106.04(6)(c)
(c)
Investigation and finding of probable cause. 106.04(6)(c)1.1. The department shall investigate all complaints that allege a violation of this section and that are filed within the time specified under
par. (a). The department may subpoena persons or documents for the purpose of investigation. If during an investigation it appears that the respondent has engaged in discrimination against the complainant which is not alleged in the complaint, the department may advise the complainant that the complaint should be amended. If the complaint is amended, the department shall also investigate the allegations of the amended complaint.
106.04(6)(c)2.
2. At the conclusion of the investigation of the allegations, the department shall make a determination as to whether probable cause exists to believe that discrimination has occurred or is about to occur. In making a determination of probable cause, the department shall consider whether the facts concerning the alleged discrimination are sufficient to warrant the initiation of a civil action. If the department determines that probable cause exists, the department shall immediately issue a charge on behalf of the aggrieved person. Service of copies of the charge shall be made on the complainant, the respondent and the aggrieved person by certified mail, return receipt requested. When a charge is filed, a complainant, a respondent or an aggrieved person on whose behalf the complaint was filed may elect to have the claims asserted in that charge decided in a civil action under
sub. (6m) in lieu of a hearing under
par. (f). The election shall be made no later than 20 days after the receipt by the electing person of service of the charge, along with information about how to make the election. If an election is made, the person making the election shall give notice of doing so to the department and to all other complainants and respondents to whom the charge relates. The department shall notify the aggrieved persons that an election is made.
106.04(6)(c)3.
3. No charge may be issued regarding alleged discrimination after the beginning of the trial of a civil action commenced by the aggrieved party under
sub. (6m) or
42 USC 3613, seeking relief with respect to that discriminatory act.
106.04(6)(c)4.
4. If the department initially determines that there is no probable cause to believe that discrimination occurred as alleged in the complaint, it may dismiss those allegations. The department shall, by a notice to be served with the determination, notify the parties of the complainant's right to appeal the dismissal of the claim to the secretary for a hearing on the issue by a hearing examiner. Service of the determination shall be made by certified mail, return receipt requested. If the hearing examiner determines that no probable cause exists, that determination is the final determination of the department and may be appealed under
par. (j).
106.04(6)(d)
(d)
Temporary judicial relief. At any time after a complaint is filed alleging discrimination in violation of
sub. (2),
(2m) or
(2r), the department may file a petition in the circuit court for the county in which the act of discrimination allegedly occurred or for the county in which a respondent resides or transacts business, seeking a temporary injunction or restraining order against the respondent to prevent the respondent from performing an act that would tend to render ineffectual an order that the department may enter with respect to the complaint, pending final determination of proceedings under this section.
106.04(6)(e)1.1. Upon the filing of a complaint alleging discrimination in violation of
sub. (2),
(2m) or
(2r), the department may endeavor to eliminate the discrimination by conference, conciliation and persuasion. The department shall notify the parties that conciliation services are available.
106.04(6)(e)2.
2. Conciliation efforts may be undertaken by the department during the period beginning with the filing of the complaint and ending with the dismissal of the complaint under
par. (c) 4. or the issuance of a charge under
par. (c) 2.
106.04(6)(e)3.
3. If conciliation resolves the dispute, a written conciliation agreement shall be prepared which shall state all measures to be taken by each party. The agreement may provide for dismissal of the complaint if the dismissal is without prejudice to the complainant's right to pursue the complaint against any respondent who fails to comply with the terms of the agreement. The agreement shall be signed by the respondent, the complainant and the aggrieved person and is subject to approval by the department. A conciliation agreement entered into under this subdivision is a public record and is subject to inspection under
s. 19.35, unless the parties to the agreement request that the record be exempt from disclosure and the department finds that disclosure is not required to further the purposes of this section.
106.04(6)(e)4.
4. Whenever the department has reasonable cause to believe that a respondent has breached a conciliation agreement, the department shall refer the matter to the department of justice with a recommendation that a civil action be filed for enforcement of the agreement.
106.04(6)(f)1.1. After the department issues a charge under
par. (c) 2., the department shall serve the charge, along with a written notice of hearing, specifying the nature and acts of discrimination which appear to have been committed, and requiring the respondent to answer the charge at a hearing before an examiner. The notice shall specify a time of hearing, not less than 10 days after service of the charge, and a place of hearing within the county in which the violation is alleged to have occurred.
106.04(6)(f)2.
2. If an election is not made under
par. (c) 2., the hearing shall be conducted by a hearing examiner. A person who is aggrieved, with respect to the issues to be determined at the hearing, may be represented by counsel.
106.04(6)(f)3.
3. The department or a party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney shall be in substantially the same form as provided in
s. 805.07 (4) and shall be served in the manner provided in
s. 805.07 (5). The attorney shall, at the time of issuance, send a copy of the subpoena to the hearing examiner who is responsible for conducting the hearing.
106.04(6)(f)4.
4. The testimony at the hearing shall be recorded by the department. Discovery shall be conducted as expeditiously and inexpensively as possible, consistent with the need of all parties to obtain relevant evidence. The hearing under this paragraph shall be conducted as expeditiously and inexpensively as possible, consistent with the needs and rights of the parties to obtain a fair hearing and a complete record. The burden of proof is on the party alleging discrimination.
106.04(6)(f)5.
5. If after the hearing the examiner finds by a fair preponderance of the evidence that the respondent has violated
sub. (2),
(2m) or
(2r), the examiner shall make written findings and order the respondent to take actions that will effectuate the purpose of
sub. (2),
(2m) or
(2r), and may order other penalties, damages and costs as provided in
pars. (h) and
(i). The department shall serve a certified copy of the final findings and order on the aggrieved party, the complainant and the respondent. The order shall have the same force as other orders of the department and be enforced as provided in this subsection except that the enforcement of the order is automatically stayed upon the filing of a petition for review under
par. (j).
106.04(6)(f)6.
6. If the examiner finds that the respondent has not engaged in discrimination as alleged in the complaint, the department shall serve a certified copy of the examiner's findings on the aggrieved party, the complainant and the respondent together with an order dismissing the complaint. If the complaint is dismissed, costs in an amount not to exceed $100 plus actual disbursements for the attendance of witnesses may be assessed against the department in the discretion of the department.
106.04(6)(g)1.1. The department shall commence proceedings with respect to a complaint before the end of the 30th day after receipt of the complaint.
106.04(6)(g)2.
2. The department shall investigate the allegations of the complaint and complete the investigation not later than 100 days after receipt of the complaint. If the department is unable to complete the investigation within 100 days, it shall notify the complainant and respondent in writing of the reasons for not doing so.
106.04(6)(g)3.
3. The department shall make final administrative disposition of a complaint within one year after the date of receipt of a complaint, unless it is impracticable to do so. If the department is unable to do so, it shall notify the complainant and respondent in writing of the reasons for not doing so.
106.04(6)(h)1.1. If the hearing examiner finds that a respondent has engaged in or is about to engage in a discriminatory act prohibited under
sub. (2),
(2m) or
(2r), the hearing examiner shall promptly issue an order for such relief as may be appropriate, which may include economic and noneconomic damages suffered by the aggrieved person, regardless of whether he or she intervened in the action, and injunctive or other equitable relief. The hearing examiner may not order punitive damages.
106.04(6)(h)2.
2. In addition to any damages ordered under
subd. 1., the hearing examiner may assess a forfeiture against a respondent who is not a natural person in an amount not exceeding $10,000, unless the respondent who is not a natural person has been adjudged to have committed any prior discriminatory act under
sub. (2),
(2m) or
(2r). If a respondent who is not a natural person has been adjudged to have committed one other discriminatory act under
sub. (2),
(2m) or
(2r) during the preceding 5-year period, based on the offense date of the prior discriminatory act, the hearing examiner may assess a forfeiture in an amount not exceeding $25,000. If a respondent who is not a natural person has been adjudged to have committed 2 or more prior discriminatory acts under
sub. (2),
(2m) or
(2r) during the preceding 7-year period, based on the offense date of the prior discriminatory act, the hearing examiner may assess a forfeiture in an amount not exceeding $50,000.
106.04(6)(h)3.
3. In addition to any damages ordered under
subd. 1., the administrative law judge may assess a forfeiture against a respondent who is a natural person in an amount not exceeding $10,000, unless the respondent who is a natural person has been adjudged to have committed any prior discriminatory act under
sub. (2),
(2m) or
(2r). If a respondent who is a natural person has been adjudged to have committed one other prior discriminatory act under
sub. (2),
(2m) or
(2r) based on an offense date that is before September 1, 1992, the administrative law judge may assess a forfeiture in an amount not exceeding $25,000. If a respondent who is a natural person has been adjudged to have committed 2 or more prior discriminatory acts under
sub. (2),
(2m) or
(2r) based on an offense date that is before September 1, 1992, the administrative law judge may assess a forfeiture in an amount not exceeding $50,000.
106.04(6)(i)
(i)
Attorney fees and costs. The hearing examiner may allow a prevailing complainant, including the state, reasonable attorney fees and costs. The state shall be liable for those fees and costs if the state is a respondent and is determined to have committed a discriminatory act under
sub. (2),
(2m) or
(2r).
106.04(6)(j)
(j)
Judicial review. Within 30 days after service upon all parties of an order or determination of the department under this subsection, the respondent, the complainant or the aggrieved party may appeal the order or the determination to the circuit court for the county in which the alleged discrimination took place by the filing of a petition for review. The court shall review the order or determination as provided in
ss. 227.52 to
227.58.
106.04(6m)(a)(a) Any person, including the state, alleging a violation of
sub. (2),
(2m) or
(2r) may bring a civil action for injunctive relief, for damages, including punitive damages, and, in the case of a prevailing plaintiff, for court costs and reasonable attorney fees.
106.04(6m)(b)
(b) An action commenced under
par. (a) may be brought in the circuit court for the county where the alleged violation occurred or for the county where the person against whom the civil complaint is filed resides or has a principal place of business, and shall be commenced within one year after the alleged violation occurred or terminated. The one-year statute of limitations under this paragraph shall be tolled while an administrative proceeding with respect to the same complaint is pending.
106.04(6m)(c)
(c) The court may issue a permanent or temporary injunction or restraining order to assure the rights granted by this section. The court may order other relief that the court considers appropriate, including monetary damages, actual and punitive, a forfeiture as provided in
sub. (6) (h) and costs and fees as provided in
sub. (6) (i).
106.04(6m)(d)
(d) If the attorney general has reasonable cause to believe that any person is engaged in a pattern or practice of discrimination in violation of
sub. (2),
(2m) or
(2r) or that any person has been denied any of the rights granted under
sub. (2),
(2m) or
(2r), and such denial raises an issue of general public importance, the department of justice may commence a civil action.
106.04(8)
(8) Discrimination by licensed or chartered persons. 106.04(8)(a)(a) If the department finds reasonable cause to believe that an act of discrimination has been or is being committed in violation of this section by a person taking an action prohibited under
sub. (2),
(2m) or
(2r), or probable cause to believe that an act has been or is being committed in violation of
sub. (9), and the person is licensed or chartered under state law, the department shall notify the licensing or chartering agency of its findings, and may file a complaint with such agency together with a request that the agency initiate proceedings to suspend or revoke the license or charter of such person or take other less restrictive disciplinary action.
106.04(8)(b)
(b) Upon filing a complaint under
par. (a), the department shall make available to the appropriate licensing or chartering agency all pertinent documents and files in its custody, and shall cooperate fully with such agency in the agency's proceedings.
106.04(9)
(9) Public place of accommodation or amusement. 106.04(9)(a)1.
1. Deny to another or charge another a higher price than the regular rate for the full and equal enjoyment of any public place of accommodation or amusement because of sex, race, color, creed, disability, sexual orientation, national origin or ancestry.
106.04(9)(a)1m.
1m. Deny to an adult or charge an adult a higher price than the regular rate for the full and equal enjoyment of a lodging establishment because of age, subject to
s. 125.07.
106.04(9)(a)2.
2. Give preferential treatment to some classes of persons in providing services or facilities in any public place of accommodation or amusement because of sex, race, color, creed, sexual orientation, national origin or ancestry.
106.04(9)(a)3.
3. Directly or indirectly publish, circulate, display or mail any written communication which the communicator knows is to the effect that any of the facilities of any public place of accommodation or amusement will be denied to any person by reason of sex, race, color, creed, disability, sexual orientation, national origin or ancestry or that the patronage of a person is unwelcome, objectionable or unacceptable for any of those reasons.
106.04(9)(a)3m.
3m. Directly or indirectly publish, circulate, display or mail any written communication which the communicator knows is to the effect that any of the facilities of a lodging establishment will be denied to an adult because of age, subject to
s. 125.07.
106.04(9)(a)4.
4. Refuse to furnish or charge another a higher rate for any automobile insurance because of race, color, creed, disability, national origin or ancestry.
106.04(9)(a)5.
5. Refuse to rent, charge a higher price than the regular rate or give preferential treatment, because of sex, race, color, creed, sexual orientation, national origin or ancestry, regarding the use of any private facilities commonly rented to the public.
106.04(9)(b)
(b) Nothing in this subsection prohibits separate dormitories at higher educational institutions or separate public toilets, showers, saunas and dressing rooms for persons of different sexes.
106.04(9)(c)
(c) Nothing in this subsection prohibits separate treatment of persons based on sex with regard to public toilets, showers, saunas and dressing rooms for persons of different sexes.
106.04(10)
(10) Investigation and review of claims, public places. 106.04(10)(a)1.1. The department may receive and investigate a complaint charging a violation of
sub. (9) if the complaint is filed with the department no more than 300 days after the alleged act prohibited under
sub. (9) occurred. A complaint shall be a written statement of the essential facts constituting the act prohibited under
sub. (9) charged, and shall be verified.
106.04(10)(a)2.
2. In carrying out this subsection, the department and its duly authorized agents may hold hearings, subpoena witnesses, take testimony and make investigations as provided in this chapter. The department, upon its own motion, may test and investigate for the purpose of establishing violations of
sub. (9), and may make, sign and file complaints alleging violations of
sub. (9), and initiate investigations and studies to carry out the purposes of
sub. (9) and this subsection.
106.04(10)(a)3.
3. The department shall employ such examiners as are necessary to hear and decide complaints of acts prohibited under
sub. (9) and to assist in the effective administration of this subsection. The examiners may make findings and orders under this subsection.
106.04(10)(a)4.
4. If the department finds probable cause to believe that any act prohibited under
sub. (9) has been or is being committed, it may endeavor to eliminate the discrimination or other act by conference, conciliation and persuasion. If the department determines that such conference, conciliation and persuasion has not eliminated the alleged act prohibited under
sub. (9), the department shall issue and serve a written notice of hearing, specifying the nature and acts prohibited under
sub. (9) which appear to have been committed, and requiring the person named, in this subsection called the "respondent", to answer the complaint at a hearing before an examiner. The notice shall specify a time of hearing, not less than 10 days after service of the complaint, and a place of hearing within the county in which the violation of
sub. (9) is alleged to have occurred. A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in
s. 805.07 (4) and must be served in the manner provided in
s. 805.07 (5). The attorney shall, at the time of issuance, send a copy of the subpoena to the appeal tribunal or other representative of the department responsible for conducting the proceeding. The testimony at the hearing shall be recorded by the department. In all hearings before an examiner, except those for determining probable cause, the burden of proof is on the party alleging an act prohibited under
sub. (9). If, after the hearing, the examiner finds by a fair preponderance of the evidence that the respondent has violated
sub. (9), the examiner shall make written findings and order such action by the respondent as will effectuate the purpose of
sub. (9) and this subsection. The department shall serve a certified copy of the examiner's findings and order on the respondent and complainant, the order to have the same force as other orders of the department and be enforced as provided in this subsection except that the enforcement of the order is automatically stayed upon the filing of a petition for review with the commission. If the examiner finds that the respondent has not engaged in an act prohibited under
sub. (9) as alleged in the complaint, the department shall serve a certified copy of the examiner's findings on the complainant and the respondent together with an order dismissing the complaint. If the complaint is dismissed, costs in an amount not to exceed $100 plus actual disbursements for the attendance of witnesses may be assessed against the department in the discretion of the department.
106.04(10)(a)5.
5. At any time after a complaint is filed, the department may file a petition in the circuit court for the county in which the act prohibited under
sub. (9) allegedly occurred, or for the county in which a respondent resides or transacts business, seeking appropriate temporary relief against the respondent, pending final determination of proceedings under this subsection, including an order or decree restraining the respondent from performing an act tending to render ineffectual an order the department may enter with respect to the complaint. The court may grant such temporary relief or restraining order as it deems just and proper.
106.04(10)(b)1.1. A respondent or complainant who is dissatisfied with the findings and order of the examiner under
par. (a) may file a written petition with the department for review by the commission of the findings and order.
106.04(10)(b)2.
2. The commission shall either reverse, modify, set aside or affirm the findings and order in whole or in part, or direct the taking of additional evidence. Such action shall be based on a review of the evidence submitted. If the commission is satisfied that a respondent or complainant has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order it may extend the time another 21 days for filing the petition with the department.
106.04(10)(b)3.
3. On motion, the commission may set aside, modify or change any decision made by the commission, at any time within 28 days from the date thereof if it discovers any mistake therein, or upon the grounds of newly discovered evidence. The commission may on its own motion, for reasons it deems sufficient, set aside any final decision of the commission within one year from the date thereof upon grounds of mistake or newly discovered evidence, and remand the case to the department for further proceedings.
106.04(10)(b)4.
4. If no petition is filed within 21 days from the date that a copy of the findings and order of the examiner are mailed to the last-known address of the respondent and complainant, the findings and order shall be considered final.
106.04(10)(c)
(c)
Judicial review. Within 30 days after service upon all parties of an order of the commission under
par. (b), the respondent or complainant may appeal the order to the circuit court for the county in which the alleged act prohibited under
sub. (9) took place by the filing of a petition for review. The respondent or complainant shall receive a new trial on all issues relating to any alleged act prohibited under
sub. (9) and a further right to a trial by jury, if so desired. The department of justice shall represent the commission. In any such trial the burden shall be to prove an act prohibited under
sub. (9) by a fair preponderance of the evidence. Costs in an amount not to exceed $100 plus actual disbursements for the attendance of witnesses may be taxed to the prevailing party on the appeal.
106.04(10)(d)1.1. A person who wilfully violates
sub. (9) or any lawful order issued under this subsection shall, for the first violation, forfeit not less than $100 nor more than $1,000.
106.04(10)(d)2.
2. A person adjudged to have violated
sub. (9) within 5 years after having been adjudged to have violated
sub. (9), for every violation committed within the 5 years, shall forfeit not less than $1,000 nor more than $10,000.
106.04(10)(d)3.
3. Payment of a forfeiture under this paragraph shall be stayed during the period in which an appeal may be taken and during the pendency of an appeal under
par. (c).
106.04(10)(e)1.1. A person, including the state, alleging a violation of
sub. (9) may bring a civil action for appropriate injunctive relief, for damages including punitive damages, and, in the case of a prevailing plaintiff, for court costs and reasonable attorney fees. The attorney general shall represent the department in an action to which the department is a party.
106.04(10)(e)2.
2. An action commenced under this paragraph may be brought in the circuit court for the county where the alleged violation occurred, or for the county where the person against whom the civil complaint is filed resides or has a principal place of business, and shall be commenced within one year after the alleged violation occurred.
106.04(10)(e)3.
3. The remedies provided for in this paragraph shall be in addition to any other remedies contained in this subsection.
106.04 History
History: 1971 c. 185 s.
1;
1971 c. 228 s.
42;
1971 c. 230;
1971 c. 307 s.
51; Stats. 1971 s. 101.22;
1975 c. 94,
275,
421,
422;
1977 c. 29;
1977 c. 418 s.
929 (55);
1979 c. 110;
1979 c. 177 s.
85;
1979 c. 188,
221,
355;
1981 c. 112,
180;
1981 c. 391 s.
210;
1983 a. 27,
189;
1985 a. 238,
319;
1987 a. 262;
1989 a. 47 ss.
2 to
5,
8 to
11;
1989 a. 94,
106,
139,
359;
1991 a. 295,
315;
1993 a. 27;
1995 a. 27 s.
3687; Stats. 1995 s. 106.04;
1995 a. 225;
1995 a. 448 ss.
66,
68.
106.04 Note
NOTE: 1991 Wis. Act 295, which affected this section, contains extensive legislative council notes.
106.04 Annotation
"Harassment" under (2) (f) includes sexual harassment as defined in 111.32 (13). Compensable damages discussed. Chomicki v. Wittekind, 128 W (2d) 188, 381 NW (2d) 561 (Ct. App. 1985).
106.04 Annotation
Newspaper's classified advertising section not subject to public accommodations act. Hatheway v. Gannett Satellite Network, 157 W (2d) 395, 459 NW (2d) 873 (Ct. App. 1990).
106.04 Annotation
Violation of sub. (2) (d) requires that an ordinary reader find that an advertisement suggests a particular class is preferred or dispreferred. Milwaukee Fair Housing Council v. LIRC, 173 W (2d) 199, 496 NW (2d) 159 (Ct. App. 1992).
106.04 Annotation
Sub. (9) (a) 2. prohibits price differentials or discounts based on the categories specified in the statute. Offering free drinks to women and not men is prohibited regardless of whether other promotions offered preferential treatment to men. Novak v. Madison Motel Associates, 188 W (2d) 407, 525 NW (2d) 123 (Ct. App. 1994).
106.04 Annotation
Under (3) the department is precluded from actively publicizing complaints only at those stages before the department finds that conference, conciliation and persuasion have not eliminated the alleged discrimination. 60 Atty. Gen. 43.
106.04 Annotation
Wisconsin open housing law permits, but does not require, department to receive and process class action complaints of housing discrimination. 70 Atty. Gen. 250.
106.04 Annotation
Insurer of apartment had duty to defend owner and manager for liability under this section. Gardner v. Romano, 688 F Supp. 489 (E. D. Wis. 1988).
106.04 Annotation
Federal rent vouchers are not clearly within the meaning of "lawful source of income". Knapp v. Eagle Property Management Corp. 54 F (3d) 1272 (1995).
106.04 Annotation
Closing the Door on Cohabitants Under Wisconsin's Open Housing Law. Neuman. 1995 WLR 965.
106.05
106.05
Equal rights council. 106.05(1)
(1) The equal rights council shall disseminate information and attempt by means of discussion as well as other proper means to educate the people of the state to a greater understanding, appreciation and practice of human rights for all people, of whatever race, creed, color, sexual orientation or national origin, to the end that this state will be a better place in which to live.
106.05(2)
(2) The council shall give consideration to the practical operation and application of
ss. 106.04 to
106.06 and report to the proper legislative committee its view on any pending bill relating to the subject matter of
ss. 106.04 to
106.06.
106.05 History
History: 1971 c. 185 s.
1; 1971 s. 228; Stats. 1971 s. 101.221;
1981 c. 112;
1995 a. 27 s.
3688; Stats. 1995 s. 106.05.
106.06
106.06
Division of equal rights. 106.06(2)
(2) The division shall encourage and assist local units of government in guaranteeing all persons an equal opportunity for housing.
106.06(3)
(3) All gifts, grants, bequests and devises to the division for its use for any of the purposes mentioned in
s. 106.05 are valid and shall be used to carry out the purposes for which made and received.
106.06(4)
(4) The division shall review complaints of discrimination against public employes exercising their rights with respect to occupational safety and health matters, under
s. 101.055 (8).
106.06(5)
(5) The division shall receive complaints of discharge or discrimination under
s. 46.90 (4) (b) and shall process the complaints in the same manner that employment discrimination complaints are processed under
s. 111.39.
106.06 History
History: 1971 c. 185 ss.
1,
7; Stats. 1971 s. 101.222;
1977 c. 29;
1981 c. 360;
1983 a. 398;
1989 a. 47;
1995 a. 27 s.
3689; Stats. 1995 s. 106.06.
