DIANNE KHAN, Complainant

VALUE VILLAGE, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modification:

Add a fifth conclusion of law, stating:

There is no probable cause to believe that Value Village violated the Wisconsin Public Accommodations and Amusements Law by giving preferential treatment to some classes of persons in providing services or facilities in any public place of accommodation or amusement because of race or sex.

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed December 4, 2014
khandia_rsd . doc : 107 : 5  221, 222

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The complainant, a black female, alleges that the respondent, a retail store, gave preferential treatment because of race and/or sex by offering a white male a discount price for an item he wanted, while refusing to offer her a discount price for an item that she wanted. The facts are as follows: The store was offering a half-price sale on clothing. A white male wanted to purchase an antique doll, an item that was not part of the half-price sale. The doll was priced at $10. The customer asked the clerk if he could buy it for $7, which was all the money he had with him. The doll appeared to be damaged. The clerk did not offer a discount, but offered to hold the doll for an hour to allow the customer to get the balance and make the purchase. The customer asked to speak to a manager. The manager, named Tony, was a white male. Tony and the customer talked, and the customer bought the doll for $7, tax included. Shortly afterwards, the complainant asked the clerk if she could purchase a dress, which was already on sale for $15, half-off its regular price, without having to pay tax, because she only had $15 with her. The dress was not damaged. The clerk suggested to the complainant that she talk to Tony, and she did so. Tony offered to hold the dress for an hour to allow the complainant to get the balance and make the purchase, but he refused to reduce the price below $15, noting that it was already discounted by 50%. The complainant left and got the money she needed, returned to the store, and bought the dress.

The allegation was analyzed by the Equal Rights Division under a provision of the Wisconsin Public Accommodations and Amusements Law, Wis. Stat. § 106.52 (WPAAL) stating that no person may:

Deny to another or charge another a higher price than the regular rate for the full and equal enjoyment of any public place of accommodation or amusement because of sex, race, color, creed, disability, sexual orientation, national origin or ancestry.

Wis. Stat. § 106.52(3)(a)1. This provision of the WPAAL does not fit well with the complainant's allegations. With respect to her purchase of the dress, the complainant has not alleged that she was charged higher than the "regular rate", which was either the dress's regular price of $30 or the rate for that day, which was $15. A better fit with the allegations would be Wis. Stat. § 106.52(3)(a)2, which states that no person may:

Give preferential treatment to some classes of persons in providing services or facilities in any public place of accommodations or amusement because of sex, race, color, creed, sexual orientation, national origin or ancestry.

Applying this provision to the complaint, the service allegedly provided in a preferential manner would be the offering of a discount to the white male, and the refusal to offer a discount to the complainant. Even though the Equal Rights Division did not cite this provision of the WPAAL, the findings and conclusions in both the Initial Determination and the ALJ's decision make it clear that the Division appropriately judged the merits of the complaint according to whether the complainant was able to show preferential treatment given to a customer because of race or sex, consistent with the wording of Wis. Stat. § 106.52(3)(a)2.

The commission agrees with the ALJ that the complainant did not show probable cause to believe the respondent gave preferential treatment based on race or sex. There was no direct evidence that the respondent held any animosity against the complainant because of race or sex. In other words, there was no evidence of an admission by the respondent that its treatment of the complainant had anything to do with her sex or race. The circumstantial evidence offered by the complainant, which consisted of a comparison of the two interactions with Tony, hers and the white male customer's, fails to show probable cause to believe that sex or race was a motivating factor. Tony gave the complainant a non-discriminatory reason for refusing to give her a discount-the item she wanted was already 50% off. There was no margin to negotiate further. On the other hand, the item the white male customer bought was not on sale, and was damaged, leaving room to negotiate on price. The difference in treatment is thus satisfactorily explained as a matter of economics, and reduces the idea of a racial or sexual motivation to nothing more than speculation. A speculative belief that a discriminatory motive existed is not sufficient to meet the standard of probable cause, which requires reasonable grounds for belief by a prudent person. Wis. Admin. Code § DWD 221.02; Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992).

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