longer than the federal government. Wisconsin Statute section 111.36(1) prohibits employers from discriminating against any employee or applicant for employment based on sexual orientation, gender identity, or gender expression in hiring, promotion, compensation, job training, or any other term, condition, or privilege of employment.

Wisconsin's law is significantly broader than federal law in several ways. First, Wisconsin protects sexual orientation as a standalone category, not merely as a proxy for sex discrimination. Second, Wisconsin's law covers employers with just one employee, whereas Title VII requires 15 or more employees. This means small Wisconsin employers are fully subject to Wisconsin's sexual orientation protections but may fall outside federal Title VII coverage. Third, Wisconsin explicitly protects not only sexual orientation but also gender identity and gender expression, categories that are not explicitly protected under federal law.

The Wisconsin Department of Safety and Professional Services, Division of Equal Rights, administers and enforces the law. Wisconsin employers cannot discriminate in any aspect of employment, including recruiting, hiring, training, compensation, advancement, discipline, and termination. The law applies equally to all sexual orientations and covers both opposite-sex and same-sex conduct. Wisconsin also prohibits retaliation against employees who complain about sexual orientation discrimination or participate in an investigation.

Remedies under Wisconsin law include back pay with interest, front pay, reinstatement or promotion as appropriate, compensatory damages for emotional distress and other harms, and attorney's fees and costs. In some cases, the state may pursue damages on behalf of the aggrieved employee.

Sexual orientation discrimination protections in Wisconsin are broad, but several exceptions and limitations apply. Religious organizations and their affiliates may have limited exemptions under Wisconsin law, although Wisconsin courts have not extensively litigated the scope of such exemptions. The law does not apply to independent contractors or other non-employee relationships; only persons employed directly by the employer are protected.

At-will employment remains the default in Wisconsin, meaning employers can generally terminate employees for any reason that is not illegal. However, employers cannot terminate an employee based on sexual orientation. The protection is absolute; there is no business necessity or customer preference exception. An employer cannot claim that customers, clients, or coworkers object to the employee's sexual orientation as a defence to discrimination.

The complaint process itself contains procedural exceptions. The 300-day filing deadline is a hard deadline; complaints filed after that period are typically barred regardless of merit, unless the acts are continuing or recurring. An employee who fails to file within 300 days generally forfeits the right to pursue a state discrimination claim, although an independent federal claim under Bostock might still be timely under the longer 180-day or 300-day federal deadline depending on whether Wisconsin is a "deferral state" (it is, for EEOC purposes).

Employers are not liable for sexual orientation discrimination by non-supervisory coworkers unless the employer knew or should have known of the conduct and failed to take prompt corrective action. However, supervisors and managers are agents of the employer, and their discriminatory acts are imputed to the employer directly. The at-will employment rule also permits termination of employees engaged in sexual harassment of coworkers based on sexual orientation, although such conduct is itself illegal discrimination.

Step 1 — Document Everything: Keep detailed records of all discriminatory conduct. Write down dates, times, locations, what was said or done, who was present, and any witnesses. Save all relevant emails, text messages, performance reviews, and communications that evidence discrimination. Document your own job performance, accomplishments, and any commendations. Keep records of similarly situated coworkers of different sexual orientations and how they were treated differently. If you are terminated, request your personnel file and all employment records from the employer.

Step 2 — Internal Complaint Process: Most employers have an anti-discrimination policy and internal complaint procedure. Report the discrimination to human resources, your supervisor's supervisor, or the designated equal employment officer, following the employer's written procedures. Keep a copy of any complaint you submit and request written confirmation that it was received. Document the date and person to whom you reported. The internal complaint process is not required by law, but pursuing it demonstrates good faith and sometimes leads to resolution. However, an internal complaint does not stop the 300-day clock for filing an external complaint with the state agency.

Step 3 — File with the Wisconsin Department of Safety and Professional Services: File a complaint with the Division of Equal Rights (formerly the Equal Rights Division). The agency address is: Wisconsin Department of Safety and Professional Services, Division of Equal Rights, 2135 Rimrock Road, Suite 300, Madison, WI 53713. You can file online at dsps.wi.gov/erd, by mail, or by phone at 608-266-6860. You have 300 days from the discriminatory act to file. The complaint form requires your name, address, phone, the employer's name and address, a description of the discrimination, dates it occurred, and names of witnesses. You do not need an attorney to file, and there is no filing fee.

Step 4 — Investigation and Conciliation: Once the Division receives your complaint, it will send a copy to the employer and schedule an intake interview with you (by phone or in person). The investigator will ask detailed questions about the discrimination, your job duties, and the employer's response. The employer must provide a written response within a set timeframe. The investigator will interview witnesses, review documents, and compare your treatment to similarly situated coworkers. If the evidence supports your complaint, the Division will find "probable cause" that discrimination occurred. At any point, the Division may attempt conciliation (settlement negotiations). This process typically takes 60 to 120 days, though it can be longer for complex cases.

Step 5 — When to Consult an Attorney: Consult an employment attorney as soon as possible, ideally before or immediately after filing your complaint with the state agency. An attorney can help you document evidence, respond to the employer's questions strategically, and understand your rights. If the Division issues a probable cause determination, you have a right to a hearing before an administrative law judge; an attorney is highly valuable at this stage. If you proceed to a hearing or civil litigation, you will need an attorney. Many employment attorneys work on contingency, meaning they take a percentage of the award or settlement rather than charging upfront fees. If you win, the employer must pay your attorney's fees, so contingency arrangements are often available. Contact the Wisconsin State Bar Lawyer Referral Service at 800-362-9082 for referrals to employment discrimination attorneys.