METROPOLITAN MILWAUKEE FAIR HOUSING COUNCIL, Complainant

HANS WEISSGERBER, Respondent

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision on April 19, 1991 concluding that Respondent Hans Weissgerber ("Weissgerber") had violated the Wisconsin Open Housing Act. Weissgerber filed a timely petition for commission review. Both Weissgerber and Complainant Metropolitan Milwaukee Fair Housing Council ("MMFHC") have filed briefs.

Based on a review of the entire record, the Commission now makes the following:

1. Complainant Metropolitan Milwaukee Fair Housing Council is a private nonprofit organization, the primary purposes of which are to insure that all citizens have equal access to housing opportunities and to expand locational choices for lower income and minority persons. MMFHC serves a four-county metropolitan area, including Waukesha, Ozaukee, Washington and Milwaukee counties. MMFHC program activities include counseling persons seeking housing in an effort to assist them in obtaining housing and educating persons seeking and persons providing housing on their rights and obligations under fair housing laws.

2. Advertisements for rental housing which indicate discrimination in housing based on characteristics protected under fair housing laws tend to discourage persons having those characteristics from applying to rent housing, and tend to increase their fear and trepidation at encountering discrimination in the rental housing market. Such advertisements also tend to misinform members of the public as to their rights and obligations under fair housing laws. This in turn increases the work that must be done by MMFHC to counsel persons in connection with their attempts to find housing and to educate persons seeking and persons providing housing about their rights and responsibilities under fair housing laws. It also causes MMFHC to expend resources, in attempting to eradicate such discriminatory advertisements, which could otherwise have been expended on its counseling and public education functions.

3. On or about September 26, 1990, an advertisement appeared in the Oconomowoc Enterprise, a newspaper, which stated: "COTTAGE FOR RENT: Two bedroom, perfect for single person, $350/month Call 567-7047."

4. The telephone number appearing in the advertisement is the telephone number of Respondent Hans Weissgerber.

5. In a letter submitted to the Equal Rights Division investigator following service of a copy of the complaint on him, and in a response submitted to the Equal Rights Division following service of the Notice of Hearing on him, in which he disputed the allegation that the advertisement in question was discriminatory, Weissgerber did not deny responsibility for having caused the advertisement to be published.

6. The advertisement in question came to the attention of MMFHC on October 2, 1990 when staff of MMFHC were reviewing advertisements for rental housing in local publications in order to prepare a listing of available rental housing which MMFHC routinely prepares and maintains for the use of people it: counsels and assists. MMFHC filed a complaint with the Equal Rights Division concerning the advertisement on October 23, 1990.

7. An ordinary reader would not have understood the advertisement in question as stating or indicating discrimination on the basis of marital status in the rental of the housing in question.

Based on the FINDINGS OF FACT made above, the Commission now makes the following:

CONCLUSIONS OF LAW

1. Complainant Metropolitan Milwaukee Fair Housing Council is a person within the meaning of Wisconsin Administrative Code Chapter Ind 89.01(11), entitled by Wisconsin Administrative Code Chapter Ind 89.03(3) to file a complaint alleging that unlawful housing discrimination occurred, and the complaint filed by MMFHC was one which the Division was authorized under sec. 101.22(4)(a), Stats., to receive and investigate.

2. MMFHC failed to prove by a preponderance of the evidence that Respondent Hans Weissgerber violated sec. 101.22(2)(d), Stats., by publishing or causing to be published an advertisement in connection with the rental of housing which states or indicates any discrimination in connection with housing.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the Commission now makes the following:

That the complaint in this matter be dismissed.

Dated and mailed December 6, 1991

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

The issue here is whether the phrase "perfect for single person" used in the advertisement for rental housing in this case "states or indicates discrimination" within the meaning of sec. 101.22(2)(d), Stats. The Commission believes that it does not, for two reasons.

First, the phrasing "perfect for" followed by some description of a characteristic does not suggest an intention to give a preference to persons with the characteristic described or to disfavor persons who do not have that characteristic. It is simply an example of a promotional phrase which is usually intended to increase the potential interest of certain "consumers" in the item advertised without reducing the potential interest of others. For example, the automobile dealer who advertises a mini-van as "ideal for large family" will probably be happy to sell his mini-van to anyone, and those without large families who read his advertisement will probably understand this. Similarly, the property owner who advertises a rural rental property as "perfect for nature lover" will probably be happy to rent to a person who has no interest in nature, and such persons will not see the wording of the advertisement as suggesting that they will somehow be disfavored.

Second, in the context of this advertisement, the term "single person" is not such an obvious marker for marital status that a violation of the statute may be premised on that basis. While one commonly understood meaning of the term "single person" is "unmarried person" it can also be understood to mean "one person." In the context in which it appears (i.e., an advertisement which suggests a small house by its use of the euphemistic "cottage"), it can be seen as an informational indication that the property is considered to be best suited for not more than one person. The characterization of the property in this case as a "cottage" which is "perfect for single person" effectively communicates that even though it may nominally have two bedrooms, it may be so small that two or more people -- however related -- might well feel cramped.  (1)

The Commission considers that an appropriate legal standard by which to judge the issue presented here is that used under the federal Fair Housing Act, Title VIII of the Civil Rights Act of 1968. Title VIII contains a provision prohibiting the publication of any advertisement in connection with housing that indicates any preference, limitation or discrimination based on a protected characteristic, 42 U.S.C. § 3604(c), that is closely analogous to sec. 101.22(2)(d), Stats.. The question presented under that section has been held to be whether the advertisement would suggest to an ordinary reader that a particular class or category of persons will be preferred or dis-preferred for the housing in question. Ragin v. New York Times, 923 F.2d 995 (2nd Cir. 1991). This test is appropriate because it avoids unnecessary debate over semantics and instead focuses upon the purpose of the prohibition: to prevent a restriction on opportunities to seek housing by preventing the publication of ads that will lessen that opportunity by discouraging housing seekers.

Applying this standard here, the Commission is satisfied that this ad could not reasonably be expected to discourage persons who were married, divorced or separated from seeking to rent the property in question. Even in the unlikely event that they decided to interpret the advertisement as indicating that the lessor considered the property "perfect for an unmarried person," ordinary readers would recognize that the ad reflected only the lessor's views as to who might particularly enjoy the premises, and not the lessor's preferences as to who to rent to. It is not reasonable to view an ad such as this as one that will burden to any significant extent the freedom of persons to seek housing as they wish. Therefore, sec. 101.22 (2) (d) was not violated by the publication of the advertisement.

NOTE: The Commission's Conclusions of Law reflect its view, arrived at for the reasons announced this day in MMFHC v. Goetsch, ERD Case #9051656, that MMFHC may appropriately commence and prosecute matters under the Open Housing Act.

The Commission has expressly omitted making any direct finding concerning Weissgerber's responsibility for publication of the advertisement, because MMFHC actually failed to prove that Weissgerber had any relationship to its publication. While it appears reasonable based on his implicit concession of responsibility (see Finding of Fact #5 above) to suspect that he did, the bare fact that his telephone number appeared in the ad cannot be said to prove this (a scenario may be imagined, for example, in which a property owner publishes an ad containing a phone number of a resident manager with no connection to the drafting of the ad). The better course would have been for MMFHC to have offered direct proof of this basic fact, rather than merely assuming it.

The Commission reverses the Administrative Law Judge as a matter of law and therefore has had no cause to consult with the Administrative Law Judge concerning credibility of witnesses.

110

Appealed to Circuit Court.  Affirmed October August 24, 1992.  Appealed to the Court of Appeals.  Affirmed March 31, 1993, unpublished summary affirmance.

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(1)( Back ) A witness for the MMFHC suggested at hearing that even if the advertisement was understood as referring to "one person" it would still be discriminatory. Presumably the theory behind this suggestion is that a limitation on the number of tenants could have a disparate impact on married couples. This theory has not, however, been argued in MMFHC's briefs. For this reason, and because the advertisement in any event indicated no restriction based on number. of tenants but only that the premises were considered "perfect for" a single person, the Commission sees no need to address the issue. It therefore expresses no opinion on the question of whether a restriction on the number of tenants could be found to be discriminatory on a "disparate impact" theory.

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