STACIE NELDAUGHTER, Complainant
DICKEYVILLE ATHLETIC CLUB, Respondent A
DENNIS CASPER, Respondent B
SHARON KAISER, Respondent C
STACIE NELDAUGHTER, Complainant
VIEW CHEESE, Respondent A,
DELORES JENNY, Respondent B,
JOYCE LOEFFELHOLZ, Respondent C
An Administrative Law Judge (ALJ) of the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matters on November 30, 1990. Complainant filed a petition for Commission review of the Administrative Law Judge's decision on December 18, 1990.
For the reasons set forth in the attached Memorandum Opinion, the commission has concluded that the allegations in ERD Case #8901183 would not, if true, establish a violation of the Public Accommodations Act, but that the allegations in ERD Case #8900539, if true, might establish a violation of the Public Accommodations Act and therefore warrant hearing. For these reasons, the Commission makes the following:
1. The decision of the Administrative Law Judge dismissing the complaint in ERD Case #8901183 is affirmed, and the complaint is dismissed.
2. The decision of the Administrative Law Judge dismissing the complaint in ERD Case #8900539 is set aside, and the complaint is remanded to the Equal Rights Division for further proceedings.
Dated and mailed July 31, 1991
/s/ Kevin C. Potter, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ Richard T. Kreul, Commissioner
These complaints are before the Commission on petition for review from an order of dismissal issued by the Administrative Law Judge, without any factfinding hearing, based on his evident conclusion that even if the allegations of the complaints were true they would not establish violations of the Wisconsin Public Accommodations Act.
Even though no hearing has been held, and there is thus no hearing record on the basis of which the Commission could make formal findings of fact, it is satisfied based upon its review of the files in these matters that there is a central core of undisputed fact which may be looked to for the purpose of establishing a background context in which the issues presented by these complaints can be properly appreciated.
For some years prior to 1988, Complainant Stacie Neldaughter was a member of an amateur women's softball team that played in amateur league competition in southwest Wisconsin. This team was sponsored by a local cheese company. The coach of the team was Respondent Joyce Loeffelholz. In 1988, the team acquired a different sponsor, Respondent Mound View Cheese. Respondent Delores Jenny is the proprietor of Mound View Cheese. Loeffelholz continued as the coach of the team. In 1988, and again in 1989, Neldaughter sought to be a member of the Mound View Cheese softball team, but was not made a member. In ERD Case #8901183, Neldaughter, who is a lesbian, alleged that Mound View Cheese, Jenny, and Loeffelholz refused to allow her to be on the Mound View Cheese softball team in 1989 because of her sexual orientation. (1)
Neldaughter formed her own women's amateur softball team in 1988 and 1989, and that team played in amateur league competition in southwest Wisconsin. One of the leagues in which it played was organized by Respondent Dickeyville Athletic Club, which is a non-stock, non-profit Wisconsin corporation. Respondents Dennis Casper and Sharon Kaiser are officers of Dickeyville Athletic Club. Dickeyville Athletic Club also had some connection to a softball field in Dickeyville at which amateur teams competing in its league competition would play. In ERD Case #8900539, Neldaughter alleges that Respondents Dickeyville Athletic Club, Casper and Kaiser discriminated against her (and her team) because of sexual orientation by (1) allowing spectators and players at games conducted at the field in Dickeyville to engage in harassment of Neldaughter (and others on her team) because of sexual orientation, and (2) denied Neldaughter and her team the opportunity to participate in a league tournament.
Because the two complaints present significantly different issues, they are discussed separately below.
ERD #8901183 -- The material allegations of Neldaughter's complaint, which should be taken as true for purposes of evaluating the complaint's legal sufficiency, are:
"(What did the Respondent do that you believe was discriminatory?) Denied me access to the continuation of being a member of the softball team Mound View Cheese sponsors under their business . . . I was discriminated against because of my sexual orientation when I was not invited back to play for Mound View Cheese's softball team (this year of 1989). I had played on this team for three years previously and it was only when I became open about my lesbianism that I was not asked back last year and I feel this was the same rationale for not being invited on the team this year. I called the owner on May 14, 1989 and requested to be a team member. Delores Jenny said: ' I have to talk to someone. ' I called again on May 16, was told to call the coach, Joyce Loeffelholz, who said I could not play because 'they had all their players.' I asked Ms. Loeffelholz why I was not invited back this year and she said, 'No comment."'
The amended complaint which added Joyce Loeffelholz as a respondent also alleges that Loeffelholz "made the decision as coach of the softball team that I played on for three years to terminate me from the team in 1988 and again, in 1989."
In evaluating the legal sufficiency of these allegations, the Commission measures them against the provisions of the Public Accommodation Law as it existed at the time of the alleged violations. Although the Law was amended effective September 12, 1989, and although the purely procedural and remedial aspects of that amendment could appropriately be given retroactive effect as to complaints pending before the Equal Rights Division at that time, for purposes of determining whether a violation would have existed in connection with certain acts, it is necessary to look at the substantive law as it existed at the time of those acts. Prior to September 12, 1989, the Public Accommodations Law was found in sec. 942.04, Stats. 1987. It provided that it was a Class A misdemeanor for anyone to deny to another, charge another a higher price than the regular rate for, give preferential treatment to some classes of persons in providing services or facilities in, or make any written communication to the effect that there will be a denial of any of the facilities of, "any public place of accommodation or amusement." That phrase was defined as follows:
"'Public place of accommodation or amusement' shall be interpreted broadly to include, but not be limited to, places of business or recreation, hotels, motels, resorts, restaurants, taverns, barber shops, nursing homes, clinics, hospitals, cemeteries, and any place where accommodations, amusement, goods or services are available either free or for a consideration except where provided by bona fide private, non-profit organizations or institutions."
The question presented by this case, stated most simply, is whether the denial of the right to be on an amateur softball team is a denial of the full and equal enjoyment of, or the giving of preferential treatment to some classes of persons in providing services or facilities in, any public place of accommodation or amusement, as defined in the statute.
Despite the fact that this law has been on the books in some form for almost a century, it has been only rarely interpreted. Only a handful of reported decisions have dealt with the Public Accommodations Law, and only two have contributed anything on the question of how "public place of accommodation or amusement" is to be interpreted.
Jones v. Broadway Roller Rink Company, 136 Wis. 595 (1908), arose out of the refusal of the proprietor of a roller skating rink in Superior to admit a black person. In holding that the roller skating rink was a public place of accommodation or amusement subject to the law, the supreme court laid down a number of principles for the interpretation of the law which are presumably still valid. The court stated:
"A public roller skating rink is undoubtedly a public place of amusement. This, however, probably would not suffice to bring it within the statute if it were entirely different in character from the places of accommodation or amusement specifically named therein, for by reason of the context the rule noscitur a sociis applies, and the other places of accommodation and amusement intended by the statute are only such as bear some resemblance to those specifically named." 136 Wis. at 597.
The rule, noscitur a sociis, frequently expressed in English as "a word is known by the company it keeps," is similar to the rule of ejusdem generis, which is to the effect that where a general term is preceded or followed by a series of specific terms, the general term is viewed as being limited to an item of the same type or nature as those specifically enumerated. Thus, in determining whether something is a public place of accommodation or amusement, Jones teaches that it is necessary to consider whether the thing is like the other things listed in the statute.
Another significant teaching of the Jones case can be extracted from the following language in the decision:
"We find ourselves unable, however, to conceive any class of places of public accommodation or amusement which would not include a roller skating rink to which the public were generally invited upon no condition but the payment of a fixed charge; public in as broad a sense as is the common carrier or the innkeeper, the exclusion from which of an individual or a class must infer discrimination and denial or privileges which all other persons enjoy by virtue merely of their membership in the public or general community. Public accommodation or amusement is the test prescribed by our statute. The amusement offered by the usual skating rink is to the public as such and generally." 136 Wis. at 598.
The "generally invited upon no condition but the payment of a fixed charge" language is quite significant to the question of interpreting the phrase "public place of accommodation or amusement." It accurately reflects a characteristic shared by all of the types of places listed in the statute, which is that in the normal case (i.e., in the absence of invidious, class-based discrimination), there is no selectivity whatsoever on the part of the proprietor in the admission of the members of the public, apart from a requirement that they be able to pay.
In Hatheway, et al v Gannett Satellite Information Network, et al., 157 Wis. 2d 395, 459 N.W.2d 873 (Ct. App. 1990), the court dealt with the refusal of the Green Bay Press Gazette to print in its classified ad section a number of advertisements from a gay and lesbian organization. The question was whether denial of access to a newspaper's classified ad section was denial of a public place of accommodation or amusement. The court followed the analysis suggested in Jones, holding that "to be a place of public accommodation under the Public Accommodation Act, the business must be comparable to or consistent with the businesses enumerated in the statute itself." 157 Wis. 2d at 401. It concluded that newspapers do not offer the public "accommodations" in the sense that this term is normally understood, that they do not supply "necessities and/or comforts" of the kind offered by the list of businesses, and that newspapers are in fact "totally dissimilar in nature" from the businesses listed in the Public Accommodation Act. The court further noted the fact that the Legislature had twice, in 1961 and 1963, refused to amend the Act in a fashion that would have defined a public place of accommodation and amusement broadly as "any accommodation, service, advantage, facility or privilege whatsoever available to or used by the public either free or for a consideration," and that on the contrary it had twice more recently amended the Act to "fine tune" the definition by changing in rather narrow and specific ways the descriptions of the types of business listed (replacing "barbershops" with "barber or cosmetologist, aesthetician, electrologist or manicuring establishments" and replacing "hotels, motels and resorts" with the term "lodging establishments" with a definition being added for that term).
With Jones and Hatheway in mind, the Commission turns now to the question of whether the denial of an opportunity to be on an amateur softball team is a denial or a limitation of a public place of accommodation or amusement. It concludes that it is not.
First, the right to be on an amateur softball team is simply not a "place." The obviousness of this should not be taken as detracting from its significance. Undeniably, the statute relates specifically, and repeatedly, to "places," or physical locations where goods and services are provided. The right to be on a softball team is not a "place." The broadening amendments considered and rejected by the Legislature in 1961 and 1963 would have prohibited discrimination in "any accommodation, service, advantage, facility or privilege whatsoever," and thus would arguably have extended the scope of the law to inchoate "rights" such as the right to be on a team, but the Legislature's rejection of these broadening amendments suggests that interpreting the statute as it now stands to cover denial of such inchoate "rights" would be unwarranted. Because the "right" to be on an amateur softball team is unlike the other things listed in the statute in that it does not relate to a particular place, application of Jones and Hatheway would suggest that it is not a "public place of accommodation or amusement."
Second, apart from the matter of "place," the right to be on a softball team is dissimilar from the other things mentioned in the statute because it relates to something which is in the normal course not offered to members of the public at large subject only to ability to pay, but is rather offered with great selectivity. When persons join together to form a league team, they make decisions on who will be on the team with them. Entirely apart from the fact of team size limits, other limits are also imposed. The persons forming a team will make decisions as to who they choose to be on the team on the basis of purely personal associational factors such as friendship and acquaintance, and they will also make decisions on who to allow on the team based on judgments of the person's athletic skill. In contrast to the types of businesses listed in the Public Accommodations Law, for whom all that generally matters with respect to a potential customer is whether the customer's money is legal tender, a league softball team will be concerned with exactly who is going to be on the team. The language of Jones is particularly significant here. The court's decision can be taken as establishing that it is a characteristic of the types of public places of accommodation and amusement listed under the statute that they are characterized by the fact that the public is "generally invited upon no condition but the payment of a fixed charge." 136 Wis. at 598. In Jones, the court distinguished the type of lack of selectivity involved in the admission of persons to facilities such as a roller rink, "from the tender of accommodation offered by the ordinary merchant or professional man (sic) who, while he impliedly, by opening the door of his shop or office, invites everyone to enter, does so only for the purpose of selling to each individual either service or merchandise." Id. Considering that this was thought by the supreme court to "differ radically" from the situation involved in a public facility such as a roller rink, it is apparent that the court would have viewed the difference between such a public facility and the decision made by persons in terms of such a matter as who they would associate themselves with to form an amateur sports team, to be greater.
Third, it is at least arguable that an amateur league team is a "bona fide private, nonprofit organization or institution," particularly in the sense of being private. In amateur league sports, a team is not an entity that gathers up the first nine warm-blooded creatures it sees on the street every night there is a game. It is arguably as private as a party of diners in a restaurant. The setting is public, but the particular association of people is undoubtedly private. Admittance to either the dinner party, or the team, is entirely dependent upon invitation extended by the group on the basis of private and personal considerations such as friendship, compatibility, and (in the case of the team) ability.
For these reasons, the Commission concludes that the right to be on a particular amateur sports team is not a "public place of accommodation or amusement," and that Respondents Mound View Cheese, Delores Jenny, and Joyce Loeffelholz therefore could not be found to have violated the Public Accommodations Law even if, as Neldaughter alleged, they (literally) "refused to play ball with her" because of her sexual orientation.
That the Commission has arrived at this result, should not be taken as an indication that it endorses bias of the kind alleged to have been engaged in by Respondents. The Commission has merely determined what the law appears to be on this issue; what the law should be on this issue is a judgment that must be made by the Legislature. That judgment is not an easy one to make. The presence or absence of a sense of injustice at discriminatory choices being made in personal, associational contexts such as this one may well depend upon whose ox is being gored. Complainant Neldaughter might do well to reflect on the fact, that the decision arrived at by the Commission in this case equally protects her right, and the right of the others on the softball team she formed in 1988, to freedom in making the types of choices involved in deciding who will be a member of their team.
Case #8900539 -- The specific allegations of the complaint in this matter are:
"(What did Respondent do that you believe was discriminatory?) (1) Allowed harassment (derogatory communication) by spectators and other players during games so that patronage of our/my team was unwelcome, objectionable, due to the sexual orientation of the members. (2) Denied access to the league tournament, due to the sexual orientation of some of my team members . . . I was discriminated against because of my sexual orientation when I was harassed, along with my other team members, verbally and non-verbally at almost every softball game supervised by the Dickeyville Athletic Club. My team put up with name-calling (i.e., fags, dykes, queers, homos), screaming about AID-related negative remarks, throwing of dirt and rocks, obscene gestures, derogatory statements "Go home, we don't want you here! Don't get too close to them," and just a general cold and negative atmosphere. These incidents occurred when we were on the field, when we were up to bat, and when we were warming up. There would be times when it would involve a huge crowd of people and times when it would be a group of three to eight people. I requested some action by the supervisor, such as a warning or telling these people to leave but none was taken."
Unlike the complaint alleging denial of the right to be on a particular team, this complaint more directly relates to the denial of, and the giving of preferential treatment to some classes of persons in providing services or facilities in, a "place" -- the softball field at which the Dickeyville Athletic Club conducted the games played by teams in the league it sponsored. Undeniably, a softball diamond is a "place of . . . amusement." Furthermore, the allegations reflected in the file would seem to suggest that the field in question may be a "public" place of amusement, at least in that members of the public are apparently invited to form teams and field them (pursuant to the league schedule) subject only to conditions like payment of league fees, which are like the "payment of a fixed charge" mentioned in Jones. Also, it appears that Neldaughter may be able to prove that members of the public are invited onto the grounds to observe the games and to patronize a concession stand operated by the Dickeyville Athletic Club.
The significant issue then becomes, whether the complaint alleges a denial of the full and equal enjoyment of, or differential treatment in providing services or facilities in, this place.
It is well established in the context of employment discrimination law that an employer may be liable for discriminatory harassment committed by its employes if this harassment creates a hostile environment and the employer, after being placed on notice of the problem, does not take effective steps to resolve it. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). See, Johnson v. General Motors Corporation, 692 F. Supp. 1003 (W.D. Wis. 1987), VerVoort v. Central Paper (LIRC, January 25, 1989), Sheridan v. U.W.-Madison (Wisconsin Personnel Commission, February 22, 1989). The liability which can be imposed on employers in such cases is premised on the fact that they have the power to control the conduct of the offending employes. Because it is the power to control that is significant, it has been recognized that under some circumstances an employer may be liable for harassment of its employes even by non-employes. Larson, Employment Discrimination (1991) sec. 41.65(d). The EEOC has promulgated guidelines, at 29 C.F.R. 1604.11(e), which provide that an employer may be held responsible for acts of harassment of its employes by non-employes when the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action. Under these regulations, the facts concerning the extent of the employer's control over the conduct of the non-employes is significant.
An argument may be made by analogy, that the operator of a public place of accommodation or amusement may be held liable for the harassment of patrons by other patrons, where the harassment creates a hostile environment and has the effect of denying the full and fair enjoyment of the facilities, if the operator knew or should have known of the harassment yet fails to take steps to stop it. As in the case of harassment in employment situations, the facts concerning the extent of control over the harassing patrons would be significant. Thus, the result might be different in the case of a restauranteur with the clear legal right to exclude persons from his or her privately-owned property, from what it would be in the case of a municipality operating a public park at which all members of the public had a constitutional right to be present and to exercise their rights to free speech.
In this case, there is an inadequate basis on which to determine whether the Dickeyville Athletic Club and its agents had control over the alleged harassers to such an extent that they could be found liable based on their failure to exercise that control. It is unclear, for example, whether the Dickeyville Athletic Club actually owned the field where the alleged harassment occurred. There is a suggestion in correspondence in the file that it was in fact owned by a local church. This would, if true, be a complicating factor since it would raise questions about the club's authority to exclude persons from the premises. If the club is not the owner of the facilities, but uses them under some kind of permissive arrangement with the owner, the express or implied provisions of that arrangement respecting the club's rights to control access to the premises must be clarified. Another area in which the record is unclear is that of the relationship between the club and the persons described in the complaint as "supervisors," as well as the umpires, who may or may not be the same. Thus, it may be the case that the club had agents present at the facility with the authority to keep order; alternatively, it could be that the club only provided staff for its concession stand and announcer's booth. It may the case that the umpire had the authority to award defaults based on misconduct by team members, and thus was in a position to coerce persons on other teams into not engaging in harassment. (2) However, it may also be the case that the club's relationship with the umpires was such that it had no right to dictate to them the applications of the rules (such as, declaration of forfeits) and that the club thus could not exercise this authority.
Determining whether the Public Accommodations Law would extend to the alleged denial to Neldaughter and her team of the right to participate in a post-season tournament is also difficult at this stage of the proceedings given the lack of information. Like the matter of the alleged harassment at the field, this allegation does appear to have more of a relationship to a particular place than does the alleged denial of the right to be on a particular team. It is by no means as obvious as in the case of the denial to an individual of the right to be on a particular team, that denial to a team of the right to compete in a tournament involves the kind of personal, associational choices that distinguish it from the typical and essentially commercial relationship between patron and proprietor which is anticipated by the Public Accommodations Law. However, much depends on the particular facts as to how the tournament was organized.
Given the lack of a record on these points, while it certainly cannot be determined that Neldaughter will be able to prove that the facts described in her complaint reflect a violation of the Public Accommodations Law, it also cannot be stated with certainty that she will not be able to prove this. Just as the supreme court stated in Gregory v. Madison Mobile Homes Park, 24 Wis. 2d 275 (1973), where the issue was whether a mobile home park was subject to the Public Accommodations Law and the matter had come before the court without trial on demurrer,
"[t]he subject matter of the instant action is far too vital to be summarily disposed of by demurrer upon inadequate information contained in the record on demurrer." 24 Wis. 2d at 278.
Therefore, the complaint in Case #8900539 is being remanded so that a full hearing may be held.
[Subsequent LIRC decision]
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(1)( Back ) In a separate complaint, ERD #9011382, Neldaughter also alleged that these Respondents had violated the Public Accommodations Act by not allowing her to be a member of the Mound View Cheese softball team in 1988. In a separate decision, issued this day, the Commission has dismissed a petition for review from an Administrative Law Judge's dismissal of that complaint, on purely procedural grounds.
(2)( Back ) This is suggested by an indication in the file that an umpire declared a forfeit against Neldaughter's team on one occasion on which she threw a ball at some spectators who had allegedly been harassing the team.