400 Public Accommodations

410 Coverage

Under federal public accommodations law, an establishment seeking an exemption as a private club must show, among other factors, that its membership admission process is selective. United States v. Trustees of the Fraternal Order of Eagles, 472 F. Supp. 1174 (E.D. Wis., 1979). Note: The Madison Ordinance references the Wisconsin public accommodations statute (sec. 942.04) which exempts bona fide private organizations. Merely being a private organization does not appear to be sufficient to meet the exemption.

The ordinance prohibitions against marital status and sexual orientation discrimination in regard to public accommodations were not intended to prohibit a membership organization (the YMCA) from denying family membership benefits to two lesbians living together as an (alternative) family with two children. Consequently, while one complainant and her two children were eligible for a family membership and a second complainant was eligible for a single membership, both complainants and the two children were not eligible for the same family membership where the respondent used a "tax code" definition to determine eligibility. Olson and Popp v. YMCA, MEOC Case No. 3110 (Comm. Dec. 10/10/85, Ex. Dec. 3/21/85).

The Respondent was found to have discriminated against the Complainant's child on the basis of disability, cerebral palsy, in regard to denial of admission to a place of public accommodation. The Respondent refused to provide care for the Complainant's child, alleging the child was below the estimated level of development given by the Complainant upon enrollment to day care. The Hearing Examiner found that day care was a public place of accommodation. Krasnick v. Solner, MEOC Case No. 3190 (Ex. Dec. 10/27/88 on evidence).

The Hearing Examiner found the Commission had jurisdiction over Complainant's claim since the baseball league was not selective as to who could participate and was therefore a public place of accommodation and within the jurisdiction of the ordinance. Further, a public place of accommodation is not limited to a physical space. Stubblefield v. Hewitt, Minor League Director & Little League Baseball, Inc., MEOC Case No. 3283 (Ex. Dec. 4/2/92).

The Complainant, a male, filed a discrimination complaint based on a denial of enrollment to a Chimera Self-Defense program because of his sex. Chimera is a self-defense program offered through the Rape Crisis Center that is exclusively open to females. On Respondent's Motion to Dismiss, the Hearing Examiner found that Respondent is a public place of accommodation, not a "private, nonprofit" organization, because of the non-selective screening process, public advertisement and public accessibility. The Commission upheld the Hearing Examiner's decision without discussion. The Circuit Court affirmed the Commission's decision, finding that the Respondent's contention that it was exempt as a private organization would lead to the absurd result of exempting all "private nonprofit" organizations. Schultz v. Rape Crisis Center - Chimera Self-Defense, MEOC Case No. 3200 (Comm. Dec. 1/9/92, Ex. Dec. 8/1/91, on remand 10/6/94) Rape Crisis Center, Inc. v. City of Madison, MEOC and Schultz, 92 CV 648 (Dane County Cir. Ct. 8/19/92).

The Complainant filed a complaint on behalf of her daughter alleging discrimination in the provision of a place of public accommodation or amusement on the basis of sex. The complaint alleges that she was harassed and assaulted by two male students on her school bus, and the bus driver neither assisted her nor took steps to assure her equal enjoyment of a public place of accommodation or amusement. On Respondents motion to dismiss, the Hearing Examiner concluded that the Commission is without jurisdiction based upon the fact that a private contractual bus service cannot be said to operate as a place of public accommodation or amusement. The private bus service offered by the Respondent lacked the characteristics of a public place of accommodation because its service was geographically limited as well as limited to specific students on the bus route. Williams v. Madison Metropolitan School District and Verona Bus Service Inc., MEOC Case No. 3303 (Ex. Dec. 8/26/92).

The Examiner determined the Respondent not to be a public place of accommodation because the Respondent bases its decisions on issuance of insurance upon actuarial standards relating to risk factors and not on membership in a protected class per se. Further, discrimination in the issuance of insurance is regulated by the Office of the Commissioner on Insurance. The Commission upheld the Hearing Examiner's decision. Hieb v. American Standard, MEOC Case No. 3255 (Comm. Dec. 12/3/92, Ex. Dec. 3/11/92).

The Respondent filed a Motion to Dismiss the complaint arguing that the issues presented by the complaint had been previously decided in Olson and Popp v. YMCA, MEOC Case No. 3110 (Comm. Dec. 10/10/85, Ex. Dec. 3/21/85) which held that a lesbian couple could not bring a complaint for marital status and sexual orientation discrimination against a public accommodation for denial of a family membership where the Respondent used the definition of "family" found in the U.S. Tax Code. The Hearing Examiner decided that the allegation of marital status discrimination was barred by the Olson and Popp decision but that the allegations of sexual orientation discrimination were sufficiently different from those in Olson and Popp to permit the Complainant to pursue her complaint. Petzold v. Princeton Club, MEOC Case No. 3252 (Ex. Dec. 2/15/94 and 5/10/94).

The Complainant alleged that the Respondent discriminated against him on the basis of his political beliefs and sex in housing, employment, public accommodations and in the provision of City services or facilities. Specifically, the Complainant claimed he was discriminated against because Respondent's board of directors was all female or considered feminist. The Hearing Examiner found that service on Respondent's board of directors was not a public place of accommodation or amusement because the Respondent has highly selective criteria for selecting a director. In addition, there was no evidence that Complainant had standing because there was no indication in the record that he applied for a director position.

The Complainant further alleged that the Commission had jurisdiction to enforce the non-discrimination provisions of a City of Madison contract for the provision of service with the Respondent in the area of domestic prevention and intervention. The Hearing Examiner found no support in the ordinance for such jurisdiction and indicated that such was a matter that should be taken up before the Common Council or with the Community Services Commission.

The Hearing Examiner did not address the allegation of housing discrimination as that matter was pending in the Dane County Circuit Court.

The Complainant also alleged a violation of the City facility and Services portion of the ordinance. The Hearing Examiner found that the Complainant had failed to established standing for the alleged violation because Complainant never requested the services that were the subject of the City facilities and services.

The Complainant also contended that he was discriminated against when he was not allowed to work as a volunteer on Respondent's crisis line because of his sex. The Hearing Examiner determined that the ordinance does not cover volunteer positions because there is no exchange of compensation as in an employer-employee situation.

The Complainant also alleged discrimination in advertisement when the Respondent identified itself as a feminist organization on its recruitment advertising. The Hearing Examiner found that this was not a violation of the ordinance because it was a mechanism for the Respondent to identify itself, not to prevent non-feminists from applying for positions within the Respondent's organization. On appeal, the Commission agreed with the Hearing Examiner's decision. Schenk v. Domestic Abuse Intervention Services, Inc., MEOC Case No. 03384 (Comm. Dec. 8/20/99, Ex. Dec. 3/26/99).

The Complainant filed charges against Respondent for alleged discrimination because of her handicap/disability when one of Respondent's members failed to provide her a ride as provided by the Respondent's program. Respondent claimed that the Commission did not have jurisdiction, because it was an umbrella organization and did not directly provide the services and only its members did.

The Hearing Examiner found that the Commission did have jurisdiction because the actual service of providing rides to the public from taverns is considered a public place of accommodation or amusement because it is provided without qualification other than a person's status as a driver and being impaired by alcohol. Additionally, the Hearing Examiner found that the members of Respondent's organization acted as agents for the Respondent in the provision of this service. Jones v. Safe Rider Program, MEOC Case No. 19983045 (Ex. Dec. 4/6/99).

In order for an organization to be exempt from the ordinance's regulating public places of accommodation or amusement it must be a bona fide, private, nonprofit organization. The Hearing Examiner concluded that the Respondent was not exempt because Respondent did not exercise a high degree of selectivity in providing its services, even though it may have been highly selective with respect to its membership. Moreover, despite the exclusion of males from Respondent's services the Respondent was deemed to be a public place because it held its services open to the public without significant limitation. Schenk v. Women's Transit Authority, MEOC Case No. 3377 (Comm. Dec. 8/9/01, 2nd Ex. Dec. 1/26/01), dismissed on procedural grounds, No. 01-CV-2439 (Dane County Cir. Ct., 6/10/02).

A cease and desist order is appropriate when a place of public accommodation or amusement denies someone service on the basis of sex but that person does not suffer economic or emotional injury. Complainant was denied a ride on the basis of sex and was discriminated against by Respondent, but did not seek any other mode of transportation. Schenk v. Women's Transit Authority, MEOC Case No. 3377 (Comm. Dec. 8/9/01, 2nd Ex. Dec. 1/26/01), dismissed on procedural grounds, No. 01-CV-2439 (Dane County Cir. Ct., 6/10/02).

Complainant alleged that Respondent discriminated against it because of its political beliefs when Respondent refused to publish a specific advertisement for Complainant. Respondent moved for dismissal claiming that a newspaper is not a public place of accommodation. The Hearing Examiner concluded that how a newspaper is marketed is one of the primary factors in deciding whether a newspaper is a public place of accommodation or amusement, along with examining each paper on a case by case basis. Painters Union Local 802 v. Madison Newspapers, Inc., MEOC Case No. 3165 (Ex. Dec. 5/23/87) See Madison Newspapers, Inc. v. EOC, City of Madison, et al.

A cease and desist order is appropriate when a place of public accommodation or amusement denies someone service on the basis of sex but that person does not suffer economic injury. Complainants must establish a connection between actual emotional distress and the denial of service in order to show emotional injury. Emotional injury that directly springs from a denial service must be distinguished from a long standing animosity towards a group designed to benefit from that service. Complainant was denied a ride on the basis of sex and was discriminated against by Respondent, but did not seek any other mode of transportation. Rathmann v. Women's Transit Authority, MEOC Case No. 3391 (Comm. Dec. 8/9/01, 2nd Ex. Dec. 1/26/01), dismissed on procedural grounds, No. 01-CV-2439 (Dane County Cir. Ct., 6/10/02).

When a Respondent's facially-neutral policy is not applied to a member of one race while being applied equally to all other races, a claim will not stand. The failure to apply the policy does not create a hostile environment in a place of public accommodation or amusement. The Complainant was asked to remove his hat while a patron of another race was not asked to remove his hat. Lewis v. Delaney's Charcoal Steaks, MEOC Case No. 19993093 (Comm. Dec. 1/18/02, Ex. Dec. 2/1/01).

Patrons of one race who claim discrimination by association with someone of another race and who did not suffer racially-motivated derogatory actions do not have a valid claim of discrimination. Complainants were with someone who was asked to remove his hat while a patron of another race was not asked to remove his hat. Hahn v. Delaney's Charcoal Steaks, MEOC Case No. 19993110 (Comm. Dec. 1/18/02, Ex. Dec. 2/1/01); Hahn v. Delaney's Charcoal Steaks, MEOC Case No. 19993111 (Comm. Dec. 1/18/02, Ex. Dec. 2/1/01); Hahn v. Delaney's Charcoal Steaks, MEOC Case No. 19993118 (Comm. Dec. 1/18/02, Ex. Dec. 2/1/01); Hahn v. Delaney's Charcoal Steaks, MEOC Case No. 19993099 (Comm. Dec. 1/18/02, Ex. Dec. 2/1/01); Berning v. Delaney's Charcoal Steaks, MEOC Case No. 19993102 (Comm. Dec. 1/18/02, Ex. Dec. 2/1/01); Berning v. Delaney's Charcoal Steaks, MEOC Case No. 19993104 (Comm. Dec. 1/18/02, Ex. Dec. 2/1/01); Berning v. Delaney's Charcoal Steaks, MEOC Case No. 19993103 (Comm. Dec. 1/18/02, Ex. Dec. 2/1/01).

Being informed of alleged discrimination after the fact to someone else does not constitute the level of involvement necessary for a claim of discrimination. Complainant was told hours later of an incident that Complainant was not physically present at and did not suffer any deprivation or differing treatment from Respondent. Berning Lewis v. Delaney's Charcoal Steaks, MEOC Case No. 19993100 (Ex. Dec. 2/1/01).

Protection against sexual harassment is inferred from the Madison Equal Opportunities Ordinance's requirement not to discriminate in terms and conditions of employment, housing, or enjoyment of a public place. The fact that sexual harassment does not specifically appear in MGO Sec. 3.23(5) does not mean the Commission has no jurisdiction over sexual harassment claims brought under the ordinance. Lions v. Capital Fitness, MEOC Case No. 20003060 (Ex. Dec. 5/22/01).

An operator of a public place of accommodation may not raise a defense of denying entry based on the belief that an individual is violating a city ordinance if the ordinance gives the operator no power to enforce it or will suffer no penalty as a result. Respondents denied entry to a service dog on the basis that they believed the dog violated a Madison ordinance designed to prohibit dog owners from bringing dogs to specific Madison parks. Hafner v. Last Coast Producing Corp. et. al., MEOC Case No. 20003184 (Ex. Dec. 1/14/02).

After seeing advertisements soliciting volunteer drivers for transportation services for women, Complainant brought an action against the transportation service provider, claiming the organization had violated the Equal Opportunities Ordinance, which prohibits the publication of any written communication promoting discriminatory public services. The Complainant argued that the organization was discriminating against men. The organization moved to dismiss the complaint, claiming its advertisements were constitutionally protected speech.

Whether the advertisements represented commercial speech was the main issue. Commercial speech would receive some First Amendment protection; noncommercial speech would receive full First Amendment protection. The Equal Opportunities Commission did not have any authority to regulate noncommercial speech.

The Hearing Examiner determined that the advertisements were noncommercial because they neither proposed nor encouraged economic transaction. Because the organization was seeking volunteer drivers for free transportation services, its advertisements were fully protected under the First Amendment. Consequently, the Hearing Examiner dismissed the complaint. The Complainant appealed to the Commission, and the Commission adopted the Hearing Examiner's decision in its entirety. Rathmann v. Women's Transit Authority, MEOC Case No. 20013061 (Ex. Dec. 10/17/2003, Comm. Dec. 2/26/2004).

After seeing advertisements soliciting volunteer drivers for rape-prevention ride services, Complainants brought identical actions against the organization that provided the services, claiming the organization had violated the Equal Opportunities Ordinance, which prohibits the publication of any written communication indicating that certain persons will be unlawfully discriminated against within places of public accommodation. The Complainants argued that the organization was discriminating against men. The organization moved to dismiss the complaint, claiming its advertisements were constitutionally protected speech.

The Hearing Examiner determined that the advertisements were noncommercial because they neither proposed nor encouraged economic transaction. Because the organization was seeking volunteer drivers for free transportation services, its advertisements were fully protected under the First Amendment. Consequently, the Hearing Examiner dismissed the complaints. Goodman v. Women's Transit Authority, MEOC Case No. 20013059 (Ex. Dec. 10/17/2003); Rathmann v. Women's Transit Authority, MEOC Case No. 20013061 (Ex. Dec. 10/17/2003); Perry v. Women's Transit Authority, MEOC Case No. 20013068 (Ex. Dec. 10/17/2003).

The Hearing Examiner ruled that because the advertisements soliciting volunteer drivers neither proposed nor encouraged commercial activity, they represented noncommercial speech and were fully protected under the First Amendment. Allegations concerning these advertisements were therefore dismissed. The self-defense program and the related advertisements were more problematic because program participants usually paid tuition. Ultimately, the Hearing Examiner could not determine whether the program indeed represented "commercial" activity. Consequently, via Interim Decision and Order on Jurisdiction, the Hearing Examiner sought additional evidence from the parties.

The newspaper demonstrated that the self-defense program was nonprofit and noncommercial. Tuition payments partially defrayed costs associated with the program, but mainly discouraged participants from withdrawing early, before completing the program. Costs were consistently greater than total program revenues, and the program was clearly not intended for profit. Because the program was noncommercial, the related advertisements represented noncommercial speech and were protected under the First Amendment. With his Final Decision and Order on Jurisdiction, the Hearing Examiner dismissed all remaining allegations against the newspaper. Goodman v. Isthmus Publishing Company, Inc., MEOC Case No. 20013060 (Ex. Dec. 10/17/2003, Ex. Dec. 1/12/2004); Perry v. Isthmus Publishing Company, Inc., MEOC Case No. 20013067 (Ex. Dec. 1/12/2003, Ex. Dec. 10/17/2003).

After seeing advertisements for allegedly discriminatory services, Complainants brought identical actions against the newspaper that published the advertisements, claiming the paper had violated the Equal Opportunities Ordinance, which prohibits the publication of any written communication indicating that certain persons will be unlawfully discriminated against within places of public accommodation. The advertisements fell into two categories: those promoting self-defense courses for women, and those soliciting volunteer drivers for transportation services catering to women. The Complainants argued that men were clearly being discriminated against. The newspaper moved to dismiss the complaint, asserting that the Equal Opportunities Commission lacked jurisdiction because the Hearing Examiner could not judge the constitutionality of the Equal Opportunities Ordinance, which was arguably coming into conflict with the First Amendment.

The main question was whether the advertisements represented commercial speech, meaning they would not receive full First Amendment protection. The Hearing Examiner ruled that because the advertisements soliciting volunteer drivers did not contemplate commercial activity, they were protected under the First Amendment and beyond the reach of the Equal Opportunities Commission. The self-defense courses and the related advertisements were more problematic because participants usually paid for the courses. Ultimately, the Hearing Examiner could not discern from the record whether this activity, which seemed commercial, was indeed commercial. Because it was unclear whether the self-defense courses were intended for profit, the Hearing Examiner, via Interim Decision and Order on Jurisdiction, sought additional evidence. Goodman v. Isthmus Publishing Company, Inc., MEOC Case No. 20013060 (Ex. Dec. 10/17/2003, Ex. Dec. 1/12/2004); Perry v. Isthmus Publishing Company, Inc., MEOC Case No. 20013067 (Ex. Dec. 1/12/2003, Ex. Dec. 10/17/2003).

After having been ejected from tavern, allegedly because the bartender disapproved of his service animal, patron filed discrimination complaint alleging that the Respondent had violated the Equal Opportunities Ordinance, MGO Sections 3.23(5) and 3.23(6), which protect against disability discrimination within places of public accommodation. The Respondent moved for dismissal, arguing that the Equal Opportunities Commission lacked jurisdiction over the complaint because MGO Section 7.08(6)(o), which establishes sanitation requirements for taverns, unambiguously states that animals are prohibited within taverns, except guide dogs accompanying blind persons. This particular patron was not blind. Essentially, the Respondent wanted the seeing-eye dog limitation read into the Equal Opportunities Ordinance.

The Hearing Examiner determined that this narrow reading would eviscerate certain broad protections afforded disabled individuals under the Ordinance, which does not distinguish between seeing-eye dogs and other service animals. In reaching his decision, the Hearing Examiner also considered other factors: the Ordinance had been adopted more recently than the tavern sanitation provision, and served the much broader social purpose of protecting against discrimination. In contrast, the tavern sanitation rule served the narrow purpose of regulating food storage and service. Nichols v. Buck's Madison Square Garden Tavern, MEOC Case No. 20033011 (Ex. Dec. 10/14/03; Ex. Dec. 11/08/05; Comm. Dec. 05/22/06; aff'd Daily dba Buck's Madison Square Garden Tavern v. EOC, City of Madison, 06CV1931 (Dane County Cir. Ct. 03/30/07)).

In denying Complainant's attempt to be admitted with his dog and served at Respondent's bar, a place of public accommodation, Respondent denied him a reasonable accommodation for his mental and emotional disabilities. The Hearing Examiner found that while the dog is not a service animal, it qualifies as a reasonable accommodation under the ordinance since Complainant demonstrated that the dog had received training and was generally obedient, and that the dog's presence benefited Complainant in a way that ameliorated his disabilities. Respondent did not show that admitting the dog would change the nature of its business or present a danger. Nichols v. Buck's Madison Square Garden Tavern, MEOC Case No. 20033011 (Ex. Dec. 10/14/03; Ex. Dec. 11/08/05; Comm. Dec. 05/22/06; aff'd Daily dba Buck's Madison Square Garden Tavern v. EOC, City of Madison, 06CV1931 (Dane County Cir. Ct. 03/30/07)).

In response to the Respondent's motion to dismiss for lack of subject jurisdiction, the Hearing Examiner ruled that the ordinance's prohibition of discrimination in public places of accommodation and amusement covered not only a total denial of service, but extended to less favorable treatment claims. Thompson v. Burlington Coat Factory, MEOC Case No. 20053210 (Ex. Dec. 9/11/06).

The Complainant is disabled and has two service dogs to assist him. The Complainant and his dogs visited the Respondent's facility regularly for medical services. One of the Respondent's employees was attacked and severely injured by a wolf hybrid dog prior to her employment with the Respondent, and consequently suffers emotional stress from this incident. On several occasions, the Complainant's dogs and the Respondent's employee came into brief contact; the employee experienced a post traumatic flashback. Respondent then required the Complainant and his dogs to use a specific entrance to ensure they would not encounter the employee. The Complainant complained that this access arrangement discriminated against him in a public place of accommodation on the basis of his disability. The Hearing Examiner determined that the Respondent did not discriminate against the Complainant in violation of the ordinance and held that the Respondent's limited access to its building was a reasonable accommodation and did not limit the Complainant's full and equal enjoyment of the Respondent's goods, service and facilities. Nichols v. Mental Health Center of Dane County, Inc., MEOC Case No. 20053154 (Ex. Dec. 8/6/09, aff'd Comm. Dec. 4/14/10).

420 Cases

A school violated the public accommodations law when a band it sponsored refused admission to a female applicant because of her sex. Ulsrud v. MATC, MEOC Case No. 3038 (Comm. Dec. 1/18/77, Ex. Dec. 9/9/76).

The Respondent, a tavern, was found to have discriminated against the Complainant on the basis of his race in public accommodations. After the Complainant, a black male, had purchased several drinks for other black patrons of Respondent, he was not allowed to purchase a drink for himself and was spoken to in racially derogatory terms by a bartender. Allison v. Golden Pheasant, MEOC Case No. 3196 (Ex. Dec. 12/30/88).

The Hearing Examiner determined that "Ladies' Night" promotions violate the ordinance's prohibition against discrimination on the basis of sex in the provision of a public place of accommodation or amusement. The Examiner found that the Respondent's offer to women of two drinks for the price of one, while men paid the full price, constituted payment of a higher price by men. The Examiner awarded the Complainant $50 for his emotional injury stemming from the act of discrimination. Wilker v. Bermuda's Night Club, MEOC Case No. 3221 (Ex. Dec. 7/10/89).

The Hearing Examiner determined that a bartender's calling a patron "white boy" and ordering him from the premises represented discrimination on the basis of race in provision of a public place of accommodation or amusement. The Hearing Examiner awarded the Complainant $1,000 in compensatory damages for embarrassment and humiliation along with his costs and attorney's fees. The Commission upheld the finding of discrimination but reduced the damage award to $750. The Commission found that the Complainant's return to the bar on several occasions showed that the lower amount was appropriate to the actual level of embarrassment suffered by the complainant. Meyer v. Purlie's Cafe South, MEOC Case No. 3282 (Comm. Dec. 10/5/94, Ex. Dec. 4/6/94 on attorney's fees: Ex. Dec. 3/20/95).

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).

The Hearing Examiner concluded that there had been a misunderstanding between the parties rather than a discriminatory refusal of service and therefore the complaint must be dismissed. The Complainant, an African-American, was assisting his friend in negotiations to purchase a car. The negotiations became heated and both the Complainant and Respondent's sales manager used hostile and threatening, though non-racial, language. The Respondent asked the Complainant and his friend to leave the premises in order to avoid further physical confrontation. Hackett v. Russ Darrow, MEOC Case No. 3356 (Ex. Dec. 8/5/97).

The Complainant, an African American, walks with a pronounced limp. He alleged discrimination in a public place of accommodation or amusement based on race and disability against Respondent, an automobile dealership. Allegedly, the Respondent refused to service the Complaint's car, made disparaging remarks about his race and mobility, and requested he leave the premises. After hearing, the Hearing Examiner determined that there was no proof of actual disability without expert medical testimony, and held when Respondent is equally credible as Complainant, Complainant needs additional evidence to demonstrate a perceived disability. The Hearing Examiner also found insufficient evidence in the record that the Complainant was denied service or equal enjoyment of a public place of accommodation or amusement because of racial discrimination, despite his suspicions to the contrary. Marchell Mack v. Kayser Automotive Group, MEOC Case No. 20043144 (Ex. Dec. 9/18/07, aff'd Comm. Dec. 4/1/08).

The Complainant has a disability in the form of epilepsy. He has a dog accompany him and he relies upon the dog to alert him to seizures and respond to him when he experiences a seizure. The Complainant filed a claim alleging that the Respondent discriminated against him in a public place of accommodation based primarily upon his disability and his use of a service dog by ordering him and the dog out of Respondent's premises. After hearing, the Hearing Examiner determined that the primary issue in the case was whether the Complainant met his burden of proof, not whether he was disabled or if his dog was a service animal or provided a reasonable accommodation (although the Hearing Examiner addressed these issues). The Hearing Examiner determined that the Complainant's version of events was contradictory and vague and thus, unlikely. The Hearing Examiner found that the Respondent's version of the same events was more credible and corroborated by a restaurant manager, thus concluding that the Complainant failed to carry his burden of proof and dismissing his complaint. Bottila v. McDonalds, MEOC Case No. 20073203 (Ex. Dec. 7/27/09).

Complainants alleged that the Respondent discriminated against them on the basis of their race (African American) and color (Black) when it required the Complainants to obtain their food via the restaurant's drive-thru, while serving white patrons inside the establishment. The Respondent failed to respond to the Notice of Hearing and, as a result, the Hearing Examiner entered a default judgment in favor of the Complainants. Nor did the Respondent appear at a hearing to determine the Complainants' damages. As to the issue of damages, the Hearing Examiner held that the Complainants' testimony regarding their emotional distress was sufficiently compelling to justify an aggregate award of $20,000. Accordingly, the Hearing Examiner ordered the Respondent to pay the Complainants' emotional distress damages and attorney's fees, although the Hearing Examiner expressed doubt as to the propriety of the amount of said attorney's fees. Briggs v. Popeyes Chicken & Biscuits Restaurant, MEOC Case Nos. 20083073, 20083074 (Ex. Dec. 3/19/10).

Complainants allege that the Respondent discriminated against them on the basis of their race (African-American) in the provision of a public place of accommodation or amusement. Subsequent to an Initial Determination of Probable Cause, the Hearing Examiner issued a Notice of Hearing and Scheduling Order on December 14, 2009. The Notice of Hearing required the Respondent to provide an answer within 10 days of its receipt. The Respondent did not file an answer to the Notice of Hearing until May 11, 2010. On January 11, 2010, the Complainants filed a motion seeking a default judgment for the Respondent's failure to timely answer the Notice of Hearing. On May 24, 2010, the Hearing Examiner held a hearing on the Complainant's motion. The Hearing Examiner was not persuaded by the Respondent's assertion that it did not receive the Notice of Hearing. The Hearing Examiner held that the inquiry ends once there is evidence that a notice was received at the last known address provided by the parties. Nevertheless, the Hearing Examiner found that an entry of default judgment was not supported by the record. In lieu of a default judgment, the Hearing Examiner granted the Complainants additional time to conduct discovery; and ordered the Respondent to pay the Complainants' reasonable costs and fees including a reasonable attorney's fee for the time expended in bringing and pursuing their motion. Goodwin v. Madison Taxi, MEOC Case No. 20093094 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011) and Johnson v. Madison Taxi, MEOC Case No. 20093110 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011).

The Complainants alleged that the Respondent discriminated against them on the basis of their race (African American) and color (Black) when its taxi driver dropped them off short of their destination. The Complainants asserted that the Respondent's taxi driver, who is white and Caucasian, exhibited an irrational fear that the Complainants would harm him due to the stereotype that black, African American men are prone to violence. The Respondent maintained that its driver simply followed its curb-to-curb policy regarding drop-offs and that, given the Complainants' complete silence during the ride, its driver was justified in fearing for his safety. Based on the evidence submitted and the testimony presented by both parties, the Hearing Examiner concluded that the Respondent's proffered, non-discriminatory reasons for its driver's actions were not credible and a pretext for racial discrimination. Accordingly, the Hearing Examiner ordered the Respondent to pay the Complainants' emotional distress damages totaling $35,000 and to pay their costs and attorney's fees. The Hearing Examiner also issued sanctions for the Respondent's failure to timely file an answer to the Notice of Hearing. Goodwin v. Madison Taxi, MEOC Case No. 20093094 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011, aff'd Comm. Dec. 2/28/2012) and Johnson v. Madison Taxi, MEOC Case No. 20093110 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011, aff'd Comm. Dec. 2/28/2012).

The Complainant, a black, African-American male, was denied the opportunity to rent a truck and was told to leave the Respondent's store after a dispute with the Respondent's acting manager. Testers, not of the Complainant's race and color, helped demonstrate that the Respondent's actions were likely motivated by the Complainant's race and color. The Hearing Examiner awarded the Complainant $15,000.00 in damages for emotional distress based, in part, on the testimony of a treating physician. The Respondent was also ordered to pay the Complainant's costs and fees including a reasonable attorney's fee. Jackson v. UHAUL, MEOC Case No. 20093107 (Ex. Dec. 02/08/12)

This case was an appeal to the Circuit Court of a No Probable Cause Review where both the Hearing Examiner and Equal Opportunities Commission found no probable cause to believe that discrimination occurred on the basis of political beliefs when the Complainant was banned for life by the Respondent’s business. The Circuit Court affirmed the MEOC’s decision. St. John v. Overture Center for the Arts, MEOD Case No. 20142153.

490 Miscellaneous

Where an employee referred to a customer in a racially derogatory manner and refused to serve him, the customer was entitled to a cease and desist order regarding such conduct in the future. Peterson v. Fisca Oil, MEOC Case No. 3040 (Ex. Dec. 8/22/78).

An owner's abusive racial remarks toward a customer were discriminatory, but the remedy was limited to a cease and desist order where the customer had precipitated the argument. Joe v. Sunny Knoll Liquor, MEOC Case No. 3070 (Ex. Dec. 9/18/81).

The Hearing Examiner determined that the advertisements were noncommercial because they neither proposed nor encouraged economic transaction. Because the organization was seeking volunteer drivers for free transportation services, its advertisements were fully protected under the First Amendment. Consequently, the Hearing Examiner dismissed the complaints. Goodman v. Women's Transit Authority, MEOC Case No. 20013059 (Ex. Dec. 10/17/2003); Rathmann v. Women's Transit Authority, MEOC Case No. 20013061 (Ex. Dec. 10/17/2003); Perry v. Women's Transit Authority, MEOC Case No. 20013068 (Ex. Dec. 10/17/2003).

The newspaper demonstrated that the self-defense program was nonprofit and noncommercial. Tuition payments partially defrayed costs associated with the program, but mainly discouraged participants from withdrawing early, before completing the program. Costs were consistently greater than total program revenues, and the program was clearly not intended for profit. Because the program was noncommercial, the related advertisements represented noncommercial speech and were protected under the First Amendment. With his Final Decision and Order on Jurisdiction, the Hearing Examiner dismissed all remaining allegations against the newspaper. Goodman v. Isthmus Publishing Company, Inc., MEOC Case No. 20013060 (Ex. Dec. 10/17/2003, Ex. Dec. 1/9/2004); Perry v. Isthmus Publishing Company, Inc., MEOC Case No. 20013067 (Ex. Dec. 1/12/2003, Ex. Dec. 10/17/2003).

The main question was whether the advertisements represented commercial speech, meaning they would not receive full First Amendment protection. The Hearing Examiner ruled that because the advertisements soliciting volunteer drivers did not contemplate commercial activity, they were protected under the First Amendment and beyond the reach of the Equal Opportunities Commission. The self-defense courses and the related advertisements were more problematic because participants usually paid for the courses. Ultimately, the Hearing Examiner could not discern from the record whether this activity, which seemed commercial, was indeed commercial. Because it was unclear whether the self-defense courses were intended for profit, the Hearing Examiner, via Interim Decision and Order on Jurisdiction, sought additional evidence. Goodman v. Isthmus Publishing Company, Inc., MEOC Case No. 20013060 (Ex. Dec. 10/17/2003); Perry v. Isthmus Publishing Company, Inc., MEOC Case No. 20013067 (Ex. Dec. 10/17/2003).

The Hearing Examiner determined that this narrow reading would eviscerate certain broad protections afforded disabled individuals under the Ordinance, which does not distinguish between seeing-eye dogs and other service animals. In reaching his decision, the Hearing Examiner also considered other factors: the Ordinance had been adopted more recently than the tavern sanitation provision, and served the much broader social purpose of protecting against discrimination. In contrast, the tavern sanitation rule served the narrow purpose of regulating food storage and service. Nichols v. Buck's Madison Square Garden Tavern, MEOC Case No. 20033011 (Ex. Dec. 10/14/03; Ex. Dec. 11/08/05; Comm. Dec. 05/22/06; aff'd Daily dba Buck's Madison Square Garden Tavern v. EOC, City of Madison, 06CV1931 (Dane County Cir. Ct. 03/30/07)).

Was the MEOC Hearing Examiner required to apply the “cat’s paw” theory of discrimination liability as a matter of law? The MEOC Hearing Examiner was not required to apply the cat’s paw approach in this case as it would have been a sweeping expansion of this doctrine, and is unsupported by case law. St. John v. Overture Center for the Arts, MEOD Case No. 20142153.

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