The Wisconsin Equal Rights (ER) Decision Digest -- Sections 200-220
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200 HOUSING Discrimination and PUBLIC ACCOMMODATIONS Discrimination Laws
210 Housing Discrimination (Sec. 106.50, Stats.)
[Ed. Note: The Wisconsin Open Housing and Public Accommodations and Amusements Act, sec. 101.22, Stats., was renumbered to sec. 106.04, Stats. by 1995 Wis. Act 27. By 1999 Wis. Act 82, the Open Housing provisions and the Public Accommodations provisions were separated and renumbered again, Open Housing to sec. 106.50, and Public Accommodations to sec. 106.52].
211 Housing discrimination, Coverage, exceptions
The Metropolitan Milwaukee Fair Housing Council has standing to challenge unlawfully discriminatory advertisements in newspapers. The Metropolitan Milwaukee Fair Housing Council established that discriminatory advertisements discourage persons seeking housing by leading them to believe that they will face discrimination, and that they lead to misunderstanding among the public at large concerning the permissibility of housing discrimination. These factors would have an impact upon the work of the Metropolitan Milwaukee Fair Housing Council. Metropolitan Milw. Fair Housing Council v. Goetsch (LIRC, 12/06/91).
There is no express statutory language in the Wisconsin Open Housing Act limiting the right to initiate and prosecute complaints of housing discrimination to persons with any particular threshold level of interest in the violation alleged. The administrative rules promulgated by the Equal Rights Division provide expressly that a complaint may be filed by "any person." Thus, the Equal Rights Division cannot refuse any person the right to file a complaint alleging housing discrimination based on notions of standing. Metropolitan Milwaukee Fair Housing Council v. Goetsch (LIRC, 12/06/91).
The Wisconsin Open Housing Act does not extend to complaints of discriminatory conduct between roommates in the same apartment. Hoffman v. Warner (LIRC, 05/05/88).
An owner of residential property is responsible for the discriminatory actions of the manager, caretaker or employe where the action is within the subordinate's apparent authority, whether or not the owner has knowledge of the conduct. However, the employe is not responsible for the discriminatory actions of the owner. McWilson v. Rieger (Milwaukee Co. Cir. Ct., 1984).
There is discrimination where race is only a partial motivation for a defendant's actions. Beardon v. Bankier (Milwaukee Co. Cir. Ct., 12/01/83); McWilson v. Rieger (Milwaukee Co. Cir. Ct., 1984).
A white couple who sought to sublet their apartment have standing to sue the apartment owner who they allege was refusing permission to qualified subletters based on their race. Corrao v. James (Milwaukee Co. Cir. Ct., 09/30/82).
212 Housing discrimination, Cases
212.1 Housing discrimination, Cases; Race discrimination
Discrimination occurs when a prospective black tenant is treated less favorably than a prospective white tenant in connection with an offer to show the apartment, rental negotiation, giving of false or misleading information regarding the availability of an apartment, or refusing or making unavailable an apartment because of the prospective tenant's race. Beardon v. Bankier (Milwaukee Co. Cir. Ct., 12/01/83).
Race was a factor in Respondent's failure to rent to a black couple where the apartment remained vacant after the couple was told that it had already been rented and where no other blacks lived in the building. A $360 forfeiture, payable to the State, was imposed. Williams v. Evers (LIRC, 07/21/83).
A white couple who sought to sublet their apartment have standing to sue the apartment owner who they allege was refusing permission to qualified subletters based on their race. Corrao v. James (Milwaukee Co. Cir. Ct., 09/30/82).
212.2 Housing discrimination, Cases, Sex discrimination; marital status discrimination
A landlord did not violate the Dane County Ordinances which prohibit discrimination based on "marital status," when it refused to rent to groups of unrelated individuals seeking to live together. The landlord's motivation for denying rental to the individuals was triggered by their "conduct," not their "marital status." County of Dane v. Norman, 174 Wis. 2d 683, 497 N.W.2d 714 (1993).
The phrase "ideal for couple" used in an advertisement for rental housing does not state or indicate discrimination against single persons. Metropolitan Milw. Fair Housing Council v. LIRC (Jacobson), 173 Wis. 2d 199, 496 N.W.2d 159 (Ct. App. 1992).
The phrase "perfect for single person" used in an advertisement for rental housing does not state or indicate discrimination within the meaning of sec. 101.22(2)(d), Stats. The term "single person" can be understood to mean unmarried person or "one person." In the context in which it appears (i.e., an advertisement which suggests a small house by its use of the word "cottage"), it can be seen as an informational indication that the property is considered to be best suited for not more than one person. Metropolitan Milw. Fair Housing Council v. Weissgerber (LIRC, 12/06/91).
Where the Complainant was refused the right to rent an available apartment because of her intention to live in that apartment with another single female, this violated the prohibition on discrimination because of the sex or marital status of the person maintaining a household. Bentrup v. Apple Valley Dev. Corp. (Waukesha Co. Cir. Ct., 06/10/85).
A desire to keep a floor in a group residence all one sex (male) because bathrooms are shared is a legitimate nondiscriminatory reason for not allowing a female to rent a room on that floor. McKloskey v. YMCA (LIRC, 10/07/83).
It was not discrimination because of sex or marital status for an agent of a landlord to deny permission to a male renter to add a female friend to his lease. Eisenhauer v. Rinold (Milwaukee Co. Cir. Ct., 06/28/83).
An owner's refusal to rent to an unmarried woman because he did not believe women were capable of the required maintenance work was willful discrimination on the basis of sex and marital status. Stroud v. Evans (LIRC, 06/25/82).
212.3 Housing discrimination, Cases; Disability discrimination
A perceived impairment may be sufficient to invoke the Wisconsin Open Housing Act. Kitten v. DWD, 2002 WI 54, 252 Wis. 2d 561, 644 N.W.2d 649.
In this case, although an actual disability was not proven at the hearing, there was evidence that the Respondent was aware that the Complainant had been diagnosed with bulimia. As a result, the Respondent thought that the Complainant suffered from severe depression, that the Complainant was likely suicidal, and that the Complainant was likely to return to the hospital for residential treatment. The next element to be determined is whether the Respondent’s perceptions about the Complainant’s impairment were true, and if they were, whether one or more of the Complainant’s major life activities would be limited. In this case, the Respondent’s perceptions did rise to the level where, if taken as true, the Complainant’s major life activities would have been limited. Therefore, the Respondent’s perceptions of the Complainant show that the Respondent regarded the Complainant as disabled. Kitten v. DWD, 2002 WI 54, 252 Wis. 2d 561, 644 N.W.2d 649.
The Respondent discriminated against the Complainant on the basis of perceived disability where he sought six months’ advance rent from the Complainant, as opposed to the normal one month’s rent and a security deposit. Thus, the Respondent exacted unequal lease terms from the Complainant because of his disability. Kitten v. DWD, 2002 WI 54, 252 Wis. 2d 561, 644 N.W.2d 649.
There is no statutory definition of "impairment" in the Wisconsin Open Housing Act. However, the term "impairment" has been defined in the context of the Wisconsin Fair Employment Act to mean a "lessening, deterioration, or damage to a normal bodily function or bodily condition." This definition is also appropriate for inquiries under the Wisconsin Open Housing Act. To establish a disability within the meaning of the Wisconsin Open Housing Act, the Complainant must show (1) that he or she has an actual impairment, a record of impairment, or is regarded as having an impairment; and (2) the impairment, whether real or perceived, is one that substantially limits one or more major life activities, or is regarded by the Respondent to substantially limit one or more major life activities. Kitten v. DWD, 2002 WI App 54, 252 Wis. 2d 561, 644 N.W.2d 649.
A county zoning board did not violate the Wisconsin Open Housing Law when it refused to issue a shoreland zoning variance to an applicant who had requested the variance in order to modify a home to accommodate his disability. Provisions in the zoning laws allowing for a variance when "special conditions" result in "unnecessary hardship" did not have to be construed to allow the Board to issue a variance as a reasonable accommodation for an applicant with a disability. Prior Supreme Court interpretations of the zoning laws made it clear that "special conditions" applied to conditions affecting the property in question, not to conditions personal to the landowner. Further, the State has a compelling interest in maintaining its shoreland zoning laws. County of Sawyer v. DWD, 231 Wis. 2d 534, 605 N.W.2d 627 (Ct. App. 1999).
212.4 Housing discrimination; Other bases of discrimination
Section 8 rental assistance vouchers do not constitute a "lawful source of income" as that phrase is used in the Wisconsin Open Housing Act. Knapp v. Eagle Property Management Corp., 54 F.3d 1272 (7th Circuit, 1995).
A homosexual individual who had been evicted from his apartment failed to establish that the landlords had knowledge of his sexual orientation prior to evicting him or that their articulated reasons for evicting him, relating to repair of his apartment, were pretextual. Raleigh v. Erickson (LIRC, 12/18/92).
An advertisement indicating "prefer a Christian" indicates discrimination on the basis of religion in housing. Metropolitan Milw. Fair Housing Council v. Goetsch (LIRC, 12/06/91).
The Complainant applied for an apartment advertised for rent by the Respondent. The Respondent was aware that the Complainant's income was derived from social security, although he did not know how much that income was. The Respondent declined to rent the apartment to the Complainant, stating that he preferred to rent it to "two working people." The Respondent violated the Wisconsin Open Housing Act by refusing to rent to the Complainant because of the Complainant's source of income. Fernandez-Tome v. Joseph (LIRC, 07/25/90).
213 Housing discrimination; Testing
The use of testers or investigators is a reasonable means by which compliance with fair housing laws may be ascertained, and evidence of their activities is an appropriate method of demonstrating the presence or absence of discriminatory policies. The fact that a tester is not a bona fide good faith renter or applicant does not impair his or her credibility as a witness. Beardon v. Bankier (Milwaukee Co. Cir. Ct., 12/01/83); Parish v. Sprenger (Milwaukee Co. Cir. Ct., 1984); Brantley v. Rosenblatt (Milwaukee Co. Cir. Ct., 09/06/84).
Testing does not constitute entrapment. Beardon v. Bankier (Milwaukee Co. Cir. Ct., 12/01/83).
A tester may lawfully tape record his or her conversation with another person, even in the course of a fair housing test and in contemplation of a lawsuit, as a legitimate means of preserving evidence. Beardon v. Bankier (Milwaukee Co. Cir. Ct., 12/01/83); Brantley v. Rosenblatt (Milwaukee Co. Cir. Ct., 09/06/84).
214 Advertisements for housing
A newspaper violated the Wisconsin Open Housing Act when it ran an advertisement for housing which read: "Apartment for rent. 1 bedroom, electric included, mature christian handyman . . . ." It is immaterial that the word "christian" was not capitalized. The ordinary reader would naturally interpret the ad to state or indicate a discriminatory preference on the basis of religion. The ad also states or indicates sex discrimination. Metropolitan Milwaukee Fair Housing Council v. Hartford Times Press (LIRC, 08/31/93).
The test to determine whether an advertisement in connection with housing indicates a preference, limitation or discrimination is whether the advertisement would suggest to an ordinary reader that a particular class is preferred or dis-preferred for the housing in question. This test equates the "ordinary reader" with the law's traditional "reasonable person" who is neither the most suspicious nor the most insensitive of our citizenry. Metropolitan Milw. Fair Housing Council v. LIRC and Jacobson, 173 Wis. 2d 199, 496 N.W.2d 159 (Ct. App. 1992).
The phrase "ideal for couple" used in an advertisement for rental housing does not state or indicate discrimination against single persons. Metropolitan Milw. Fair Housing Council v. LIRC (Jacobson), 173 Wis. 2d 199, 496 N.W.2d 159 (Ct. App. 1992).
An advertisement for housing violates the law if it would suggest to an ordinary reader that a particular class or category of persons will be preferred or dispreferred for the housing in question. In this case, the use of the phrase "retired or working couple" in an advertisement for rental housing does not indicate discrimination based on marital status. However, the advertisement does state or indicate discrimination based on lawful source of income. The description "retired or working," is not ameliorated by a qualifying phrase such as "ideal for" or "perfect for," which would have indicated that it was a mere suggestion by the landlord as to who might particularly enjoy the property. Instead, it is bluntly stated and unequivocally suggested that there is at very least a preference for retired or working persons, if not in fact an outright limitation. MMFHC v. South Side Spirit (LIRC, 08/26/92).
The prohibition on the publication of advertisements which express discriminatory distinctions is intended to prevent a harm that such publication can foreseeably cause, and it is not necessary that the harm have actually occurred before there can be a violation of the prohibition. There is no requirement that the person publishing the advertisement be found to have intended to deter persons from seeking housing. The question of liability turns simply on the substance of the advertisement and the effect it could reasonably be expected to have. MMFHC v. South Side Spirit (LIRC, 08/26/92).
The phrase "perfect for single person" used in an advertisement for rental housing does not state or indicate discrimination within the meaning of sec. 101.22(2)(d), Stats. The term "single person" can be understood to mean unmarried person or "one person." In the context in which it appears (i.e., an advertisement which suggests a small house by its use of the word "cottage"), it can be seen as an informational indication that the property is considered to be best suited for not more than one person. Metropolitan Milw. Fair Housing Council v. Weissgerber (LIRC, 12/06/91), aff'd. sub nom. MMFHC v. LIRC (Weissgerber) (Waukesha Co. Cir. Ct., 08/24/92).[Ed. note: sec. 101.22 (2)(d), Stats. has been renumbered sec. 106.50 (2)(d), Stats.]
An advertisement indicating "prefer a Christian" indicates discrimination on the basis of religion in housing. Whether the Respondent intended the advertisement to have the effect of discouraging non-Christians from applying to rent the property is immaterial. His actions in choosing the words used and in having the advertisement published were certainly intentional. Sec. 101.22(2)(d), Stats., neither expresses nor implies the necessity for any further intent as a requirement for a finding of illegality. It simply turns on the substance of the advertisement and its effect. Metropolitan Milw. Fair Housing Council v. Goetsch (LIRC, 12/06/91).[Ed. note: sec. 101.22 (2)(d), Stats. has been renumbered sec. 106.50 (2)(d), Stats.]
The appropriate legal standard by which to judge whether an advertisement states or indicate discrimination within the meaning of the Wisconsin open Housing Act is that used under the closely analogous provision in the federal Fair Housing Act, Title VIII of the Civil Rights Act of 1968, which prohibits publication of any advertisement in connection with housing that indicates any preference, limitation, or discrimination based on a protected characteristic. The question is 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. This test focuses on the purpose of preventing restriction on opportunities to seek housing, by preventing the publication of ads that will lessen that opportunity by discouraging housing seekers. Applying this standard, ad inclusing phrase "ideal fr couple" was not a violation of the Act. Metropolitan Milw. Fair Housing Council v. Jacobson (LIRC, 12/06/91), aff'd. sub nom. Metropolitan Milw. Fair Housing Council v. LIRC and Jacobson, 173 Wis. 2d 199, 496 N.W.2d 159 (Ct. App. 1992).
215 Housing discrimination; Remedies
It was inappropriate to assess a forfeiture against the Respondents where there was no questioning of them regarding their awareness of the Open Housing Law at the hearing. Imposing a forfeiture is only appropriate where there is proof of a knowing and reckless disregard as to whether an action violates the law. Parkinson v. Obernberger (LIRC, 10/15/93).
The Department's decision finding that a newspaper violated the Wisconsin Open Housing Act by publishing advertisements in connection with the rental of housing did not violate the newspaper's rights to freedom of speech and press as protected by the United States and Wisconsin Constitutions. Metropolitan Milwaukee Fair Housing Council v. Hartford Times Press (LIRC, 08/31/93).
The requirement that a newspaper which had published a discriminatory advertisement for housing provide staff with training in the effects of the Open Housing Act on the legality of advertisements for housing is a reasonable exercise of the Department's authority under sec. 101.22(4)(d), Stats., to order such action by the Respondent as will effectuate the purposes of the Act. MMFHC v. South Side Spirit (LIRC, 08/26/92).[Ed. note: sec. 101.22 (4)(d), Stats. has been renumbered sec. 106.50 (6)(f)5., Stats.]
The Wisconsin Open Housing Act does not provide for the legal remedy of compensatory damages. "Out-of-pocket" expenses are awarded as a necessary consequence of the prohibited discrimination. These are in the nature of expenses of mitigation. However, the imposition of an award of compensatory damages would raise significant constitutional issues. Metropolitan Milw. Fair Housing Council v. Goetsch (LIRC, 12/06/91).
The requirement of the imposition of a forfeiture contained in the Wisconsin Open Hpusing Act is indisputably a penal provision. Insofar as the Wisconsin Open Housing Act is penal in nature (i.e., designed not to provide a remedy to the person wronged but to exact punishment from the person committing the wrong) it must be strictly construed. A violation must also be found to be "wilful" for a forfeiture to be imposed. The Respondent must have acted in spite of knowing of the illegality of his conduct under the Wisconsin Open Housing Act, or in "reckless disregard" of the law. Where the Respondent did not know of the existence of the Wisconsin Open Housing Act or of the potential illegality of his conduct under the Act, an assessment of a forfeiture is not appropriate. Metropolitan Milw. Fair Housing Council v. Goetsch (LIRC, 12/06/91).
The Complainant failed to present adequate proof that he had suffered a monetary loss as a result of the Respondent's discriminatory action of denying him permission to have a roommate where the Complainant: (1) submitted absurdly high estimates of gas and electric costs, (2) failed to prove whether his rent would have stayed the same if he was allowed to have a roommate, and (3) did not have anyone ready to share his apartment and share expenses. Dude v. Thompson (LIRC, 11/16/90), aff'd. sub nom. Dude v. LIRC (Milw. Co. Cir. Ct., 08/08/91).
The duty to mitigate damages does not require a housing tenant who has been subjected to discriminatory conditions of rental to abandon the housing in question. Dude v. Thompson (LIRC, 11/16/90).
The Respondent's repeated verbal abuse (including his reference to black tenants as "you people" and stating "see how much trouble black people can cause") constituted a wilful violation of the Open Housing Act. The Commission, while noting that it did not wish to deprecate the seriousness of the Respondent's conduct, found the conduct less egregious than cases in which racial slurs were used, thus warranting the imposition of a $100.00 forfeiture. Pryor v. Knecht (LIRC, 04/21/89).
The Equal Rights Division has authority to award out-of-pocket expenses, interest, attorney's fees and costs to remedy violations of the Wisconsin Open Housing Act. Davis v. Piechowski (LIRC, 10/24/86); MMFHC v. Hartford Times Press (LIRC, 08/31/93).
As a penalty for the wilful violation of the Open Housing Act by refusing to rent to an unmarried women, the owner must forfeit $100.00 to the State of Wisconsin. Stroud v. Evans (LIRC, 06/25/82).
219 Housing discrimination; Miscellaneous
Sec. 106. 50(f)6., Stats., provides that if there is a finding that a Respondent has not engaged in housing discrimination as alleged in the complaint, costs in an amount not to exceed $100.00 plus actual disbursements for the attendance of witnesses may be assessed against the Department of Workforce Development in the discretion of the Department. While there may be special circumstances which may, in exceptional cases, warrant exercising the discretion to award costs and actual disbursements for attendance of witnesses against the Department of Workforce Development, such an award generally would not be imposed where the administrative agency is carrying out its statutorily-authorized, quasi-judicial duty to fairly and impartially hold hearings on complaints of housing discrimination. Simone v. Lloyd (ALJ decision, 01/07/03).
The prohibition against coercion, intimidation, threatening or interfering with the exercise or enjoyment of rights contained in sec. 101.22(4m), Stats., is in the nature of an anti-retaliation provision. Where there has been a direct violation of the anti-discrimination provision of the Open Housing Act, there is no need to invoke sec. 101.22(4m), Stats., to explain why a violation has been found. Dude v. Thompson (LIRC, 11/16/90), aff'd. sub nom. Dude v. LIRC (Milw. Co. Cir. Ct., 08/08/91). [Ed. note: sec. 101.22 (4m), Stats. has been renumbered sec. 106.50 (2)(j), Stats.]
220 Discrimination In Public Accommodations And Amusements(Sec. 106.52, Stats)
[Ed. Note: The Wisconsin Open Housing and Public Accommodations and Amusements Act, sec. 101.22, Stats., was renumbered to sec. 106.04, Stats. by 1995 Wis. Act 27. By 1999 Wis. Act 82, the Open Housing provisions and the Public Accommodations provisions were separated and renumbered again, Open Housing to sec. 106.50, and Public Accommodations to sec. 106.52].
221 Discrimination In Public Accommodations; Coverage
The Public Accommodations Act prohibits any person from denying to another the full and equal enjoyment of a place of public accommodation for a discriminatory reason, and prohibits any person from directly or indirectly publishing, circulating, displaying or mailing any written communication which the communicator knows is to the effect of denying a place of public accommodation to another for a discriminatory reason. Because the complainant alleged that someone orally notified him that his access would be denied in the future, he has not alleged an injury in violation of the Act. Young v. State of Wisconsin, Dept of Workforce Development (LIRC, 01/30/2015).
The Complainant's allegation that she was given differential treatment compared to a white male customer in negotiating a transaction at a retail store states a claim under the WFEA's prohibition against preferential treatment. The Complainant's comparison of her experience and the experience of a white male customer did not show preferential treatment because of sex or race. Differences in the treatment of the two customers was satisfactorily explained as being motivated by non-discriminatory economic considerations, reducing the idea of racial or sexual bias to speculation. Khan v. Value Village (LIRC, 12/04/14), (appealed to circuit court).
A claim that a health insurance company violated the public accommodations law by writing allegedly offensive notes in its internal records because of race and national origin bias was properly dismissed for failure to state a claim under the law because the nature of the relationship and the services involved was fundamentally dissimilar from the types of relationships the law is intended to cover. Further, the offensive statements in internal documents could not be considered a violation of sec. 106.53(3)(a)3., Stats., because the point of that section is to prevent statements from being publicized so that they have the effect of discouraging or deterring individuals from even attempting to patronize certain establishments. Written notes in a purely internal log would not constitute publishing, circulating, displaying or mailing those documents. Tabatabai v. Wisconsin Physicians Serv. Health Ins. (LIRC, 02/29/12).
The allegation in the complaint that the Respondent was motivated by race and national origin bias when it paid the Complainant less for a submitted medical expense was properly denied for failure to state a claim under the public accommodations law. The relationship of insurer and insured is fundamentally dissimilar from the types of relationships that the public accommodations law is designed to cover. The nature of the services provided within that relationship is also fundamentally dissimilar from the nature of the types of services to which the law is designed to ensure equal access. The only exception to this principle is sec. 106.52(3)(a)4., Stats., which specifically covers refusal to furnish or charging a higher rate for any "automobile" insurance because of race, color, creed, disability, national origin or ancestry. Tabatabai v. Wisconsin Physicians Serv. Health Ins. (LIRC, 02/29/12).
The Wisconsin Public Accommodations & Amusements Law does not prohibit conduct motivated by a desire to retaliate against a person because they have complained of alleged discrimination under the law. (In Schmid v. Step-Up Shop (LIRC, 01/11/93), LIRC held that retaliation was covered by the public accommodations law; however, that holding was the result of different statutory language at the time). Tabatabai v. Wisconsin Physicians Serv. Health Ins. (LIRC, 02/29/12).
The primary function of the Department of Administration, a State agency, is to provide support services to other State agencies. The DOA is not comparable or consistent with the entities enumerated in the public accommodation or amusement statute. The DOA does not supply necessities or comforts of the kind offered by the listed businesses in the law?s definition of public place of accommodation or amusement. Duarte-Vestar v. Department of Administration (LIRC, 10/16/09).
There are a variety of government entities that supply necessities and comforts of the kind offered by the businesses enumerated in the Wisconsin Public Accommodation and Amusements Law. The State itself, through the Department of Natural Resources, provides places for outdoor recreation, including camping, hunting and fishing. County and local governments also provide such places of recreation for the public. Further, various hospitals and nursing homes are government-owned and operated. Such government entities supply necessities or comforts of the kind offered by the businesses listed in the Law?s definition of public place of accommodation or amusement and are therefore subject to the Law. Duarte-Vestar v. Department of Administration (LIRC, 10/16/09).
The Complainant alleged that when he attended an event at a stadium, an individual employed by a television station which was providing television coverage of an event at the stadium asked him to leave the building. The Complainant filed a complaint against both the television station and the individual employed by the television station. The complaint was properly dismissed on jurisdictional grounds. Neither the television station nor the individual named in the complaint operated the stadium. Further, with respect to the individual named as a Respondent in the complaint, even assuming that the television station was a place of public accommodation (which it is not) the complaint would have been dismissed because the individual was acting as an agent of an employer. Agents should not be separately named as Respondents. Young v. WEAU-TV (LIRC, 05/18/07).
The Respondent’s use of the phrases "women only" and "exclusively for women" did not conform with the advertising provisions of the Wisconsin Public Accommodations and Amusements Law that were in effect at the time of the hearing. Subsequent to the issuance of the Administrative Law Judge’s decision, the legislature amended the Wisconsin Public Accommodations and Amusements Law. The newly amended statute, which went into effect on June 3, 2003, provides, "Nothing in this section prohibits a fitness center whose services or facilities are intended for the exclusive use of persons of the same sex from providing the use of those services or facilities exclusively to persons of that sex, from denying the use of those services or facilities to persons of the opposite sex, or from directly or indirectly publishing, circulating, displaying or mailing any written communication to the effect that the use of those services or facilities will be provided exclusively to persons of the same sex and will be denied to persons of the opposite sex." Sec. 106. 52(3)(e), Stats. Because a fitness center is now permitted to discriminate based upon sex, the cease and desist order in the Administrative Law Judge’s decision was no longer enforceable. Swayne v. Dave Watson, Inc. (LIRC, 09/24/03).
The Wisconsin Public Accommodation and Amusement Law does not prohibit discrimination based upon age, except with respect to lodging. While it would certainly be regrettable if the Complainant were treated unfavorably with regard to his seating on a bus because of his age, such allegations do not constitute a claim for which relief can be granted under the law. Kartin v. Duluth Transit Auth. (LIRC, 08/15/03).
The city clerk’s office is not a public place of accommodation or amusement. While it is possible that there are vending machines in the city clerk’s office, it is clearly not the function of the city clerk’s office to sell sodas or snacks to the public, and the city clerk’s office does not operate in order to provide goods or services to individuals. Moore v. City of Madison (LIRC, 09/26/02).
The Respondent, the Wisconsin Youth Soccer Association (WYSA), is a private, non-profit organization. The WYSA requires that players try out and be accepted onto a team and that they adhere to certain rules of conduct adopted by the organization. Thus, membership in the WYSA requires more than the mere payment of a fee. Therefore, the WYSA comes within the exception in sec. 106.52(1)(e), Wis. Stats. It is not a public place of accommodation or amusement within the meaning of the law. Holloway v. Wisconsin Youth Soccer Assn. (LIRC, 07/16/02).
A blood plasma center which pays donors for blood plasma donations that are used to produce medical products is not a place of public accommodation within the meaning of the Wisconsin Public Accommodations and Amusements Law. Therefore, its refusal to accept a donation of blood plasma from the Complainant cannot be considered a violation of the statute. Ponick v. Community Bio Resources (LIRC, 08/30/01).
Even an isolated instance of harassing behavior can be sufficient to deprive a restaurant patron of the full enjoyment of a place of public accommodation. Here, the Complainant’s contentions that she heard a restaurant manager make an overtly racist remark over a walkie-talkie, and that this made her feel embarrassed and unwelcome, led to a conclusion that the Complainant’s experience at this place of public accommodation was less than fully enjoyable. Moreover, it can be inferred that the Complainant’s enjoyment was not equal to that of non-black restaurant patrons, who presumably did not have to listen to derogatory comments about their race. Even presuming that the manager intended the remark to be a harmless joke, the fact remains that he made a remark which was inherently racist and offensive, and which the Complainant found to be embarrassing and unwelcome. LIRC declined to draw any adverse conclusion from the Complainant’s failure to register a complaint directly with the Respondent. Moreover, there is no reason to conclude that harassment must be condoned by management before an individual can be found to have been deprived of the full and equal enjoyment of a place of public accommodation. Hampton v. Pizza Hut (LIRC, 07/27/00).
"Economic class" is not a protected category under the public accommodations statute. Green v. PDQ (LIRC, 01/20/99).
Access to the governing bodies and committees of corporations, even those who are alleged to operate public places of accommodation, are not protected by Wisconsin’s Public Accommodations statute. Therefore, the allegedly discriminatory makeup of the board of directors in this case could not form the basis for a claim under sec. 106.04(9)(a)2, Stats. Barry v. Maple Bluff Country Club, 221 Wis. 2d 707, 586 N.W.2d 182 (Ct. App. 1998). [Ed. note: sec. 106.04 (9)(a)2., Stats. has been renumbered sec. 106.52 (3)(a)2., Stats.]
Private nonprofit organizations are outside the scope of the public accommodations statute only when they are providing accommodations, amusements, goods and services to: (a) members of the organization, (b) guests named by members, and (c) guests named by the organization. Whether a private nonprofit organization is outside the scope of the statute is conditioned on the relationship of the club or its members to the persons to whom services or facilities are provided. The obligation to plead and prove this statutory proviso is the club’s because it is seeking the benefit of it in this case. Barry v. Maple Bluff Country Club, 221 Wis. 2d 707, 586 N.W.2d 182 (Ct. App. 1998).
A complaint was appropriately dismissed where the Complainant alleged that the Respondent, a grocery store, treated customers differently based upon whether or not they had certain coupons which were attainable only in certain editions of a local newspaper. Even if this was true, it would not be a violation of the law prohibiting discrimination in public accommodations because of sex, race, color, creed, disability, sexual orientation, national origin or ancestry. Scarvaci v. Kohl’s Food Stores (LIRC, 07/20/98).
The Rock County Sheriff’s Department is not a "public place of accommodation or amusement" as that term is defined in the Wisconsin Public Accommodations and Amusements Act. The Sheriff’s Department is totally dissimilar in nature from the businesses listed in the statute. Therefore, the Complainant’s allegations that the Sheriff’s Department, among other things, denied him permission to make a phone call, and denied him medical attention were appropriately dismissed. Perry v. Rock Co. Sheriff’s Dept. (LIRC, 06/25/97).
The nature of the businesses listed in the Public Accommodations Act involve businesses that offer health and beauty aids, food, drink, recreation and lodging to patrons. They are accommodations generally offered by businesses classified as service industry businesses. The Respondent's business in this case, which consists of leasing real property to entrepreneurs for the establishment of their own place of business, does not constitute the operation of a public place of accommodation within the meaning of the law. The Respondent does not supply necessities or comforts of a kind enumerated in the statute. Young v. Trimble (LIRC, 07/11/94).
In a case brought under the Wisconsin Public Accommodations and Amusements Act, the Complainant, a lesbian, alleged that she and the members of her baseball team, which played in games sponsored by the Respondent, experienced verbal harassment from both spectators at the game and players on other teams who shouted comments such as "fag," "dike," "queer," "go home," and "she's got AIDS." The heckling that occurred in this case created a hostile environment which had the effect of denying the full and fair enjoyment of a public accommodation to the Complainant. However, the Respondents were not liable in this case because they did not exercise a degree of control over the persons engaging in the harassment. Neldaughter v. Dickeyville Athletic Club (LIRC, 05/24/94, ERD No. 9132522).
A health club which provides services to the general public subject to no requirement other than payment of fees for the services does not involve the type of "membership" anticipated by the Legislature in its description of a "bona fide private, nonprofit organization or institution," providing services to "members of the organization or institution," "during an event." Sec. 101.22(1)(bp)2, Stats. The "membership" which the Respondent's health club invokes is no more than a method of accounting for fee payments. Schmid v. Shape Up Shoppe (LIRC, 01/11/93).[Ed. note: sec. 101.22 (1)(bp)2., Stats. has been renumbered sec. 106.52 (1)(e)2, Stats.]
Sec. 101.22(4m), Stats. is an anti-retaliation provision which applies to the Public Accommodations Discrimination Law. When a public place of accommodation retaliates against a person who has filed a complaint of discrimination by further limiting or denying access to that person, this tends to coerce, intimate, threaten and interfere with that person's exercise and enjoyment of their statutory right to file a charge of discrimination. Schmid v. Shape Up Shoppe (LIRC, 01/11/93). [Ed. Note: As a result of the 1999 renumbering referred to at the top of this page, the referenced "coerce, intimidate, threaten and interfere with" language which was present in sec. 101.22(4m) in 1993, is no longer part of the Public Accommodations Discrimination Law, sec. 106.52].
The denial of an opportunity to be on an amateur softball team is not a denial or a limitation of a public place of accommodation or amusement. First, the right to be on an amateur softball team is simply not a "place." Second, 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. Third, it is at least arguable that an amateur league team is a "bona fide private, non-profit organization or institution," particularly in the sense of being private. Admittance to the team is entirely dependent upon invitation extended by the group on the basis of private and personal considerations, such as friendship, compatibility and ability. Neldaughter v. Mound View Cheese (LIRC, 07/31/91, ERD No. 8901183).
In order to determine whether the Public Accommodations Act is applicable, the nature of the Respondent's business must be considered. Only if the Respondent's business or activity constitutes a "public place of accommodation or amusement" can it be found that the Respondent has violated the law. A company which provides management services for the owners of a shopping center with commercial tenants does not offer "accommodations to the public" as those terms are normally understood. The company serves the property owners that are its clients. The company is totally dissimilar in nature from the businesses listed in the Public Accommodations Law. Wang v. Executive Management, Inc. (LIRC, 12/19/90).
In order to be a place of public accommodation, a business must be of the same type as those identified in the statute. The classified advertising section of the Respondent's newspaper is not subject to the provisions of the Public Accommodations Act because newspapers are totally dissimilar in nature from businesses listed in the Act and since newspapers do not offer public accommodations in the sense that term is normally understood. Hatheway v. Gannett Satellite Network, 157 Wis. 2d 395, 459 N.W.2d 873 (Ct. App. 1990).
222 Public Accommodations discrimination; Cases
The Complainant's allegation that she was given differential treatment compared to a white male customer in negotiating a transaction at a retail store states a claim under the WFEA's prohibition against preferential treatment. The Complainant's comparison of her experience and the experience of a white male customer did not show preferential treatment because of sex or race. Differences in the treatment of the two customers was satisfactorily explained as being motivated by non-discriminatory economic considerations, reducing the idea of racial or sexual bias to speculation. Khan v. Value Village (LIRC, 12/04/14), (appealed to circuit court).
The Complainants may have found it insulting or demeaning to have been denied entry into a club based upon their looks and manner of dress. However, the Respondent is a limited-access club that maintains a dress code designed to ensure that its clientele reflects a fashionable and trendy image. The evidence established that the Respondent turned away people of all races because of their physical appearance and manner of dress. The Complainants' position that they were discriminated against based upon their race was also weakened by the fact that they were admitted to the club on two of the three occasions they attempted to gain entry. Pryor v. Decibel Deep Bar (LIRC, 10/28/11).
There was no probable cause to believe that the Complainant was denied service at a service station because of her race. The Complainant, who is African-American, sent her daughter into the service station with her credit card so that the clerk could authorize her to purchase gasoline. The clerk told the Complainant's daughter that he could not turn on the gas pump because the credit card was not hers. The Complainant entered the service station to speak to the clerk after he cursed at her daughter. When the Complainant questioned the clerk about using foul language in her daughter's presence, the clerk stated, 'I don't have to take this shit from you, nigga.' The evidence failed to provide reason to believe that the Complainant was denied gasoline service because of her race. The evidence established that she was actually denied gasoline before the clerk's use of the racial slur, and that other African-American customers did receive gasoline service while the Complainant was at the service station. Bowman v. Citgo Convenience Store (LIRC, 08/25/10).
The Respondent was a van service which was acting as an agent of the county Sheriff’s Department. The Sheriff’s Department contracted with the Respondent to remove and store the Complainant’s personal property after he was evicted and his landlord secured a writ of restitution. The Complainant, as a third party who did not directly attempt to avail himself of the Respondent’s services, did not have the type of relationship with the Respondent that is contemplated by the Public Accommodations and Amusements law. Therefore, there was no basis to find that he was denied the full and equal enjoyment of a public place of accommodation or amusement. Wendt v. Bajet Van Lines (LIRC, 10/06/05)
The Complainant failed to establish that the Respondent, a basketball club, violated the Public Accommodations and Amusements law by not selecting her to continue as a volunteer coach for her daughter’s fifth grade team because of her sex. Sec. 106.52, Stats., protects access to “places.” The right to coach an amateur basketball team is not a “place.” Moreover, a “public place of accommodation or amusement” is a place to which members of the public are normally invited under no condition but the payment of a fixed charge (i.e., there was no selectivity on the part of the proprietor in the admission of members of the public, apart from a requirement that they be able to pay). Here, members of the general public are not invited to be coaches of the teams organized by the Club. In addition, the statute protects a person’s access to services provided by, not a person’s provision of services to, a public place of accommodation or amusement. The intended recipients of the Club’s amusements or services are the children who participate in the basketball training and competition opportunities directed by the coach. As a result, it is irrelevant that the Complainant derives amusement from serving as a coach, because her status as a provider of the Club’s services is not a protected one. Wolff v. Middleton Basketball Club (LIRC, 03/11/05), aff'd sub nom. Wolff v. LIRC and Middleton Basketball Club (Dane Co. Cir. Ct., No. 05CV2137, Jan. 3, 2006).
Where the evidence established that the Complainant was barred from the Respondent’s premises based upon repeated instances of disorderly conduct, and not because of her race, color, age or gender, there was no probable cause to believe that the Respondent had violated the Wisconsin Public Accommodations and Amusements Act. Rhyne v. Mayflower Motel and Lounge (LIRC, 04/16/01).
The Complainant alleged that she was forbidden from playing golf at certain times and was denied access to certain business and networking opportunities solely because she was a woman member of a country club. Her case was not barred by the one-year statute of limitations because the club’s allegedly discriminatory actions constituted continuing violations of the statute resulting from express, openly espoused policies of a continuing nature. Barry v. Maple Bluff Country Club, 221 Wis. 2d 707, 586 N.W.2d 182 (Ct. App. 1998).
The Respondents violated the Wisconsin Public Accommodations and Amusements Act by denying the Complainant the full and equal enjoyment of their bar because of disability. Among other things, the Respondents used demeaning language in telling the Complainant, who has a pronounced limp, that he should leave the bar. For example, one of the co-owners of the bar stated, "Crips don’t belong in my bar." The Complainant did not present medical documentation regarding his condition; however, he was still able to prove a violation of the statute by showing that he was regarded as having a disability. Even if the Respondents had offered accommodations to some disabled individuals, this alone did not defeat the Complainant’s claim that he was denied access to the Respondents’ business because he was regarded as disabled. Perrigoue v. Oregon Bowl (LIRC, 02/25/98).
The Complainant failed to state a claim upon which relief could be granted where she alleged that the Respondents did not allow her to participate in a basketball game after she had won a contest sponsored by the Respondents. The winner of the contest was to be given an opportunity to play in a basketball game with the Harlem Globe Trotters. When the Complainant reported to the game, the Respondents refused to allow her to play due to her sex. The alleged denial of the opportunity to play in the basketball game did not constitute a violation of the public accommodations law because a basketball game is not a "place" of accommodation or amusement. Graser v. WMIL FM 106 (LIRC, 11/17/95)
The Respondent's "ladies drink free" night violated sec. 101.22(9)(a)2, Stats. The reasonable interpretation of sec. 101.22(9)(a)2, Stats., is that it prohibits price differentials or discounts based on the categories specified in the statute. Certain conduct (such as charging a higher than regular price on drinks to only one gender or to only one race) would violate both subdivisions of this statutory provision. Promotions may not involve price differentials or other differential treatment based on the categories covered by the statute, whatever the intent. It was immaterial in this case that the Respondent also offered a "men's night out" when men received a discount on beer. On the night the Respondent offered free drinks to women it gave preferential treatment to women. Preferential treatment to men on other nights does not correct that violation. Novak v. Madison Motel Assoc. 188 Wis. 2d 407, 525 N.W.2d 123 (Ct. App. 1994). [Ed. note: sec. 101.22 (9)(a)2., Stats. has been renumbered sec. 106.52 (3)(a)2., Stats.]
The Respondent subjected the Complainants to a racially hostile environment, thereby depriving them of the "full and fair enjoyment" of a place of public accommodation when the owner of the restaurant told the Complainants that they could leave after the Complainants had objected to the owner's use of racially offensive language with other restaurant patrons. Although the remarks were not personally directed at the Complainants, they pertained to the Respondent's negative perceptions of black people in general, and were made loudly enough for the Complainants to hear plainly. In essence, although the Complainants were invited by the Respondent to patronize the restaurant, a place of public accommodation, their use of the establishment was made contingent upon their willingness to suffer the offensive comments. Bond v. Michael's Family Restaurant (LIRC, 03/30/94).
The Respondent violated the Public Accommodations Law by offering aerobics classes in which only women are allowed to participate. The fact that the legislature has created an express exception with limited applicability to public toilets, showers, saunas and dressing rooms, precludes the Department from recognizing an exception for aerobics classes. It is in the domain of the legislature to weigh and decide difficult policy questions such as what the scope of the protected right of privacy should be and what weight one person's rights to privacy should be given as against another person's rights to be free of discrimination. Schmid v. Shape Up Shoppe (LIRC, 01/11/93).
A difference in men's and women's showers and dressing rooms is legally significant if it results in either sex not receiving full and equal enjoyment of the public place of accommodation or amusement. A showing that one sex did not receive full and equal enjoyment of a public place of accommodation or amusement may be made by showing that the facilities of one group are unambiguously better than those of the other, or by demonstrating that the differences were either intended to or did have the effect of discouraging one group's use of the public accommodation or amusement in question. Where the Complainant established only that there were partitions between shower heads and separate changing enclosures in the women's shower and locker room that were absent in the men's shower and locker room, the Complainant failed to show that the women's locker room was unambiguously better than the men's locker room or that the difference either was intended to or did discourage men from using the Respondent's facilities. Malecki v. Vic Tanny Int'l. of Wis. (LIRC, 08/07/92).
223 Public Accommodations discrimination; Remedies
The Public Accommodations and Amusements Act does not authorize the Department to award compensatory damages to a prevailing complainant. Because the Act does not contain a provision guaranteeing a right to trial by jury (a right which is, by contrast, provided under the recently amended Open Housing Act), allowing the Department to award compensatory damages would raise significant constitutional questions. 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. The Department may, however, award equitable remedies such as "out-of-pocket" expenses. Humphrey v. Comfort Inn (LIRC, 09/06/94).
"Out of pocket expenses" are amounts which are actually spent by the injured party as a necessary consequence of the prohibited discrimination by the Respondent and are in the nature of expenses of mitigation. In this case, the Complainants were not entitled to reimbursement for their meals when they left a restaurant due to the Respondent's use of racially derogatory language. The cost of the meals was not an expense incurred in mitigation of the harm suffered. The Complainants' actions in leaving the restaurant without paying their bill cannot be condoned, regardless of the discriminatory behavior that prompted them to do so. Bond v. Michael's Family Restaurant (LIRC, 03/30/94).
A Complainant was not entitled to reimbursement for the cost of counseling sessions where the only evidence in the record regarding the sessions was the Complainant's own testimony that her daughter suffered severe emotional harm as a result of her exposure to racial epithets by the Respondent. The Complainants presented no expert testimony at the hearing establishing the need for the counseling; nor did they present their medical bills for the counseling. Bond v. Michael's Family Restaurant (LIRC, 03/30/94).
Although a finding of discrimination generally implies a finding of intent, it is not enough to simply find that every act of discrimination is an inherently "willful" act which would justify the imposition of a forfeiture under sec. 101.22(10)(d), Stats. In this case, the Respondent intentionally used the word "nigger," knowing that the word was improper and could reasonably be construed by a listener as an offensive racial epithet. However, there was no evidence to suggest that the Respondent was aware of the existence of the Public Accommodations Law or knew that her actions in using the racial epithets were in violation of that statute. Therefore, the Labor and Industry Review Commission cannot conclude that the Respondent knew or should have known that her actions violated the law. Accordingly, the Commission declines to assess a forfeiture penalty. Bond v. Michael's Family Restaurant (LIRC, 03/30/94).
229 Public Accommodations discrimination; Miscellaneous
Under the Public Accommodations Act, unlike the Fair Employment Act, there is no statutory provision like Wis. Stat. § 111.39(3), mandating dismissal for failure to respond to a letter from the ERD. Instead, there is only an administrative rule, which provides that the ERD “may” dismiss for a non-response. Dismissal of a public accommodation complaint for lack of response to an ERD letter, then, is a matter of discretion. The ALJ did not exercise discretion, but simply dismissed on the assumption that dismissal was mandated. The matter was remanded for consideration under the correct standard. Soto v. Menards, Inc. (LIRC, 06/27/14).
The exceptions that apply to the 300-day statute of limitations in employment discrimination cases under the Wisconsin Fair Employment Act can also be applied by analogy in cases brought under the public accommodations discrimination law. These include what is sometimes referred to as the "discovery rule," as well as the doctrine of equitable tolling. The discovery rule can delay the initial running of the statutory limitations period until a complainant discovers he has been injured by another. Equitable tolling can suspend the running of the statute of limitations for the time reasonably necessary to conduct the necessary inquiry to determine if an unlawful motive was possibly at work. Tabatabai v. Wisconsin Physicians Serv. Health Ins. (LIRC, 02/29/12).
After both an ALJ and LIRC agreed there was no probable cause to believe that the Respondent, a bank, had violated the Wisconsin Public Accommodations Law by giving preferential treatment on the basis of race, the Complainant commenced an action against the Respondent in circuit court under 106.52(4)(c), pursuant to which a complainant may receive a new trial and a decision de novo by the circuit court on public accommodations discrimination claims. The circuit court, which decided based on a motion for summary judgment that there had been no discrimination, also concluded that the court action had been frivolous under 814.025, and it awarded the Respondent reasonable costs and attorney's fees pursuant to that statute. The court found that the action was frivolous because both the ERD and LIRC had found that there was no probable cause to believe that discrimination occurred, and the Complainant presented no new evidence in his appeal to the circuit court to provide a factual basis for the claim, but relied upon unsubstantiated conclusory statements. The Complainant should have known that without more than conclusory statements his claim would be as unsuccessful in court as it was in the previous administrative proceeding. Harris v. Curley (Dane Co. Cir. Ct., 08/11/04).
Standing is not an issue of any significance when commencing complaints of public accommodations discrimination, because there is no statutory provision which imposes a standing limitation on who may bring complaints. Malecki v. Vic Tanny Int'l. of Wis. (LIRC, 08/07/92).
A complaint of sex discrimination in the provision of different showering and dressing facilities for men and women at a health club was timely, even though the male Complainant filed the complaint several years after first joining the club, because the maintenance of different facilities for men and women is a continuing act. Malecki v. Vic Tanny Int'l. of Wis. (LIRC, 08/07/92).
By 1989 Act 47, effective September 12, 1989, the legislature repealed the Public Accommodations Law, as it then existed in sec. 942.04, Stats. (1987), and recreated it in sec. 101.22, Stats. Prior to this change in the law, the Equal Rights Division did not have authority to conduct hearings on allegations of violations of the Public Accommodations Law. Neldaughter v. Mound View Cheese (LIRC, 07/31/91, ERD No. 9011382).[Ed. note: sec. 101.22, Stats. has been renumbered sec. 106.52, Stats.]