100 The Madison Equal Opportunities Ordinance

Section 39.03, Madison General Ordinances

110 Coverage and Application, Generally

Complainant filed a charge of discrimination based on age discrimination against Respondent, a non-profit religious organization. The court ruled that MEOC could not include the Respondent as an "employer" because state law, at that time, specifically and expressly did not allow non-profit religious organizations to be deemed as employers. St. Vincent De Paul Society v. MEOC, No. 83-1105 (Ct. App. 10/25/84).

Respondent Ho-Chunk Gaming Madison, charged with discrimination in employment on the basis of sex and race in violation of the Madison Equal Opportunities Ordinance Mad. Gen. Ord. Sec. 39.03(08), claimed that the Equal Opportunities Division is without jurisdiction in the matter because of the Respondent's status and due to the status of its facility.

The Respondent's facility is within the geographical boundaries of the City of Madison, but because of its status as a recognized tribe, and the titling of the land in the Bureau of Indian Affairs as "Trust Land", the enterprise is not subject to the DCR's jurisdiction. Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. re: jurisdict. 12/11/2014).

Respondent Ho-Chunk Gaming Madison, charged with discrimination in employment on the basis of sex and race in violation of the Madison Equal Opportunities Ordinance Mad. Gen. Ord. Sec. 39.03(08), claimed that the Equal Opportunities Division is without jurisdiction in the matter because of its status as a recognized tribe.

As a sovereign nation, the Respondent represents an entity separate and distinct from the City of Madison and the DCR is unable to exercise jurisdiction over it unless the Respondent acquiesces to the jurisdiction of the DCR. There is nothing in the record of this matter indicating that the Respondent has willingly submitted itself to the jurisdiction of the DCR. Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. re: jurisdict. 12/11/2014).

Respondent Ho-Chunk Gaming Madison, charged with discrimination in employment on the basis of sex and race in violation of the Madison Equal Opportunities Ordinance Mad. Gen. Ord. Sec. 39.03(08), claimed that the Equal Opportunities Division is without jurisdiction in the matter due to its status as a sovereign nation.

Respondent's status as a sovereign nation places it in the same position as other governmental entities such as the federal government, the State of Wisconsin or Dane County that are immune from action under the Equal Opportunities Ordinance. Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. re: jurisdict. 12/11/2014).

Respondent Ho-Chunk Gaming Madison, charged with discrimination in employment on the basis of sex and race in violation of the Madison Equal Opportunities Ordinance Mad. Gen. Ord. Sec. 39.03(08), claimed that the Equal Opportunities Division is without jurisdiction in the matter due to its status as a sovereign nation and because of its presence on trust lands.

Complainant asserts that the City of Madison has exercised jurisdiction in certain capacities such as police action, contending that if the City has jurisdiction to arrest someone on the Respondent's property, other municipal agencies such as the DCR should also have authority to act. However, the provision of certain enumerated services by the City of Madison is pursuant to a Memorandum of Understanding (MOU) with the Respondent in exchange for an agreement to make certain payments to the City of Madison in lieu of property tax payments which the City of Madison cannot collect given the Respondent's status. These services are not provided as a governmental entity exercising jurisdiction over the Respondent but rather are services provided subsequent to a contract between two independent parties. Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. re: jurisdict. 12/11/2014).

Respondent Ho-Chunk Gaming of Madison is a tribe recognized by the United States Department of the Interior, and the land upon which its gaming facility is located is land held in trust for the tribe by the Department of the Interior. In Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. 12/22/2014), the Hearing Examiner determined that the Department was without jurisdiction over the Respondent for reasons of the Respondent's sovereign immunity and because the ownership of the Respondent's land falls outside of the geographic jurisdiction of the city of Madison. As neither party has provided the Hearing Examiner with a reason not to apply the ruling in Meyer to the current case, the Hearing Examiner finds his decision in that case to be controlling in the present matter. That decision compels the Hearing Examiner to the conclusion that the Department of Civil Rights is without jurisdiction over the Respondent. Nolan v. Ho-Chunk Gaming Wisconsin, MEOC Case No. 20142101 (Ex. Dec. on jurisdict. 06/08/2015).

Respondent's indication in its initial brief that because MEOC does not seek to separately enforce the provisions of the Ordinance, it need not consider whether settlement agreements and waivers reached between parties attempt to limit MEOC's ability to implement such enforcement, is erroneous.

Mad. Gen. Ord. Sec. 39.03(10)(c)(3)(a and b), and 39.03(10)(d)(13) indicate that the Commission may request that the Office of the City Attorney file an action to enforce the Ordinance, an authority separate and distinct from the enforcement process that is generally pursued i.e., processing individually filed complaints. Additionally, Section 39.03(10)(b)(4) provides for a process whereby an individual member of the Equal Opportunities Commission is empowered to file a complaint to enforce the Ordinance.

It is true that these Commission authorities have rarely been used or even considered, but the power for the Commission to act beyond review of an individually filed complaint exists in parallel with the similar authority of the EEOC. Wrolstad v. Cuna Mutual Group, MEOC Case No. 20102042 (Ex. Dec. on mot. to dismiss: 04/23/2015).

The heart of the question in this case for the Hearing Examiner is what process should be utilized by the Commission to adjudge the sufficiency of a settlement agreement in the context of the Commission's complaint process.

While the Respondent suggests that the Commission follow the approach taken by the ERD that utilizes a "totality of circumstances" test when determining whether a settlement agreement and waiver should be given preclusive effect, the Complainant urges the Hearing Examiner to follow the checklist of factors and the burden of proof utilized in age discrimination cases by the EEOC. Both approaches have some commonalities. It is these common factors that will be of the greatest use to the Hearing Examiner.

While the Commission has a Worksharing Agreement with both the ERD and the EEOC, and consistency among enforcement agencies is a highly desirable goal and consideration, all three agencies recognize that they need not travel in lockstep with each other for them to work effectively together.

Ultimately, the Hearing Examiner must attempt to divine the intent and purpose of the Ordinance and give effect to the provisions of the Ordinance. In doing so, the Hearing Examiner may find particular policies or interpretations of similar laws to be persuasive, but rarely are those different decisions binding upon the Hearing Examiner's interpretation of the Ordinance. While the Hearing Examiner will follow an approach like the totality of circumstances approach as set forth in the cases from the ERD cited by the Respondent, the Hearing Examiner may not necessarily adopt the same elements utilized by ERD and LIRC. Wrolstad v. Cuna Mutual Group, MEOC Case No. 20102042 (Ex. Dec. on mot. to dismiss: 04/23/2015).

The Department is without jurisdiction over actions that occur outside of the geographic boundaries of the City of Madison. Rappe v. Soderholm Wholesale Foods, Inc., MEOC Case No. 21811 (Ex. Dec. 12/13/93), Hawkins v. Volkmann Railroad Builders, Inc., MEOC Case No. 22451 (Ex. Dec 2/17/00). Since there is apparently no dispute that the Respondent's facilities lie outside of the geographic boundaries of the City of Madison, the Hearing Examiner is compelled to dismiss the proceedings before the Department. Osuocha v. Badger Bowl, MEOC Case No. 20143151 (Ex. Dec. re: jurisdict. 08/11/2015).

Complainant filed a claim against Respondent North Central States Regional Council of Carpenters Training Fund (Training Fund) alleging discrimination based on his race, color, and in retaliation when he was harassed and then terminated from his apprenticeship. At an early point in the investigation Respondent interposed a claim for lack of jurisdiction based on three contentions. The Hearing Examiner addressed the Respondent's argument that the Training Fund is not a proper party because it is not and never has been the Complainant's employer.

In the past, the Hearing Examiner has defined the "essence of the employment relationship" as "work in exchange for compensation." Schenk v. Domestic Abuse Intervention Services, Inc. The relationship between the Complainant and Respondent in this case much more clearly resembles the relationship between student and school. The Respondent did not pay the Complainant for the work he performed as part of his apprenticeship, while payment came from Complainant's employer, under terms set forth by the union and the state.

Furthermore, the Respondent had no control over other factors that might be said to indicate an employment relationship, such as work hours or schedule, nor did the Respondent "hire" or "fire" the Complainant, or have any control over whether Complainant was accepted into the program. Wis. Stat. Sec. 106.01(5p) gives the DWD sole power to terminate an apprentice contract. Under the circumstances of this claim, the Hearing Examiner must conclude that the Complainant was not an employee of the Respondent, and that the Commission lacks jurisdiction in this case. Dinkins v. North Central States Regional Council of Carpenters Training Fund, MEOC Case No. 20162002 (Ex. Dec. re: jurisdict. 09/26/2016).

In a Motion to Dismiss for subject matter jurisdiction, both Complainant and Respondent cite precedent from the Equal Opportunities Commission, the State of Wisconsin and federal courts including the Supreme Court. The Hearing Examiner’s duty is to apply the requirements of the ordinance to the given facts of a complaint, however, he is not free to ignore the higher courts’ application of constitutional principles as those may affect the application of the Ordinance. Sandoval v. Capitoland Christian Center Church, Inc., MEOD Case No. 20152033/EEOC Case No. 26B201500021.

111 Validity of Ordinance

A City ordinance may be authorized by Sec. 62.11(5), Wis. Stats. (the home rule statute), notwithstanding statewide concern in the matter it regulates; . . . and where a municipality acts within the legislative grant of power (of the home-rule statute), the test to determine the validity of the ordinance is as follows:

(1) Whether the legislature has expressly withdrawn the power of municipalities to act;

(2) Whether the ordinance logically conflicts with state legislation;

(3) Whether the ordinance defeats the purpose of state legislation;

(4) Whether the ordinance goes against the spirit of state legislation. Anchor Savings & Loan v. MEOC (Schenk), 120 Wis. 2d 391, 355 N.W. 2d 234 (1984).

The Ordinance is within the power of the City of Madison to create and is not prohibited by the federal Constitution. Fed. Rural Elec. Ins. v. MEOC (Kessler), No. 79-538 (Ct. App. 4/27/81), aff'd by an equally divided court (Wis. Sup. Ct., 3/28/82).

. . . nor is the Ordinance's administrative procedure a violation of due process requirements. State ex. rel. Badger Produce v. MEOC (Matlack), No. 79-CV-4405 (Dane County Cir. Ct., 9/23/80), aff'd per curiam, No. 80-1906 (Ct. App. 7/16/81), aff'd by equally divided court (Wis. Sup. Ct., 3/28/82 and 4/6/82).

. . . nor is it preempted by or inconsistent with state legislation. State ex rel. McDonald's Restaurant v. MEOC (Karaffa), No. 82-CV-2423 (Dane County Cir. Ct., 7/6/83); Fed. Rural Elec. Ins. v. MEOC (Kessler), supra.

. . . however, the City does not have the authority to create a private cause of action. Althouse v. Goulette, No. 2164 (Dane County Cir. Ct., 12/8/76).

112 Geographical Coverage of the Ordinance

The Respondent's principal place of business was located outside of the City of Madison. Though the Respondent conducted some business within the City of Madison, the Complainant's job was performed entirely outside of the City of Madison. The Hearing Examiner determined that the Commission was without geographic jurisdiction. Rappe v. Soderholm Wholesale Foods, Inc., MEOC Case No. 21811 (Ex. Dec. 12/13/93).

Respondent moved to dismiss the complaint, asserting that all decisions relating to the Complainant's employment in Hong Kong were made outside of the state of Wisconsin and the U.S. The Hearing Examiner could find no support in the record for the Complainant's contention that the Complainant's current employer, a sister company to the Complainant's former employer, and within the geographical jurisdiction of the Commission, played any part in the elimination of the Complainant's position in Hong Kong. The Hearing Examiner concluded that the Commission was without geographic jurisdiction over the allegations of the complaint. Zabit v. Kraft Foods et al., MEOC Case No. 22563 (Ex. Dec. 5/19/98).

The Hearing Examiner granted Respondent's motion to dismiss for lack of geographical jurisdiction when Complainant failed to provide any documentary evidence that the alleged acts of discrimination occurred within the Commission's jurisdiction, rather than at the Respondent's facility located outside of the state of Wisconsin. White v. Work Bench Inc., MEOC Case No. 19982018 (Ex. Dec. 12/15/98).

When allegedly discriminatory employment decisions occur in a city outside Madison, the Commission has no jurisdiction. Respondent's decisions regarding job assignments took place in Middleton. Hawkins v. Volkmann Railroad Builders, Inc., MEOC Case No. 22451 (Ex. Dec. 2/17/00).

After the Complainant was rejected for several part-time jobs bagging groceries, she filed a complaint with the Equal Opportunities Commission, claiming the Respondent had discriminated against her based upon her disability and conviction record. The Respondent moved to dismiss the complaint for lack of jurisdiction. According to the Respondent, the Commission lacked geographical jurisdiction because decisions about hiring new employees were made in Milwaukee, not Madison. Thus, the Complainant could not have been discriminated against in Madison. The Hearing Examiner ruled that the Commission did have jurisdiction. The determining factors were: (1) incongruity with State courts on the question of geographical jurisdiction-whether discrimination "occurs" where the challenged decision was made or where the impact was felt--would produce anomalous results and would serve no useful purpose, and (2) the Hearing Examiner could not have found lack of jurisdiction without undermining the public policy of the City of Madison. Williams (f/k/a Stevenson) v. Copps Food Center, MEOC Case No. 20042113 (Ex. Dec. 2/9/2005).

The Hearing examiner denied the Respondent's motion to dismiss the complaint for a lack of jurisdiction. The Respondent contended that even though the Complainant would have worked within the City of Madison, the Respondent's entire hiring process took place outside of Madison. The Hearing Examiner found that where the effects of discrimination would be felt in Madison, the Commission should have jurisdiction. Stevenson v. Copps Food Center, MEOC Case No. 20042113 (02/09/2005).

The Complainant asserted that the Respondent discriminated against him on account of his credit history, arrest record and conviction record when it offered him employment, but later rescinded the offer after the results of a background check. The Respondent moved to dismiss the allegations of the complaint for a lack of jurisdiction. The Respondent asserted that the alleged adverse employment decision occurred outside the City of Madison and, therefore, the Equal Opportunities Division lacks geographic jurisdiction over the complaint. In contrast, the Complainant asserted that the question was not where the employment decision took place, but rather where its effects are felt.

The Hearing Examiner found that the Complainant's primary job duties would have been performed within the City of Madison. The Hearing Examiner found that despite the Complainant's residence in Columbus, his presence in Madison to fulfill the duties of the job would have produced a positive economic impact in the City of Madison further demonstrating grounds for the Department's jurisdiction. Accordingly, the Hearing Examiner denied the Respondent's motion. Severson v. Kaplan, Inc., MEOC Case No. 20112122 (Ex. Dec. 12/22/11).

Respondent Ho-Chunk Gaming Madison, charged with discrimination in employment on the basis of sex and race in violation of the Madison Equal Opportunities Ordinance Mad. Gen. Ord. Sec. 39.03(08), claimed that the Equal Opportunities Division is without jurisdiction in the matter because of the Respondent's status and due to the status of its facility.

The Respondent's facility is within the geographical boundaries of the City of Madison, but because of its status as a recognized tribe, and the titling of the land in the Bureau of Indian Affairs as "Trust Land", the enterprise is not subject to the DCR's jurisdiction. Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. re: jurisdict. 12/11/2014).

Respondent Ho-Chunk Gaming of Madison is a tribe recognized by the United States Department of the Interior, and the land upon which its gaming facility is located is land held in trust for the tribe by the Department of the Interior. In Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. 12/22/2014), the Hearing Examiner determined that the Department was without jurisdiction over the Respondent for reasons of the Respondent's sovereign immunity and because the ownership of the Respondent's land falls outside of the geographic jurisdiction of the city of Madison. As neither party has provided the Hearing Examiner with a reason not to apply the ruling in Meyer to the current case, the Hearing Examiner finds his decision in that case to be controlling in the present matter. That decision compels the Hearing Examiner to the conclusion that the Department of Civil Rights is without jurisdiction over the Respondent. Nolan v. Ho-Chunk Gaming Wisconsin, MEOC Case No. 20142101 (Ex. Dec. on jurisdict. 06/08/2015).

The Department is without jurisdiction over actions that occur outside of the geographic boundaries of the City of Madison. Rappe v. Soderholm Wholesale Foods, Inc., MEOC Case No. 21811 (Ex. Dec. 12/13/93), Hawkins v. Volkmann Railroad Builders, Inc., MEOC Case No. 22451 (Ex. Dec 2/17/00). Since there is apparently no dispute that the Respondent's facilities lie outside of the geographic boundaries of the City of Madison, the Hearing Examiner is compelled to dismiss the proceedings before the Department. Osuocha v. Badger Bowl, MEOC Case No. 20143151 (Ex. Dec. re: jurisdict. 08/11/2015).

113 Express Exceptions From Coverage

The application of the ministerial exception is a fact intensive process. The exception recognizes a church or religious organizations right to select those who are responsible for teaching of religious values and the development of religious doctrine and for the governance of those churches and religious organizations, and of the right to do so free from the application of a variety of state and federal laws. Both federal and state courts have recognized the ministerial exception. Complainant’s position as a Cook is not entitled to the application of the ministerial exception. Complainant’s duties appeared to be secular in nature and she was not required to teach or spread the tenets of the Respondent’s faith. Sandoval v. Capitoland Christian Center Church, Inc., MEOD Case No. 20152033/EEOC Case No. 26B201500021.

114 Exclusivity of MEOO Remedy

115 Constitutional Questions and Issues

Because of the similarity of the employment discrimination provisions of Sec. 3.23, Madison General Ordinances and the Wisconsin Fair Employment Act (WFEA), due process requires no less of the MEOC enforcing the ordinance than is required of DILHR in enforcing the WFEA. Laboratory Consulting, Inc. v. MEOC, et al., No. 85 CV 6300 (Dane County Cir. Ct., 8/29/86).

The MEOC's administrative hearing process was found to be a sufficient and fair forum where constitutional questions and issues may be decided by the Commission. As a result, the court applied the doctrine of abstention and did not exercise jurisdiction over the constitutional claim that was brought because MEOC's proceedings were deemed appropriate. Madison Newspapers, Inc. v. EOC, City of Madison, et al., No. 87-C-479-S (W.D. Wis. 1987).

The Hearing Examiner may not decide if a conflict exists or resolve any potential conflict between ordinances, statutes or constitutions other than the Madison Equal Opportunities Ordinance. Hafner v. Last Coast Producing Corp. et. al., MEOC Case No. 20003184 (Ex. Dec. 1/14/02).

The Hearing Examiner may look to federal case law concerning the Americans with Disabilities Act when provisions of the Madison Equal Opportunities Ordinance at issue are substantially similar to provisions within the Act. Mutchler v. The Disney Store, MEOC Case No. 19982193 (Ex. Dec. 9/25/02).