P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

FRANK A. HUMPHREY, Complainant

COMFORT INN, Respondent



ERD Case No. 9203044

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on September 30, 1993. Complainant filed a timely petition for review by the commission. Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:


The decision of the administrative law judge (copy attached) is modified as follows:

1. Paragraphs 11 and 12 of the administrative law judge's FINDINGS OF FACT are deleted.

2. Paragraphs 13 and 14 of the FINDINGS OF FACT are renumbered accordingly.

As modified, the decision of the administrative law judge is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed September 6, 1994

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner


This case involves the question of whether the Public Accommodations Act authorizes the department to award compensatory damages to a prevailing complainant. The commission concludes that the statute does not authorize the payment of such damages, for the reasons set forth herein.

The remedial provision of the Public Accommodations Act states:

"If, after the hearing, the examiner finds by a fair preponderance of the evidence that the respondent has violated [the Act], the examiner shall make written findings and order such action by the respondent as will effectuate the purpose of [the Act.]"

Section 101.22(10)(a)(4), Stats. (emphasis added).

Prior to September 1, 1992, the above-cited provision was applicable to both the Public Accommodations Act and the Open Housing Act. See Section 101.22(4)(d), 1989-1990 Stats. In Davis v. Piechowski (LIRC, October 24, 1986), a case involving the Open Housing Act, the commission decided that this language allowed the department to award attorney's fees and "out-of-pocket" expenses to prevailing complainants. "Out-of-pocket" expenses are those amounts actually spent by an injured party as a necessary consequence of the prohibited discrimination and are in the nature of mitigation. In Davis, however, the commission specifically distinguished "out-of-pocket" expenses from compensatory damages, those damages which represent monetary compensation for a non-monetary loss, such as emotional pain and suffering or loss of enjoyment of life, and indicated that it did not reach the question of whether a prevailing complainant could seek reimbursement for such damages.

Subsequently, in Metropolitan Milwaukee Fair Housing Council v. Lawrence Goetsch (LIRC, December 6, 1991), also involving the Open Housing Act, the commission concluded that damages were not available to a prevailing complainant based upon the specific facts of that case and because it believed that a construction of the Open Housing Act as allowing for the payment of damages would raise significant constitutional questions. The commission reasoned that the constitutional guarantee of the right to a trial by jury in civil matters requires a jury trial in cases in which damages are to be awarded. In contrast, because there was no common law right to a jury trial in equity, an administrative tribunal may be empowered to award equitable remedies. The commission found, however, that "an essentially equitable tribunal cannot presume to award an essentially legal remedy such as damages, except where it is merely "incidental" to the awarding of equitable relief." Goetsch, at 11, citing Zahorian v. Russell Fitt Real Estate, 62 N.J. 399, 413, 301 A.2d 754 (1973).

As stated above, the Open Housing Act underwent an amendment which took effect on September 1, 1992. See 1991 Wis. Act. 295, Sec. 43. The Open Housing Act now contains an entirely new remedial provision which expressly provides for economic and non-economic damages for prevailing complainants, in addition to equitable relief. Section 101.22(6)(h), 1991-1992 Stats. However, while the Public Accommodations Act was also amended in 1992, the remedial portion of the Public Accommodations Act was substantially unchanged. As a matter of statutory interpretation, the fact that the legislature deemed it necessary to specifically state that non-economic damages may now be awarded in housing cases implies that prior to the amendments the remedial provision of the statute, which was identical to the remedial provision of the Public Accommodations Act, did not permit the department to award such damages. Further, the fact that the Open Housing Act expressly provides for non-economic damages while the Public Accommodations Act is silent on the matter suggests that the legislature knew how to provide for damages but chose not to do so in cases involving public accommodations.

It is also noteworthy that the Open Housing Act, as amended, contains procedural safeguards which avoid the constitutional issues with which the commission was concerned in Goetsch. After a charge is filed under the amended Open Housing Act either party may elect to have the claims asserted in that charge decided in a civil action in lieu of an administrative hearing. Section 101.22(6)(c), Stats. Therefore, the parties are guaranteed a right to trial by jury and may obtain such a trial without having to first undergo an administrative hearing. The Public Accommodations Act, however, contains no such election provision and the constitutional implications associated with allowing the department to award damages remain.

In the petition for commission review the complainant makes the argument that victims of discrimination will not be willing to commence legal action against discriminators if they cannot hope to recover damages and that, without the authority to award damages, the Public Accommodations Act has no "teeth." These arguments, however, are better addressed to the legislature than to the commission, which has no authority to deviate from the statute as it is written. As set forth above, the commission believes that the legislature did not intend to allow the department to award damages to prevailing complainants in cases involving public accommodations and that, further, a contrary interpretation of the statute would raise significant constitutional questions. (1)  For these reasons, the commission concludes that the claimant may not be awarded the compensatory damages he seeks.

The commission notes that the administrative law judge's decision in this matter included findings of fact which addressed the dollar amount of damages sustained by the complainant. However, because the commission has concluded that the complainant is not entitled to compensatory damages as a matter of law, it is unnecessary to render findings with respect to the amount of the complainant's damages. The commission has, therefore, deleted those findings from the decision.

NOTE: The commission has limited its review in this matter to the question of whether the complainant is entitled to compensatory damages, and has addressed only those findings of fact and conclusions of law made by the administrative law judge which pertain to that issue. Although the filing of a petition for review by either party vests the commission with jurisdiction to review the entire decision, the commission will generally not exercise jurisdiction over issues that are neither expressly nor implicitly raised in a petition for review. Dude v. Thompson (LIRC, November 16, 1990). Because the sole issue raised in the petition is the availability of compensatory damages, the commission has neither considered nor addressed the administrative law judge's finding of discrimination based upon race, nor has it evaluated the various components of the administrative law judge's remedial order.

Jeff Scott Olson
Jill Sweet

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(1)( Back ) The complainant's attorney argues that because an administrative agency has no authority to rule on the constitutionality of the statutes it is empowered to enforce, the commission should not concern itself with this issue. However, it is not inappropriate for an administrative agency to avoid construing a statute in a manner likely to raise constitutional questions.