What Can You Do About Disability Harassment in Wisconsin?

Understanding Disability Harassment in Wisconsin Workplaces

Workplace harassment is a pervasive issue, and when it targets an individual based on a disability, it creates an especially hostile and discriminatory environment. In Wisconsin, both state and federal laws stand firmly against such actions, offering protections and remedies for affected employees. This article provides essential information for employees and employers navigating disability harassment in the Badger State, offering actionable advice and explaining your legal rights.

What Constitutes Disability Harassment?

Disability harassment is a form of discrimination that involves unwelcome conduct based on an individual's disability. This conduct becomes unlawful when enduring it is a condition of continued employment, or when the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. It's crucial to understand that harassment doesn't have to be physical; it can be verbal, written, or even visual.

• 🗣️ Verbal Abuse: Derogatory remarks, slurs, jokes, or epithets related to a person's disability. This can include mocking someone's speech pattern, physical movements, or cognitive abilities.
• 📝 Written Harassment: Offensive emails, notes, graffiti, or social media posts that target an individual's disability.
• 🖼️ Visual Harassment: Displaying offensive pictures, cartoons, or gestures that demean people with disabilities.
• 🚶‍♀️ Physical Harassment: Unwelcome physical contact, threats, or actions that interfere with a person's ability to perform their job due to their disability. This could include intentionally blocking access ramps or sabotaging assistive devices.
• 🚫 Interference with Accommodations: Sabotaging or ridiculing reasonable accommodations provided for a disability, making it difficult or impossible for the employee to perform their job.
• 💬 Spreading Rumors: Malicious gossip or rumors about an employee's disability, especially if it leads to ridicule or isolation.

It's important to remember that the harassment can come from supervisors, co-workers, clients, or even customers. An employer can be held liable if they knew or should have known about the harassment and failed to take prompt and appropriate corrective action.

Your Rights Under Wisconsin Law

Wisconsin provides robust protections against disability harassment through the Wisconsin Fair Employment Act (WFEA) and federal law via the Americans with Disabilities Act (ADA). Understanding both is key.

The Wisconsin Fair Employment Act (WFEA)

The WFEA is broader than many federal anti-discrimination laws, offering protection to employees of virtually all private and public employers in Wisconsin, regardless of employer size. It prohibits discrimination and harassment based on disability, among other protected characteristics.

• ⚖️ Broad Coverage: The WFEA covers employers with as few as one employee, offering protection to a wider range of workers than the ADA.
• 📋 Definition of Disability: WFEA defines "disability" broadly to include a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.
• 🏛️ Enforcement: Complaints under the WFEA are filed with the Wisconsin Department of Workforce Development (DWD), Equal Rights Division (ERD).

The Americans with Disabilities Act (ADA)

The ADA is a federal law that prohibits discrimination against individuals with disabilities in employment. It applies to private employers with 15 or more employees, state and local governments, employment agencies, and labor unions.

• 👨‍⚖️ Federal Oversight: The U.S. Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA.
• 🌐 Interplay with State Law: If your employer has 15 or more employees, you are covered by both the WFEA and the ADA. Wisconsin's ERD has a work-sharing agreement with the EEOC, meaning a complaint filed with one agency is often considered filed with both, preventing you from missing crucial deadlines.

Hypothetical Cases: Real-World Scenarios in Wisconsin

To illustrate what disability harassment might look like, consider these typical scenarios:

Case 1: Persistent Mockery and Exclusion

Sarah, an accountant in Milwaukee, uses a wheelchair due to a mobility impairment. Her co-workers frequently make condescending remarks about her "slow pace" when she navigates the office and intentionally move boxes or furniture into her path, forcing her to ask for help or take longer routes. During team lunches, they often choose restaurants that are not wheelchair accessible, effectively excluding her from social bonding. Despite her complaints to her immediate supervisor, the behavior continues. The supervisor dismisses it as "just office banter" and suggests Sarah needs to "lighten up." This situation clearly creates a hostile work environment based on Sarah's disability, and the employer's failure to act makes them liable.

Case 2: Sabotage of Reasonable Accommodations

Mark, a data analyst in Madison, has ADHD and requested a quiet workspace and noise-canceling headphones as a reasonable accommodation. His employer initially approved these accommodations. However, a senior colleague, annoyed by Mark's "special treatment," repeatedly plays loud music near Mark's cubicle, takes his headphones when he's away from his desk, and makes sarcastic comments about Mark needing "kid gloves" to do his job. Mark reports this to HR, but the colleague only receives a verbal warning, and the harassment persists. Mark finds it increasingly difficult to concentrate and perform his duties. Here, the harassment not only creates a hostile environment but also directly interferes with a legally mandated reasonable accommodation, strengthening Mark's claim.

Case 3: Unwanted Scrutiny and Speculation about a Hidden Disability

Elena, a project manager in Green Bay, has Crohn's disease, an invisible disability that sometimes requires her to take frequent, short breaks. Her manager begins to question her about her breaks, subtly suggesting she's "not dedicated" or "frequently unwell." Co-workers start whispering, and some openly ask her if she's "okay" in a patronizing tone, or if she needs to "go home for the day" after a brief restroom visit. Elena feels constantly under scrutiny and finds her colleagues avoiding her, assuming she's contagious or unreliable. Even though her disability isn't visible, the unwanted attention, speculation, and negative assumptions based on her health condition constitute harassment, especially if it creates an intimidating or demeaning environment.

Steps to Take if You Experience Disability Harassment

If you are experiencing disability harassment in a Wisconsin workplace, taking swift and strategic action is crucial to protect your rights and build a strong case.

1. ✍️ Document Everything:
   • 🗓️ Keep a Detailed Log: Note the dates, times, and specific details of each incident. Include who was involved (harasser, witnesses), what was said or done, and your immediate reaction.
   • 📧 Save Evidence: Keep copies of any relevant emails, texts, notes, or other communications. If harassment occurs via internal messaging systems, take screenshots.
   • 📝 Record Witnesses: If there were witnesses, note their names and contact information, if possible.
2. 🗣️ Report Internally (If Safe and Effective):
   • 🏢 Follow Company Policy: Most companies have a harassment policy outlined in their employee handbook. Follow the prescribed procedure, typically involving reporting to your supervisor, HR department, or a designated manager.
   • ✉️ Report in Writing: Always submit your complaint in writing (email is often best) so you have a record of your report. Clearly state that you believe you are being subjected to harassment based on your disability.
   • 📋 Keep Copies: Retain copies of your written complaint and any responses you receive.

   Note: If your supervisor is the harasser, or if you believe reporting internally would be futile or lead to retaliation, you may consider skipping this step and proceeding directly to external reporting, though documenting your decision and reasons is still advisable.

3. 📞 Seek Legal Counsel Promptly:
   • 🧑‍⚖️ Consult an Attorney: An experienced Wisconsin employment law attorney can assess your situation, explain your rights, and guide you through the complex legal process. They can help you understand the strength of your case and the best course of action.
   • 🛡️ Understand Your Options: An attorney can advise you on whether to pursue a complaint with the ERD, the EEOC, or potentially both.
4. 🚨 Understand and Prepare for Potential Retaliation:
   • 🛑 Retaliation is Illegal: Both the WFEA and ADA prohibit employers from retaliating against an employee for complaining about discrimination or harassment. Retaliation includes adverse actions like demotion, termination, reduced hours, or creating a more hostile environment.
   • documenting any suspected retaliatory actions immediately.

Potential Remedies and Compensation

If your claim of disability harassment is successful, various remedies may be available to you. These are designed to make you "whole" again, as if the harassment had never occurred, and to deter future discriminatory conduct.

• 💰 Back Pay: Compensation for wages and benefits lost due to the harassment, such as if you were constructively discharged or terminated.
• 📈 Front Pay: Compensation for future lost wages if reinstatement is not feasible or appropriate.
• 🤕 Emotional Distress Damages: Compensation for pain, suffering, and mental anguish caused by the harassment. This is available under both WFEA and ADA.
• 🛠️ Reinstatement: Getting your job back if you were terminated due to the harassment.
• ⚖️ Attorney Fees and Costs: If you prevail, the employer may be ordered to pay your legal fees and litigation costs.
• punitive damages are available in ADA cases (federal) where the employer acted with malice or reckless indifference to your federally protected rights. These are capped based on employer size. The WFEA (state law) does not have statutory caps on damages, allowing for potentially broader recovery for emotional distress and other losses.
• 🔄 Policy Changes: The employer may be ordered to implement anti-harassment training and policies to prevent future incidents.

The specific amount of compensation in any case varies significantly based on the severity and duration of the harassment, the evidence available, the impact on your life, and the specific jurisdiction (state vs. federal).

Common Mistakes to Avoid

Navigating a harassment claim can be challenging. Avoiding these common pitfalls can strengthen your position:

• procrastinating in reporting the harassment or consulting an attorney. Deadlines are strict.
• 🗑️ Failing to Document: Relying solely on memory makes it harder to prove your case. Document everything.
• 🚪 Quitting Prematurely: While harassment can be unbearable, resigning without consulting an attorney first can weaken your claim for lost wages. If the environment is truly intolerable, it might be considered a "constructive discharge," but this is a high legal bar.
• 🤐 Not Seeking Legal Advice: Employment law is complex. An attorney can provide invaluable guidance and representation.
• 📉 Ignoring Internal Policies: While not always required, failing to follow your employer's internal reporting procedures can sometimes be used against you, unless there's a valid reason for bypassing them.

Key Deadlines to Remember

Timeliness is critical in harassment claims. Missing a deadline can result in losing your right to pursue a claim.

• ⏳ Wisconsin ERD (WFEA): You generally have 300 days from the date of the last act of harassment to file a complaint with the Wisconsin Department of Workforce Development, Equal Rights Division.
• 📅 EEOC (ADA): You also generally have 300 days from the date of the last act of harassment to file a charge with the U.S. Equal Employment Opportunity Commission. As mentioned, due to the work-sharing agreement, filing with one agency typically cross-files with the other.

These deadlines are strict, so do not delay if you believe you have a claim. An attorney can help you determine the exact deadline applicable to your specific situation.

Conclusion

No one should have to endure harassment based on a disability in the workplace. Wisconsin law, alongside federal protections, provides a framework for employees to challenge such discriminatory behavior and seek justice. If you are experiencing disability harassment, remember that you have rights and resources. Documenting incidents, reporting appropriately, and seeking experienced legal counsel are crucial steps toward protecting yourself and ensuring a fair and respectful work environment.

Disclaimer: This article provides general information and is not intended as legal advice. The law is complex and constantly evolving, and the facts of your specific situation are unique. Therefore, you should consult with a qualified attorney licensed in Wisconsin for advice tailored to your individual circumstances. No attorney-client relationship is formed by reading this article.