Two employer questionnaires raise a larger due-process question for the Wisconsin Equal Rights Division

By Bradley J. Burt
Outpost 422® | Journalism eDiscovery™

Two Wisconsin employers presented me with medical questionnaires during purported disability-accommodation processes. Both forms sought information from my health-care providers. Both were later placed before the Wisconsin Department of Workforce Development’s Equal Rights Division. Yet two initial no-probable-cause determinations failed to meaningfully decide whether those inquiries were lawful, appropriately limited, or consistent with disability-discrimination law.

That omission raises a question extending beyond the merits of either employment dispute:

What process is constitutionally due when a state civil-rights agency acknowledges material evidence but fails to adjudicate the legal issue that evidence presents?

This article does not declare that constitutional liability has already been established. It documents the administrative problem, distinguishes an incomplete investigation from a completed constitutional violation, and explains why the issue must be preserved for review.

Two forms, two investigations

The first questionnaire was issued in connection with my employment at Marcus Palace Cinema. It asked my health-care provider to identify:

• whether I had a physical or mental impairment;
• the nature of that impairment;
• when the impairment or symptoms began;
• the limitations affecting my job performance;
• recommended restrictions; and
• proposed workplace adjustments.

The second questionnaire, issued by Frank Productions, LLC, went considerably further. It requested:

• identification of the impairment;
• a detailed description of the nature and severity of my symptoms;
• my proposed course of treatment;
• my prognosis;
• the anticipated duration of the condition;
• limitations affecting numerous activities outside the workplace; and
• an opinion about whether I presented a significant risk of substantial harm.

These were not requests for copies of my entire VA medical record. Nor does issuing an overbroad questionnaire automatically constitute a HIPAA breach. Employers ordinarily are not regulated by HIPAA when acting solely in their employment capacity.

The central employment-law question is different: Did the questionnaires exceed the medical information reasonably necessary to evaluate my ability to perform the essential job functions with an accommodation?

Under the Americans with Disabilities Act, an employer’s medical inquiry concerning a current employee must be job-related and consistent with business necessity. When documentation is necessary to evaluate an accommodation request, the inquiry should remain focused on the existence of a covered disability and the functional limitations requiring accommodation. It should not become an unrestricted examination of the employee’s diagnosis, treatment, prognosis, or private life. See the EEOC’s guidance on employee medical inquiries and reasonable accommodation.

The Marcus determination acknowledged the form—but did not decide its legality

In ERD Case No. CR202303238, Equal Rights Officer Ann K. Hanson Lininger acknowledged that Marcus requested disability information and provided a questionnaire for my physician.

The determination then concluded that I had not supplied adequate medical information or cooperated by submitting the requested documentation.

That reasoning bypassed the issue I presented.

Before treating resistance to a questionnaire as a failure to cooperate, the investigation should have examined whether the questionnaire was appropriately limited. An employee should not automatically be characterized as obstructing the interactive process merely because he objects to disclosing medical information he believes exceeds the employer’s legitimate need.

The determination effectively accepted the employer’s demand as lawful without separately analyzing its scope.

The Frank Productions determination omitted the questionnaire issue

In ERD Case No. CR202500211, Equal Rights Officer Matthew M. Meissner issued another no-probable-cause determination. That decision concentrated on Frank Productions’ account of a November 5, 2024, workplace incident and the company’s stated termination rationale.

The determination did not meaningfully analyze the medical questionnaire, including its demands for treatment information, symptom severity, prognosis, broad life-activity limitations, and a direct-threat assessment.

It also did not separately decide whether:

• the medical inquiry was job-related and appropriately limited;
• Frank Productions participated in the accommodation process in good faith;
• the requested information exceeded what was necessary;
• the accommodation record was relevant to motive or pretext; or
• the termination rationale should be evaluated against the entire chronology.

When a complaint presents multiple independently cognizable theories, resolving only the employer’s final disciplinary explanation does not answer the remaining allegations.

An incomplete investigation is not automatically a constitutional violation

The Fourteenth Amendment protects due process and equal protection. It does not guarantee that every investigator will reach the correct conclusion or discuss every document in an initial determination.

That distinction matters.

The United States Supreme Court has recognized that a state-created right to use a discrimination-adjudication process can constitute protected property. In Logan v. Zimmerman Brush Co., a claimant lost his discrimination case because the state agency failed to satisfy its own procedural deadline. The Court concluded that the State could not extinguish the claimant’s statutory cause of action without constitutionally sufficient process.

My cases have not yet reached that posture. I timely appealed the initial determinations, and the ERD process provides for administrative-law-judge hearings at which the evidence may be presented again.

Wisconsin will therefore argue that the investigators’ omissions did not deprive me of the adjudicatory process because an ALJ can independently consider the questionnaires and the overlooked legal theories.

That defense makes the next stage critical.

If the ALJs permit the evidence, address the distinct medical-inquiry claims, and issue reasoned decisions, the hearing process may correct the investigative omissions. If the system again refuses to adjudicate those preserved issues, the constitutional question becomes materially stronger.

Sovereign immunity requires precise defendants and relief

A federal civil-rights action cannot simply name the State of Wisconsin or the Equal Rights Division and demand damages under 42 U.S.C. § 1983. The Supreme Court has held that a state and its agencies are not “persons” subject to damages liability under § 1983. See Will v. Michigan Department of State Police.

A properly framed federal claim would need to identify:

• the responsible state official;
• the specific continuing violation of federal law;
• the protected interest being denied;
• why the administrative procedures are constitutionally inadequate; and
• the prospective declaratory or injunctive relief necessary to stop the violation.

Under Ex parte Young, a federal court may, in appropriate circumstances, order a state official to stop an ongoing violation of federal law. It generally may not award retrospective damages against the State or order state officials merely to administer Wisconsin law differently.

The record must now answer the unanswered question

The immediate objective is not to ask a federal court to substitute itself for an ERD investigator. It is to establish a complete administrative record.

The questionnaires should be presented as exhibits. Each challenged inquiry should be compared with the employee’s actual job functions and accommodation request. The ALJs should then be asked to decide expressly:

1. Whether each medical inquiry was job-related and consistent with business necessity.
2. Whether each employer limited its request to necessary functional information.
3. Whether resistance to an allegedly overbroad inquiry could lawfully be treated as noncooperation.
4. Whether the accommodation record bears on retaliation, motive, credibility, or pretext.
5. Whether the investigators failed to address distinct claims presented in the complaints.

The constitutional issue is not whether an investigator overlooked a page. It is whether Wisconsin provides a meaningful forum for deciding a properly presented civil-rights claim after the omission is identified and preserved.

That question remains open. The questionnaires are now part of the evidentiary architecture, and the next decisions will determine whether the administrative process corrects its omissions—or compounds them.

Editor’s note: The underlying employment proceedings remain pending. The employers deny unlawful discrimination, and no court has determined that either questionnaire or either ERD investigation violated federal or Wisconsin law. This article reports allegations, documents procedural issues, and presents legal analysis based on the existing record.