MILWAUKEE METROPOLITAN FAIR HOUSING COUNCIL, Complainant

THE HARTFORD TIMES PRESS, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on April 17, 1992. The respondent filed a timely petition for review by the commission, and both parties subsequently submitted written arguments.

Based upon a review of the record in its entirety, the labor and Industry Review Commission makes the following:

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

1. The requirement that the Times Press pay attorney's fees and costs (totaling $2,575.30) which appears as paragraph 2 of the "CONCLUSIONS OF LAW" is deleted. The following paragraph on attorney's fees and costs is substituted therefor and is moved to appear as paragraph 2 under the ALJ's ORDER:

"That the Times Press pay the amount of $1,691.50 as attorney's fees, plus costs of $32.13, as reasonable attorney's fees and costs in this matter. The sum total of $1,723.63 shall be paid by check made payable jointly to the Metropolitan Milwaukee Fair Housing Council and Shneidman, Myers, Dowling & Blumenfield, and delivered to Attorney Katherine L. Charlton."

2. The paragraph designated as paragraph 2 under the ALJ's ORDER is deleted. The following paragraph, which is to be designated as paragraph 3 of the ORDER, is substituted therefor:

"Respondent shall within 30 days of the expiration of time within which an appeal may be taken herein, submit a compliance report detailing the specific action taken to comply with the commission's order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708."

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

Dated and mailed August 31, 1993

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

On appeal, the respondent argues that the ALJ's decision finding that it published advertisements in connection with the rental of housing which stated or indicated discrimination in connection with housing in violation of Wisconsin Statute sec. 101.22(2)(d) violates the respondent's rights to freedom of speech and press as protected by the United States and Wisconsin constitutions. The respondent's argument fails. In U.S. v. Hunter, 459 F.2d 205, cert. denied, 409 U.S. 934 (1972), where the Fourth Circuit was presented with the question of whether application of a similar federal statute, § 3604(c) of Title VIII of the Civil Rights Act of 1968, (1)   violated a newspaper's First Amendment rights, the Court affirmed the lower court's holding that the statute did not contravene the First Amendment and that a court may constitutionally enjoin a newspaper's printing of classified advertisements which violate the Act. The Fourth Circuit Court noted that it was well settled that while freedom of communicating information and disseminating opinion enjoys the fullest protection of the First Amendment, the Constitution imposes no such restraint on government as respects purely commercial advertising.

Next, while conceding that federal courts have held that commercial speech is not protected, respondent argues that Wisconsin courts have been more protective of this right, citing the case of City of Milwaukee v. Blondis, 157 Wis. 2d 730, 460 N.W.2d 815 (Ct. App. 1990). In that case, Blondis argued that a city ordinance/statute which restricted his right to park his auto on the street with a "For Sale" sign advertising the auto for sale, violated his right to economic free speech. The trial court, which agreed with Blondis, was affirmed by the court of appeals. Blondis, however, does not support the argument respondent seeks to make here. Blondis recognized that commercial or economic free speech is not protected under the First Amendment, when, among other reasons, it involves illegal acts. Blondis, 157 Wis. 2d at 733-734, 735, 737, 738. Cited in the Blondis case was the federal case of Pittsburgh Press Co. v. Human Relations Commission, 413 U.S. 375, 93 S.Ct. 2553 (1973). There the Court concluded that any "First Amendment interest which might be served by advertising an ordinary commercial proposal and which might arguably outweigh the government interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on advertising is incidental to a valid limitation on economic activity. Pittsburgh Press, 413 U.S. at 389.

Next, while acknowledging that the Pittsburgh Press decision upholds the proposition that commercial speech is not totally protected, respondent asserts that that case is distinguishable in that it was the conduct of Pittsburgh Press in its method of setting up classified sections which was held to be improper and illegal (Pittsburgh Press published help wanted advertisements in separate, sex-designated columns) not the content of the ads for which the paper was blamed. Further, respondent argues that the only case which holds a newspaper accountable for advertising content is Ragin v. New York Times Company, 923 F.2d 995 (2nd Cir. 1991) , where the court held that it was unlawful to publish housing advertisements which indicated a preference based on race by using models as a medium for expression for racial preference, and that in another case based on a similar fact situation, Housing Opportunities Made Equal, Inc. v. The Cincinnati Enquirer, 943 F.2d 644 (6th Cir. 1991), the court held there was no violation of the Fair Housing Act. These arguments by respondent also fail. Newspapers have been held liable for the content of discriminatory advertising since U.S. v. Hunter, supra. (Court rejected argument that § 3604(c) was not intended to prevent newspapers from publishing classified advertisements indicating a racial or other statutorily proscribed preference in the sale or rental of a dwelling. § 3604 (c) applies on its face to anyone printing or publishing illegal advertisements.) Similarly, sec. 101.22(2)(d) makes it unlawful for any person to publish any advertisement in connection with the rental of housing, which states or indicates any discrimination in connection with housing. Further, there is no inconsistency in Ragin and Housings Opportunities Made Equal, Inc. as the respondent attempts to suggest. In Ragin, it was alleged that the New York Times had a long-standing pattern of publishing real estate ads in which models of potential customers are always white while black models largely portray service employes, except for the exclusive use of black models for housing in predominantly black neighborhoods. It was alleged that this pattern reflected a targeting of racial groups. Analyzing § 3604(c), the court stated that we read the statute to be violated if an ad for housing suggests to an ordinary reader that a particular race is preferred or dispreferred for the housing in question; that the statute prohibits all ads that indicate a racial preference to an ordinary reader whatever the advertiser's intent. Ragin, 923 F.2d at 999-1000. The Housing Opportunities case, unlike Ragin, involved the publishing of multiple advertisements which were submitted by independent unrelated realtors. The plaintiff in Housing Opportunities sought to hold the newspaper legally responsible for the aggregate message created and sent by the publication of multiple advertisements, notwithstanding the legality of each advertisement. The court rejected this claim.

The court made a distinction between multiple advertisements by a single advertiser and multiple advertisements by unrelated advertisers. Further, Ragin had arrived at this same conclusion, as noted by the court in Housing Opportunities at 943 F.2d 651:

"The Ragin court stated:

(W)e agree with The Times that liability may not be based on an aggregation of advertisements by different advertisers. Although the 20-year pattern alleged in the complaint may have been a powerful engine for housing segregation and, if proven, will almost certainly include violation of Section 3604(c), the statute provides a prohibition only with regard to individual advertisers."

With respect to the December 13, 1990 ad which contained the statement "mature christian handyman," the respondent apparently seeks to attribute significance to the fact that in this ad the word "Christian" was not capitalized. In previous arguments before the ALJ the respondent argued that the word "Christian" is required as a proper noun to be capitalized if it refers to a follower of Christ. Further, with respect to its January 25, 1990 ad, respondent argues that in that ad the word "Christian" appears only with the prefix "prefers." Respondent argues that the word "Christian" is a widely-used term in this country, and that the term "religion" and the word "Christian" are not necessarily co-extensive.

The commission finds the respondent's assertions here to be without merit. The distinction over whether the word "Christian" is or is not capitalized is without significance. The commission believes the ordinary reader would naturally interpret the ad to state or indicate a discriminatory preference. Secondly, Webster's New World Dictionary. 2nd College Edition, Copyright 1972, defines the word "Christian" to mean:

"--n . . . . 1. a person professing belief in Jesus as the Christ, or in the religion based on the teachings of Christ 2. [colloq.] a decent, respectable person -- adj. 1. of Jesus Christ or his teachings   2. of or professing the religion based on these teachings   3. having the qualities demonstrated and taught by Jesus Christ, as love, kindness, humility, etc. 4. of or representing Christians or Christianity. 5. [colloq.] humane, decent, etc."

The same dictionary defines the word "religion" as follows:

"1.  a) belief in a divine or superhuman power or powers to be obeyed and worshipped as the creator(s) and ruler(s) of the universe   b) expression of such a belief in conduct and ritual   2. a) any specific system of belief, worship, conduct, etc., often involving a code of ethics and a philosophy [the Christian religion, the Buddhist religion, etc.]   b) any system of beliefs, practices, ethical values, etc., resembling, suggestive of, or likened to such a system [humanism as a religion]. . ."

As noted by the complainant, because the definition of "religion" explicitly includes the word "Christian" it is clear that use of the word "Christian" in an advertisement for housing would be understood by an ordinary reader to state or indicate a preference on the basis of religion. A person who did not consider him or herself a Christian would be deterred from making application for the housing unit while a person who did consider him or herself to be a Christian would understand the phrase to prefer him or her. Either situation would violate sec. 101.22 (2)(d).

In affirming the ALJ's decision, the commission notes that although no specific argument has been presented on appeal by the respondent with respect to the finding that the December 13, 1990 published ad states or indicates discrimination on the basis of sex, the commission is satisfied that that ad states or indicates sex discrimination. The commission believes that the ad's language, which seeks a "mature christian handyman" for rental housing clearly states or indicates sex discrimination to the ordinary reader of such ad. This ad, as published, clearly states or indicates discrimination because of sex because it describes a specific type of person. That is, a handyman. It was not an ad which read "handyman special," as that term of art is often used to simply describe the premises, or some piece of mechanical equipment, which might require a great deal of repair by the purchaser to make suitable.

Finally, the respondent apparently asserts in its petition for review that: (1) nothing in sec. 101.22 authorizes the ALJ to make an award of attorney's fees to the complainant; and (2) the examiner awarded the complainant actual attorney's fees but the attorney's fees were not broken down as to the issues which the complainant prevailed on and which were dismissed.

Based on paragraph 2 of the ALJ's conclusions of law, the ALJ apparently awarded the full fee award requested on the ground that the complainant's fee petition request was "uncontested." Although respondent did not address the specifics of the fee petition, respondent had argued before the ALJ that there was no statutory authority for awarding attorney's fees and costs. (For reasons set forth below this argument is erroneous.) This does not suggest that complainant's fee petition was uncontested. In any case, the ALJ, and ultimately the commission, is responsible for ensuring that reasonable attorney's fees be awarded to a prevailing complainant.

On the question of authority to award attorney's fees, the commission has previously ruled in Davis v. Piechowski (LIRC, 10/24/86), that an award of attorney's fees is available for remedying violations of the Wisconsin Open Housing Law. The reasoning is as follows: Section 101.22(4)(d) contains the language that the examiner shall "order such action by the respondent as will effectuate the purpose of this section" upon a finding that the respondent violated the Act. Similar language found in the Fair Employment Act was found sufficient to authorize reasonable attorney's fees to a prevailing complainant in Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984).

With respect to the amount of attorney's fees, the complaint claims discrimination under Wisconsin Open Housing Law with respect to the publication of ads stating or indicating a preference with respect to religion, sex and marital status. However, the ALJ found unlawful discrimination only with respect to religion and sex. As argued by respondent, the record indicates that the ALJ's award of attorney's fees includes an award on the issue of marital status discrimination, an issue on which the complainant did not prevail. In Hensley v. Eckerhart, 461 U.S. 424, 31 FEP Cases 1169 (1983), the Court held that a reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole. The Court stated that the extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees; that where the plaintiff has failed to prevail upon a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. The marital status claim is distinct in all respects from the sex and religion claims on which complainant was successful as it was based on a separate advertisement published by the respondent on May 10, 1990. A review of the complainant's fee petition indicates that it is not possible to determine the amount of time complainant claims was expended on this issue. In view of the absence of a more detailed fee petition and the fact that the complainant prevailed on only two of its three alleged violations of the housing law, the commission believes that a reduction of the claimed fee award by one-third would be appropriate. Reducing the fees by one-third would result in an award of $1,691.50. The claim for costs includes a mileage reimbursement of $20.80 (apparently to the hearing) and photocopying expenses of $17.00. The commission does not find it appropriate to reduce the mileage request by one-third, but it does find it appropriate to reduce the photocopying expenses by one-third. Making these reductions results in a fee and cost, award totaling $1,723.63.

125

DISSENT

I write separately because I disagree with the majority that the use of the word "handyman" shows a preference for a male renter. The term handyman connotes certain skills in repairing things that can go wrong in an older place or one that has not been properly maintained. There is no widely used sex-neutral term that is in regular usage. There are sex-neutral terms for occupations like mail carrier and fire fighter but I have never heard handyperson or even handywoman used in the sense of handyman.

For these reasons, I would agree and concur with the majority on everything except the issue of discrimination on the basis of sex, and I would reverse and find no discrimination on the basis of sex.

/s/ Pamela I. Anderson
Chairman

Appealed to Circuit Court.  Affirmed October 24, 1995. 

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(1)( Back ) It is unlawful under § 3604(c) to make, print, or publish, or cause to be made, printed or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation or discrimination based on race, color, religion, sex, or national origin, or an intention to make any such preference, limitation or discrimination.

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