106.50 Annotation
This section should be interpreted parallel to its federal analog. State law, like the relevant federal law, allows landlords to impose reasonable occupancy requirements based on factors such as the number and size of sleeping areas or bedrooms and the overall size of the dwelling unit. Jones v. Baecker,
2017 WI App 3,
373 Wis. 2d 235,
891 N.W.2d 823,
15-0325.
106.50 Annotation
Courts have recognized that prohibited discrimination can occur principally in two ways. The first is by disparate treatment. Disparate treatment occurs when some people are treated less favorably than others because of a protected criterion. Proof of discriminatory motive is critical to a disparate treatment claim. Alternatively, a plaintiff may allege that a particular practice, even if not evidencing intentional discrimination, may have a disproportionally adverse effect on minorities and other protected classes. Jones v. Baecker,
2017 WI App 3,
373 Wis. 2d 235,
891 N.W.2d 823,
15-0325.
106.50 Annotation
A plaintiff alleging disparate treatment racial discrimination may elect to prove his or her case using either the direct method, involving the presentation of direct or circumstantial evidence of disparate treatment, or the burden-shifting framework first established in
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Under the direct method, summary judgment for the defendant is warranted on a disparate treatment claim if the plaintiff cannot produce either direct evidence of discriminatory intent or indirect evidence creating an inference of discriminatory intent. The plaintiff's evidence, whatever its nature, must sufficiently demonstrate that discriminatory intent was a substantial factor motivating the defendant's conduct. Jones v. Baecker,
2017 WI App 3,
373 Wis. 2d 235,
891 N.W.2d 823,
15-0325.
106.50 Annotation
The Wisconsin open housing law permits, but does not require, the department to receive and process class action complaints of housing discrimination. 70 Atty. Gen. 250.
106.50 Annotation
The insurer of an apartment had a duty to defend an owner and manager for liability under this section. Gardner v. Romano,
688 F. Supp. 489 (E. D. Wis. 1988).
106.50 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).
106.50 Annotation
Closing the Door on Cohabitants Under Wisconsin's Open Housing Law. Neuman. 1995 WLR 965.
106.52
106.52
Public places of accommodation or amusement. 106.52(1)(a)
(a) “Complainant" means a person who files a complaint alleging a violation of sub.
(3).
106.52(1)(cm)
(cm) “Fitness center" means an establishment, whether operated for profit or not for profit, that provides as its primary purpose services or facilities that are purported to assist patrons in physical exercise, in weight control, or in figure development. “Fitness center" does not include an organization solely offering training or facilities in an individual sport or a weight reduction center, as defined in s.
100.177 (1) (e).
106.52(1)(d)
(d) “Lodging establishment" means any of the following:
106.52(1)(e)1.1. “Public place of accommodation or amusement" shall be interpreted broadly to include, but not be limited to, places of business or recreation; lodging establishments; restaurants; taverns; barber, cosmetologist, aesthetician, electrologist, or manicuring establishments; nursing homes; clinics; hospitals; cemeteries; and any place where accommodations, amusement, goods, or services are available either free or for a consideration, subject to subd.
2. 106.52(1)(e)2.
2. “Public place of accommodation or amusement" does not include a place where a bona fide private, nonprofit organization or institution provides accommodations, amusement, goods or services during an event in which the organization or institution provides the accommodations, amusement, goods or services to the following individuals only:
106.52(1)(f)
(f) “Respondent" means the person accused in a complaint or amended complaint of committing a violation of sub.
(3).
106.52(1)(fm)
(fm) “Service animal" means a guide dog, signal dog, or other animal that is individually trained or is being trained to do work or perform tasks for the benefit of a person with a disability, including the work or task of guiding a person with impaired vision, alerting a person with impaired hearing to intruders or sound, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.
106.52(2)
(2) Department to administer. The department shall administer this section through its division of equal rights. The department may promulgate such rules as are necessary to carry out this section. No rule may prohibit the processing of any class action complaint or the ordering of any class-based remedy, and no rule may provide that complaints may be consolidated for administrative convenience only.
106.52(3)
(3) Public place of accommodation or amusement. 106.52(3)(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.
106.52(3)(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.
106.52(3)(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.
106.52(3)(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.
106.52(3)(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.
106.52(3)(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.
106.52(3)(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.
106.52(3)(am)1.a.
a. Refuse to permit entrance into, or use of, or otherwise deny the full and equal enjoyment of any public place of accommodation or amusement to a person with a disability or to a service animal trainer because the person with a disability or the trainer is accompanied by a service animal.
106.52(3)(am)1.b.
b. Charge a person with a disability or a service animal trainer a higher price than the regular rate, including a deposit or surcharge, for the full and equal enjoyment of any public place of accommodation or amusement because the person with a disability or the trainer is accompanied by a service animal.
106.52(3)(am)1.c.
c. Directly or indirectly publish, circulate, display, or mail any written communication that the communicator knows is to the effect that entrance into, or use of, or the full and equal enjoyment of any of the facilities of the public place of accommodation or amusement will be denied to a person with a disability or a service animal trainer because the person with a disability or the trainer is accompanied by a service animal or that the patronage of a person with a disability or a service animal trainer is unwelcome, objectionable, or unacceptable because the person with a disability or the trainer is accompanied by a service animal.
106.52(3)(am)2.
2. The prohibitions specified in subd.
1. apply to a service animal trainer only if the animal accompanying the service animal trainer is wearing a harness or a leash and special cape. Subdivision
1. does not prohibit a person who is accompanied by an animal from being asked whether the animal is a service animal that is required because of a disability or is an animal that is being trained to be a service animal and does not prohibit a service animal trainer from being required to produce a certification or other credential issued by a school for training service animals that the animal is being trained to be a service animal. Subdivision
1. prohibits a person with a disability from being required to produce documentation of his or her disability or a certification or other credential that the animal is trained as or is being trained to be a service animal.
106.52(3)(am)3.
3. A person may exclude a service animal from a public place of accommodation or amusement if accommodation of the service animal would result in a fundamental alteration in the nature of the accommodations, amusement, goods, or services provided or would jeopardize the safe operation of the public place of accommodation or amusement. If a service animal must be separated from the person whom the service animal is accompanying, it is the responsibility of that person to arrange for the care and supervision of the service animal during the period of separation.
106.52(3)(am)4.
4. A public place of accommodation or amusement shall modify its policies, practices, and procedures to permit the full and equal enjoyment of the public place of accommodation or amusement by a person with a disability or a service animal trainer who is accompanied by a service animal. Those policies, practices, and procedures shall ensure that a person with a disability or a service animal trainer who is accompanied by a service animal is not separated from the service animal, that the service animal is permitted to accompany the person with a disability or the service animal trainer to all areas of the public place of accommodation or amusement that are open to the general public, and that the person with a disability or the service animal trainer is not segregated from other patrons of the public place of accommodation or amusement.
106.52(3)(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.
106.52(3)(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.
106.52(3)(d)
(d) Nothing in this subsection prohibits a domestic abuse services organization, as defined in s.
995.67 (1) (b), from providing separate shelter facilities, private home shelter care, advocacy, counseling or other care, treatment or services for persons of different sexes or from providing for separate treatment of persons based on sex with regard to the provision of shelter facilities, private home shelter care, advocacy, counseling or other care, treatment or services for persons of different sexes.
106.52(3)(e)
(e) 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.
106.52(4)
(4) Investigation and review of claims, public places. 106.52(4)(a)1.
1. The department may receive and investigate a complaint charging a violation of sub.
(3) if the complaint is filed with the department no more than 300 days after the alleged act prohibited under sub.
(3) occurred. A complaint shall be a written statement of the essential facts constituting the act prohibited under sub.
(3) charged, and shall be verified.
106.52(4)(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.
(3), and may make, sign and file complaints alleging violations of sub.
(3), and initiate investigations and studies to carry out the purposes of this subsection and sub.
(3).
106.52(4)(a)3.
3. The department shall employ such examiners as are necessary to hear and decide complaints of acts prohibited under sub.
(3) and to assist in the effective administration of this subsection. The examiners may make findings and orders under this subsection.
106.52(4)(a)4.
4. If the department finds probable cause to believe that any act prohibited under sub.
(3) has been or is being committed, the department may endeavor to eliminate the 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.
(3), the department shall issue and serve a written notice of hearing, specifying the nature and acts prohibited under sub.
(3) 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.
(3) is alleged to have occurred. The attorney of record for any party 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.
(3). If, after the hearing, the examiner finds by a fair preponderance of the evidence that the respondent has violated sub.
(3), the examiner shall make written findings and order such action by the respondent as will effectuate the purpose of this subsection and sub.
(3). The department shall serve a certified copy of the examiner's findings and order on the respondent and complainant. The order shall have the same force as other orders of the department and shall 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.
(3) 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.
106.52(4)(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.
(3) 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 the court deems just and proper.
106.52(4)(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.
106.52(4)(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.
106.52(4)(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.
106.52(4)(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.
106.52(4)(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.
(3) 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.
(3) 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.
(3) 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.
106.52(4)(d)1.1. A person who willfully violates sub.
(3) or any lawful order issued under this subsection shall, for the first violation, forfeit not less than $100 nor more than $1,000.
106.52(4)(d)2.
2. A person adjudged to have violated sub.
(3) within 5 years after having been adjudged to have violated sub.
(3), for every violation committed within the 5 years, shall forfeit not less than $1,000 nor more than $10,000.
106.52(4)(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).
106.52(4)(e)1.1. A person, including the state, alleging a violation of sub.
(3) 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.
106.52(4)(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.
106.52(4)(e)3.
3. The remedies provided for in this paragraph shall be in addition to any other remedies contained in this subsection.
106.52 Cross-reference
Cross-reference: See also
LIRC, Wis. adm. code.
106.52(5)
(5) Discrimination by licensed or chartered persons. 106.52(5)(a)(a) If the department finds probable cause to believe that an act has been or is being committed in violation of sub.
(3) and that the person who committed or is committing the act 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.
106.52(5)(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.
106.52 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;
1997 a. 112,
237,
312;
1999 a. 82 ss.
75 to
92,
102 to
105; Stats. 1999 s. 106.52;
1999 a. 186;
2003 a. 23;
2005 a. 155;
2005 a. 354 ss.
1 to
4,
6;
2007 a. 97;
2011 a. 190;
2015 a. 55.
106.52 Note
NOTE: 1991 Wis. Act 295, which affected this section, contains extensive legislative council notes.
106.52 Cross-reference
Cross-reference: See also ch.
DWD 221, Wis. adm. code.
106.52 Annotation
A newspaper's classified advertising section was not subject to the public accommodations act. Hatheway v. Gannett Satellite Network,
157 Wis. 2d 395,
459 N.W.2d 873 (Ct. App. 1990).
106.52 Annotation
Section 106.04 (9) (a) 2. [now sub. (3) (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 offer preferential treatment to men. Novak v. Madison Motel Associates,
188 Wis. 2d 407,
525 N.W.2d 123 (Ct. App. 1994).
106.52 Annotation
In order to allege prohibited discrimination in public accommodations, an allegation that the defendant was not a private nonprofit organization was not required in the complaint. Barry v. Maple Bluff Country Club,
221 Wis. 2d 707,
586 N.W.2d 182 (Ct. App. 1998),
97-0736.
106.52 Annotation
There is an 8-point test for determining whether an organization is an exempt bona fide private nonprofit organization under sub. (1) (e) 2., the most important of the factors being whether membership in the organization is truly selective. Barry v. Maple Bluff County Club, Inc.
2001 WI App 108,
244 Wis. 2d 86,
629 N.W.2d 24,
00-1178.
106.52 Annotation
The defendant doctor and clinic in this case wrongly implied that defendants in s. 106.52 actions must be physical places of accommodation themselves rather than the individuals or corporations who run them. Rose v. Cahee,
727 F. Supp. 2d 728 (2010).
106.54
106.54
Division of equal rights. 106.54(2)(2)
The division shall encourage and assist local units of government in guaranteeing all persons an equal opportunity for housing.
106.54(3)
(3) All gifts, grants, bequests and devises to the division for its use are valid and shall be used to carry out the purposes for which made and received.
106.54(4)
(4) The division shall review complaints of discrimination against public employees exercising their rights with respect to occupational safety and health matters, under s.
101.055 (8).
106.54(6)
(6) The division shall receive complaints under s.
146.997 (4) (a) of disciplinary action taken in violation of s.
146.997 (3) and shall process the complaints in the same manner that employment discrimination complaints are processed under s.
111.39.
106.54(7)
(7) The division shall receive complaints under s.
321.65 (7) (b) 1. or
2. and shall process the complaints in the same manner that employment discrimination complaints are processed under s.
111.39.
