300 Housing Discrimination

310 Coverage, Exceptions

The Respondents were found to have discriminated against the Complainant, a lesbian, on the basis of sexual orientation in regard to housing when the Respondents withdrew their offer to rent a room in a shared house to the Complainant after determining that she was a lesbian. The Complainant was awarded $1,000.00 in punitive damages, $2,000.00 in emotional damages, $300 for loss of security deposit, and attorney's fees and costs. On appeal to the Commission, the Examiner's decision was vacated based on the fact that room-sharing decisions were not covered by the ordinance. Complainant appealed the Commission's decision to the Circuit Court, which determined that the Commission's decision was not supported by the clear and unambiguous language of the ordinance. The Court vacated the Commission's decision and remanded to the Commission for the Commission's consideration of the Respondent's appeal from the Hearing Examiner's decision. Sprague v. Rowe & Hacklander-Ready, MEOC Case No. 1462 (Comm. Dec. on attorney's fees 2/9/98, Comm. Dec. 7/10/92, 2/10/94, Ex. Dec. 12/27/91) State of Wisconsin ex rel. Caryl Sprague v. City of Madison et al. 93 CV 113 (Dane County Cir. Ct., 8/19/93, 9/30/94).

In a housing discrimination claim, the Complainant asserted the Respondent denied his housing application due to his conviction record in violation of the ordinance. MGO sec. 39.03 (4) et seq. The Hearing Examiner found that the Respondent violated the ordinance by conducting a regular criminal records search without first informing the Complainant; conducting a regular criminal records search without making a uniform record of the results of that search; and conducting a regular criminal records search without maintaining uniform written records of the search for two years. The Hearing Examiner also noted that the fact that the Respondent later presented a potentially legitimate reason not to rent to the Complainant did not insulate him from his discriminatory reasons for rejecting the Complainant's housing application. The Hearing Examiner awarded the Complainant $300.00 in economic damages and $4,000.00 in damages for emotional distress, embarrassment, humiliation and the loss of dignity resulting from the Respondent's violation of ordinance. Larry v. Peterson, MEOC Case No. 20051069 (Ex. Dec. 7/8/08, Ex. Dec. atty. fees 9/2/09 aff'd Comm. Dec. 3/23/10).

311 Who May File a Complaint

311.1 Covered Individuals Generally

311.2 Testers

311.9 Miscellaneous

312 Against Whom a Complaint May Be Filed

In a housing discrimination claim, the Complainant's request for damages against a third party, not under the control of the named Respondent, should have been filed against the appropriate third party. Terry v. YWCA Madison, MEOC Case No. 20051011 (Ex. Dec. 10/08/07; Ex. Dec. Costs & Fees 1/4/08; Comm. Dec. Final Order 9/19/08). See Commission Decision and Final Order in Terry, No. 20051011, wherein Commission ordered Respondent to pay Complainant $93.00 in costs pursuant to stipulation between parties, but agreed with Hearing Examiner's determination that no legal fees are appropriate based on Complainant's unsubstantiated claim for same and pro se status. (Comm. Dec. 9/19/08; Ex. Dec. Costs and Fees 1/4/08).

312.1 Generally

312.5 Respondent's Responsibility for Acts of Agents

312.9 Miscellaneous

320 Cases

320.1 Disability Discrimination

The Hearing Examiner concluded that the ordinance at the time did not extend its protection against housing discrimination on the basis of handicap/disability to require a housing provider to accommodate a tenant's alleged disability. Omachinski v. Seireg, MEOC Case No. 1395 (Ex. Dec. 5/2/89).

When Complainant applied for housing and was refused, Complainant claimed that it was because of his 5th grade level reading ability and his difficulty in writing. The Hearing Examiner concluded that Complainant's per se disability relating to his reading and writing difficulty was not the motive for refusing to lease to Complainant. Complainant's unfavorable references from previous landlords was the motive for refusing to rent to the Complainant and thus the Hearing Examiner concluded that the Complainant was not discriminated against. Gray v. Kennedy Heights, MEOC Case No. 1224 (Ex. Dec. 7/7/81).

320.2 Race Discrimination

During the Complainant's tenancy in housing owned by the Respondent, the Complainant and other tenants paid their rent late and their rent checks bounced. The Respondent accommodated white renters who paid their rent late but was unwilling to do the same for the Complainant. In addition, the Respondent wrote to Complainant's roommates and frequently called them regarding Complainant's late rental payments, but did not call or write to the roommates of white tenants when their rent was overdue. Ossia v. Rush, MEOC Case No. 1377 (Ex. Dec. 6/7/88).

The Hearing Examiner concluded that the Respondents had discriminated against the Complainants on the basis of their race but not their lawful source of income, when the Respondents' rental agent failed to notify the Complainants of the process used for applying for an apartment. The Hearing Examiner rejected the Respondents' contention that the Complainants were not qualified renters, finding that the Respondents' rental agent did not possess sufficient information to make such a determination when she apparently concluded that the Complainants could not afford the apartment. The Examiner awarded each Complainant $7,500 in emotional damages and ordered the Respondents to obtain Fair Housing training. The Examiner awarded the Complainants their reasonable actual attorney's fees and costs in the amount of $9,043.46. Williams and Oden v. Sinha et al., MEOC Case No. 1605 (Comm. Dec. 7/25/96, Ex. Dec. 12/23/96).

The Hearing Examiner determined that the Complainant had been discriminated against by the Respondent when the Respondent's manager failed or refused to offer him a room for the night at the Respondent's motel. The Respondent's manager did not recall the incident but the Complainant's testimony was fully corroborated by a companion. The Complainant was awarded $2,000 for emotional damages. The Commission affirmed the Hearing Examiner's determination of liability but reduced the damage award to $600, finding that the record did not support the $2,000 recommended by the Hearing Examiner. Steele v. Highlander Motor Inn et al., MEOC Case No. 3326 (Comm. Dec. 8/31/95, Ex. Dec. on liability 3/24/95, on attorney's fees 1/25/96).

Complainant alleged that he was discriminated against because of his race when Respondent, an agent of Complainant's landlord, used racial epithets against the Complainant after Complainant physically attacked Respondent after an argument. After the incident between the parties, Complainant was then evicted by the landlord. The Hearing Examiner determined that this was not a violation of the MEOO because Respondent's use of racial epithets and the eviction that later followed was a response to the physical attack that the Respondent was subjected to by the Complainant. Lewis v. Lewitzke, MEOC Case No. 1160 (Ex. Dec. 9/11/79).

Did the Respondent create a living environment that a reasonable person would consider intimidating, hostile or abusive? Complainant testified to feeling harassed by the Respondent, through its agent, in the following instances: receipt of 5-Day Notices to Quit or Pay, conversations that were relayed to the Complainant by others reportedly involving disparaging or racially motivated remarks, and instances involving storage bins, snow removal and vehicle registration and towing. DePriest v. Oak Park Terrace, MEOD Case No. 20151190.

While the Respondent testified that the complaints of drug dealing and prostitution had come from the Complainant’s neighbors, these descriptions are arguably invidious stereotypes of a young, black woman. The Hearing Examiner finds that these complaints were as likely figments of Ms. Seltz’s personal views, and not actual complaints from neighbors of the Complainant. It is the behavior of Ms. Seltz following these alleged complaints that the Hearing Examiner finds harassing and discriminatory. Ms. Seltz’s frequent presence in the Complainant’s residence and the content of her conversations with the Complainant go beyond what would be appropriate for a landlord/tenant relationship. The accusations of stereotypical wrongdoing clearly relate to the Complainant’s race, color and lawful source of income. Pollard v. Rohy, LLC, MEOD Case No. 20151168.

The Complainant’s testimony and that of her supporting witness were more compelling and more credible than that of the Respondent. Ms. Seltz’s testimony was frequently, rambling, vague and contradictory. Her explanation of her personal experience often relied on stereotypes and lacked authenticity. The allegations of misconduct by the Complainant made by Ms. Seltz point to discriminatory attitudes concerning the Complainant’s race, color, and her lawful source of income. Pollard v. Rohy, LLC, MEOD Case No. 20151168.

320.3 Sex Discrimination; Marital Status Discrimination

Two males each were discriminated against on the basis of sex where they were treated differently than female rental prospects. The landowner told the complainants that she believed that couples (a male and a female) or women in general were cleaner than two or more males, and she engaged in other actions which discouraged the two males while she encouraged female prospects and ultimately rented to a female (and her son). Bahr, et al v. Hinken, MEOC Case Nos. 1306 and 1307 (Comm. Dec. 3/4/86, Ex. Dec. 11/8/85).

320.4 Sexual Orientation Discrimination

The Complainant failed to prevail on his claims of discrimination based on sexual orientation in regard to housing. The Complainant and two other males volunteered for the Fair Housing Council as rental housing testers, in an effort to gather information on discrimination in rental housing. The Complainant believed that he was treated differently from the heterosexual testers. The Hearing Examiner dismissed the complaint because the Complainant failed to prove the Respondent was aware of his sexual orientation. Lyne v. Dayton Pinckney Associates, et al., MEOC Case No. 1553 (Ex. Dec. 6/4/93).

320.9 Other Discrimination

Although the term "political beliefs" includes belief in tenant unionism, a landlord did not discriminate on that basis by refusing to re-rent to a tenant who participated in a then illegal rent strike. Northport Apts. v. MEOC (Carey), No. 80-CV-2680 (Dane County Cir. Ct., 3/12/81).

The Respondent was found to have discriminated against the Complainant, a black male born in Nigeria, on the basis of race and national origin, with regard to housing. The Respondent indicated to the Complainant that a particular unit had been rented out and was no longer available, but showed that same unit to a number of white individuals and indicated it was still available. In addition, before finally agreeing to rent Complainant another unit, the Respondent asked two white renters whether they were willing to live with a black person. During the Complainant's tenancy in housing owned by the Respondent, the Complainant and other tenants paid their rent late and their rent checks bounced. The Respondent accommodated white renters who paid their rent late but was unwilling to do the same for the Complainant. In addition, the Respondent wrote to Complainant's roommates and frequently called them regarding Complainant's late rental payments, but did not call or write to the roommates of white tenants when their rent was overdue. Ossia v. Rush, MEOC Case No. 1377 (Ex. Dec. 6/7/88).

The Complainant alleged that the Respondent discriminated against him on the basis of his conviction record when it rejected his application for Section 8 housing. The Respondent asserted that it was the Complainant's credit history and not his conviction record that prompted the denial of his application. Based on the evidence submitted and the testimony presented by both parties, the Hearing Examiner concluded that the Respondent knew about the Complainant's conviction record and that it acted upon that knowledge, at least in part, in denying his application for housing. As a result, the Hearing Examiner ordered the Respondent to pay the Complainant's emotional distress damages totaling $10,000 and to pay his costs and attorney's fees. Midstokke v. Southridge Village Apartments, MEOC Case No. 20071119 (Ex. Dec. 02/21/12, aff'd Comm. Dec. 08/13/12).

The Respondent’s issuance of 5-Day Notices to the Complainant was solely because of the lack of any timely rent payment, not due to the source of Complainant’s payments. Rental payments were accepted by the Respondent from the Complainant, regardless of their source or timeliness. DePriest v. Oak Park Terrace, MEOD Case No. 20151190.

The record states two claims for retaliation, one for the refusal to renew the Complainant’s lease and one for the giving of poor, untrue housing references. The Complainant filed a claim of discrimination with the City of Madison Department of Civil Rights on August 28, 2015, which she then amended on March 23, 2016 and July 6, 2016. While all three of these acts constitute the exercise of a right protected by the Ordinance, it is only the August filing that relates to the claim of retaliation by failure to renew the Complainant’s lease. In addition, the Complainant exercised a right protected by the Ordinance when she opposed the Respondent’s allegedly discriminatory harassment by making a complaint to the police. The Complainant contacted the Madison Police Department on August 12, 2015 to report what she believed to be harassing behavior by her landlord. This harassment was premised on the Complainant’s membership in several protected classes including race and lawful source of income. Pollard v. Rohy, LLC, MEOD Case No. 20151168.

330 Testing

340 Advertising

There is little doubt that the Respondent's job posting violates the prohibitions of Sec. 39.03(8)e Mad. Gen. Ord. in that it states a blanket prohibition from employment for any individual with a felony conviction in the last 7 years. By contrast, Sec. 39.03(8)(i)3b indicates that an employer may not consider a conviction record it if is more than 3 years old, and may consider a conviction record of less than 3 years if the conviction to be considered is substantially related to the duties of one's job. The Hearing Examiner proposes an order requiring the Respondent to cease and desist from publication of its illegal preference. The Hearing Examiner is sympathetic to the difficulty the Respondent faces in conforming its conduct including its advertising to the wide range of requirements that face a multi-state enterprise. However, there are many such employers subject to the jurisdiction of the Commission who manage to comply fully with the requirements of the ordinance. Jackson v. Ruan Transportation, MEOC Case No. 20122079 (Ex. Dec. on liability: 02/26/2013, Ex. Dec. on summary judgment: 01/04/2013).

390 Miscellaneous

The Hearing Examiner found one witness’s statements more credible than another, however there is an issue of the expectation of privacy and a lack of testimony surrounding the circumstances under which the statements were made. Were the statements made in the capacity as a manager employee of the Respondent or outside of employment? The record is insufficiently clear to make that determination. DePriest v. Oak Park Terrace, MEOD Case No. 20151190.